Filed April 25, 2006

Affirmed

Randall, Judge

Dakota County District Court

File No. K4-04-2033

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

James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

John Stuart, State Public Defender, Theodore Sampsell-Jones, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

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

RANDALL, Judge

On appeal from conviction of third-degree assault and terroristic threats, appellant argues that the trial court committed plain error in failing to instruct the jury on the definition of assault and failing to instruct on the reasonable use of force to prevent the victim from driving while impaired. In the alternative, appellant argues that his attorney’s failure to request these instructions denied him effective assistance of counsel. Finally, appellant argues that the evidence is insufficient to support the terroristic-threats conviction because the victim, contrary to the prosecutor’s statement in closing argument, did not testify that appellant threatened to kill her on the date charged. We affirm.

FACTS

As a result of events that occurred on June 19, 2004, appellant Michael Vance was charged with one count of third-degree assault in violation of Minn. Stat. § 609.223 (2004), and one count of terroristic threats in violation of Minn. Stat. § 609.713 (2004). Appellant pleaded not guilty, and a jury trial was held on October 20 through 25, 2004.

At trial, both appellant and the victim, Cynthia Sobaszkiewicz, testified as to their accounts of the alleged assault. Sobaszkiewicz testified that on the morning of June 19, she and appellant were involved in a verbal altercation that escalated when appellant backhanded her in the mouth. According to Sobaszkiewicz, when appellant went to the kitchen to get some ice for her, she grabbed her purse and headed for the front door. As she was running away from the house, Sobaszkiewicz turned around to see appellant lunging off the front steps toward her. Sobaszkiewicz testified that the next thing she remembers is standing in the bathroom in unbearable pain holding her shoulder.

Sobaszkiewicz testified that after the incident, her friend Bonnie Gisch drove her to the hospital. According to Sobaszkiewicz, she suffered a broken collarbone, bruising on her left temple and right lip, and lacerations on her back as a result of the altercation. When asked why she initially fled the bedroom, Sobaszkiewicz stated that she was scared of appellant. Sobaszkiewicz further testified that she was scared of appellant because he had threatened her on numerous occasions in the past. Although Sobaszkiewicz admitted to having a romantic relationship with appellant in the past, she stated that when appellant moved in with her in March or April of 2004, their relationship was no longer romantic.

Contrary to Sobaszkiewicz’s testimony, appellant testified that Sobaszkiewicz was his girlfriend. Appellant claimed that when he came home from work on June 18, Sobaszkiewicz was locked in the bedroom. Appellant testified that when Sobaszkiewicz came out of the bedroom, he realized that she had been smoking methamphetamine, which led to an argument about Sobaszkiewicz’s drug use. According to appellant, the argument persisted into the early morning hours of June 19, at which time Sobaszkiewicz decided that she wanted to drive to a friend’s house. Appellant stated that although he told Sobaszkiewicz that it was not safe to drive, she eventually ran out the front door. Appellant testified that in an effort to prevent her from driving, he ran after Sobaszkiewicz, and when he reached the front porch step, he jumped at her. According to appellant, Sobaszkiewicz started to stumble, which caused him to fall on top of her. Appellant testified that when he took Sobaszkiewicz inside, he realized that she was badly injured. Appellant claimed that he was going to take her to the hospital, but Gisch and Sobaszkiewicz convinced him to go to work instead and let Gisch take her to the hospital.

The jury returned a guilty verdict on October 25, 2004. Appellant was subsequently sentenced to a term of 24 months, which is the presumptive sentence for third-degree assault, with a criminal-history score of four. This appeal followed.

D E C I S I O N

Appellant argues that the district court erred by failing to instruct the jury on the definition of assault and failed to instruct on the reasonable use of force to prevent the victim from driving while impaired. District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). This court views jury instructions in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). If an instruction materially misstates the law, it is erroneous. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

The record reflects that appellant failed to object to the instructions at the time of trial. Generally, “an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.” Baird, 654 N.W.2d at 113. Nevertheless, even without objection, this court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.” State v. Butler, 295 N.W.2d 659, 659 (Minn. 1980). The supreme court has adopted a three-prong test for plain error to determine whether the court should review an unobjected-to error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the test, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id. If this test is met, the court must consider whether it should address the error to ensure the fairness and integrity of the judicial proceedings. Id.

The district court instructed the jury on the assault count as follows:

The statutes of Minnesota provide that whoever assaults another and inflicts substantial bodily harm is guilty of a crime. The elements of assault in the third degree are: First, the defendant assaulted another person; second, the defendant inflicted substantial bodily harm on the other person. Substantial bodily harm means bodily harm than involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault. Third, the defendant’s took place [sic] on or about June 19, 2004, in Dakota County.

Appellant asserts that although the district court instructed the jury on the elements of assault, the court failed to give the 10 Minnesota Practice, CRIMJIG 13.01 (1999) instruction, which provides the definition of assault. Appellant argues that because the primary issue at trial was whether he “intended” to assault Sobaszkiewicz, and CRIMJIG 13.01 is the only instruction that includes the intent element of third-degree assault, the district court committed plain and prejudicial error by failing to instruct the jury on the definition of assault.

To support his claim, appellant cites State v. Charles, where the defendant was convicted of felony murder with the predicate felony being second-degree assault. 634 N.W.2d 425, 430-31 (Minn. App. 2001). On appeal, this court held that the district court committed reversible error by failing to instruct the jury on the definition of assault, despite several requests by the jury for such an instruction. Id.

This case is distinguishable from Charles because the instructions in Charles were apparently confusing and inadequate, given the jury’s repeated requests for clarification of the instructions. Id. Here, unlike Charles, there were no requests by the jury for clarification of the instructions. Moreover, appellant’s argument rests on the premise that the jury was not instructed as to the intent element of the crime. But the instructions provided to the jury state: “It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault.” (Emphasis added.) Thus, although CRIMJIG 13.01 was not given to the jury, a review of jury instructions reveals that the jury actually was instructed as to the intent element of third-degree assault. See State v. Richardson, 633 N.W.2d 879, 885 (Minn. App. 2001) (stating that the trial court’s jury instructions must be read as a whole, and if the instructions correctly state the law in a manner in which the jury could understand them, there is no reversible error).

Appellant also contends that because he claimed that his force was justified by the need to prevent Sobaszkiewicz from driving while impaired, the district court erred by failing to instruct the jury on reasonable use of force. But appellant concedes that he failed to request the reasonable use-of-force instruction. Generally, a defendant waives his right to have a claim of failure to give a jury instruction considered on appeal when he fails “to propose specific jury instructions.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Nevertheless, this court has discretion to consider issues not objected to at trial if there is an error and the error is plain and affects substantial rights of the defendant. Griller, 583 N.W.2d at 740.

At trial, appellant testified that he jumped at Sobaszkiewicz in order to prevent her from driving while impaired and thereby unintentionally injured her. But other than appellant’s testimony, there is no reference to appellant’s “reasonable-force” defense. During closing arguments, appellant’s trial counsel neglected to refer to appellant’s testimony that he was attempting to prevent Sobaszkiewicz from driving while impaired. Instead, defense counsel argued that Sobaszkiewicz’s injuries were accidental and stressed witness credibility to support the argument. Although a reasonable-force instruction may have been appropriate, appellant did not argue this theory of defense or request the instruction, and the district court did not commit plain error by failing to sua sponte provide the reasonable-force instruction. See Charles, 634 N.W.2d at 433 (stating that although the details of the case suggested that a defense-of-dwelling instruction would have been justified, the district court did not commit plain error by choosing to only instruct the jury on self-defense under CRIMJIG 7.06). We conclude that the district court did not commit plain error in instructing the jury on the third-degree assault charge.

II.

Appellant argues that his appointed trial counsel rendered ineffective assistance by failing to object to the instructions at trial. Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction hearing rather than on direct appeal because “[a] postconviction hearing provides the court with additional facts to explain the attorney’s decisions, so as to properly consider whether a defense counsel’s performance was deficient.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (quotation omitted). Here, appellant failed to raise the issue in a motion for postconviction relief. The record does not provide a sufficient basis to review appellant’s complaints, which require “additional facts to explain the attorney’s decisions.” Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997). At this time, we decline to reach the merits of the issue, but note that, on this issue, postconviction relief proceedings are not foreclosed.

III.

Appellant argues that there is insufficient evidence to support his conviction of terroristic threats. 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 a light most favorable to the conviction, [is] sufficient to permit the jurors to reach the verdict which 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 contrary evidence. 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).

The complaint alleged that on or about June 19, 2004, appellant made terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004). A person is guilty of making terroristic threats against another if that person “threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror . . . .” Minn. Stat. § 609.713, subd. 1.

Appellant contends that the evidence was insufficient to sustain his conviction of terroristic threats because there is no evidence that appellant threatened Sobaszkiewicz on
or about June 19. We disagree. At trial, Officer Patricia Kressley stated that: “I was advised that [Sobaszkiewicz] was receiving phone calls throughout the night from [appellant] threatening her.” When asked what appellant said to threaten Sobaszkiewicz, Officer Kressley replied that “[s]he was afraid that he was going to kill her because she made mention that he may be going to prison because of this.” Additionally, Officer Phillip Oeffling testified that “[Sobaszkiewicz] said that [appellant] threatened to kill her if she reported the incident to our office. And then subsequently she has had conversations with him since he has been in jail that she spoke to me about.” Sobaszkiewicz further testified as to numerous occasions where appellant threatened to kill her, including threatening phone calls she received right after she got home from the hospital.

Appellant acknowledges this testimony, but argues that the testimony fails to prove that the threats occurred on or about June 19. However, when the statements are read in context with the testimony of the witnesses, it would be reasonable to find that the testimony concerns threats that were made on or about June 19/June 20. If believed, the testimony is sufficient to prove that appellant committed terroristic threats on or about June 19. The jury apparently believed the state’s witnesses and disbelieved any contrary evidence. See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (stating that the jury is in the best position to judge the credibility of witnesses, and appellate courts must assume
that the jury believed the state’s witnesses). Accordingly, there was sufficient evidence for the jury to reasonably conclude that appellant was guilty of terroristic threats.

Affirmed.