Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 North Sibley, Litchfield, MN 55355 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

In an appeal from conviction of second degree assault, Dennis Riebe challenges the sufficiency of the evidence to establish that the assault he committed was "with a dangerous weapon." Because the evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the manner in which the hatchet was used or intended to be used made it a dangerous weapon, we affirm.

A jury convicted Dennis Riebe of second degree assault for his actions during a confrontation with a Meeker County Sheriff's Department investigator. Riebe had been employed by Meeker County for a number of years as a road maintenance foreman. In early 1996 Riebe was under investigation by Meeker County officials. As part of the investigation, two sheriff's department investigators seized Riebe's pickup truck to determine whether he was using gas from the county-owned diesel fuel tank. Two weeks later his supervisor terminated him for cause. He was assisted in removing his personal belongings from the Meeker County Highway shop and told that if he had forgotten anything he would have to arrange with his supervisor's office to enter the building.

Later that night the investigators went to the shop to install a surveillance camera. While they were there, Riebe's pickup approached the shop. Investigator Robert Richards walked in front of the headlights and approached the door of the pickup. The pickup took off in reverse at a high rate of speed, turned around, and drove in the direction of Riebe's residence, which was near the shop. A short time later Richards saw a man walking from the direction of Riebe's house toward the shop. Richards went outside and, standing more than ten feet from Riebe, asked him what he was doing there. Riebe replied by asking Richards what he was doing there. Riebe and Richards knew each other from previous meetings.

Richards told Riebe that the sheriff's department was conducting an inventory and told him to leave. Riebe refused and told Richards that he was trespassing on "his" property and he had to leave. As Riebe said this, he moved closer to Richards and when he came within approximately ten feet, Richards noticed that he had something in his right hand, partially concealed by his leg. Richards asked Riebe what he had in his hand, but Riebe did not respond. When Richards realized it was a hatchet, he took a step backward and told Riebe to drop it. Riebe ignored the command and took a step forward. Fearing for his safety, Richards drew a service pistol from his jacket pocket, pointed it directly at Riebe, and again instructed him to drop the hatchet and back off. Richards testified that Riebe ignored this and several additional commands and that he moved forward in lock-step with Richards moving in retreat. As Richards backed up against the building, he told Riebe that he absolutely would shoot and at that point Riebe did not move forward. Richards reached over to open the door to the shop and called for assistance from the other investigator. Riebe then began walking away, toward his home. Richards ordered him to stop and drop the hatchet because he was under arrest. Riebe continued walking away, still holding the hatchet by his side. The two investigators wrestled Riebe to the ground, subdued him, and placed him under arrest.

The testimony was undisputed that Riebe did not raise the hatchet or orally threaten to use it. Richards described Riebe as very, very agitated, angry, and intimidating during the confrontation.

An assault occurs when a person "commits an act with intent to cause fear in another of immediate bodily harm or death; or intentionally inflicts or attempts to inflict bodily harm upon another." Minn. Stat. § 609.224, subd. 1 (1996) (defining assault). Second degree assault, Riebe's conviction, has as an additional element that the person "assaults another with a dangerous weapon." Minn. Stat. § 609.222, subd. 1 (1996). A dangerous weapon is in turn defined to include devices designed as weapons and any "other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm * * *." Minn. Stat. § 609.02, subd. 6 (1996).

The district court instructed the jury that the state must prove beyond a reasonable doubt that Riebe assaulted Richards by intending to cause fear of immediate bodily harm or death and in that assault used a dangerous weapon. The court also instructed the jury on direct and circumstantial evidence.

The issue before the jury was whether Riebe's actions and the inferences drawn from those actions demonstrated the requisite intent to use the weapon to cause fear of immediate bodily harm or death. The evidence included Richards's testimony of his state of mind -- that because of his fear he drew a handgun, pointed it at Riebe, and warned him not to come closer. Richards asked him what he had in his hand and repeatedly ordered him to drop it. Even when Richards drew his gun, Riebe refused to drop the hatchet and continued to walk toward Richards. Although the hatchet was not raised or brandished, it was held in Riebe's hand and nothing impeded his present ability to use it. Cf. State v. Rempel, 143 Minn. 88, 90, 172 N.W. 920, 920-21 (1919) (defendant not guilty of assault with dangerous weapon merely because he possessed gun, when gun was not completely unholstered).

A reasonable jury could conclude that Riebe intended to cause Richards fear of imminent bodily injury with the hatchet because Riebe twice refused to drop the hatchet despite Richards's commands and offered no explanation to dispel Richards's fear. The jury could have reasonably concluded that Riebe possessed the hatchet for the purpose and with the intent of scaring Richards by putting him in fear of imminent bodily harm. The evidence was sufficient to find Riebe guilty of second degree assault beyond a reasonable doubt.

Riebe urges us to apply a de novo standard of review to construe the second degree assault statute and require that the evidence show that the weapon was actually used to commit the assault rather than intended to be used to commit the assault. In arguing this construction, Riebe stresses the rule that mere possession of a dangerous weapon while committing an assault by a different means does not constitute assault with a dangerous weapon.

Riebe's argument relies on a series of cases upholding convictions for assault with a dangerous weapon. He contends that, taken together, these cases stand for the proposition that a defendant may not be convicted of assault with a dangerous weapon unless, at a minimum, the defendant (1) possessed a dangerous weapon and (2) made threats to the victim related to the weapon or brandished the weapon in a manner that evidenced an intent to use it. The cited cases do not individually or collectively establish such a rule. As a group, these cases affirm convictions against sufficiency claims. By stating what evidence is sufficient, the cases do not establish that evidence less than that presented in each case would have been insufficient. Thus, the facts of these cases do not create a minimum allowable standard to find a defendant guilty by legally sufficient evidence, but illustrate what fact-finders have accepted as satisfying the elements of second degree assault.

Affirmed.