This opinion will be unpublished and

may not be cited except as provided by

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


State of Minnesota,



Anita Carol Allen,


Filed December 8, 1998


Toussaint, Chief Judge

Hennepin County District Court

File No. 97046296

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge,[*]


TOUSSAINT, Chief Judge

Appellant Anita Allen was charged with second-degree assault, in violation of Minn. Stat. §§ 609.222, subd. 1, 609.101, subd. 2, and 609.11 (1996), after stabbing a liquor store manager who demanded she leave the store. After failing to give the required pre-trial notice of its intended reliance on the defense of self-defense or a proposed self-defense jury instruction at the instruction conference, defense counsel requested an instruction at the close of trial on the basis of evidence that the store manager pushed Allen before she stabbed him. On appeal, Allen challenges the trial court's self-defense jury instruction. Because the trial court did not misstate the law in its jury instruction, we affirm.


A trial court has considerable latitude in determining the propriety of a specific jury instruction. State v. Auchampach[cedilla] 540 N.W.2d 808, 816 (Minn. 1995). An appellate court reviews a trial court's jury instructions for abuse of discretion and errors of law. State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Apr. 15, 1997). Where jury instructions fairly and adequately state the applicable law, this court will not reverse. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

The trial court instructed the jury using CRIMJIG 7.06, 7.07 (aggressor has no right to self-defense unless adversary is informed of desire for peace), and 7.08 (duty to act in good faith, i.e. retreat). Quoting CRIMJIG 7.06, the trial court stated that

[t]he defendant is not guilty of a crime, that is these assaults, if the defendant used reasonable force against Mr. Ansari [the store manager]* * * to resist an offense against her and if such an offense was being committed or the defendant reasonably believed that it was.

Over defense counsel's objection, the trial court also instructed the jury as follows:

I told you that the defendant is not guilty of a crime if the defendant used reasonable force to resist an offense against her and such an offense was being committed or the defendant reasonably believed that it was, and in connection with whether an offense was being committed against her there is a Minnesota statute [Minn. Stat. § 609.06, subd. 1(4) (1996)] that reads as follows:

Reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: When used by any person in lawful possession of real or personal property or by another in assisting the person in lawful possession in resisting a trespass upon or other unlawful interference with such property.

Allen contends the trial court's recitation of Minn. Stat. § 609.04, subd. 1(4) was reversible error because it directed a verdict for the state by implicitly instructing the jury that it need not consider the reasonableness of her belief that she was being assaulted. We disagree. The trial court explicitly invoked the statute "in connection with whether an offense was being committed against [Allen]," not in connection with whether Allen reasonably believed it was. The trial court's instruction neither discharged the jury's duty to consider Allen's reasonable belief nor shifted the state's burden of proving this element to Allen. Moreover, the trial court instructed the jury on reasonable belief and the state's burden of proof.

In addition, the trial court did not misstate the law in its jury instruction. Minnesota case law establishes that an entrant may become a trespasser by staying beyond the possessor's invitation or permission. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402, 404-05 (Minn. App. 1995), review denied (Mar. 29, 1995); Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn. 1982) (determining that trial court correctly instructed jury that lawful entrant may become trespasser by moving beyond scope of possessor's invitation). Here the store manager retracted his invitation to Allen, the entrant, by asking her to leave and informing her she was trespassing. Under Minn. Stat. § 609.06, subd. 1(4), a property owner's use of reasonable force to resist a trespass is not an offense. Consequently, the trial court's recitation of the statute was not an abuse of discretion when, pursuant to CRIMJIG 7.06, the jury was instructed to consider whether an offense was being committed against Allen. Moreover, the challenged instruction did not relieve the jury from deciding whether an offense was being committed against Allen because it still had to consider whether the store manager used reasonable force to resist the trespass.

Even if the jury instruction was error, it was harmless. See State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992) (an erroneous instruction does not require reversal if the error did not have a significant impact on the verdict). The trial court instructed the jury on Allen's duty to retreat and the degree of force that can lawfully be used in self-defense. The evidence established that Allen had ample opportunity to retreat, but chose instead to stab the store manager and return to the store a few minutes later to yell at him. A reasonable jury could also conclude beyond a reasonable doubt that the degree of force used by Allen was excessive under the circumstances.


[* Retired judge of the district court, serving as judge of Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.