This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Christopher Krych,


Filed April 27, 1999


Holtan, Judge[*]

Dissenting, Amundson, Judge

Dakota County District Court

File No. KX-97-2291

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Peter J. Orput, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Rory Durkin, Certified Student Attorney, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Holtan, Judge.



After a jury trial, appellant was found guilty of first-degree assault. On appeal, Christopher Krych asserts, and further argues in his pro se supplemental brief, that his conviction should be reversed because: (1) the district court committed plain error in submitting its jury instructions without an instruction on the definition of assault; and (2) the prosecutor committed serious misconduct during closing arguments. We affirm.


On September 27, 1997, Joseph Pausch accompanied Rebecca Eide to a motorcycle shop located next door to appellant Christopher Krych's apartment. Pausch rented a room from Eide. At the time, Krych and Eide were involved in a romantic relationship with one another. Krych was sitting outside the motorcycle shop when Pausch and Eide approached. Krych, who was acquainted with Pausch, commented to Eide, "I see you're sleeping with Joe [Pausch] now." Eide returned to the vehicle in which she had arrived. Pausch approached Krych and denied the accusation that he and Eide were involved in a sexual relationship. Krych and Pausch began arguing.

At this point, Pausch and Krych entered Krych's apartment. Krych contends that Pausch followed Krych, uninvited, into his apartment. Pausch, on the other hand, testified that Krych asked him to accompany him into his apartment. Pausch testified that he followed Krych, thinking that Krych wanted to give him some magazines, as the two were accustomed to exchanging magazines. Krych bent over and opened up a foot stool, which doubled as a storage container. Krych had his back towards Pausch while he was bent over. Pausch testified that Krych then came up very fast and swung at Pausch with a machete. The machete went through Pausch's upper lip with such force that it broke his denture plate.

Pausch walked next door, was given a rag to cover his bleeding lip, and was taken to the hospital. At the hospital, Pausch was in surgery for approximately five hours. As a result of the injury, Pausch now has a permanent scar, a crooked smile, and a numb lip that causes him to drool.

Although Krych did not testify at trial, the jury heard a recording of his conversation with the investigating officer. In that conversation, Krych stated that Pausch had been hitting him in the back of his head. To protect himself, Krych grabbed a paring knife or a steak knife and Pausch ran into it, injuring his lip.

On December 10, 1997, the jury found Krych guilty of first degree assault in violation of Minn. Stat. § 609.221, subd. 1 (1996). Krych was sentenced to a 122-month prison term. Krych now appeals, alleging that the trial court committed fundamental error in failing to instruct the jury on the definition of assault. Second, Krych argues that the prosecutor committed serious misconduct during closing argument by: (1) indirectly commenting on Krych's failure to testify; (2) implying that Krych was guilty because he had expressed a desire to speak to his attorney when being questioned by the investigating officer; and (3) belittling Krych's defense theory.


1. Jury Instructions

Appellant asserts that because the statutory definition of assault includes the element of intent, intent is an essential element of first-degree assault. Therefore, appellant argues, the district court's failure to instruct the jury on the statutory definition of assault resulted in fundamental error, requiring a new trial. Appellant did not raise this deficiency before the trial court.

Generally, the failure to object at trial will result in a waiver of the right to have this court consider the issue on appeal. State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998). We will, however, "consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial." Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).

A trial court has considerable latitude in determining the propriety of a specific jury instruction and this court reverses only where the court has abused its discretion. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). Moreover, where jury instructions, taken as a whole, fairly and adequately state the applicable law, this court will not reverse. Id. at 816; State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Having reviewed the jury instructions, we conclude the district court's instructions, taken as a whole, adequately presented the jury with the applicable law needed for a fair determination of Krych's guilt.

The district court gave the jury the following instruction on first-degree assault:

The statutes of Minnesota provide that whoever assaults another person and inflicts great bodily harm is guilty of assault in the first degree. The elements of assault are as follows: First, that the Defendant assaulted Joseph Pausch. Second, that the Defendant inflicted great bodily harm which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any part of the body or other serious bodily harm. The third element of an assault in the first degree case is that the Defendant's act took place on or about September 27, 1997, in Dakota County. If you find that each of these three elements has been proved beyond a reasonable doubt then Defendant is guilty of assault in the first degree.

While this jury instruction properly sets forth the elements of first-degree assault under Minn. Stat. § 609.221 (1996) and 10 Minnesota Practice, CRIMJIG 13.04 (1990), Krych argues the instruction was fundamentally in error because of its failure to define "assault" for the jury. Assault is defined in the criminal code as follows:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or
(2) The intentional infliction of or attempt to inflict bodily harm upon another.

Minn. Stat. § 609.02, subd. 10 (1998).

Specifically, Krych argues that, without the assault instruction, the jury was incapable of knowing that "intent" was an essential element of the crime charged. In other words, based on the jury's knowledge, it could have convicted Krych even if it found that the laceration was purely "accidental." We disagree.

First of all, the word "assault" is commonly used and understood by lay people to mean an action taken against another person and that the action taken was not accidental. More importantly, based on our review of the instructions as a whole, we conclude that there is little chance the jury could have escaped recognition that Krych had to have "intended" the harm before they could find him guilty.

The record shows that the jury was instructed on the theory of self defense as follows:

Defendant is not guilty of a crime if the Defendant used reasonable force against Joseph Pausch to resist an offense against the person and such an offense was being committed, or the Defendant reasonably believed it was. It is lawful for a person who is being assaulted and who has reasonable grounds to believe that bodily injury is to be inflicted upon his person to defend from such attack. In doing so, the person may use all force and means which the person believes to be reasonably necessary, and which would appear to a reasonable person in similar circumstances to be necessary to prevent the injury which appears to be imminent. * * * The state has the burden of proving beyond a reasonable doubt that the defendant did not act in self defense. The legal excuse of self defense is available only to those who act honestly and in good faith and this includes the duty to retreat or avoid the danger if reasonably possible.

This self defense instruction informed the jury that the state had the burden of proving that Krych did not act in self defense. The jury apparently found that Krych was not acting in self defense and must necessarily have found that Krych acted intentionally. Thus, although never directly instructed to consider Krych's intent, the jury was instructed to consider whether Krych acted with legal justification.

In addition, both Krych's counsel and the prosecution explained in their closing arguments that the central issue in the jury's deliberations would be whether Krych's actions were intended or were accidental. Throughout the prosecution's closing argument, the prosecutor continually asked the jury to consider the reasonableness of Krych's claim that the laceration had been an accident. Moreover, Krych's counsel specifically argued to the jury that Krych "did not intentionally hit [Pausch] with the knife * * * Krych did hit Mr. Pausch, but he didn't do it intentionally." Krych's counsel concluded by telling the jury that

the state hasn't proven its case. It hasn't proven Mr. Krych assaulted him, hasn't proved Mr. Krych didn't need to use self defense. He was defending himself. He unfortunately accidentally hit him with the knife when he turned around to tell him to get out of there.

Based on counsel's closing arguments, it is clear that the jury had been informed that it must find the contact had been intentionally caused, rather than accidental or done in self defense.

Finally, although it would have been more desirable for the jury to be given an instruction on the definition of assault, we conclude that any such error was, at most, harmless error. This is because the testimony as to the severity and degree of the laceration itself shows that the wound was intentionally inflicted. Indeed, the treating surgeon, familiar with machete wounds, testified that the laceration was consistent with a machete wound, rather than the paring knife or steak knife that Krych claimed had accidentally caused the injury.

2. Prosecutorial Misconduct

Krych asserts that the prosecutor committed three acts of serious misconduct during closing argument. One of these incidents was when the state belittled Krych's defense theory by twice referring in closing arguments to Krych's "grab bag defenses." Krych also alleges that the prosecution committed reversible error by indirectly commenting on Krych's failure to testify at trial, stating that "we'll never know why" Krych "smashed" Pausch's face with a machete. Krych also takes issue with the prosecutor's questioning the jury regarding whether anyone ever testified as to "something different than Mr. Pausch." Finally, Krych alleges serious prosecutorial misconduct when the state commented on Krych's hesitancy to "say too much without a lawyer," asking the jury, "Does that sound reasonable for somebody who has a legitimate reason to say that they were defending themselves?"

Once again, Krych failed to object to these alleged acts of prosecutorial misconduct at trial. By failing to object at trial or seek specific cautionary instructions, appellant is deemed to have forfeited his right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Notwithstanding an appellant's failure to preserve the issue, we may reverse if we deem the error to be of sufficient magnitude. Id. In any event, a defendant is not entitled to a new trial where it can be said, with certainty, that the prosecutorial misconduct was harmless beyond a reasonable doubt. State v. Ashby, 567 N.W.2d 21, 27-28 (Minn. 1997).

In determining whether prosecutorial misconduct during closing arguments constituted harmless error beyond a reasonable doubt, this court has considered the following factors: (1) defense counsel's failure to object; (2) trial court's instructions; (3) jury's verdict on other counts against the defendant; (4) non-objectionable part of the closing argument; and (5) strength of the evidence relating to the defendant's guilt. State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997).

a. Failure to Object

As noted above, appellant failed to object to each alleged incident of prosecutorial misconduct at trial. The failure to ask for curative instructions weighs heavily in favor of affirmance. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). As the supreme court noted in Brown:

[C]arefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument. Therefore, a defense counsel's failure to object or to request curative instructions normally weighs heavily in our decision whether or not to reverse on the basis of prosecutorial misconduct.

Id. If Krych had objected at trial, a curative instruction may have been sufficient to prevent any undue prejudice as a result of these comments. Thus, factor one weighs against reversal.

b. Trial Court's Instructions

Factor two requires this court to consider the effect of the trial court's instructions in offsetting the prosecutorial misconduct. The court advised the jury as follows:

Defendant is on trial here, that he was arrested, that he was brought before the Court by the ordinary process of the law should not be considered by you as in any way suggesting guilt. The burden of proving guilt is on the state. The Defendant does not have to prove innocence.

* * * *

In arriving at your verdict, you shall not permit bias, prejudice, or sympathy to affect your verdict. Your verdict must be based entirely upon the evidence which has been received in court and upon the law which I've given you in these instructions.

* * * *

You again are the sole judges of whether a witness is to be believed and the weight that you're going to give the testimony of that witness * * * In the last analysis, rely upon your own experience, good judgment, and common sense.

These instructions should have encouraged the jury to disregard any implications the prosecutor set forth when indirectly commenting on Krych's failure to testify and his request for defense counsel during the investigation. Further, the instructions would have reminded the jury to disregard any prejudice created by the state's comments on Krych's chosen defense theories and also reminded them that they were to be the sole judges of a witness's credibility.

c. Jury's Verdict on Other Counts

Given that there were no other counts brought against Krych, factor three is not applicable to an analysis of whether the prosecutor's statements constituted harmless error.

d. Non-Objectionable Part of Closing Argument

In examining the non-objectionable portion of the state's closing arguments, it is clear that the prosecution did point out some matters that served to reduce the prejudicial effect of its statements.

First, the state did mention that the tape recording of Krych's statement contradicted Pausch's version of the story. Further, in the ten pages of transcript that cover the state's closing argument, the state's emphasis was on whether Krych's version of the story was "reasonable." Finally, the prosecutor's comments about Krych's request for an attorney and the dubious manner in which he arrived at his defense theories of accident and/or self-defense were both evident to the jury when it heard the recording of Krych's statement. Although the state may have highlighted these portions for the jury, the state was not giving the jury any "new" information.

e. Strength of Evidence Indicating Guilt

Finally, the evidence of Krych's guilt was overwhelming. Although the prosecutor took the liberty to point out just how "unreasonable" Krych's defense theories seemed, the truth of the matter is that any jury listening to Krych's recorded statement would most likely have come to the same conclusion on their own. Krych's own statement indicates that his story kept changing, even while he was talking to the investigating officer. First he said he picked up a paring knife, then it was a steak knife. Additionally, first he claimed the knife had accidentally contacted Pausch, then he claimed Pausch had run into the knife. Finally, there was testimony of witnesses who had observed that Krych owned a machete.

After a careful review of the record, we determine that any trial error was harmless in light of the overwhelming evidence of Krych's guilt. See Ashby, 567 N.W.2d at 28 (concluding prosecutorial error was harmless given strength of evidence against defendant). We therefore conclude that the isolated incidents of prosecutorial misconduct were not sufficiently egregious to merit reversal.


AMUNDSON, Judge (dissenting)

Because I believe the district court's failure to instruct the jury on the definition of assault resulted in a fundamental error, I respectfully dissent. Assault is defined in 10 Minnesota Practice, CRIMJIG 13.01 (1990), which states:

The statutes of Minnesota provide that whoever does an act with intent to cause fear in another person of immediate bodily harm or death, or intentionally inflicts or attempts to inflict bodily harm upon another, is guilty of assault.

(Emphasis added). The comment to CRIMJIG 13.01 advises the district courts that, where a defendant is charged with assault, the court "may wish to incorporate this instruction directly into the first element of the * * * instruction as further definition of that element." 10 Minnesota Practice, CRIMJIG 13.01 (Supp. 1998).

The definition of assault clearly demonstrates that "intent" is an element of assault crimes. Moreover, this court has previously held that intent is a necessary element of first degree assault. Johnson v. State, 421 N.W.2d 327, 331 (Minn. App. 1988), review denied (Minn. May 4, 1988). In Johnson, this court found that, although the court failed to give an instruction on intent, it did not amount to reversible error because the trial court had stressed the element of intent while instructing the jury as to the definitions of "assault" and "accident."

Here, the district court not only failed to give a definition of assault, but also failed to mention that intent was a necessary element of first degree assault. Even viewing the instructions as a whole, it is evident that the jury did not receive any instructions that would communicate to them that intent was an element of this crime. I believe this failure resulted in a fundamental error of law, requiring reversal. See State v. Johnson, 374 N.W.2d 285, 288 (Minn. App. 1985) (finding error where the court recited statutory requirement of "intent to attempt to elude" police officer but failed to provide statutory definition of intent), review denied (Minn. Nov. 18, 1985).

It is troubling that, while the trial court instructed the jury that it must find that Krych assaulted Pausch, it never informed the jury what was meant by the word "assault." Contrary to the majority's assertion, I believe a jury of lay people would not ordinarily understand the meaning of "assault." In essence, the jury found Krych guilty of a crime, of which they may have never understood the full meaning.

For these reasons, I respectfully dissent and would reverse the district court and remand this matter for a new trial. See State v. Orsello, 554 N.W.2d 70, 72 (Minn. 1996) (holding that, where jury was improperly instructed on question of intent, appropriate disposition on appeal was to remand for a new trial).

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