This opinion will be unpublished and

may not be cited except as provided by

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




David Jon Weckert, petitioner,



State of Minnesota,


Filed February 24, 1998


Foley, Judge**

Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Lincoln County District Court

File No. K6-96-019

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael W. Cable, Lincoln County Attorney, P.O. Box 190, 214 North Norman Street, Ivanhoe, MN 56142-0190 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Foley, Judge, and Forsberg, Judge.*


FOLEY, Judge

Appellant David Jon Weckert challenges his convictions for second- and fifth-degree assault, and recklessly handling a gun. Appellant requests a new trial claiming the district court did not sua sponte include CRIMJIG 3.20 in the final jury instructions. Because the jury was accurately instructed on both second- and fifth-degree assault, including that the jury must acquit if it had a reasonable doubt, and because appellant never objected to the instructions given or requested an instruction on lesser crimes, we affirm.


In early 1996, Jeff Koistinen, owner of a repossession service company, made several attempts to repossess appellant's pickup truck. Appellant admitted that he was aware of Koistinen's desire to repossess the truck, but wanted to keep the truck and was therefore avoiding Koistinen.

On February 22, 1996, Koistinen drove his tow truck to appellant's home. When Koistinen arrived, he could not locate the pickup truck and no one answered the door. As he was leaving, appellant's brother drove up and parked next to the tow truck. The two men started talking about Koistinen's desire to repossess the pickup truck. As they were talking, appellant yelled "get off my property." As Koistinen turned around, he saw appellant standing on the front stoop, holding a Ruger Mini 14 .223 caliber semi-automatic rifle in his hand. Koistinen asked, "Are you [appellant]?" Koistinen saw appellant's arm move and the sound of a "cha-cha," described by Koistinen as the sound of a bolt action or a bullet going into the barrel of the gun. Appellant was in a shooting stance, looking at Koistinen, and starting to move the rifle. Koistinen testified that it appeared that appellant was aiming at him. Koistinen quickly knelt down between appellant's brother's car and his tow truck. Appellant then fired a shot from the rifle. Koistinen testified that he was afraid that appellant was going to shoot again so he got inside his tow truck, started it, drove away, and called 911 on his cellular telephone. Koistinen stated that he was scared for his life.

Appellant testified that he told Koistinen to "get off my property, you are trespassing." Appellant admitted that he was in a shooting stance and that he fired the rifle. Appellant stated that he was "embarrassed" at having shot the rifle, but still said to Koistinen a second time, "get off my property, you are trespassing."

It is undisputed that the district court discussed the proposed jury instructions with the prosecutor and defense attorney at the close of the state's case. Nothing regarding a lesser crime instruction was raised by the defense. In charging the jury, the district court gave the standard instructions on second-degree assault, fifth-degree assault, intentional discharge of a firearm, and reckless handling of a firearm. The defense did not object to the instructions given or request that any additional instruction be read to the jury.

The case was submitted to the jury on the second day of trial. During deliberations, the jury sent the following note to the court:

We are having difficulty distinguishing between 2nd & 5th degre[e] assault. 5th degree has an "or" in the statement[.] [I]f we agree to only one[,] is that a guilty verdict[?]

Again, the defense made no request for any additional instruction with respect to the lesser degree of assault. The court responded by writing across the bottom of the note the following: "'Or' denotes the choice of an alternative." This definition was taken from the New Lexicon Webster's Encyclopedia/Dictionary of the English Language, Deluxe Edition.

The jury returned with its verdict the same day, finding appellant guilty of second-degree assault, fifth-degree assault, and recklessly handling a gun. This appeal followed.


Issues not raised in the district court will not be decided on appeal. State v. Mills, 562 N.W.2d 276, 284 (Minn. 1997). Regarding jury instructions, a party may not claim error in "any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict." Minn. R. Crim. P. 26.03, subd. 18(3). In the absence of any objection, as in the present case, such a claim may be reviewed only if there was "plain error of a prejudicial nature" in relation to the jury instructions. State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995); see Minn. R. Crim. P. 26.03, subd. 18(3) (only an error in "fundamental law or controlling principle" will be reviewed if not objected to before jury retires). The United States Supreme Court stated that the plain error exception is to be "'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result'." United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 1592 n. 14 (1982)).

It is undisputed that the district court discussed the jury instructions with counsel at the close of the prosecution's case. Nothing regarding the lesser-included offense instruction was raised by the defense. Even after the jury was given the instructions, including the elements of the offense, the defense stated that it had no objections to the instructions given and that there were no omissions in the instructions as given.

Next, this court must determine if the jury instructions constituted plain error and, therefore, allow appellant's challenge despite his lack of objection at the trial level. When reviewing the district court's instructions, this court does not look at a single instruction in isolation, but reviews the entire charge. State v. Roden, 380 N.W.2d 520, 524 (Minn. App. 1986), affirmed as modified, 384 N.W.2d 456 (Minn. 1986).

Here, the district court specifically instructed the jury on the particulars of the offenses at the close of the trial. The district court defined assault, tracking the statutory definition, as follows:

[T]hat 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.

See Minn. Stat. § 609.224, subd. 1(1), (2) (1996). The district court then defined and set out the elements of second- and fifth-degree assault following 10 Minnesota Practice, CRIMJIG 13.05, 13.06, 13.11, and 13.12 (1990). The jury instructions were written, and a copy was provided to the jury at the close of the case.

As the jury instruction details, the elements necessary for a second-degree assault conviction in Minnesota are:

First, defendant assaulted _____.

Second, defendant, in assaulting _____, used a dangerous weapon. * * *

Third, defendant's act took place on (or about) _____, in _____ County.

If you find that each of these three elements has been proved beyond a reasonable doubt, defendant is guilty of assault in the second degree. If you find that any of these elements has not been proved beyond a reasonable doubt, defendant is not guilty of assault in the second degree.

CRIMJIG 13.06; see also Minn. Stat. § 609.222, subd. 1 (1996). The district court properly instructed the jury that appellant could not be convicted of second-degree assault if any element is lacking.

There is no dispute that fifth-degree assault is a lesser-included offense of second-degree assault. See Minn. Stat. § 609.04, subd. 1(1), (4) (1996) (lesser-included offense is lesser degree of same crime, or a crime necessarily proved if greater crime were proved). The only distinction between the two crimes is that second-degree assault contains the additional element of the use of a dangerous weapon.

Appellant claims the district court should have instructed the jury as to CRIMJIG 3.20, which states that "[i]f you find beyond a reasonable doubt that defendant has committed a crime but you have a reasonable doubt which crime has been committed the defendant is guilty of the lesser crime only."

CRIMJIG 3.20 was not necessary because the instructions in CRIMJIG 13.06 clearly and properly inform the jury on the question of reasonable doubt. Therefore, there was no need for the lesser-included offense instruction. See Bolte, 530 N.W.2d at 199 (no plain error if district court, without objection, did not give lesser-included offense instruction and did give reasonable doubt instruction). Based on the district court's instructions, the jury knew that if it concluded beyond a reasonable doubt that appellant had assaulted Koistinen, but had a reasonable doubt whether appellant used a dangerous weapon, it could not convict him only of second-degree assault. This is the same result that would have occurred if the district court had given the lesser-included offense instruction. It was not error, much less plain error, for the district court to instruct the jury as it did.

Finally, because appellant did not object, even if the failure to give CRIMJIG 3.20 instruction is considered "plain error," this court may reverse only if it "result[ed] in substantial and material prejudice to [appellant's] rights." State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994). "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Minn. R. Crim. P. 31.01.

Here, appellant was not prejudiced. The only element distinguishing fifth-degree assault from second-degree assault is the element "with a dangerous weapon." Minn. Stat. §§ 609.222, subd. 1; 609.224, subd. 1 (1996). By his own testimony, appellant admitted that he held, cocked, and fired a semi-automatic rifle, which is indisputably a dangerous weapon. It is undisputed that a dangerous weapon was used.

There is no rational basis for a jury to return a verdict of guilty of assault in the fifth-degree and to acquit on the charge of assault in the second-degree, as appellant clearly used a dangerous weapon. Based on the evidence presented and appellant's own admission to using a dangerous weapon, he was not prejudiced by any possible error in not including CRIMJIG 3.20.