This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Terri Gustafson,


Filed May 18, 1999


Peterson, Judge

Dissenting, Davies, Judge

Itasca County District Court

File No. K8961642

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

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)

Michael F. Cromett, Assistant State Public Defender, 2499 Rice Street, Suite 260, Roseville, MN 55113-3724 (for appellant)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.



Appellant Terri Gustafson challenges her conviction and sentence for first-degree assault. We affirm.


After spending several hours drinking at a local bar, Gustafson and her husband, Timothy Peterson, returned to their cabin, where an argument ensued. Peterson got into his vehicle and started to leave, but stopped at the end of the driveway and ultimately decided not to leave.

Peterson returned to the cabin and, when he found the door locked, he began pounding on it. Neighbors heard Peterson yelling, "Heck with this I live here too" and "Let me in, nobody locks me out of my house." Neighbors also heard the muffled voice of a woman hollering at Peterson from inside the cabin. Peterson got a hammer and broke the doorknob off the cabin door. When Peterson entered the cabin and turned on the lights, he saw Gustafson holding a shotgun. Neighbors heard Peterson repeatedly yell words to the effect of, "Go ahead and shoot me." Shortly after, neighbors heard a gunshot.

Gustafson called 911 and told the dispatcher that she needed an ambulance because she had accidentally shot her husband in the leg. When police arrived, they found Peterson with a shotgun wound in his right thigh. They also found a sawed-off, 12-gauge shotgun in the cabin. Gustafson told Deputy Aaron Apitz that Peterson was cleaning his gun and had accidentally shot himself. Later, Gustafson told police that she had accidentally shot her husband. She told Deputy Thomas Neustrom that she really did not pull the shotgun's trigger, instead the gun "just went off."

A complaint was filed against Gustafson, charging her with reckless discharge of a firearm under circumstances likely to cause risk of great bodily harm in violation of Minn. Stat. § 609.66, subd. 1a(a)(2) (1996), and second-degree assault in violation of Minn. Stat. § 609.222, subd. 2 (1996). The complaint was later amended to include a charge of first-degree assault in violation of Minn. Stat. § 609.221 (1996). Following a jury trial, Gustafson was found not guilty of reckless discharge of a firearm and guilty of first- and second-degree assault. The trial court sentenced Gustafson on the first-degree assault conviction to an executed 81-month sentence.


1. Gustafson contends that although she did not request instructions on self-defense and accident, the trial court committed plain error by failing to instruct the jury sua sponte on these defenses because the evidence supported her theory that she obtained the shotgun to defend herself against an intruder, and the shotgun accidentally discharged.

A court has a duty to instruct the jury on the elements of an offense. Rosillo v. State, 278 N.W.2d 747, 749 (Minn. 1979). By failing to object to the trial court's jury instructions, a defendant generally waives any challenge to the instructions on appeal. See State v. Fox, 340 N.W.2d 332, 334-35 (Minn. 1983) (by failing to object to trial court's instruction on elements of intentional murder of a peace officer, defendant waived right to challenge instruction on appeal).

However, even if there was no objection to the jury instructions at trial, an appellate court has discretion to consider a claimed error in the instructions if it is plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).


Under the first prong of the plain-error test, we determine whether the trial court erred by failing to instruct the jury sua sponte on the theory of 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 she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert the danger; (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. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967). The amount of force used must be limited to that which would appear to be necessary to a reasonable person under similar circumstances. State v. Bland, 337 N.W.2d 378, 381 (Minn. 1983). The defendant has the "`burden of going forward with evidence to support [her] claim of self-defense.'" State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (quoting State v. Columbus, 258 N.W.2d 122, 123 (Minn. 1977)).

A self-defense instruction is not required where there is no evidence to support a finding that appellant had reasonable grounds to believe that the force he used was reasonably necessary to prevent immediate bodily harm upon himself. The instruction is needed only if appellant sufficiently raised the defense by creating or raising a reasonable doubt that his use of force was justified.

State v. Stephani, 369 N.W.2d 540, 546 (Minn. App. 1985) (citations omitted), review denied (Minn. Aug. 20, 1985).

The evidence in the record would not support a finding that Gustafson had reasonable grounds to believe that the force she used was reasonably necessary to prevent immediate bodily harm from her husband. Although the evidence demonstrates that her husband broke off the doorknob to get into the cabin, there was no evidence that he made any verbal threats or did anything physically threatening towards Gustafson. The evidence does not demonstrate that Gustafson had any reason to believe that her husband would inflict bodily harm on her. Because Gustafson failed to meet her burden of presenting evidence to support her self-defense claim, the district court did not err by not instructing the jury on this claim.


Although a party is entitled to an instruction on her theory of the case if there is evidence to support it, the court need not instruct the jury on the accident theory if the substance of the requested instruction is already contained in the court's charge. State v. Boitnott, 443 N.W.2d 527, 533 (Minn. 1989).

Gustafson's theory is that she did not intentionally pull the trigger of the shotgun; she claims the gun "just went off." The trial court instructed the jury that in order for there to be an assault, Gustafson had to act with intent to cause fear in another person of immediate bodily harm or death, or intentionally inflict or attempt to inflict bodily harm upon another. This instruction correctly informed the jury that intent is an element of assault, but that the required intent is not limited to an intent to inflict bodily harm. See Minn. Stat. 609.02, subd. 10 (1996) (definition of assault); Johnson v. State, 421 N.W.2d 327, 331 (Minn. App. 1988) (intent is essential element of assault, but intent to harm is not essential element of assault), review denied (Minn. May 4, 1988).

There is no dispute that the harm inflicted upon Peterson was inflicted by the shotgun blast. Therefore, the jury could not conclude that Gustafson intentionally inflicted bodily harm upon Peterson without also concluding that the shotgun did not discharge accidentally. If the discharge was accidental, Gustafson could not have intentionally inflicted the harm caused by the discharge.

And if the jury concluded that Gustafson acted with intent to cause Peterson to fear immediate bodily harm or death, it did not matter whether the gun discharged accidentally or intentionally. First-degree assault requires only that the defendant assaults another and inflicts great bodily harm. Minn. Stat. § 609.221 (1996). Second-degree assault requires only that the defendant assaults another with a dangerous weapon and inflicts substantial bodily harm. Minn. Stat. § 609.222, subd. 2 (1996). To prove either offense, it is not necessary to prove that the defendant intended to inflict the bodily harm. Therefore, because Peterson suffered bodily harm when the shotgun discharged, it does not matter whether the discharge was intentional or accidental, as long as Gustafson intended to cause fear of immediate bodily harm or death.

Because the trial court correctly instructed the jury on intent, it did not err by not giving an accident instruction. The intent instruction was sufficient to cause the jury to consider Gustafson's theory that because she did not intentionally pull the trigger of the shotgun, she did not commit first-degree or second-degree assault. See Boitnott, 443 N.W.2d at 533 (not error to fail to give accident instruction if jury is adequately instructed on element of intent).

Because the trial court did not err by failing to instruct the jury sua sponte on the legal theories of self-defense and accident, we need not review the remaining plain-error factors. Gustafson has not demonstrated that the trial court's failure to provide jury instructions that were not requested was plain error.

2. Gustafson contends that she should receive a new trial because she received ineffective assistance of counsel. She argues that she was prejudiced by her counsel's failure to request instructions on self-defense and accident.

"It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970). To demonstrate ineffective assistance of counsel, the convicted defendant must show:

First, * * * that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The defendant must affirmatively prove that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 694, 104 S. Ct. at 2064, 2068; Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

Because the evidence failed to establish that reasonable grounds existed for Gustafson to believe at the time of the shooting that she was in imminent danger of death or serious bodily harm, Gustafson's attorney's performance was not deficient in failing to request a jury instruction on the legal theory of self-defense. Similarly, because the intent instruction given by the trial court required the jury to consider Gustafson's accident defense, her attorney's failure to request an accident instruction was not deficient representation.

3. Gustafson argues that the trial court erred by failing to exercise its discretion in sentencing. Gustafson contends that comments the trial court made at the sentencing hearing demonstrate that it denied her request for a downward sentencing departure on her first-degree assault conviction and her request to be sentenced on her second-degree assault conviction because it erroneously believed that it was required to impose a sentence for the first-degree assault conviction.

At the sentencing hearing, the trial court stated:

I do agree with everyone that this is certainly a sad situation. The bottom line though is that the jury found you guilty of assault in the first degree, found you guilty of intentionally discharging the shotgun that could have killed Mr. Peterson, severely injured him, and under Minnesota law you face serious consequences for that.

Although the jury could reach the decision it reached without finding that Gustafson intentionally discharged the shotgun, this comment does not demonstrate that the trial court believed that it was required to impose a sentence for the first-degree assault conviction. A mistaken belief that the jury concluded that Gustafson intentionally discharged the shotgun does not indicate that the trial court misunderstood its sentencing authority or the extent of its discretion when imposing a sentence.

The trial court has broad discretion in sentencing and reviewing courts will not modify a sentence that is within the presumptive range established by the sentencing guidelines unless there are compelling reasons to do so. State v. Sanford, 450 N.W.2d 580, 587 (Minn. App. 1990) (citing State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)), review granted (Minn. Feb. 28, 1990), and order granting review vacated (Minn. Mar. 22, 1990). A reviewing court ordinarily will not disturb a sentence that falls within the presumptive sentence range, even if there are grounds that would justify departure. State v. Kraft, 326 N.W.2d 840, 842 (Minn. 1982); Kindem, 313 N.W.2d at 7-8. Only a "rare" case would warrant reversal of a refusal to depart from the sentencing guidelines. Kindem, 313 N.W.2d at 7.

The trial court sentenced Gustafson to 81 months, the minimum presumptive sentence for first-degree assault (severity level VIII) by a person with a criminal history score of zero. Minn. Sent. Guidelines IV-V. The fact that this is a particularly sad situation does not make this case one of those rare cases where reversal of the trial court's imposition of the presumptive sentence is appropriate.


DAVIES, Judge (dissenting).

I respectfully dissent.

It was error not to give a self-defense instruction; but it could and should have been an instruction limited to appellant's brandishing of the shotgun. That was the necessary simple-assault predicate for appellant's first- and second-degree assault convictions.


Assault is an element of the first- and second-degree assaults charged. See Minn. Stat. § 609.221 (1996) ("Whoever assaults another and inflicts great bodily harm * * * ."); Minn. Stat. § 609.222, subd. 2 (1996) ("Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm * * * ."). Assault requires an intentional act. See Minn. Stat. § 609.224, subd. 1 (1996) (assault requires intentional harm or an act with intent to cause fear of harm or death).

The jury, by its not-guilty verdict on the reckless discharge charge, determined that appellant did not intentionally discharge the weapon. See Minn. Stat. § 609.66, subd. 1a(2) (1996) ("intentionally discharges a firearm"). Therefore, the only intentional act that could constitute the predicate assault is that appellant picked up and brandished the shotgun. If this act was not assault--because the action she took before the gun discharged constituted permissible self-defense--then appellant's conduct was lawful before the accidental discharge of the weapon. If so, appellant was not guilty of the crimes she was convicted of. The injuries resulting from an accidental discharge of the weapon could not, by themselves (without the initial, simple assault), constitute either first- or second-degree assault.

Let me describe my analysis in another way. The crimes of which appellant was convicted, first- and second-degree assault, are constructed on two elements: first, an underlying assault; and second, either a great or substantial bodily harm arising in the context of that assault. But if she was engaged in lawful self-defense when she picked up the weapon and brandished it--her only intentional act--she did not commit the underlying assault.

Of course, if appellant intentionally fired the weapon "in self-defense," she was using excessive force in resisting the minimal risk she faced and she was outside permissible self-defense. But the jury found that the weapon was not discharged intentionally. So, in the end, the whole conviction rests on appellant having committed assault by brandishing the shotgun. Appellant claims the jury would not have found this to be assault had there been an appropriate jury instruction on self-defense. I find that argument compelling. Properly instructed on self-defense, the jury could easily have found that brandishing the gun was not an excessive use of force in light of appellant's reasonable apprehensions. Failure to so instruct was a fundamental error that requires reversal.


Independent of the above legal analysis, I note that this is a situation that got away from prosecutor, jury, judge, and defense counsel. When plea bargaining commenced, no one intended that appellant--as a consequence of the accidental discharge of a shotgun--would spend 4-1/2 years in prison (two-thirds of the 81-month sentence). But that is what is happening.

I would reverse and remand for a new trial or, better yet, for a third round of plea bargaining.