This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Ralph Jackson Shockley, Jr.,

Filed August 24, 1999
Kalitowski, Judge

Hennepin County District Court
File No. 98016040

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

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


After a jury trial, appellant Ralph Jackson Shockley, Jr. challenges his conviction of attempted second-degree murder, contending the evidence was insufficient to support the conviction, and the district court abused its discretion by admitting evidence of past threatening behavior. We affirm.



In deciding an insufficiency of the evidence claim on appeal, reviewing courts determine whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quoting State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)).

This court reviews the evidence in the light most favorable to the verdict and assumes that the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.

State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)), review denied (Minn. Jan. 21, 1997). The jury determines the weight and credibility to give to the witnesses' testimony. Id.

Minn. Stat. § 609.17, subd. 3 (1996), states that:

It is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime.

This provision was added to the Minnesota criminal code because it is considered "to be desirable to encourage the voluntary good faith withdrawal from the commission of the crime." State v. Cox, 278 N.W.2d 62, 66 (Minn. 1979) (quoting Advisory Committee Note to Minn. Stat. § 609.17, 40 M.S.A., p. 177 (1964)). But an attempt is not voluntarily abandoned under the statute if a defendant refrains from carrying out the criminal act because of intervening circumstances, such as being frightened by the arrival of law enforcement personnel. Id.

Appellant contends that because he stopped hitting his wife with a hammer and called 911, the jury was compelled to find that he voluntarily desisted and in good faith abandoned the intention to murder the victim. We disagree. There is evidence in the record indicating that appellant did not stop hitting the victim until after she told appellant that the daycare children would be coming soon. Thus, the jury might reasonably have inferred from this evidence that appellant only stopped the assault because he thought he would be caught. Moreover, appellant did not call 911 until after the victim said she would tell the police she had been hurt in a bar fight. We conclude the evidence in the record was sufficient to support the jury's conclusion that appellant did not voluntarily desist and in good faith abandon his attempt to kill his wife.


The district court allowed the state to admit evidence tending to show that: (1) in July 1997, appellant sawed off a shotgun and told his neighbor he was going to use it to shoot his wife; (2) threatened to kill his wife and hurt her friend in October 1997; and (3) again threatened to hurt or kill his wife in October 1997. Appellant contends the district court abused its discretion by admitting this evidence because the evidence was not relevant and material, and the probative value of the evidence was outweighed by the danger of unfair prejudice. We disagree.

The district court has discretion to admit evidence of prior crimes or bad acts, and the appellate court should not reverse such decisions absent an abuse of that discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). The general rule in criminal cases is that evidence which shows or tends to show that the accused has committed crimes or bad acts other than those for which the accused is on trial is not admissible. Minn. R. Evid. 404(b); see also State v. Slowinski, 450 N.W.2d 107, 113-14 (Minn. 1990) (explaining procedure when admitting evidence under Minn. R. Evid. 404(b)). But this rule

does not necessarily deprive the state of the right to make out its whole case against the accused on any evidence which is otherwise relevant upon the issue of the defendant's guilt of the crime with which he was charged.

State v. Mosby, 450 N.W.2d 629, 632 (Minn. App. 1990) (quoting State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271 (1962)), review denied (Minn. Mar. 16, 1990).

One of the elements of attempted second-degree murder is intent to kill. Minn. Stat. §§ 609.19, subd. 1(1), 609.17, subd. 1 (1996). Because the state must prove beyond a reasonable doubt each element of the crimes with which a defendant is charged, the state was required to prove that appellant had intent to kill. See State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (stating due process requirement). We conclude that the evidence admitted here tends to show that appellant had the intent to kill his wife and therefore the district court did not abuse its discretion in determining the evidence was admissible. Further, the district court did not abuse its discretion by finding that the probative value of the evidence of past threatening behavior was not substantially outweighed by any prejudicial effect the evidence may have had. See Minn. R. Evid. 403 (stating evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice).