A04-1771

State of Minnesota,

Respondent,

vs.

Robert James Smitty,

Appellant.

Filed August 23, 2005

Affirmed

Hudson, Judge

Steele County District Court

File No. K3-01-1199

Mike Hatch, Attorney General, Thomas R. Ragatz, Susan E. Damon, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2131; and

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, Minnesota 55060 (for respondent)

Melissa Sheridan, Special Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, Minnesota 55121 (for appellant)

Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

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

HUDSON, Judge

Appellant challenges his conviction of second-degree assault, arguing that (a) the district court abused its discretion by precluding a proposed defense witness from testifying, and (b) the evidence is insufficient to support the conviction. Because the district court’s decision to preclude the defense witness was within the discretion of the district court, and because there is sufficient evidence that appellant acted with intent to cause fear in another of immediate bodily harm, we affirm.

FACTS

Owatonna police officers arrested appellant Robert James Smitty on September 26, 2001, after an altercation at an apartment complex in which the victim alleged that appellant threatened him with a knife. The state charged appellant with one count of second-degree assault under Minn. Stat. § 609.222, subd. 1 (2000), and one count of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2000). The district court conducted a jury trial.

In the early afternoon of September 26, 2001, Troy Waldee, apartment manager for the North Court Apartments in Owatonna, phoned the police after observing what he believed to be a drug transaction at apartment A1. At that time, Shannon Meritt was renting apartment A1. Appellant and his wife, Sandra Smitty, were staying with Meritt.

Later that evening, Waldee was picking up trash and litter outside the apartments with his 11-year-old son. According to Waldee’s testimony, appellant was outside apartment A1. Appellant began yelling at Waldee, stating that he wanted to “kick [Waldee’s] ass” and “kill [Waldee].” Appellant mimicked a gun with his hands and pretended to shoot Waldee, stating that Waldee was a “snitch” and a “dead mother f‑‑‑‑r.” Appellant began walking towards Waldee at a quick pace but stopped before he reached Waldee and began fiddling with his pockets. At this point, Waldee testified that he believed appellant wanted to fight with him. Waldee instructed his son to return to the apartment office and call the police.

When Waldee next looked at appellant, appellant was holding a knife in his hands. Appellant flipped open the blade and stated that he was “going to kill” Waldee. Appellant was approximately 10–15 feet away from Waldee. Appellant held the knife in front of him, “swinging it around” for about 15 seconds. Waldee felt threatened and believed that appellant could stab him. But Waldee agreed at trial that appellant could not have actually stabbed him from that distance unless appellant threw the knife. The confrontation ended without further incident when Waldee told appellant that he could have appellant arrested for making threats, Waldee began walking toward the office, and appellant returned to apartment A1. Waldee later described appellant’s knife to the responding officer at the scene. The responding officer questioned appellant about the knife, and appellant admitted to possessing a knife on his person.

At trial, appellant denied threatening Waldee with a knife on September 26. Instead, appellant and Sandra Smitty testified that appellant went outside after Meritt observed Waldee writing down Sandra Smitty’s vehicle license number. Appellant asked Waldee why he was “messing” with him. According to appellant, both men were upset, but their conversation never escalated into yelling, and appellant did not brandish a knife or any other weapon. Appellant testified that he possessed a knife that afternoon because he was assisting a friend with some vehicle maintenance.

Sandra Smitty testified that she had met Waldee a couple of weeks before the incident on September 26 at a party hosted by Chris Ramirez. According to Sandra Smitty, Waldee was joking with her at the party while appellant threw his pocket knife at a tree. Appellant saw them talking and became upset. Waldee and appellant began talking and resolved their differences. Waldee hugged appellant, and appellant hugged him back, while holding his knife in his hand. According to appellant’s testimony, Waldee’s wife “went ballistic” when she saw appellant hugging Waldee with his knife in his hand. Sandra Smitty and Waldee’s wife argued for about 5–10 minutes until appellant removed Sandra Smitty and left the party.

Waldee testified that he was in attendance at the Ramirez party but did not have a confrontation with appellant. Waldee testified that he could not recall all of the details of the Ramirez party, but he did remember an argument between Sandra Smitty and his wife.

The jury convicted appellant of both charges. The district court sentenced appellant to 21 months, executed, for the second-degree-assault conviction. This appeal follows.

D E C I S I O N

Appellant first challenges the district court’s decision precluding him from calling an additional witness at trial as a sanction for violating discovery rules. All defense witnesses in a criminal case must be disclosed pursuant to Minn. R. Crim. P. 9.02. “Discovery rules are ‘based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial’ and are ‘designed to enhance the search for truth.’” State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998) (quoting State v. Lindsey, 284 N.W.2d 368, 372 (Minn. 1979)). Upon a violation of Rule 9.02, the district court may impose sanctions, including ordering discovery, granting a continuance, holding counsel in contempt, or “enter[ing] such order as [the district court] deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8.

“The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the [district] court.” Lindsey, 284 N.W.2d at 373. Although precluding evidence is a severe sanction to be used only as a last resort, this court will not overturn a district court’s discovery sanction absent a clear abuse of discretion. Id. at 373–74. In exercising this discretion, the district court should consider: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors. Id. at 373.

Here, on the second day of trial, after the state had rested and appellant had presented his first defense witness, defense counsel informed the district court that it intended to call Crystal Garbers, a previously undisclosed witness, in appellant’s case in chief. Garbers was present at the Ramirez party, and her testimony would corroborate the version of events offered by appellant and Sandra Smitty. The district court precluded Garbers’s testimony, noting that the court could not find a valid justification for defense counsel’s failure to disclose Garbers. Appellant argues that the district court abused its discretion by precluding Garbers’s testimony because Garbers’s testimony was necessary to demonstrate retribution by Waldee for the confrontation between the parties’ spouses at the Ramirez party.

A. Reasons for failing to disclose

Appellant argues that the first Lindsey factor does not support preclusion because defense counsel did not make a calculated, willful decision to not disclose Garbers as a potential witness but, rather, could not locate Garbers until the trial started. Appellant’s arguments lack merit. Lindsey does not require bad faith on the part of counsel before imposition of discovery sanctions precluding witness testimony. See id. at 373 (“While [the defense counsel’s failure to disclose two witnesses] may not have been motivated by bad faith, neither can it be discerned from the record that there was justification for such disregard of the discovery obligation.”). Moreover, the record reflects that defense counsel was not as diligent as now suggested in locating or disclosing Garbers. Neither appellant nor defense counsel attempted to contact Garbers until the week before appellant’s trial. Additionally, the record reflects that defense counsel waited until a day after conducting his initial witness interview of Garbers to disclose her as a witness. In the interim, the parties selected a jury, the state presented and closed its case, and defense counsel put forth its first witness. While defense counsel may not have acted deliberately, his conduct did not evince a concerted effort to comply with discovery rules. Therefore, the first Lindsey factor supports preclusion.

B. Prejudice to opposing party

Appellant contends that the state was not prejudiced by the nondisclosure because (1) the state was on notice that appellant would present evidence regarding Waldee and appellant’s confrontation at the Ramirez party and, therefore, the state could have interviewed any party guest, and (2) the district court gave the state the opportunity to interview Garbers and prepare a cross-examination. The state argues that it would have been prejudiced by Garbers’s testimony because (1) there was insufficient time to either investigate Garbers’s background or locate and interview other party guests for purposes of rebutting Garbers’s testimony, and (2) the prosecutor had not had the opportunity to question the jurors on voir dire as to their knowledge of or relationship to Garbers.

Minnesota case law supports the proposition that a party’s inability to investigate witness testimony results in prejudice. See id. at 373–74 (stating that a prosecutor’s inability to conduct an independent investigation was prejudicial); see also Patterson, 587 N.W.2d at 51 (stating there was “little doubt” that a prosecutor was prejudiced by a nondisclosure where the prosecutor was given no opportunity to discover what the proposed witness would say). Yet the supreme court has found this prejudice insufficient to support preclusion where considerable investigation was not required to prepare an effective cross-examination. See State v. Rasinski, 472 N.W.2d 645, 648–49 (Minn. 1991) (concluding that preclusion of a non-disclosed witness was error where a continuance of one hour was sufficient for the prosecutor to prepare for the witness’s testimony). Here, the record supports the district court’s conclusion that permitting Garbers’s testimony would have prejudiced the state, but not significantly.

C. Rectifying the prejudice

Appellant argues that the district court could have eliminated whatever prejudice resulted from Garbers’s testimony by permitting a short continuance to allow the prosecutor to prepare a cross-examination. Minnesota case law holds that a continuance is not a feasible alternative to rectify prejudice when defendant’s counsel first discloses the proposed witness after trial has commenced. See, e.g., Lindsey, 284 N.W.2d at 374 (stating that it was “too far into trial to consider a continuance” when defendant first disclosed witnesses during its case in chief); State v. Gurske, 424 N.W.2d 300, 303 (Minn. App. 1988) (concluding that it was “too far into trial to permit a continuance” when the defendant sought to introduce an undisclosed expert witness shortly before the court submitted the case to the jury). Moreover, a short continuance would not have afforded respondent sufficient time to locate other party guests or investigate Garbers. Accordingly, this Lindsey factor supports the district court’s decision to preclude.

D. Other relevant factors

Appellant contends that the fourth Lindsey factor weighs against preclusion because Garbers’s testimony was crucial to appellant’s defense, and, consequently, preclusion was too severe a sanction. Appellant’s argument is not persuasive considering the cumulative nature of Garbers’s testimony. Moreover, Garbers was not a material witness to the occurrence on September 26 and could not testify to the events underlying appellant’s charged offense. Finally, the district court’s inability to remedy the potential prejudice of Garbers’s testimony was largely the product of defense counsel’s failure to immediately disclose its intent to call Garbers as a witness after their initial interview before trial commenced.

Accordingly, despite the severity of the sanction and the limited potential for prejudice, the Lindsey factors weigh toward preclusion. The district court did not abuse its discretion by precluding Garbers’s testimony.

Appellant next challenges his conviction of second-degree assault, arguing that the evidence failed to demonstrate that he had the requisite intent. When reviewing a challenge to the sufficiency of the evidence underlying a conviction, this court conducts a painstaking review of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, supports the verdict. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980). This court assumes the jury believed the state’s witnesses and did not believe 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 that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant was convicted of second-degree assault. Minnesota law provides that whoever assaults another with a dangerous weapon is guilty of second-degree assault. Minn. Stat. § 609.222, subd. 1 (2000). The definition of assault includes “[a]n act done with intent to cause fear in another of immediate bodily harm[.]” Minn. Stat. § 609.02, subd. 10(1) (2000). Whether such intent exists is a question for the fact-finder. State v. Ott, 189 N.W.2d 377, 379 (Minn. 1971). The intent of the actor, as opposed to the effect on the victim, is the focal point for inquiry. Id. Intent may be proven by circumstantial evidence, including inferences drawn from the defendant’s conduct, the character of the assault, and the events occurring before and after the crime. Davis v. State, 595 N.W.2d 520, 525–26 (Minn. 1999).

Appellant acknowledges that the state’s evidence demonstrated that appellant threatened Waldee while brandishing a knife, but argues that the evidence of intent is insufficient because appellant did not have the ability to use the knife and carry out his threat immediately. According to Waldee’s testimony, appellant remained between 10–15 feet from Waldee during the confrontation—too far to place Waldee in fear of immediate harm. Therefore, according to appellant, there is no evidence from which the jury could find that appellant intended to cause immediate harm.

There is no Minnesota appellate case law specifically holding that a perpetrator must be within striking distance of a victim before that perpetrator can be deemed to have the requisite intent to put the victim in fear of immediate bodily harm. Assuming that the jurors believed Waldee’s testimony, the state’s evidence demonstrates that (1) Waldee reported a drug transaction implicating appellant’s wife’s cousin; (2) appellant called Waldee a snitch and made repeated verbal threats on appellant’s life; (3) appellant mimicked a gun with his hands; and (4) appellant brandished a knife and made slashing motions in Waldee’s view. Here, the jury may have reasonably perceived appellant as being capable of either throwing the knife or covering the distance of 10–15 feet very quickly. The evidence is sufficient to support the conviction.

Affirmed.

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