C5-01-39

State of Minnesota,

Respondent,

vs.

Abdulla Omar Reed,

Appellant.

Filed October 30, 2001

Affirmed

Willis, Judge

Ramsey County District Court

File No. K7001923

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant challenges his conviction of third-degree assault, arguing that the evidence was insufficient for the jury to conclude that the state proved, beyond a reasonable doubt, that he did not establish one or more of the elements of self-defense. Because we conclude that the evidence was sufficient for the jury to conclude that the state met its burden of proof, we affirm.

FACTS

In June 2000, appellant Abdulla Omar Reed was arrested and charged with third-degree assault, a violation of Minn. Stat. § 609.223, subd. 1 (2000), and possession of a firearm by an ineligible person, a violation of Minn. Stat. § 624.713 (2000).

At Reed’s trial, Mark Montour testified that (1) he was talking with Peter Och (Och) and Och’s wife, Jean, in front of the Ochs’ West St. Paul home when he heard Reed yell at and threaten a group of teenagers that included Och’s son, Brian; (2) when Jean Och tried to intervene, Reed yelled an obscene insult; (3) in response, Och crossed the street toward Reed at “a fast pace” with his hands at his sides; and (4) Reed then picked up a piece of concrete and struck Och in the face when Och was only “a few feet” away.

Montour also witnessed the fight that ensued, and he testified that (1) Och and Reed “grabbed each other”; (2) Reed struck Och twice with a gun; (3) a friend of Reed’s arrived and also struck Och twice with the gun; and (4) Reed and his friend then fled.

Och testified that (1) he heard Reed swearing at and threatening his son and the other teenagers; (2) after Reed swore at his wife, Och left his yard and walked across the street, with his arms at his sides, toward Reed, who was standing across the sidewalk from the street; (3) Och did not raise his fists before Reed hit him with the concrete; (4) Och punched Reed as Reed was trying to get to the back porch of his house; (5) when Reed reached the back porch, he picked up a gun and struck Och with it; (6) Reed’s friend arrived and hit Och on the back of the head; and (7) Reed and his friend then fled.

Reed and a neighborhood resident, Matthew Johnson, testified that (1) Och threatened bodily harm to Reed, and (2) Och crossed the street toward Reed with balled fists.

The jury found Reed guilty of both charges. Reed was sentenced in October 2000 to concurrent terms of 60 months for the firearm-possession charge and 36 months for third-degree assault. Reed appeals his conviction of third-degree assault.

D E C I S I O N

When there is a challenge to the sufficiency of evidence, appellate courts carefully review the record “to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). A reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). A verdict will not be disturbed

[i]f the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [the] defendant was proven guilty.

State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965) (citation omitted).

An individual’s right to use non-deadly force in self-defense is codified in Minn. Stat. § 609.06 (2000). As applicable here, the statute provides that

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:

* * * *

(3) when used by any person in resisting * * * an offense against the person.

Minn. Stat. § 609.06, subd. 1. The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997) (citations omitted).

Further, even if the elements of self-defense are established, the degree of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances. Id. at 286. The defendant “has the burden of going forward with evidence to support a claim of self-defense.” Id. (citation omitted). Once the defendant meets his burden, “the state has the burden of disproving one or more of [the] elements beyond a reasonable doubt.” Id. Reed contends that the state failed to meet its burden. The state argues that the evidence disproves more than one of the elements of self-defense beyond a reasonable doubt.

First, the state contends that the jury could have concluded beyond a reasonable doubt from Montour’s and Och’s testimony that Reed provoked the fight. Montour and Och testified that Och crossed the street only after Reed threatened and swore at Och’s son and shouted an obscene insult at Och’s wife. Also, Montour testified that when Och approached Reed, Och’s hands were not balled into fists and they were not held in a threatening manner. Och testified that he walked across the street with his arms at his side, that he did not raise his fist or arm before Reed hit him. Here, viewing the evidence in the light most favorable to the conviction, as this court is required to do, the evidence was sufficient for the jury to conclude that the state had proved beyond a reasonable doubt that Reed provoked the fight.

Second, the state argues that the jury could have concluded beyond a reasonable doubt that there was a reasonable possibility that Reed could have avoided the danger to himself by retreating. Reed and Jackson testified that Och threatened Reed from the far side of the street, and Montour, Och, Reed, and Jackson all testified that Och had to cross the street in order to reach Reed. But Reed did not retreat. From this, the jury could infer that the state proved beyond a reasonable doubt that there was a reasonable possibility that Reed could have retreated to avoid any harm.

Finally, the state contends that Reed used excessive force under the circumstances by striking an unarmed man in the head with a piece of concrete, leaving two long scars on Och’s forehead and fracturing the bones in his nose. And there was testimony that, as Och approached Reed, Och’s arms were at his sides and his hands were not balled into fists. From this, the jury could conclude that the state proved beyond a reasonable doubt that Reed used greater force than that which would appear to be necessary to a reasonable person under similar circumstances.

Viewed in the light most favorable to the conviction, the evidence is sufficient for the jury to conclude that the state met its burden of disproving one or more elements of Reed’s self-defense claim beyond a reasonable doubt. The evidence is also sufficient for the jury to conclude that, even if Reed had established the elements of self-defense, he used force excessive under the circumstances.

Affirmed.