This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1642

State of Minnesota,

Respondent,

vs.

Paul Anthony Richert,

Appellant.

Filed June 9, 1998

Affirmed in part, reversed in part

Short, Judge

Washington County District Court

File No. K096465

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

Richard D. Hodson, Acting Washington County Attorney, Jay A. Brunner, 14900 - 61st Street N., P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)

Douglas H.R. Olson, 510 First Avenue, N., Suite 610, Minneapolis, MN 55403 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

SHORT, Judge

A trial court found Paul Anthony Richert guilty of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3) (1996), false imprisonment in violation of Minn. Stat. § 609.255, subd. 2 (1996), fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (1996), and two traffic violations under Minn. Stat. §§ 169.14, subd. 1, 169.89, subd. 1(a) (1996). On appeal, Richert argues the evidence is insufficient to support his conviction for false imprisonment, and the trial court erred in allocating the burden of proof on his citizen's arrest defense. We affirm in part and reverse in part, vacating Richert's false imprisonment conviction.

D E C I S I O N

When a defendant waives his right to trial by jury, we afford the trial court's findings the same weight as a jury verdict. State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986). This court views the evidence in the light most favorable to the verdict, and must affirm if the trial court could reasonably conclude from the evidence that the state proved the defendant's guilt beyond a reasonable doubt. Id.

Richert argues the evidence is insufficient as a matter of law to support his kidnapping conviction because the state failed to prove beyond a reasonable doubt that Richert acted with intent to terrorize his victim. See Minn. Stat. § 609.25, subd. 1(3) (1996) (providing individual guilty of kidnapping if he or she confines or removes any person from one place to another, without person's consent and with purpose of committing great bodily harm or to terrorize victim or another). We disagree. At trial, the victim testified: (1) "I was very panicked. I felt that I was being taken somewhere, I was going to be raped and I was going to just be left"; (2) Richert forcibly entered her car, removed her seat belt, and took her from her car; (3) Richert held her head on the seat as he drove so she caused the car to go into a ditch in order to escape; (4) during the entire time, Richert never spoke to the victim; (5) the victim suffered severe bruising; and (6) after escaping, the victim was found shivering, crying, shaking, and with her hair "all messed up." Viewing the evidence in the light most favorable to the verdict, and assuming the trial court believed the state's witnesses and disbelieved any evidence to the contrary, the evidence is sufficient to establish Richert was acting without consent and with the purpose of committing great bodily harm or terrorizing the victim. See State v. Watts, 296 Minn. 354, 357, 208 N.W.2d 748, 750 (1973) (holding evidence defendant forcibly and without consent led victim some 224 feet to alley supported kidnapping conviction); see also State v. Halvorson, 506 N.W.2d 331, 335 (Minn. App. 1993) (holding victim's testimony she did not willingly go with defendant to place where assault occurred or did not willingly participate in anything that happened there was sufficient to support defendant's convictions for kidnapping and criminal sexual conduct).

Richert also argues the trial court impermissibly required him to prove the applicability of a citizen's arrest defense. See Minn. Stat. § 629.30, subd. 2(4) (1996) (stating arrest can be effectuated by private person); Minn. Stat. § 629.37 (1996) (providing grounds under which private person can arrest another). However, before the state must prove beyond a reasonable doubt that defense does not apply, Richert must show sufficient evidence to raise the citizen's arrest defense. See State v. Auchampach, 540 N.W.2d 808, 817 (Minn. 1995) (concluding if mitigating circumstance or issue is converse of enumerated element of crime charged and negates that element, defendant required to adduce sufficient evidence on proffered defense to make it an issue in case, burden then shifts to state to prove beyond reasonable doubt lack of that defense); see, e.g., State v. Charlton, 338 N.W.2d 26, 30-31 (Minn. 1983) (holding defendant has initial burden of production with respect to issue of duress for specific intent crime, burden then shifts back to state to show lack of duress, or its converse, specific intent, because duress negates element of specific intent). Although Richert argues he forcibly kept the victim at the site of an automobile accident, he failed to produce any independent evidence in support of his claim. See State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997) (concluding defendant must produce evidence sufficient to invoke citizen's arrest defense). In the absence of any such evidence, the trial court found Richert failed to meet the minimum burden of proving a fact question on the defense. Cf. Lawler, 571 N.W.2d at 490 (holding defendant presented sufficient evidence to raise citizen's arrest defense where defendant presented his own testimony he was taking victim to police, and testimony of both co-defendant and victim that victim was told was going to be taken to police). After a careful review of the record and giving deference to the trial court's ability to assess credibility, we cannot say the trial court erred in applying the law regarding the citizen's arrest defense.

Although not raised by the parties, we are compelled to vacate Richert's false imprisonment conviction because false imprisonment is a lesser-included offense of kidnapping. See State v. Niska, 514 N.W.2d 260, 266 (Minn. 1994) (holding false imprisonment lesser-included offense of kidnapping); see also Minn. Stat. § 609.04 (1996) (stating individual may be convicted of either crime charged or included offense, but not both). At oral argument, the state conceded this issue. Therefore, we vacate Richert's false imprisonment conviction.

Affirmed in part, reversed in part.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.