This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1168

 

State of Minnesota,
Respondent,

vs.

John Joseph Udvig,
Appellant.

 

Filed June 7, 2005

Affirmed

Minge, Judge

 

Stearns County District Court

File No. T8-03-18933

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jan F. Petersen, St. Cloud City Attorney, Mark C. Hansen, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)

 

Daniel C. Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Crippen, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

On appeal from a conviction of fifth-degree assault, appellant argues that the district court improperly instructed the jury on accomplice liability and that the evidence was insufficient to support his conviction.  We affirm.

FACTS

 

            Appellant John Udvig had a party at his home in St. Cloud.  Approximately 50 to 70 people attended; many consumed alcohol.  One of the guests was Christopher Kirckof, who was approximately 6’5” tall and weighed about 225 pounds.  By midnight, Kirckof had become extremely intoxicated and began arguing with another guest, Justin Riess.  After some initial pushing and shoving, Kirckof attempted to hit Riess, but missed, striking another partygoer.  Kirckof was told to leave the party, and Anthony Stevenson and Justin Strauss, two of Kirckof’s friends, assisted in escorting Kirckof from the premises.

            As Kirckof left the house, he continued to yell and insist that Reiss come outside and fight.  Some of the partygoers followed Kirckof outside, exchanging expletives with Kirckof and his friends.  Eventually a scuffle ensued, which resulted in Kirckof suffering a fractured bone above his left eye, a scrape under his nose, some stitches on his face, a scrape on his arm, and some bruised ribs. 

            Officer Michael Koeniguer was called to the scene of the scuffle and learned that the individuals involved had been at appellant’s party.  Because he was under 21 and feared being ticketed for being a minor in possession of alcohol, appellant initially told Officer Koeniguer that he was not present at the scuffle.  The next day, however, appellant admitted to Officer Koeniguer that he was at the scene of the fight, but denied assaulting Kirckof.  A few months later, appellant was charged with one count of fifth-degree assault for striking Kirckof.

            Appellant pleaded not guilty, and the matter proceeded to trial where appellant was tried jointly with co-defendant John Haack, who had also been charged with assaulting Kirckof.  At trial, various accounts of the altercation were given.  Stevenson testified that as he and Strauss were escorting Kirckof down the block, they were followed by a group of four or five young men from the party that included appellant.  According to Stevenson, the groups were yelling at each other, eventually one of appellant’s friends pushed Kirckof, and then “everyone attacked [Kirckof].”  Stevenson testified that as Kirckof fell, members of the group were kicking and punching him.  Stevenson testified further that when Kirckof stood up, somebody punched Kirckof in the face, causing him to fall face-first onto the sidewalk. 

            Strauss also testified for the state and corroborated much of Stevenson’s testimony.  Strauss identified Haack as the one who “instigated” the confrontation with Kirckof and testified that both appellant and Haack punched and kicked Kirckof while he was on the ground.  Straus also testified that when Kirckof stood up, somebody threw a “knock-out” punch, but Strauss did not see who threw the punch.  Kirckof testified but was unable to identify the people who assaulted him.   

            Appellant testified that he did not witness the initial confrontation between Kirckof and Riess, and only went outside in an effort to get his friends back inside the house.  Appellant stated that when he reached the group that had gathered around Kirckof and his friends, Kirckof started pushing and shoving appellant’s friends.  Appellant testified that as he grabbed his friends and turned to leave, Kirckof punched him in the back of the head.  According to appellant, Haack and Joseph Erickson then tackled Kirckof in an effort to restrain him, but when they let him up, Brian Mroszak came sprinting from out of the shadows and punched Kirckof in the face, causing Kirckof to fall face-first on the sidewalk.  Appellant denied hitting or kicking Kirckof. 

            Haack, Erickson, and Mroszak also testified at trial.  Haack and Erickson corroborated appellant’s testimony, and Mroszak admitted to punching Kirckof in the face. 

            Following the trial, the jury acquitted Haack, but found appellant guilty of fifth-degree assault.  On June 14, 2004, the district court sentenced appellant to a fine, restitution, and 30 days in the county jail.  The district court stayed the jail sentence pending this appeal.                 

D E C I S I O N

I.

            Appellant argues that the district court erred in failing to properly instruct the jury on the issue of accomplice liability.  District courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  An appellate court will not generally reverse an error in instructing the jury absent an abuse of discretion.  State v. Oates, 611 N.W.2d 580, 584 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).

            Over the objection of appellant, the district court instructed the jury on liability for crimes of another.  The relevant part of the pattern jury instruction provides:

            The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it.

            . . . .

 

            The defendant is guilty of a crime, however, only if the other person commits a crime.  The defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime, unless some crime (including an attempt) is actually committed.

 

10 Minnesota Practice, CRIMJIG 4.01 (1999).  Rather than reading the whole instruction as requested by appellant,[1] the district court only read the following portion of the instruction:  “The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it.”  The omitted portion of the instruction more fully explains that another person must have committed a crime.

            Appellant asserts that this case is unique because he was tried jointly with his alleged accomplice.  Appellant argues that the district’s refusal to read the whole instruction was an abuse of discretion because a proper reading of CRIMJIG 4.01 indicates that appellant could only have been found guilty if his co-defendant was also found guilty.  Appellant contends that because the jury acquitted Haack, his co-defendant, of the fifth-degree-assault charge, the jury would have been obligated to acquit appellant if it had been properly instructed.

            Appellant’s argument is without merit.  The law does not limit the identity of the assailant to a co-defendant or require that the assailant be first convicted.  See Minn. Stat.    § 609.05, subd. 4 (2004).  In this sense any implication in CRIMJIG 4.01 that the assailant is limited to a co-defendant is more restrictive than the statute.  Furthermore, it is well settled that acquittals of criminal accomplices have no effect on the convictions of others.  State v. Cegon, 309 N.W.2d 313, 314 (Minn. 1981). 

            Based on the record, the jury was free to assume that there were individuals in addition to appellant and Haack who were involved in the commission of the offense.  In fact, the record reflects that although appellant and Haack were tried jointly, the jury was aware that the investigation of the incident was still in progress and that more charges could be pending.  Moreover, appellant never disputed that a crime occurred.  Rather, appellant’s position was that although he happened to be at the scene of the assault, he was not involved.  We emphasize that we do not encourage departing from the pattern jury instructions, but the record reflects that appellant was not prejudiced under the applicable law.  Accordingly, we conclude that Haack’s acquittal does not render the instruction by the district court improper and does not support reversal of appellant’s conviction.

II.

            Appellant also contends that the evidence was insufficient to convict him of fifth-degree assault.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The 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).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant was convicted of fifth-degree assault pursuant to Minn. Stat. § 609.224, subd. 1 (2002).  This statute provides:  “Whoever does any of the following commits an assault and is guilty of a misdemeanor:  (2) intentionally inflicts or attempts to inflict bodily harm upon another.”  Id. 

            Appellant argues that the evidence presented was insufficient to convict him of fifth-degree assault because the testimony presented at trial did not prove that appellant was guilty beyond a reasonable doubt.  In support of his claim, appellant points out that Kirckof, who testified for the state, was extremely intoxicated and could not identify appellant as an individual who allegedly punched and kicked him.  In addition, appellant contends that although Stevenson and Strauss identified appellant as one of the individuals who assaulted Kirckof, the jury must not have given their testimony much credence because it acquitted Haack.  Moreover, appellant asserts that Erickson, Haack, and Mroszak all testified that appellant did not assault Kirckof, and Mroszak admitted that he punched Kirckof in the face.

            Appellant’s argument relies heavily on the assertion that Mroszak struck Kirckof with a punch that ultimately caused his injuries.  But even assuming this to be true, the evidence is clear that Kirckof was assaulted, and prior to Mroszak’s punch that both Strauss and Stevenson testified that appellant was one of the individuals that was kicking and punching Kirckof.  If believed, this testimony was enough to convict appellant of fifth-degree assault.  See Minn. Stat. § 609.224, subd. 1(2) (stating that a person is guilty of assault if he intentionally inflicts or attempts to inflict bodily harm upon another).  Although the defense presented testimony that contradicted the testimony of the state’s witnesses, the jury apparently believed the state’s witnesses and disbelieved the contrary testimony.  See Moore, 438 N.W.2d at 108 (stating that determining the weight and credibility of witness testimony is a matter for the jury).  Therefore, when viewed in the light most favorable to the conviction, the evidence was sufficient to allow the jurors to reach the verdict they did. 

            Affirmed.