This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-698

State of Minnesota,
Respondent,

vs.

Stanley Preston Bell,
Appellant.

Filed January 4, 2000
Affirmed
Lansing, Judge

Stearns County District Court
File No. KO-98-636

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Roger S. Van Heel, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

On appeal from conviction for two counts of felony fifth-degree assault and one count of terroristic threats, Stanley Bell challenges the sufficiency of the evidence to sustain the convictions. Bell alternatively requests a new trial for prejudicial exclusion of evidence. The record establishes an adequate evidentiary basis for each conviction, and the district court did not abuse its discretion in disallowing other-offense evidence to impeach the complaining witness. We affirm.

FACTS

A jury convicted Stanley Bell of two counts of felony fifth-degree assault and one count of terroristic threats for orally threatening and physically injuring Ilene Pinske in Pinske's apartment. Bell had been staying with Pinske for several days before the incident. On the evening of the incident, Bell and Pinske quarreled intermittently over whether Bell should have Pinske's apartment keys. After returning from drinking and watching a movie in a friend's apartment, Pinske and Bell had a sharp disagreement about whether a group of friends could enter Pinske's apartment.

Pinske testified that when she told one of the group that he could not enter her apartment, Bell grabbed her and threw her against the kitchen wall, causing her head to smash into a rack of cups mounted on the wall. Pinske said that Bell then smashed her head on the kitchen floor, causing a large red welt on the back of her head. Pinske further testified that when she started toward the phone, Bell yelled, "Don't even think about calling 911 or I will kill you before they get here." In his testimony, Bell claimed he pushed Pinske only after she twice knocked him to the floor. He also denied threatening Pinske.

Four other witnesses testified at trial: a member of the group who was at the door at the time of the incident; Pinske's employer, who lives in the same apartment building; and two police officers who responded to telephone reports from the building. The district court permitted Spreigl evidence of Bell's 1997 terroristic-threats conviction in Stearns County and his 1997 domestic-assault conviction in Benton County. The court denied Bell's motion to admit evidence that, several months after the incident, Pinske had been charged with assaulting her husband.

The jury rejected Bell's self-defense claim and found him guilty of two counts of fifth-degree assault, Minn. Stat. § 609.224, subds. 1(1) (intent to cause fear), 1(2) (infliction of bodily harm) (1996); terroristic threats, Minn. Stat. § 609.713, subd. 1 (1996); and disorderly conduct, Minn. Stat. § 609.72, subd. 1(3) (1996). The court entered judgment on all charges, but imposed sentence only on the terroristic-threats charge.

Bell challenges (1) the sufficiency of the evidence to establish terroristic threats; (2) the sufficiency of the evidence to disprove self-defense on the assault convictions; and (3) the exclusion of evidence on an assault charge pending against Pinske. We address the issues consecutively.

D E C I S I O N

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crimes charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). In reviewing a conviction for sufficiency of evidence, we do not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved any contradictory evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

I

The state must establish three elements to support a conviction of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996): (1) that the accused made threats, (2) to commit a crime of violence, (3) with the purpose to terrorize another or in reckless disregard of the risk of terrorizing another. State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).

Bell does not contest that the statement, "Don't even think about calling 911 or I will kill you before they get here," constitutes a threat within the meaning of the second and third elements of the statute. Instead, he denies making the statement, arguing, in effect, that the jury erred in crediting the testimony of Pinske and Pinske's employer.

Sufficient evidence supports the jury's determination that Bell threatened Pinske. The jury heard testimony from both Bell and Pinske, as well as Pinske's employer, who stated that Pinske repeated Bell's threat to her on the phone shortly after it occurred. Bell essentially argues that the jury believed the wrong people and erred by not giving more weight to the defense witnesses' testimony. Determining witness credibility, however, is for the jury, not the reviewing court. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The jury's verdict reflects its belief of Pinske's testimony. Pinske's testimony and other corroborating evidence sufficiently support the terroristic-threats conviction.

II

Bell's challenge to the fifth-degree assault conviction is limited to whether the state adequately disproved self-defense. A person is authorized to exercise reasonable force to resist or aid another to resist an offense against the person. Minn. Stat. § 609.06, subd. 1(3) (1996). When asserting a claim of self-defense, the defendant must demonstrate an absence of provocation, an actual and honest belief of imminent danger of great bodily harm, necessity for the action, reasonable grounds for his belief, and that retreat to avoid danger was not reasonably possible. State v. Richardson, 393 N.W.2d 657, 662 (Minn. 1986); State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983). The burden of proof rests with the state to rebut a claim of self-defense when it has been properly raised. State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).

The record contains ample evidence to support Bell's assault convictions. The jury determined that the state proved beyond a reasonable doubt that Bell did not act in self-defense. Bell again argues that the jury should have found the testimony that he and his witness provided more credible than Pinske's testimony. But the jury did not. In addition, Pinske's testimony was buttressed by (1) evidence of Pinske's head injury, including a large red lump; (2) testimony of the police officers; (3) Bell's admission that he pushed Pinske and injured her; (4) Pinske's employer's testimony about Pinske's emotional state and comments when she talked with her shortly after the incident; and (5) the testimony from a member of the group at the door that Bell pushed Pinske into the wall.

III

Bell alternatively contends that he is entitled to a new trial because the district court excluded evidence that Pinske had been charged with assaulting her husband several months after the incident underlying Bell's convictions. Evidentiary rulings generally rest within the discretion of the trial court and will not be reversed absent an abuse of that discretion. State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998); State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Extrinsic evidence of a witness's specific conduct is generally inadmissible, but the court may, in its discretion, allow evidence that is relevant and material to show such factors as motive, opportunity, intent, or absence of mistake or accident. Minn. R. Evid. 404(b).

Although the evidence that Pinske assaulted her husband in an incident occurring months after the altercation with Bell may minimally indicate an absence of mistake or accident, Bell's purpose seems more aligned with using the pending offense as propensity evidence. Attempting to show propensity for aggression is an impermissible use of character evidence under rule 404(b). See State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (reviewing distinction between impermissible use of character evidence of other crimes, wrongs, or acts to prove person acted in conformity and use of other-offense evidence for permissible purposes). Given the high degree of discretion afforded to the trial court in evidentiary rulings, we cannot find error in the court's decision to exclude evidence of Pinske's later arrest for assault.

Even if it were error to exclude the other-offense evidence, a new trial is not warranted because any error was harmless. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). "In assessing whether excluded evidence is harmless, this court must be satisfied * * * that if the evidence had been admitted, * * * an average jury * * * would have reached the same verdict." Id. We cannot conclude that a reasonable jury would have found Bell did not utter verbal threats because physical-assault charges were pending against Pinske. With respect to the assault convictions, Bell admitted that he shoved Pinske. Under Bell's rendition, the jury would have had to conclude that the amount of force used by Bell in pushing Pinske was reasonable under the circumstances and that no retreat was possible. We conclude there is no reasonable possibility the verdict might have been different if evidence of Pinske's assault charges had been admitted. See id. (stating harmless-error standard).

Affirmed.