This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-507

 

 

Douglas Fred Yotter, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 1, 2007

Affirmed

Lansing, Judge

 

 

Freeborn County District Court

File No. T4-05-2368

 

 

Robert D. Sturtz, Goldman, Sturtz & Halvorsen, 137 North Broadway, P.O. Box 1009, Albert Lea, MN 56007 (for appellant)

 

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

 

Craig S. Nelson, Freeborn County Attorney, Karyn D. McBride, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007  (for respondent)

 

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A district court judge found Douglas Yotter guilty of disorderly conduct and fifth-degree assault.  On appeal from conviction, Yotter argues that the evidence was insufficient to support his convictions because the state failed to prove beyond a reasonable doubt that he did not act in self-defense.  After carefully reviewing the record, we conclude that it supports the district court’s findings that Yotter provoked the other party, failed to retreat, and used an unreasonable amount of force.  We therefore affirm.

F A C T S

            Douglas Yotter and John Bair are former neighbors who both continue to live in southern Minnesota.  For reasons that are not developed in the record, Yotter and Bair have been engaged in a long-running, interpersonal feud.

            The feud turned violent on January 14, 2005, when Yotter entered a gas station convenience store in the town of Hartland and encountered Bair.  Although Yotter initially avoided Bair, the encounter ended with Yotter hitting Bair several times.  Bair was knocked into a display case and fell to the ground.

            The Freeborn County Attorney’s office charged Yotter with fifth-degree assault and disorderly conduct.  After a court trial, Yotter was found guilty of both charges.  The district court found that Yotter’s testimony was not credible, that Yotter did not act in self-defense, that Yotter failed to retreat, and that Yotter used unreasonable force.  On appeal, Yotter argues that the store’s videotape of the incident shows that he acted in self-defense and that the evidence was insufficient to convict him.

D E C I S I O N

            A challenge to the sufficiency of the evidence requires “a very thorough analysis of the record” to determine whether the evidence was sufficient to permit the finding of guilty.  State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998).  The reviewing court assumes that the fact-finder believed the state’s witnesses and rejected any contrary evidence.  State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007).  A district court’s credibility determinations are given particular deference.  State v. Reiners, 664 N.W.2d 826, 837 (Minn. 2003).

            Under Minnesota law, a person may use “reasonable force” against another “in resisting . . . an offense against the person.”  Minn. Stat. § 609.06 (Minn. 2004).  A defendant is justified in “resisting” an offense only if the defendant (1) has an actual and (2) reasonable belief that serious bodily harm is imminent, (3) does not provoke the incident, and (4) has no reasonable opportunity to retreat.  State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).  The amount of force that is “reasonable” will depend on the circumstances and presents a question of fact.  State v. Glowacki, 630 N.W.2d 392, 402-03 (Minn. 2001).  To raise a justifiable use-of-force defense, the defendant must first produce a sufficient threshold of evidence that he acted in self-defense.  State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983).  Once the defense is adequately raised, the state must prove beyond a reasonable doubt that the defense does not apply.  State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

            Yotter does not dispute that he struck Bair several times.  Instead, his appeal focuses on whether the state disproved his claim of self-defense.  For purposes of this appeal, we assume that Yotter produced a sufficient threshold of evidence to raise a claim of self-defense.  Furthermore, we assume that self-defense would excuse both the assault and the disorderly conduct charges.  See State v. Soukup, 656 N.W.2d 424, 431 (Minn. App. 2003) (holding that self-defense can justify certain acts of disorderly conduct), review denied (Minn. Apr. 29, 2003).  Nonetheless, we conclude that the evidence was sufficient to find beyond a reasonable doubt that Yotter did not act in self-defense.

            First, the district court could find beyond a reasonable doubt that Yotter provoked Bair into attacking him.  Bair testified that Yotter threatened him and blocked Bair’s attempt to leave the convenience store.  The convenience-store clerk testified that Yotter was standing “right up behind him, kind of a—kind of an in your face kind of thing, but from behind.”  Thus, there was sufficient evidence to find that Yotter provoked Bair’s use of force.

            Second, the district court could find beyond a reasonable doubt that Yotter had a reasonable opportunity to retreat and failed to use that opportunity.  The videotape shows that Yotter had options other than the use of force.  Yotter, for example, could have walked away from Bair.  Instead, the videotape shows that Yotter followed Bair.  Thus, the evidence was sufficient to find that Yotter had a reasonable opportunity to retreat.

            Third, the district court could find beyond a reasonable doubt that Yotter used an unreasonable amount of force.  In addition to the videotape, the testimony of Bair and the convenience-store clerk supported this conclusion.  Bair testified that Yotter “started hitting on me from behind and next thing I knew I was on the floor bleeding.”  The clerk testified that Yotter struck Bair “several times.”  The district court found this testimony to be credible.  The videotape and this testimony thus provide sufficient support for the district court’s finding that Yotter used an unreasonable amount of force.

            Once a claim of self-defense is raised, the state has the burden of disproving the defense beyond a reasonable doubt.  Soukup, 656 N.W.2d 429.  The state can satisfy this burden by disproving any element of the defense.  Id.  On this record, we conclude that sufficient evidence supports the district court’s finding that all three of these elements were disproved.  The evidence was therefore sufficient to support Yotter’s convictions, and we affirm.

            Affirmed.