This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



James Henderson Haislip,


Filed June 2, 1998


Randall, Judge

Ramsey County District Court

File No. K4-96-3154

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney; Mark N. Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, Minnesota State Public Defender; Lyonel F. Norris, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Appellant challenges his convictions for first- and third-degree assault, arguing that he presented evidence sufficient to establish that he acted in self-defense. We affirm.


Appellant James Haislip lived with Lula Milton in a romantic relationship, beginning in June 1995. On the evening of October 1, 1996, Milton returned home about 10:00 p.m. and informed Haislip that she was going out for a Pepsi. Haislip swore at Milton, accused her of lying regarding her whereabouts that night, criticized her clothing, and told her she should have gotten a drink while she was still out.

Milton left the apartment and walked to the Amoco station. Haislip followed her and the argument continued inside the store. At one point, cashier Thomas Howell overheard Haislip threaten to hurt Milton, "right here in the store." Howell then told Haislip to leave. Haislip left, and so did Milton after she completed her purchase. Through the store window, Howell watched the argument continue in the parking lot. He saw Haislip punch Milton one time in the mouth with a closed fist. Milton ran back into the Amoco distraught, crying, and bleeding from the mouth. Haislip disappeared, and Howell called 911.

Milton's sister, Brenda Milton, encountered Haislip as he returned to the apartment, and she asked if the two had been fighting. Haislip denied fighting, but informed Brenda Milton that Milton's false teeth had come out. Brenda Milton responded that Milton did not wear false teeth. Haislip also told Brenda Milton she should go get her sister, because he intended to get his gun and kill Milton.

Brenda Milton went to the Amoco and found Milton crying and "frantic." Milton said that Haislip hit her in the mouth and that she was afraid he was going to kill her. When the police arrived, Milton reported that Haislip hit her in the mouth and that she tried to "protect herself and hit him back, but he kept on punching her in the face." Milton also stated that Haislip threatened her twice in the Amoco store. Two of Milton's teeth were found in the parking lot and she was taken to the hospital.

The police arrested James Haislip later that night. When the lead investigator interviewed Haislip on tape the next morning, Haislip denied hitting Milton. Haislip claimed that he and Milton had engaged in a mutual pushing match. He stated his glasses had come off when the two of them fell into a wall and that Milton had lost her teeth. Haislip pointed out a small, visible injury on his forehead that he said occurred when the pair hit the wall. At that time, Haislip did not claim that he had been defending himself against an assault by Milton. In point of fact, at that time he stated that she had not caused his injury.

Milton told the police investigator of three previous incidents in which Haislip had punched or kicked her. Her sister, Brenda Milton, confirmed this pattern of abuse. Milton also stated that Haislip instructed her not to cooperate with the prosecution because he could go to jail for a long time. Six weeks later, when interviewed by appellant's investigator, Milton claimed for the first time that she had initiated the assault by "claw[ing] at [Haislip's] eyes, knocking his glasses to the ground."

Milton later testified that she lost her teeth when she slipped and fell outside the Amoco and that she did not know if Haislip punched her because she did not see his fist. She then claimed on cross-examination not to know how her teeth were knocked out, but denied falling against a wall. She testified she clawed at Haislip's eyes, and she may have knocked his glasses off at that time. She admitted to drinking and smoking a small amount of crack cocaine earlier in the evening of the assault.


Where the sufficiency of the evidence is challenged, the court limits its review

to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The court assumes that the jury believed the state's witnesses and disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict will not be disturbed if the defendant could reasonably be found guilty by a jury having "due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

To support a claim of self-defense, the evidence must show an absence of aggression or provocation by the defendant; that the defendant held an actual and honest belief that he was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; that reasonable grounds existed for that belief; and that there existed no reasonable opportunity to retreat to avoid the danger. State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). Additionally,

"the amount of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances."

Id. Once a defendant raises a self-defense claim, the state has the burden of disproving one of the self-defense elements beyond a reasonable doubt. Id.

Haislip argues that the prosecution failed to prove beyond a reasonable doubt that he did not act in self-defense. He maintains that he pushed Milton to ward off further assault after she struck him in the face, knocking his glasses off and that Milton was injured when both fell into a wall. Haislip claims that he told the police the day after the incident that Milton hit him first and that the physical evidence corroborated his story because he had an injury to his head. He asserts that Milton's testimony supports his claim because she agreed at trial that this was a mutual altercation and that Milton

admitted striking him first. Haislip contends that Milton was intoxicated and angry the night of the altercation. He argues that his conviction must be reversed.

The evidence in this case is sufficient to support the jury's guilty verdict. The credibility of witnesses and the weight given their testimony is determined by the jury. State v. Jones, 556 N.W.2d 903, 913-14 (Minn. 1996). A self-defense claim requires that the defendant was neither the aggressor in the altercation nor provoked it. McKissic, 415 N.W.2d at 344. Milton initially told both police and Brenda Milton that Haislip had hit her. Significantly, the police noted that Milton said she tried to "hit him back," indicating that he hit her first. Six weeks after the altercation, Milton stated for the first time that she initiated physical contact. At trial, Milton testified that she "may have" struck Haislip first. She either could not or would not clarify details about the assault. Her testimony was inconsistent with her prior statements and internally contradictory. Milton admitted to the police investigator that Haislip told her not to talk with prosecutors without talking to Haislip's attorney first and that he could go to jail for a long time if she testified against him. She related history of a past abuse, but then went on to admit that she would not want Haislip to go to jail.

Importantly, the jury heard the testimony of a neutral eyewitness. Thomas Howell overheard Haislip threaten Milton. Howell ordered Haislip to leave the Amoco and then watched the remainder of the altercation through an unobstructed plate glass window. Howell was not distracted during the altercation, did not note any signs of intoxication in Milton, and saw no aggressive behavior on Milton's part. He did see the single, closed-fisted punch by Haislip to Milton's mouth. Milton's sister, Brenda Milton, also heard Haislip threaten Milton's life the night of the assault, and she confirmed that Haislip had a history of physically abusing Milton. Viewing the evidence in the light most favorable to the conviction, the jury could have concluded beyond a reasonable doubt that Haislip was the aggressor in this incident.

Haislip has also made no showing that he had an actual, reasonable belief of imminent death or great bodily harm. See id. (stating element of self-defense is belief that death or great bodily harm is imminent). In his interview with the police investigator, Haislip denied that Milton assaulted him and claimed both injuries occurred simultaneously during a mutual "pushing" altercation.

Part of Haislip's defense at trial was that he is a slightly built man, while Milton is a large, imposing woman who was angry and intoxicated on alcohol and cocaine the night of this altercation. However, the record contains no evidence to indicate that Milton acted in any aggressive way toward Haislip before she was injured or that she made any threats toward him. Howell's testimony corroborates only that Haislip threatened Milton. Milton informed the police at the scene of Haislip's threats toward her. Brenda Milton testified to Haislip's threat to kill Milton that night. The police investigator testified to a pattern of abuse against Milton, confirmed by both Milton and Brenda Milton. Milton neither confirmed nor denied this at trial. She merely stated that she "may have" hit Haislip first. Given the inconsistency of both Milton's and Haislip's testimony, and the other testimony, the jury could have concluded beyond a reasonable doubt that Haislip did not have a fear of imminent harm.

Similarly, Haislip failed to show that he had no reasonable opportunity to retreat. See id. (stating evidence must show defendant had no reasonable opportunity to retreat to avoid danger). The jury heard uncontradicted evidence that the argument started when Milton returned to the shared apartment. When she left to go to the Amoco, Haislip followed her and continued the argument, ignoring the first of his opportunities to retreat. When threats were heard inside the Amoco store, Howell ordered Haislip to leave. Haislip did so, while Milton stayed to complete a purchase. This represented Haislip's second opportunity to retreat. Instead, he waited for Milton outside the store, where the argument escalated. Finally, no evidence indicates that Haislip was in any way prevented from leaving the scene prior to the physical escalation of the argument. Thus, the jury could have found beyond a reasonable doubt that Haislip ignored the opportunity to retreat, defeating his claim of self-defense.

The jury heard Howell's testimony that Haislip punched Milton once in the mouth. Milton had three broken or missing teeth, as well as cuts to her mouth and facial bruising. The dentist who saw her in the emergency room testified that a fourth tooth will most likely die, although it was still imbedded in the soft tissue of Milton's mouth. He further testified that extensive dental work would be necessary to repair the damage to Milton's teeth. Viewed in the light most favorable to the conviction, the jury could easily conclude from the record that Haislip's physical assault on Milton was an unreasonable response to his claim that he was afraid of her.