This opinion will be unpublished and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

A06-554

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jacob Scott Rice,

Appellant.

 

 

Filed June 26, 2007

Affirmed

Lansing, Judge

 

 

Crow Wing County District Court

File No. KX-04-1766

 

 

Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Donald F. Ryan, Crow Wing County Attorney, Crow Wing County Courthouse, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief 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 Crow Wing County jury found Jacob Rice guilty of one count of first-degree assault, two counts of second-degree assault, and one count of third-degree assault on Wayne VanNest; and one count of second-degree assault on Joshua Watson.  Following conviction and sentencing on the first-degree assault on VanNest and the second-degree assault on Watson, Rice appeals the sufficiency of the evidence and the jury instructions on the first-degree-assault conviction.  Because the evidence adequately supports the conviction, and the jury instructions, taken as a whole, correctly state the law, we affirm. 

F A C T S

            Wayne VanNest was attacked and severely beaten in the yard of a mobile home in rural Crow Wing County in June 2004.  VanNest was at the mobile home with three other men.  He was sitting by a bonfire at about 9:45 p.m. when three cars came up the driveway and stopped.  Five to eight people got out of the cars and some went into the mobile home and some stayed outside by the bonfire. 

            Shortly after the cars arrived, VanNest heard shouting from inside the home.  As he was attempting to call for help on his cell phone, he was punched by Landon Hamilton, who had arrived in one of the cars and had been inside the home when VanNest heard the shouting.  VanNest raised his fists to protect himself, and Hamilton called for Jacob Rice to come help him.  VanNest testified at trial that Rice swung a weight-lifting bar at VanNest’s head, from VanNest’s right side.  VanNest attempted to block the bar with his raised arms, but the blow fractured VanNest’s left arm and made enough contact with his head to knock him to the ground.  Rice and Hamilton then took turns striking VanNest with the weight bar as he lay curled up on the ground.  VanNest estimated that he sustained at least ten blows from the weight bar and that Rice was responsible for at least two.  While one was striking VanNest with the weight bar, the other would kick and punch him.  As a result of the assault VanNest suffered a broken right leg, a broken left ankle, a fractured arm, and more than forty bruises.

            When the assault ended, Rice took out a butterfly knife, held it to VanNest’s throat, and threatened to kill him and his family if he told anyone about the fight.  Rice then helped VanNest into the home and onto a couch.  After Rice and Hamilton left, VanNest passed out from shock.  When he regained consciousness, police had arrived at the home and arranged for an ambulance.  Before VanNest was transported to the hospital, he told police that he had been attacked by Rice and Hamilton. 

            The police arrested Rice, and the Crow Wing County Attorney charged him with three counts of assault on VanNest, one count of assault on Joshua Watson, and one count of terroristic threats.  The prosecutor later amended the complaint to add a charge of aiding and abetting first-degree assault on VanNest. 

After a two-day trial, the jury found Rice guilty of all five assault charges.  The state did not submit the terroristic-threats charge to the jury.  The district court sentenced Rice to ninety-one months on the first-degree-assault conviction and a consecutive twenty-one months on the second-degree assault on Watson inside the home.  Rice appeals only the first-degree-assault conviction, arguing that the evidence is insufficient to identify him as the person who attacked VanNest and that the jury instructions on the first-degree-assault charge were plain error. 

D E C I S I O N

I

            In a challenge to the sufficiency of the evidence, we carefully examine the record to ascertain “whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We do not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume that the jury believed witness testimony that supported the verdict and disbelieved any contradicting evidence.  State v. Mems, 708 N.W.2d 526, 531-32 (Minn. 2006).  Assessing a witness’s credibility and weighing witness testimony is the exclusive province of the jury.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). 

            Before trial, Rice stipulated that VanNest suffered great bodily harm.  On appeal, Rice concedes that the state proved that VanNest was assaulted with a metal weight bar.  But he contends that his conviction of first-degree assault must be reversed because “none of the witnesses except the complainant testified that they saw appellant hitting the complainant with a metal bar.” 

            Assault is an act done with intent to cause fear in another of immediate bodily harm or death; or the intentional infliction of or attempt to inflict bodily harm upon another.  Minn. Stat. § 609.02, subd. 10 (2002).  A person is guilty of first-degree assault if he “assaults another and inflicts great bodily harm.”  Minn. Stat. § 609.221, subd. 1 (2002).  A person is also guilty of first-degree assault if he “intentionally aids, advises, hires, counsels, or conspires” with another person to commit the crime.  See Minn. Stat. § 609.05, subd. 1 (2002) (imposing liability for crimes committed by another). 

            VanNest identified Rice on the night of the assault and at trial as one of the two people who attacked him and beat him with the weight bar.  In direct examination at trial, the prosecutor asked VanNest whether he saw who first struck him with the weight bar.  VanNest answered unequivocally, “Yes, I did.  It was Jake [Rice].”  VanNest also testified that he “saw it clear as day that it was Jake Rice and Landon Hamilton, that Jake had made the first initial blow [with the bar], Landon had made the first contact with the fist, but it shortly there changed because he took [the bar] from Jake and hit me with it.”  VanNest’s testimony at trial was consistent with his statements to the Crow Wing County deputies who responded to the call and arranged for VanNest’s ambulance transport to the hospital. 

            Bradley Haag, who drove Rice and Hamilton to the mobile home and drove them home after the assault, also testified.  In a signed statement provided to a Crow Wing County investigator and introduced into evidence, Haag said that he saw Rice and Hamilton “beatin’ the s--t” out of VanNest.  He also said that “they were both hittin’ him and kickin’ him,” and that “you could hear bones cracking.”  He explained that when a couple of people tried to stop the beating they were threatened by Rice and Hamilton.  Although Haag testified at trial that he did not actually see Rice hit VanNest with the weight bar, he did not disavow his signed statement.  He testified that he was honest in his statement to the investigator, that his recollection of the incident was better when he made the written statement, and that he told the investigator what he actually saw and heard that night.   

            Two other people who were part of the group at the mobile home also testified.  Although their testimony related primarily to the knife injury that Rice inflicted on Watson, their testimony was consistent with VanNest’s on the events leading up to the assault, and one of them told a Crow Wing County deputy that “Jacob Rice and Landon Hamilton were assaulting people.” 

            In a selective review of the evidence, Rice contends that it is not legally sufficient to support his conviction.  For two reasons, we reject his claim that the evidence is insufficient.  First, Rice’s account of the evidence ignores the applicable standards of review and is also incomplete.  Rice reargues the credibility of the witnesses and the weight to be given their testimony.  He contends that VanNest’s testimony should be disregarded because VanNest was inconsistent when he said that he saw Rice strike him with the bar and also said that his vision was obstructed by blood in his eyes and that it was “lights out” as soon as he was hit.  But VanNest explained that “lights out” meant that he was traumatized, not unconscious, and that he was aware of what was going on around him during the assault.  Similarly, Rice takes out of context VanNest’s statement “[a]nd the last thing I remember is a crack of, I’m assuming, the weight bar.”  VanNest appears to be using the phrase to refer to the last thing in that series, not the last thing he remembers about the entire incident.  In the sentence immediately following, VanNest says, “And then I proceeded to see the weight bar as it snapped through my leg and over my head a couple of times.”  A fair reading of VanNest’s testimony demonstrates that he is recounting the events in a divided sequence, not that his testimony must be disregarded as fatally inconsistent.

            Second, Rice’s argument rests on an incorrect legal premise that the state must conclusively prove that he struck VanNest with the weight bar to establish that he committed first-degree assault.  Rice acknowledges that he was charged with aiding and abetting first-degree assault.  The record provides ample evidence of Rice’s participation in the assault and of his repeated hitting and kicking VanNest as he lay on the ground.  His active participation and “knowing role in the commission of the crime” and his failure to take “steps to thwart its completion” establish the elements necessary for aiding and abetting an assault that inflicted great bodily harm.  See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (providing elements necessary to impose liability for crime committed by another). 

            When viewed as a whole, the evidence was more than sufficient to allow the jury to find Rice guilty of first-degree assault for his role in the attack on VanNest. 

II

            The district court instructed the jury on the standard to apply in determining whether a defendant is liable for the crime of another.  The instructions included paragraphs from the standard jury instruction.  See 10 Minn. Dist. Judges Ass’n., Minnesota Practice – Jury Instruction Guides, Criminal, CRIMJIG 4.01 (5th ed. 2006) (defining elements of liability for crimes of another).  In addition, the district court told the jury:

To impose liability for crimes of another, the state must show the defendant played some knowing role in the commission of a crime and took no steps to thwart its completion.

 

Inaction, knowledge, and passive acquiescence does not rise to the level of criminal culpability.  Nevertheless, active participation in the overt act which constitutes the substantive offense is not required.

 

The defendant’s presence, companionship, and conduct before and after the offense are relevant circumstances from which the defendant’s criminal intent may be inferred.

 

            Rice did not object to the jury instruction.  A defendant who does not object to jury instructions at trial generally forfeits any right to challenge those instructions on appeal.  State v. Goodloe, 718 N.W.2d 413, 422 (Minn. 2006).  It is within the discretion of appellate courts, however, to review a jury instruction despite the failure to object at trial if the instruction is plain error that affects substantial rights.  Id.  The plain-error doctrine requires the defendant to demonstrate that “error occurred and that the error was plain.”  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  Rice argues that the instructions were plain error because the jury could have concluded that he was guilty of first-degree assault even if they concluded that he did not actually participate in the assault.

            We review jury instructions “in their entirety to determine whether they fairly and adequately explain the law of the case.”  State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004).  “A jury instruction is erroneous if it materially misstates the law.”  Goodloe, 718 N.W.2d at 421.  If the instructions correctly state the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).

            We disagree with Rice’s contention that these added instructions incorrectly state the law.  The supreme court, in a recent opinion, used virtually the same language in stating the substantive law on criminal liability for crimes of another.  See State v. Crow, 730 N.W.2d 272, 280 (Minn. 2007) (outlining substantive law on criminal liability for crimes of another). 

            Rice also argues that these paragraphs are improperly taken from a supreme court opinion examining the sufficiency of the evidence to sustain an aiding-and-abetting conviction.  See Ostrem, 535 N.W.2d at 924 (using language found in instruction while considering sufficiency of evidence in aiding-and-abetting appeal); State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (observing that it is not always appropriate to read sufficiency-of-the-evidence tests to jury).  But in Ostrem the supreme court was elaborating on the substantive elements of aiding and abetting, not describing a sufficiency-of-the-evidence test.  535 N.W.2d at 924.  Similarly, in Crow, the court was providing the substantive law on criminal liability for crimes of another.  730 N.W.2d at 280.  Furthermore, the potential problem in incorporating sufficiency-of-the-evidence tests in jury instructions occurs in cases involving circumstantial evidence, and this case does not rest on circumstantial evidence.  See Gassler, 505 N.W.2d at 68 (comparing jury instruction to sufficiency-of-the-evidence analysis in case involving circumstantial evidence).

            Viewed in their entirety, the district court’s instructions accurately state the law.  Instructing the jury with language other than that which is provided in standard jury instructions may risk error, but it does not equate to error.  See State v. Turnipseed, 297 N.W.2d 308, 312-13 (Minn. 1980) (referring to case in which supreme court approved instruction additional to standard instruction).  Because Rice has not met the threshold requirement for plain-error review, he is not entitled to a new trial on the first-degree-assault charge. 

            Affirmed.