This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Jose Luis Reyes,


Filed March 30, 1999


Foley, Judge[*]

Steele County District Court

File No. K8-97-124

Michael A. Hatch, Attorney General, Hilary L. Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Douglas L. Ruth, Steele County Attorney, 317 North Cedar, Owatonna, MN 55606 (for respondent)

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

Considered and decided by Peterson, Presiding Judge, Foley, Judge, and Holtan, Judge.[**]


The offense occurred at the home of Keith and Dawn Kelling in Owatonna on February 16, 1997. At the time of the assault, appellant resided in Owatonna with his girlfriend, Brenda Tovar, their two children, two of Tovar's other children, appellant's brother, Frederick Reyes, and Brenda Carlson.

On the evening of February 16, 1997, Tovar went to the Kelling home to play cards and appellant stayed home with the children. Everyone at the Kelling home, including the victim, Robert Martin, was in the basement. Appellant telephoned Tovar shortly after she arrived and insisted she return home to watch the children so he could go out. During the telephone conversation Martin made comments toward appellant and Tovar that angered appellant. Appellant and Martin's mutual dislike went back several years and included verbal and physical incidents.

Appellant left his house and walked toward the Kelling home. Appellant met Clifford Trotter, a pizza deliveryman, at the front of the home and led him to the back. Appellant then knocked on the door and stepped back so Trotter was in front of the door. Keith Kelling answered the door, returned to the basement, and told Martin the food had arrived. Trotter waited in the doorway and appellant headed downstairs to the basement. Halfway up the stairs appellant and Martin met. Appellant was two to three steps above Martin holding a seven to eight inch long kitchen knife in his right hand. Appellant pointed the knife at Martin and made several threats to kill him. A frightened Martin crossed his arms over his chest and attempted to calm appellant down. During the confrontation Martin's chin was cut. After realizing Martin was cut, appellant went up the stairs, past Trotter, and left the home. Martin applied tissue to stop the bleeding, paid Trotter, and telephoned the police. Trotter observed Martin shaking when he paid for the food.

Martin met a police officer in the driveway. The officer observed Martin was wide-eyed and shaking and held a tissue to his chin. Appellant was taken into custody, advised of his Miranda rights, and transported to the law enforcement center. Appellant told the officer that because the police would not help him he took matters into his own hands.

Appellant telephoned Tovar and asked if she would state that he did not have a knife during the confrontation. Tovar informed appellant she would not lie. Appellant told the officer that Martin was interfering in his and Tovar's personal business and that during a phone conversation he could hear Martin making comments. Because of Martin's comments, appellant became upset and went to the Kelling home. Appellant stated that while in the stairwell he grabbed Martin by the neck and shoved him against the wall. He did not report Martin pushed him in the stairway. After learning Tovar told the police about the knife, appellant said he had a butterfly knife in his back pocket during the confrontation.

At trial appellant testified that Martin pushed him while they were on the stairs and then he grabbed Martin by the throat with his left hand and pointed his right index finger at Martin. Appellant further testified he told Martin he was going to kill him but did not intend to threaten or scare him.

The jury was instructed by the court on the elements necessary to prove self-defense, the presumption of appellant's innocence, and the meaning of proof beyond a reasonable doubt. After a three-day trial, the jury returned a verdict of guilty of assault in the second degree.


Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited 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).

A reviewing court assumes "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant argues his actions were in self-defense. The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).

Appellant has the burden of going forward with evidence to support a claim of self-defense. State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985). Once appellant has raised the claim of self-defense, respondent has the burden of disproving one or more of the above elements beyond a reasonable doubt. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

Respondent presented sufficient evidence to disprove appellant's lack of aggression or provocation. Appellant testified he and Tovar were on the telephone while Martin made comments that upset and angered him. Appellant decided to confront Martin at the Kelling home. According to Trotter's testimony, appellant confronted Martin and began yelling and screaming at Martin and telling him he was going to kill him. Appellant waved the knife around and pointed it at Martin.

Appellant testified that Martin pushed him and he grabbed Martin by the neck with his left hand and pointed his right index finger at him. But appellant's testimony is radically different from testimony of the other witnesses. None of the witnesses corroborated appellant's testimony concerning the pushing and shoving. Martin testified he made no moves toward appellant and was trying to calm appellant down because he was holding a knife. The jury was not compelled to believe appellant's testimony about the pushing and how the knife came out of his pocket. See State v. Fidel, 451 N.W.2d 350, 354 (Minn. App. 1990) (where only evidence to support claim of self-defense comes from defendant, jury not required to credit it), review denied (Minn. Apr. 13, 1990).

Respondent also disproved the second and third elements of a self-defense claim beyond a reasonable doubt. Appellant and Martin disliked each other and had a history of verbal and physical incidents. But respondent presented evidence showing that appellant's belief he was in imminent danger of death or bodily harm was not reasonable. The witnesses, except for appellant, testified Martin was not making any aggressive moves toward appellant. There was no corroboration of appellant's testimony that Martin pushed him. Rather, the testimony given was that Martin was standing on the stairway with his arms folded across his chest attempting to calm appellant down. Appellant was the only one to testify about Martin pushing him and that he reasonably feared Martin would hurt him. The jury was able to assess witness credibility and their verdict shows appellant's testimony carried little weight.

Finally, respondent presented sufficient evidence to disprove the fourth element of appellant's self-defense claim beyond a reasonable doubt. Based on the witness testimony, appellant was the aggressor in the confrontation and had ample opportunity to leave the house. Upon seeing Martin coming up the stairs appellant went down the stairs to confront Martin rather than retreat. Only after appellant noticed Martin had been cut did appellant leave the premises.


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

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