C4-99-1343

State of Minnesota,

Respondent,

vs.

Tito Taiwan Thompson,

Appellant.

Filed April 4, 2000

Affirmed

Amundson, Judge

Ramsey County District Court

File No. K299235

Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, Minnesota State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

This appeal is from a judgment of conviction for fifth-degree felony assault. Minn. Stat. § 609.224, subd. 4(b) (1998). Because we conclude the evidence is sufficient to support the conviction, we affirm.

FACTS

Appellant, Tito Thompson was charged with two counts of felony fifth-degree assault committed against Eva King and Jina Terry. An eyewitness testified that she saw Thompson grab Terry by her hair, causing her to fall down, then hit Terry, as well as King, who had intervened in defense of Terry.

King testified that she saw Thompson pulling Terry's hair as he threw her about. After King pushed Thompson off Terry, Thompson swung and hit King in the forehead. Terry testified that she had argued with Thompson, and when she walked away from him, Thompson then ran after her, grabbed her shoulders, and "sort of pulled my hair," causing her to fall to the ground. On cross-examination, Terry did concede that Thompson may have unintentionally grabbed her hair.

The jury found Thompson guilty of assaulting Terry, but not guilty of assaulting King.

D E C I S I O N

Thompson argues that the evidence is insufficient to support the conviction. In reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved any contrary evidence, in order to determine whether there was sufficient evidence to allow the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Fifth-degree felony assault occurs when a person intentionally inflicts bodily harm on another within three years of the first of two or more previous similar convictions. Minn. Stat. § 609.224, subd. 4(b) (1998). Thompson stipulated to these prior convictions before trial.

Thompson focuses his argument on Terry's testimony that the grabbing of her hair "could have been unintentional." The weight to be given that testimony, however, was for the jury to determine. See generally Moore, 438 N.W.2d at 108 (holding that weight and credibility of testimony of individual witnesses is for jury to determine). Terry's testimony unequivocally recalls all of Thompson's other acts against her as intentional. Indeed, she testified at one point that Thompson pulled her hair "to stop me." Other eyewitnesses testified to a series of apparently intentional acts committed by Thompson against Terry. Given this evidence, the jury was not required to find that Terry's uncertain testimony created a reasonable doubt as to Thompson's assaultive intent. Moreover, the evidence of other apparently intentional assaultive acts would support the conviction even if the hair-pulling was accidental.

Thompson argues that the stricter standard of review for convictions based on circumstantial evidence should apply. See generally State v. Berndt, 392 N.W.2d 876, 880 (Minn. 1986) (stating general rule that if conviction is based on circumstantial evidence, that evidence must lead so directly to accused's guilt as to exclude beyond a reasonable doubt any reasonable hypothesis other than that of guilt). But there was direct evidence of every element of the assault in this case, except the element of intent. Intent must generally be proved by circumstantial evidence. State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983). Even assuming the stricter standard of review does apply where only the element of intent rests on circumstantial evidence, the evidence is sufficient to support the conviction.

Affirmed.