This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-25

State of Minnesota,

Respondent,

vs.

Anthon James Lee,

Appellant.

Filed September 23, 1997

Affirmed

Peterson, Judge

Rock County District Court

File No. K09670

Hubert H. Humphrey, III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Donald R. Klosterbuer, Rock County Attorney, Rock County Courthouse, 213 Esat Luverne Street, Luverne, MN 56156 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.

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

PETERSON, Judge

This appeal is from a judgment of conviction for third-degree assault and terroristic threats. Minn. Stat. §§ 609.223, subd. 1, .713, subd. 1 (1996). Appellant Anthon Lee challenges the trial court's refusal to give two requested jury instructions and the court's admission of certain evidence. We affirm.

FACTS

Lee was charged with various counts of burglary, bribery, terroristic threats and assault for an incident late at night at the building in which Lee had an apartment. Lee and a friend, Thomas Hart, had been drinking, and when they returned to the building, Hart apparently broke the glass doors on the ground floor. The noise drew the attention of a passing motorist stopped at a nearby intersection. The motorist testified that one of the men approached his car, saying "You didn't see anything." The man then reached in through the open car window and punched the motorist, once under his eye and once in the mouth.

When police responded to the scene, the motorist returned, and he and an officer went to Lee's apartment, where the motorist identified Lee as his assailant. Hart began wrestling with the officer, and after police had subdued Hart and led him to a squad car, Lee started yelling at the officers, telling them he was going to "AK your ass." The trial court ruled that the state could introduce into evidence AK-47 bullets found in a search of Lee's apartment.

Lee requested a jury instruction that fifth-degree assault was a lesser-included charge of third-degree assault and that, if the jury had a reasonable doubt as to which offense Lee committed they should convict only on the lesser offense. The trial court denied this request. The trial court also denied Lee's request for a cautionary instruction on eyewitness identification.

D E C I S I O N

I.

Lee argues that the trial court abused its discretion in admitting into evidence the bullets seized from Lee's apartment. Evidentiary rulings lie within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980). Although no AK-47 weapon was found in Lee's apartment, possession of the bullets tended to show Lee was more serious about his threat than he might otherwise have been. The bullets had no absolute connection to any element of the terroristic threats charge. But an absolute connection between the physical object and the charged offense is not required. State v. Olson, 436 N.W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989). The lack of such a connection affects the weight of the evidence, not its admissibility. Id.

Lee's argument that the bullets were Spreigl evidence is not persuasive. The jury was not told that Lee had a prior conviction, and therefore had no way of knowing he might be a felon in possession of a weapon. Although admitting the bullets posed some risk of unfair prejudice, the trial court did not abuse its discretion in finding that they had sufficient probative value to warrant admission.

II.

Lee argues that the trial court abused its discretion in denying his request to instruct the jury that they should treat with caution the eyewitness identification testimony presented. The trial court's refusal to give a requested instruction will not be reversed absent an abuse of the trial court's discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).

The supreme court has stated that

in those cases where the circumstances raise any possible doubt in the court's mind as to the reliability of the identification, serious consideration should be given to [granting a defense request for a cautionary instruction].

State v. Burch, 284 Minn. 300, 316, 170 N.W.2d 543, 554 (1969). Whether a cautionary instruction should be given depends on the particular circumstances of each case. State v. Bishop, 289 Minn. 188, 195, 183 N.W.2d 536, 540-41 (1971).

The motorist gave a description of his assailant to a police officer minutes after the assault, he identified Lee as his assailant at the scene, and he again identified him unequivocally at trial as the man who punched him through the car window. Moreover, the motorist had a very good opportunity to observe the perpetrator as he approached the car, and to observe both Hart and Lee at the scene shortly after the assault. Under these circumstances, the trial court's decision not to give a cautionary instruction was not an abuse of discretion.

III.

Lee argues that the trial court abused its discretion in denying his request to include CRIMJIG 3.20 (the instruction on lesser-included offenses) in the jury instructions. This decision is also reviewed under an abuse of discretion standard. Blasus, 445 N.W.2d at 542.

The complaint charged Lee with both fifth-degree assault and third-degree assault. Fifth-degree assault is a lesser-included offense of third-degree assault, which, as charged in this case, required infliction of substantial bodily harm. See Minn. Stat. § 609.223, subd. 1 (intentional infliction of substantial bodily harm constitutes third-degree assault); cf. Minn. Stat. § 609.224, subd. 1(2) (intentional infliction of bodily harm constitutes fifth-degree assault).

CRIMJIG 3.20 instructs the jury that certain offenses on which it is instructed are lesser offenses. It states:

You are instructed that the presumption of innocence and the requirement of proof beyond a reasonable doubt apply to these lesser crimes. If you find beyond a reasonable doubt that defendant has committed a crime but you have a reasonable doubt which crime has been committed the defendant is guilty of the lesser crime only.

10 Minnesota Practice CRIMJIG 3.20 (3d ed. 1990).

The complaint charged Lee with the two different degrees of assault based on separate acts. It alleged that Lee committed fifth-degree assault by punching the motorist in the eye, and committed third-degree assault by striking him in the lip, requiring stitches. Since the motorist testified that he was punched twice, this division of the assault charges had support in the evidence, and arguably deprived Lee of any right to a CRIMJIG 3.20 instruction because the fifth-degree assault charge related to a different act than the third-degree assault charge.

At trial, the state presented a different theory, under which the jury could find Lee committed fifth-degree assault if they found the punch to the motorist's lip did not cause substantial bodily harm. Defense counsel argued that the motorist's injuries reflected only a fifth-degree assault. We conclude that the parties' arguments were sufficient to point out to the jury that they could convict on fifth-degree assault if they had a reasonable doubt as to whether the motorist suffered substantial bodily harm. This is not a case in which the jury could have been confused as to whether fifth-degree assault was a lesser-included offense, or as to whether they could acquit Lee on the third-degree assault charge but convict him on the fifth-degree assault charge. The trial court did not abuse its discretion in refusing to give CRIMJIG 3.20.

IV.

Lee has filed a supplemental pro se brief raising three issues, which we briefly address. First, contrary to Lee's claim, the complaint does not allege that Lee had threatened to kill the assigned judge. The record reveals only a vague reference by defense counsel to a threat, by either Hart or Lee, against an unnamed judge. The record does not show any grounds for removing the trial judge on the basis of prejudice. Second, the record supports the trial court's exclusion of photographs of Hart's injuries. The photographs were not timely disclosed to the state, and the police treatment of Hart would not have been a defense to the terroristic threats charge. Finally, the trial judge did not intimidate Hart into limiting his testimony. The court only cautioned Hart about the possibility of perjury charges, and asked for his silence only when the judge wanted to make a record of his own recollection of Hart's prior testimony.

Affirmed.