This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



David Hamilton Sawyer,


Filed July 27, 1999


Randall, Judge

Goodhue County District Court

File No. K7-97-1466

Stephen Betcher, Goodhue County Attorney, 103 Courthouse, 509 West Fifth Street, Red Wing, MN 55066; and

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant argues that he is entitled to a new trial, claiming the district court gave a jury instruction that misstated the law on defense-of-dwelling. Appellant additionally argues that the instruction was improperly given after the jury had deliberated for six hours. We affirm.


On October 26, 1997, the victim in this case, Christopher Alms, went to appellant David H. Sawyer's home with Sawyer's girlfriend, Jessica O'Bannion, after she approached him in the parking lot of a bar and asked him if he wanted to have sex. Sawyer came into the kitchen from the laundry room and saw O'Bannion with her blouse off, kissing Alms. According to the state, appellant grabbed a large butcher knife and stabbed Alms in the back of the shoulder blade.

Appellant claimed, instead, that when he entered the kitchen and asked what was going on, Alms went to the sink and grabbed a knife. According to appellant, he was afraid for his and O'Bannion's life and attempted to disarm Alms.

The two men engaged in a struggle and Alms was stabbed in the chest. Alms collapsed in the bathroom doorway. After repeatedly asking O'Bannion to call 911, Alms got up and fled to the next door neighbors' house. The neighbors called 911. When the police arrived, they found Alms collapsed at the end of the neighbors' driveway. An ambulance was called and Alms was transported to the hospital. Officer Gene Graves used his canine partner to track Alms's scent. The canine officer took Graves to the neighbor's house, across the driveway to appellant's house, and then to a large leaf pile in the back of appellant's house. The police discovered Sawyer and O'Bannion hiding in the leaf pile.

At trial, appellant claimed self-defense and defense-of-another. After discussing whether a defense-of-home instruction should be given, the district court concluded that an instruction on self-defense would be sufficient. Defense counsel did not object to the court's decision and simply asked that he be allowed to argue "the sanctity of the home in terms of self-defense." The district court agreed. The district court instructed the jury on self-defense and defense-of-another that conformed to the model instructions provided in 10 Minnesota Practice, CRIMJIG 7.06 and 7.08 (1990). When asked by the court, both the prosecutor and defense counsel stated they had no objections to the instructions as given. The jury began deliberating at 11:53 a.m. At approximately 6:00 p.m., the district court reconsidered its decision not to instruct the jury on defense-of-dwelling and called counsel to ask if such an instruction should be given. The prosecutor had no objection and defense counsel asked that the instruction be given. The jury was instructed to stop deliberating and the court and attorneys discussed the proposed instruction in chambers. Shortly after 6:00 p.m., the jury was given the following instruction that was approved by counsel:

And as I indicated to you, I have one additional instruction to give you. And the fact that I give this to you now is of no significance, and you should consider this instruction along with the other ones that you already have. The instruction is as follows: 'A person may use a deadly weapon and/or inflict great bodily harm when necessary in preventing the commission of a felony in his place of abode.'"

There was no objection to the instruction as given.

Approximately an hour later, the jury requested the tape of appellant's first interview with police. It was agreed that the tape would be played for the jury in open court. As the court and counsel were discussing the tape, the court asked the attorneys if they agreed that the state had to prove beyond a reasonable doubt that the defendant did not act to prevent the commission of a felony in his place of abode. The attorneys agreed and it was decided that the jury should be so instructed.

The jury was called into the courtroom and instructed as follows:

Before we [play the tape], I'm just going to mention something that I hoped was clear from the instructions I gave you before but may not have been. With regard to the instruction that a person may use a deadly weapon and/or inflict great bodily harm when necessary in preventing the commission of a felony in his place of abode, the State must prove beyond a reasonable doubt that the defendant did not act to prevent a commission of a felony in his place of abode. The defendant does not have to prove that he did.

There was no objection to the additional instruction. The tape of the interview was then played. The jury returned to deliberations at 7:50 p.m. At approximately 8:31 p.m., the jury returned its verdict of guilty.


Appellant argues he is entitled to a new trial because the district court's instruction on defense-of-dwelling materially misstated the law. Appellant insists the court was required to instruct the jury that he did not have to fear bodily harm to justify his use of the knife.

It is undisputed that defense counsel failed to object to any of the instructions given to the jury, including the defense-of-dwelling instruction. Generally, if defense counsel fails to object to error at trial, the error is deemed waived on appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). Nevertheless, a reviewing court has the discretion to consider the issue if the instructions contain plain error affecting substantial rights or an error in fundamental law. Id. The three-prong test for unobjected-to error requires a reviewing court to determine whether: (1) there was error; (2) it was plain; and (3) the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)). A deviation from a legal rule constitutes error under the first prong. United States v. Olano, 507 U.S. 725, 732-33, 113 S. Ct. 1770, 1777 (1993). The term "plain" under the second prong is synonymous with "clear" or "obvious." Id. at 734, 113 S. Ct. at 1777. "The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case." Griller, 583 N.W.2d at 741 (citation omitted). Plain error is prejudicial if there is the "'reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.'" Id. (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)). If the three prongs are satisfied, the reviewing court "then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings." Id. at 740 (citation omitted).

We will consider the issues raised by appellant to insure fairness. On appeal, jury instructions are "viewed in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).[1]

In State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997), the supreme court defined the elements for defense-of-dwelling as follows:

[R]easonable force may be used when a person reasonably believes that he or she is resisting an offense against a person or a trespass upon lawfully held property. This "reasonable force" includes deadly force only when the offense against a person involves great bodily harm or death or is used to prevent the commission of a felony in one's home.

The court made clear that the fear of great bodily harm or death is not required to justify the use of deadly force to defend against the commission of a felony in one's home. Id.

Appellant does not argue that the actual language of the district court's instruction on defense-of-dwelling misstates the law as set forth in Pendleton. Appellant contends that the instruction was in error because in light of the court's instructions on self-defense and defense-of-another, which unlike defense-of-dwelling, require defendant to have reasonable grounds to fear bodily injury or death to himself or another, the jury might have believed that it was required to find that he reasonably feared bodily harm in order to justify his use of the knife to prevent what he believed was the commission of a felony in his home.

Appellant misconstrues the holding in Pendleton. The jury instruction in that case required the jury to find that "defendant's action must have been done in the belief that it was necessary to avert death or great bodily harm." Pendleton, 567 N.W.2d at 268. The supreme court held the giving of this instruction constituted reversible error because defense-of-dwelling does not require that the defendant have to fear bodily harm or death to "justify the use of deadly force to defend against the commission of a felony in one's home." Id.

Here, unlike Pendleton, the jury was not instructed that it was required to find that appellant's use of the knife to protect against the commission of a felony in his home was justified only if he feared that great bodily harm or death was about to occur. The district court's instruction mirrors the elements for defense-of-dwelling set forth in Pendleton. In this respect, the instruction did not misstate the law of defense-of-dwelling. Contrary to appellant's insistence, Pendleton did not hold that the jury must be instructed that defense-of-dwelling does not require defendant to fear great bodily harm or death to himself or another to justify defendant's use of deadly force to defend against the commission of a felony within defendant's home. The district court did not misstate the law on defense-of-dwelling, and its instructions gave appellant's defense counsel the right to argue his self-defense theory of the case.

We note that defense counsel did not object to the instructions. We note that when he asked to be allowed to argue "the sanctity of the home in terms of self-defense," the district court gave him that right. We also note that after approximately six hours of deliberation, when defense counsel asked that an additional instruction be given, the prosecutor did not object and the court gave defense counsel's requested instruction.

Appellant continues to insist that the instruction was somehow erroneous because the jury was instructed to consider the instruction along with the instructions given previously on self-defense and defense-of-another -- two defenses that require the defendant reasonably fear bodily harm or death against himself or another. Appellant's argument misrepresents the district court's instruction to the jury. The district court did not instruct the jury to consider the defense-of-dwelling instruction only in conjunction with the instructions on self-defense and defense-of-another. The court instructed the jury that it was to consider the defense-of-dwelling instruction "along with all the other ones that you already have." The defense-of-dwelling instruction was not tied to the instructions given on self-defense and defense-of-another. The jury was to consider it along with all the instructions given by the district court.

Appellant's argument attempts to imply that the jury could have incorporated the elements required to find self-defense and defense-of-another into the defense-of-dwelling instruction. However, there is no evidence suggesting that the jury was confused as to the elements of the instructions it was given, including the elements for defense-of-dwelling. Cf. Malaski, 330 N.W.2d at 453 (noting where jury returned question regarding court's instruction on element of self-defense, court's attempt to clarify instruction "might have confused the jurors"). Appellant's implication that the jury may have been confused is based on speculation and unsupported by the record.

In his brief, appellant spends considerable time arguing that he was entitled to a defense-of-dwelling instruction. We do not understand the argument. The state agreed that appellant was entitled to that instruction. Appellant was not denied the right to have the defense-of-dwelling presented to the jury. Appellant got his requested instruction even though it came later during jury deliberation.

In sum, the district court properly instructed the jury. It did not materially misstate the law of defense-of-dwelling. Viewing the instructions in their entirety, the district court fairly explained applicable law. We find no error by the district court. Appellant is not entitled to a new trial on the instructions.

Appellant also contends that the district court's instruction on defense-of-dwelling constitutes reversible error because it was given approximately six hours after the jury began deliberating. The district court, after giving notice to the prosecutor and defense counsel, "may recall the jury after it has retired and give any additional instructions as the court deems appropriate." Minn. R. Crim. P. 26.03, subd. 19(3), 3; State v. Kelley, 517 N.W.2d 905, 908-09 (Minn. 1994) (holding district court may give additional instructions to jury after it has begun deliberations). The additional instruction given was requested by appellant's counsel. We conclude that the district court did not commit error when it instructed the jury, pursuant to appellant's request, on defense-of-dwelling, even though the jury had begun its deliberation earlier.


[1] Several weeks after the briefs were filed and after oral argument, the Minnesota Supreme Court released State v. Carothers, 594 N.W.2d 897 (Minn. June 17, 1999). In Carothers the Minnesota Supreme Court concluded that the "duty to retreat" is an erroneous instruction when it is attached to a defendant's claim of defense of his dwelling. Id. at 897-98. It is now erroneous to give the duty to retreat instruction as part of a defendant's claim of defense-of-dwelling. Id. at 904. The supreme court also wisely negated the hair-splitting difference between defense-of-dwelling and self-defense when resisting an attack against yourself or another in your own home. Id. at 903-04. Obviously, one's right, without retreating, to prevent the commission of a felony in your own home, ought to include the right to prevent the commission of a felony on yourself.

In this case, the district court, in good faith, gave the fairly widely used "duty to retreat" even in your own home instruction that has been around for years. In relevant part, the district court said:

The legal excuse of self defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

We note that since this assault occurred in appellant's dwelling, this instruction, although given in good faith, as Carothers had not been released, was erroneous. However, this error does not effect our analysis because, although defense-of-dwelling and defense of one's self, and defense-of-another, were hotly contested factual issues in appellant's case, the "duty to retreat" was not. Put another way, appellant's claimed errors in the instruction revolve around other parts of the instructions, and that small three-line part of the lengthy instructions, on appellant's duty to retreat, was not specifically briefed or argued. Since we uphold the jury instructions taken in their entirety as fair, a reasonable explanation of existing law, and instructions that allowed appellant's attorney to vigorously argue his theory of the case, we conclude the three-line "duty to retreat instruction" given to the jury, but not emphasized and not representing the contested part of this case, was error, but not an error mandating a new trial in the interests of justice.