This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



David M. Lunning,


Filed March 31, 1998


Huspeni, Judge

Scott County District Court

File No. 9615471

John M. Stuart, State Public Defender, Mark F. Anderson, Asst. Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Angela M. Helseth, Asst. County Attorneys, 428 S. Holmes St., Courthouse 206, Shakopee, MN 545379 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.



Appellant challenges his conviction of fifth-degree felony assault on the ground of insufficient evidence. Because there was sufficient evidence to support the verdict, we affirm.


Appellant David Lunning and Sandra Lunning were divorced in 1996. Sandra Lunning has brought five assault charges against appellant: on the first, he pled guilty; on the second, a jury found him guilty and he was sentenced to a jail term; on the third, a judge acquitted him; on the fourth, the court convicted him and he appeals from that conviction; the fifth was pending at the time the fourth occurred. Each case except the first included a charge of violating an order for protection.

The incident giving rise to this appeal occurred when Sandra Lunning was home alone. She testified that appellant, against whom she had an order for protection and who had recently been released from prison, entered her house, began talking about their court proceedings, grabbed her by the arm, causing the arm to bruise, shoved her into a door, and left. Later that afternoon, at a friend's urging, Sandra Lunning called the county attorney to learn the result of a prior assault case. She was unable to learn what had happened in the previous case, and, again at a friend's urging, called the police to report this assault.

The officer who responded to the call testified that although the assault happened five hours earlier, Sandra Lunning was still crying and upset, that she was reluctant to speak and the officer had to elicit information from her, that he saw and photographed the bruise, and that he had dealt with Sandra Lunning after previous assaults and found her afraid and reluctant to give information. When appellant was arrested, he said he could account for his whereabouts during the day. He would not give the names of anyone who would verify his whereabouts, however, but asked the officer if he could telephone his mother so she could verify the persons who could verify appellant's whereabouts.

Appellant, his mother, and his nephew all testified that appellant, who works nights, had spent the afternoon when the assault allegedly occurred at home and in bed. At the conclusion of the trial, the court told appellant that Sandra Lunning was more believable than appellant and convicted him.


Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient * * *.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Appellant argues that the evidence was not sufficient, citing first Sandra Lunning's delay in reporting the incident. The delay was explained at trial, however, when an officer testified that after an assault or other contact with appellant, Sandra Lunning feared retribution if she reported the incident, and Sandra Lunning testified that she did not want to report the incident until she knew the decision on appellant's pending case. Appellant also cites the absence of neighbors' testimony that they had seen appellant in the vicinity that afternoon. Two neighbors testified that they were not home at the time; a third testified that she visited Sandra Lunning shortly after appellant had left. Lack of these witnesses did not render the evidence insufficient to sustain a conviction.

Appellant argues that Sandra Lunning's uncorroborated testimony cannot support a conviction. Even if we were to assume corroboration was necessary, there was, indeed, corroboration. Witnesses who observed Sandra Lunning after the assault gave testimony consistent with her account of the assault. Moreover, it is unlikely that appellant would have assaulted Sandra Lunning in the presence of witnesses.

Finally, appellant argues that he is entitled to at least a new trial, if not a reversal, citing State v. Langteau, 268 N.W.2d 76 (Minn. 1978). Langteau also concerned the conviction of a defendant who said he had not been involved in the alleged crime. The court held that, under all the circumstances, a new trial was required in the interests of justice. Langteau is distinguishable on two grounds. First, in Langteau there was nothing to connect the defendant with the crime, and "[t]he reason why defendant would have held up [the victim], with whom he was well acquainted, is left a mystery." Id. at 77. Here, there was ample evidence of appellant's antagonism toward Sandra Lunning. Second, the Langteau jury deliberated two hours, then reported there was no possibility of agreement, then requested instructions on the meaning of "reasonable doubt," then deliberated several more hours, and finally returned a verdict of guilty late that night. Id. Here, the case was tried to the court, and the court stated explicitly that it had no difficulty in deciding the case. Langteau does not provide a basis for reversal or remand.