Hennepin County District Court

File No. 95111748

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Hennepin County Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Mary Sue Snyder, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mansur, Judge.

Appellant Eli Hare challenges his conviction and sentence for second-degree felony murder, arguing that the state failed to prove beyond a reasonable doubt that he had not acted in self-defense; that the jury instruction on self-defense was erroneous; and that the district court should have departed dispositionally or durationally from the presumptive sentence under the guidelines. We affirm.

Appellant was charged with one count of second-degree intentional murder and one count of second-degree felony murder. At trial, appellant admitted stabbing Cooper, but claimed he acted in self-defense. The jury found appellant guilty of second-degree felony murder, but acquitted appellant of second-degree intentional murder and the lesser-included crime of second-degree manslaughter. The district court sentenced appellant to serve 150 months. This appeal followed.

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The jury is in the best position to evaluate the evidence and its verdict is entitled to deference. Id.

The elements of self-defense in a criminal case include: (1) absence of aggression or provocation on the defendant's part; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert the danger; (3) existence of reasonable grounds for that belief; and (4) absence of a reasonable possibility of retreat. State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). The amount of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances. Id. Once self-defense is raised, the state has the burden of proving the nonexistence of one of the elements beyond a reasonable doubt. Id.

The testimony at trial revealed that appellant was the initial aggressor. During an argument, Morris, who outweighed Cooper by 40 pounds, threw him on a coffee table. Appellant, who outweighed Cooper by almost 100 pounds, then provoked Cooper by punching and kicking him in the groin. Appellant testified that, at this time, Morris told him that she could handle her own affairs.

Cooper hit appellant on the head with a broom handle and grabbed a knife from the kitchen and threatened appellant. Morris wrapped her arms around Cooper, dragged him to the kitchen and begged appellant to leave the apartment. Appellant testified that he went to his room to get a sweater and jacket and, upon hearing a loud noise, picked up a knife and returned to the kitchen. Morris again had Cooper wrapped up in her arms. Appellant testified that, in order to exit the apartment, he had to cross the kitchen within an arm's length of Cooper. With this in mind, appellant attempted to strike Cooper in the arm with his knife. As appellant thrust his knife, Cooper turned in such a fashion that the knife struck Cooper in the neck.

The record adduced at trial indicates that retreat was not one of the options appellant did in fact consider. Appellant did not immediately leave; instead, he allegedly looked for clothing to wear outside. Appellant's conduct in staying in the apartment instead of taking the first exit to vacate the unit belies his belief that he was in immediate danger of death or great bodily harm. Appellant's concern about possibly freezing to death is not persuasive. Even though appellant placed himself in danger by not retreating from the apartment, his weight advantage over Cooper and the fact that Morris had Cooper restrained makes any belief by appellant of immediate death or great bodily harm unreasonable. From a review of the record, we conclude that the state met its burden of proving the nonexistence of several elements of self-defense beyond a reasonable doubt.

2. Appellant claims that he is entitled to a new trial due to an erroneous jury instruction on self-defense. Jury instructions are to be "viewed in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted). At trial, appellant claimed that he intentionally stabbed Cooper in self-defense but without intending to kill Cooper. In response to criticisms by the supreme court in State v. Marquardt, 496 N.W.2d 806 (1993), the Committee on Criminal Jury Instruction Guides of the Minnesota District Judges Association modified CRIMJIG 7.05. Now, in cases where the defendant claims self-defense and also claims the killing was unintentional, language in the instruction should refer to the "defendant's action" rather than the "killing". Here, the district court properly followed this guidance.

Appellant, however, claims that CRIMJIG 7.05 remains faulty because it predicates the defendant's action on a belief that it was necessary to avert death or great bodily injury, rather than the generic "bodily harm" referenced in CRIMJIG 7.06. Appellant provides no legal support for this proposition. Appellant still used deadly force against Cooper even if he did not intend to kill. For deadly force to be justified, it must appear to be the level of force necessary to a reasonable person under similar circumstances. McKissic, 415 N.W.2d at 344. CRIMJIG 7.05 is a proper instruction on the law regarding self-defense. The district court's instructions fairly and adequately stated the law in Minnesota and were free from prejudice.

3. The district court imposed the presumptive sentence of 150 months. Appellant argues that the district court should have departed dispositionally or durationally because of his zero criminal history score and his amenability to probation. Only rarely will a district court's refusal to depart from a presumptive sentence be reversed on appeal. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

In determining whether a defendant is particularly amenable to probationary treatment, the district court looks at several factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994). Appellant is 52 years old and his only previous conviction was for disorderly conduct. Age is not a factor in determining eligibility for probation, but may be considered only as it relates to suitability to treatment in a probationary setting. The criminal history score has already been taken into account by the sentencing guidelines in establishing the presumptive sentence. Trog, 323 N.W.2d at 31. And while appellant had a criminal history score of zero, his presentence investigation disclosed prior domestic abuse incidents. Appellant claims that if he had the opportunity to enroll in an intensive in-patient program, he would no longer be a threat to society. This position on appeal appears contrary to his position at sentencing, when he was unsure of the need for further chemical dependency treatment. In any event, appellant's opinion as to what is necessary to reduce his propensity to violence is speculative at best. We conclude that there was no abuse of discretion by the district court in denying a dispositional departure.

Appellant claims that a durational departure from the presumptive sentence is warranted because Cooper was the aggressor. See Minn. Sent. Guidelines II.D.2.a.(1) (mitigating factors include victim being the aggressor). Although Cooper was the first to pull out a knife, appellant started the altercation by kicking Cooper in the groin. At the time appellant struck Cooper with the knife, Cooper was defenseless as his arms were restrained by Morris. Finally, appellant's claim that he was vulnerable to attack lacks merit when one considers that appellant outweighed Cooper by almost 100 pounds. There was no abuse of discretion in denying a durational departure.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.