This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



James Martin Jennings,


Filed July 29, 1997


Huspeni, Judge

St. Louis County District Court

File No. K9-96-100654

Todd E. Deal, Johnson & Deal, 208 Fifth Avenue South, P.O. Box 31, Virginia, MN 55792 (for Appellant)

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, 501 Courthouse, 100 N. Fifth Avenue W., Duluth, MN 55802 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Davies, Judge.



Appellant James Jennings challenges his convictions of first-degree burglary and second-degree assault, arguing that the evidence was insufficient to support the convictions and that the trial court abused its discretion in refusing to depart dispositionally from the presumptive sentence. We affirm.


Appellant, his brother Robert Jennings, his long-time friend Charles Howell, and Howell's girlfriend Vicki Sherman, spent the night at two bars, drinking and talking amicably. As they prepared to leave the second bar when it closed, appellant gave Sherman money and asked her to return to the first bar and buy off-sale beer for him. Sherman, accompanied by Howell, purchased the beer as requested, but when they returned to the bar's parking lot, they could not find appellant and Robert. Howell and Sherman decided to go home, thinking appellant and his brother might eventually come there to get the beer.

Howell and Sherman shared a trailer home in a nearby town. On a prior occasion, appellant had visited the site of the couple's trailer home; at that time, however, the couple shared a different trailer home. Their new trailer home had two entrances, a main entrance on the north side, lit by a 1100 watt light, and an unused rear entrance, located where the main entrance on the old trailer home had been located.

Howell and Sherman left the main entrance door unlocked. The rear entrance door consisted of two doors--an external storm door without a handle blocked shut by a shovel, and a locked, internal solid-wood door. Inside the enclosed rear entrance was a wood-burning stove. There was no door in the passage from the rear entrance directly into the trailer home, but a blanket and styrofoam sheets covered the doorway. Additionally, the rear entrance was blocked from the inside by a 25-inch console television with a microwave and a cooler on top.

After returning home, Howell and Sherman left the beer inside the unlocked main entrance and fell asleep on a hide-a-bed in the living room. Later, Howell was awakened by headlights and the sound of a vehicle pulling into the driveway. Thinking it was appellant and his brother, Howell turned on the front yard light. No one came up to the trailer home, however, and Howell returned to bed and fell asleep.

Howell was awakened by "a lot of crashing and banging" coming from the rear entrance. As Howell started to get up, he was met by appellant, who dragged him out of bed, punched him in the face, and struggled with him. Sherman awakened to see the two men struggling and heard appellant say something to the effect of "you ripped us off." Robert stood behind appellant, holding an opened Buck knife in his right hand, by his leg. After wrestling Howell into the bathroom and leaving him there, appellant fled with Robert.

Following his apprehension, appellant stated that he drove to Howell's trailer home with Robert, was invited inside, and was then stabbed in the neck by Howell, who tried to steal his money. Appellant was charged with first-degree burglary and second-degree assault. At trial, he provided a different version of events, testifying that he went to the trailer home with Sherman and had sexual intercourse with her, and that when Howell and Robert arrived 20 minutes later, appellant exchanged words with Howell, who "poked [him] in the chin." The jury found appellant guilty of the charged offenses.


When reviewing a claim of sufficiency of the evidence,

we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted). This court views the evidence in the light most favorable to the state and assumes that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). Inconsistencies in the evidence are also resolved in favor of the state. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).

1. First-degree Burglary

Appellant argues that there was insufficient evidence to support the first-degree burglary conviction because the evidence indicates that he entered Howell and Sherman's trailer home with their consent, but mistakenly came through the rear entrance. Additionally, appellant claims that his right to self-defense justified his remaining on the premises even if consent was withdrawn, and this right supersedes the allegation that he assaulted Howell. We find no merit in appellant's arguments.

Assuming without deciding that appellant had consent to enter the trailer home, he exceeded the scope of any such consent by breaking through the rear entrance that had been blocked off. See State v. McDonald, 346 N.W.2d 351, 352 (Minn. 1984) (burglary complete once defendant, who entered drugstore during business hours, exceeded scope of consent by entering closed storage room that was off-limits to general public). To gain entry, appellant broke through a handleless storm door that was blocked shut by a shovel, a locked solid-wood door, a doorway covered by a blanket and sheets of styrofoam, and a doorway that was blocked by a large console television, a microwave, and a cooler. The jury could reasonably infer that appellant did not have Howell's consent to enter the trailer home through the rear entrance. Moreover, the fact that the rear entrance was thoroughly blocked off undermines appellant's contention that he honestly mistook the rear entrance for the trailer home's main entrance.

Appellant also maintains that he did not commit the underlying offense (assault) on which his burglary conviction was based, but merely exercised his right to defend himself. See Minn. Stat. § 609.06, subd. 1(3) (1996) (authorizing person to use reasonable force against another in resisting an offense against the person). We cannot agree.

The well-established 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 and that the action taken was necessary to avert that 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. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (citing State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967)). Once self-defense is claimed, the state has the burden of proving the nonexistence of one of those elements beyond a reasonable doubt. Id. (citing State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980)).

Here, the evidence demonstrates that appellant was the aggressor. Testimony that the jury evidently found credible indicated that appellant provoked the fight. Howell testified that after being awakened by appellant crashing through the rear entrance, he found himself being dragged from bed while appellant punched him in the face. Sherman testified that she saw appellant "beating the hell out of" Howell. She also saw Howell push appellant into the window while the two were wrestling, but this occurred only after appellant initiated the fight. Moreover, even if appellant had a right to self-defense, he also had a duty to retreat if the means to do so was available. The jury reasonably could have concluded that appellant did not have a right to self-defense because he was the aggressor and because he had a reasonable means to retreat.

2. Second-degree Assault

Appellant also challenges the sufficiency of the evidence to support his conviction for second-degree assault, which was based on accomplice liability and Robert Jennings' use of a dangerous weapon. See Minn. Stat. § 609.05, subd. 1 (1996) ("A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."). Appellant does not contest his liability under section 609.05, but argues that there was insufficient evidence that Robert assaulted Howell with a dangerous weapon. Alternatively, appellant alleges the state failed to prove that Robert was not authorized to use his knife to resist an offense against appellant. We find no merit in either argument.

Second-degree assault requires proof of an assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (1996). The statutory definition of "assault" includes either:

(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 (1996). The existence of criminal intent is a question of fact for the jury. State v. Brechon, 352 N.W.2d 745, 750 (Minn. 1984). The defendant's intent is determined by inferences drawn from all of the objective facts and circumstances, including the defendant's statements and conduct at the time of the act. State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983).

Robert held the opened knife as he stood behind appellant while appellant punched Howell and was present with the knife when appellant dragged Howell into the bathroom. Moreover, Robert held the exposed knife as he pushed Sherman and prevented her from going into the bathroom. Sherman testified that she was scared. The jury could reasonably infer that Robert acted with the intent to cause fear of immediate bodily harm or death.

Appellant's alternative argument that Robert acted in self-defense is unconvincing. Appellant concedes there was no evidence that Robert had authorization to have the knife in his hand for purposes of defending either himself or appellant. Having determined that appellant had no right to self-defense, the jury reasonably could conclude also that Robert had no right to come to appellant's aid. The record contains sufficient evidence to support appellant's second-degree assault conviction.

3. Sentencing

Appellant alleges the district court abused its discretion when it refused to depart from the guidelines' recommended executed sentence because of mitigating factors and to place appellant on probation. We find no merit in appellant's argument.

Generally, it is a "rare case" that warrants reversal of the district court's refusal to depart from the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see, e.g., State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996) (only in rare case will reviewing court reverse district court's imposition of presumptive sentence), review denied (Minn. Oct. 29, 1996). This is not that rare case. Even in cases where mitigating factors are present, reviewing courts generally will not interfere with the district court's discretion in sentencing. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (clear presence of mitigating factor did not obligate district court to depart); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (reviewing court ordinarily will not interfere with sentence in presumptive range even when there are grounds to justify departure); State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982) (evidence showing particular amenability to probation will not cause an appellate court to interfere with a sentence within the presumptive range).

The record indicates that at the time of sentencing appellant did not seek departure on the ground he now raises: that Howell was the aggressor. Appellant's attorney, in fact, acknowledged that the jury had rejected appellant's self-defense claim. The trial court was well within its discretion in refusing to find otherwise for the purpose of sentencing. The trial court was also within its discretion in rejecting appellant's remorse as grounds for departure.[1]


[ ]1The trial court stated to appellant:

Dispositional departures are set aside for those very special circumstances where people are remorseful, where people are taking responsibility for all of their actions, and up until five minutes ago you did absolutely none of this before these proceedings today.