Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Ross E. Arneson, Blue Earth County Attorney, Government Center, 410 South Fifth Street, Mankato, MN 56002 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.

Appellant Steven Hurley was convicted on two counts each of terroristic threats and second-degree assault. He appeals from his conviction and sentencing, arguing that the evidence was insufficient to support his second-degree assault convictions and that the trial court's presumptive sentence exaggerated the criminality of his conduct. We affirm.

Hurley did not offer any evidence of his intent at trial. Instead, he testified that he did not point a gun at anyone and tried to discredit the victims' testimony. The jury's choice was to believe Hurley's version of the facts or the victims'. The victims testified that Hurley pointed a pellet gun at both of them and that they were afraid they would be killed. The act of pointing a gun at a victim is sufficient to establish the intent required for second-degree assault. See State v. Cole, 542 N.W.2d 43, 51 (Minn. 1996) (intent to cause fear was carried out by intentional pointing of gun).[1]

Hurley now argues that his loud and intimidating behavior was due to intoxication, and the boys simply misinterpreted his actions. However, Hurley did not raise intoxication as a defense at trial. Instead, he testified that he was not drunk and the events the boys testified to simply did not happen. We must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citing State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)). The evidence presented at trial was sufficient to support the jury's verdict.

Hurley next argues that the trial court erred by failing to depart downward from the presumptive sentence. The record indicates that the contested issue at sentencing was whether he would serve consecutive or concurrent sentences for his two second-degree assault convictions, and Hurley admits that he did not seek a downward departure at trial. Hurley waived this issue, and the trial court's imposition of concurrent presumptive sentences was not an abuse of discretion. See State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990) (appellate court will not decide issues not addressed first by the trial court, even if issue involved constitutional questions of criminal procedure); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (decision to depart from the sentencing guidelines within the trial court's discretion).

Both parties agree that the trial court incorrectly determined the amount of jail time that should be credited to Hurley against his sentence. The presentence investigation indicates an arrest date of April 20, 1996, and 140 days in jail. When crediting Hurley's jail time, the trial court erroneously used the sentencing date rather than the arrest date. This issue requires remand to determine the correct amount of jail time with which Hurley should be credited. Minn. R. Crim. P. 27.03, subd. 4(B) (trial court shall assure record accurately reflects all time spent in custody and deduct time from sentence).

Affirmed in part, reversed in part, and remanded.

[ ]¹Appellant's pro se brief does not add any issues to decide. In it, appellant disagrees with the victims' testimony and attempts to point out inconsistencies. However, the credibility of witnesses and the weight given testimony are issues for the jury, and on appeal we must presume that the jury believed the witnesses whose testimony supports the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).