This opinion will be unpublished and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

C8-97-1647

State of Minnesota,

Respondent,

vs.

Robert James Krob,

Appellant.

Filed March 3, 1998

Affirmed

Schumacher, Judge

St. Louis County District Court

File No. KX96600466

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

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

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

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.

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

SCHUMACHER, Judge

Appellant Robert James Krob challenges the sufficiency of the evidence to support his conviction, arguing that the state failed to prove beyond a reasonable doubt that he was not acting in self-defense. We affirm.

FACTS

Krob was convicted of second- and third-degree assault following a jury trial in St. Louis County district court. Krob's conviction arose from an altercation outside Burn's bar in Rice Lake township. At approximately 11:30 p.m., Carlos Swader and Ricky Nelson were leaving the bar when they noticed Krob across the parking lot talking to a woman later identified as Cathy Roseth. Krob noticed Swader and started screaming obscenities. Eventually, pushing and shoving occurred. At the end of the scuffle, Krob knelt by his vehicle with his hands over his head and Swader and Nelson walked away. After walking a short distance, Swader and Nelson heard a voice and turned around. At that moment, Krob stabbed Swader in the head with a garden tine, which is a sharp, spiked instrument. Swader suffered a depressed skull fracture.

At trial, Krob argued that he acted in self-defense. The jury rejected this defense and convicted Krob. This appeal followed.

D E C I S I O N

On review, when challenging the sufficiency of the evidence, this court must review the evidence in the light most favorable to the jury's verdict and determine whether the evidence was sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt. State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (citing State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). It is well-settled that the jury's role is to judge the credibility of witnesses. State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). In fact, this court must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. McAdory, 543 N.W.2d 692, 695 (Minn. App. 1996) (quoting State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989)).

The state in this case bears the burden of proving, beyond a reasonable doubt, that Krob did not act in self-defense. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980) (citing State v. White, 295 Minn. 217, 225, 203 N.W.2d 852, 858 (1973)). The state may meet this burden by disproving one of the following:

(1) the absence of aggression or provocation on the part of the defendant; (2) the actual and honest belief of the defendant that he was in imminent danger of death or great bodily harm and that it was necessary to take the action he did; and (3) the existence of reasonable grounds for such belief.

Id. (citing State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967)).

To meet its burden, the state called both Swader and Nelson to the stand. According to Swader's testimony, Krob started yelling at him as he was walking to his car. When Swader confronted Krob, a scuffle ensued, and at the end of the scuffle Krob knelt by his vehicle and Swader walked away. Next, Swader heard a voice behind him and, as he turned around, he saw Krob coming at him; this is the last thing he remembers. Nelson's testimony corroborated Swader's testimony. Nelson also added that he witnessed Krob strike Swader with the garden tine.

To rebut this evidence, Krob called Roseth to the stand. Her recollection of the incident differed sharply from Nelson's and Swader's. According to Roseth, Krob grabbed a baseball bat from his trunk in an effort to defend himself. When the bat was taken from Krob, he "pulled a pitchfork from his trunk and just started flailing it around." Roseth's trial testimony, however, was inconsistent with her initial statement and the statement Krob gave the officers the night of the incident. In his statement, Krob made no mention of a baseball bat.

In this case, it was the jury's duty to determine witness credibility and the weight to be given to that testimony. Simply because Krob offered an alternative explanation of what occurred does not compel the factfinder to accept the explanation. State v. Larson, 393 N.W.2d 238, 242 (Minn. App. 1986). The jury apparently believed Nelson and Swader's testimony that Krob was not under a threat of imminent danger. In fact, testimony establishes Krob as the original aggressor. Therefore, the state met its burden of establishing beyond a reasonable doubt that Krob did not act in self-defense.

Affirmed.