Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Barry V. Voss, Timothy J. Hickman, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.

In an appeal from conviction and sentencing, Joseph Gustafson challenges the sufficiency of the evidence, the jury instructions, and the imposition of multiple concurrent sentences. The evidence supports the two second degree assault convictions, the jury was adequately instructed on the definition of assault, and multiple sentences were proper because the incident involved multiple victims. We affirm.

A Hennepin County jury found Joseph Gustafson guilty of two counts of second degree assault, motor vehicle theft, two counts of felony criminal operation of a motor vehicle, and two counts of gross misdemeanor criminal operation of a motor vehicle. The seven offenses involved six different victims and arose from an incident outside Gabby's bar in Minneapolis as the bar was closing at 1:00 a.m.

The evidence presented at trial to prove the assault charge was entirely testimonial, and the witnesses presented varying accounts of what happened. After the defense's closing argument, the state requested an opportunity to rebut the defense argument that no assault occurred because the victims were not afraid. The district court did not allow rebuttal argument but curatively advised the jury that it is the intent of the actor, rather than the reaction of the alleged victim, that is determinative of whether an assault occurred.

Following conviction, the district court imposed a sentence of 30 months for one second degree assault, 26 months for second degree assault on a different victim, and a year and a day for felony theft of a car. No penalty was imposed for the four criminal vehicular operation convictions involving three other victims.

Gustafson appeals, contending (1) the evidence is insufficient to support the two assault convictions; (2) the jury instruction on assault was not fair and accurate; and (3) the concurrent sentences unfairly exaggerated the criminality of behavior that arose from one incident.

Assault is defined as "[a]n act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. § 609.02, subd. 10(1) (1998). Assault in the second degree is defined as assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (1998). Gustafson was charged with second degree assault of Anthony Ingram and Keith Jones. Gustafson presented evidence at trial based on a theory of self-defense. The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid danger.

State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997) (citations omitted).

Ingram testified that Gustafson approached within six to eight steps of him and, without provocation, shouted racial slurs. Ingram stated that after yelling at each other for a few moments, Gustafson pulled out a long knife and held it away from his body, toward Ingram. Ingram testified that this scared him.

Jones testified that, as he walked down the street, Gustafson approached with something in his hand and said, "[C]ome on, come on * * * I'm going to cut you" and uttered a racial slur, at which point Jones knew that what Gustafson had in his hand was a knife. Jones responded by taking off the scarf he was wearing and winding it around one arm to protect himself, standing his ground.

The jury had sufficient evidence to conclude that Gustafson used the knife with the intent to cause fear in both Ingram and Jones of immediate bodily harm or death. Gustafson argues that his alleged use of racial slurs "clouded" the jury's judgment on his self-defense testimony. The state correctly points out that the jury acquitted him of a second degree assault charge on a third alleged victim, which belies the claim that the jury was unduly swayed by emotion. See State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990) (acquittal on one of the charges indicated jury not "unduly inflamed"). The jury also had an adequate basis to reject the self-defense argument because the evidence, viewed consistently with the verdict, indicated that Gustafson was the initial aggressor and that he had a reasonable opportunity to avoid danger.

Gustafson asserts, first, that the trial court failed to instruct the jury fairly and accurately on the intent element of assault by saying, "[I]t is the intent of the actor to cause fear in another person that is the element," rather than saying the element is "intent to cause fear of immediate bodily harm or death." Minn. Stat. § 609.02, subd. 10(1). It is important to consider the comment in the context in which it was made. The district court was clarifying the focus of the intent instruction after denying the state's request for rebuttal argument. The request for rebuttal was predicated on a statement in the defense counsel's closing argument that implied that no assault occurred because the victims were not afraid. The court had just read the jury the statutory definition of assault contained in CRIMJIG 13.01, including the statutory language defining the element as "intent to cause fear of immediate bodily harm or death." After elaborating on the intent element, the court invited the jury to read the statute over again. The instructions, when viewed in their entirety, fairly and accurately explained the law.

Gustafson argues, second, that the district court committed plain error by not including an instruction (not asked for by trial counsel) setting forth the definition of the phrase "with intent to" contained in Minn. Stat. § 609.02, subd. 9(4) (1998). As a result of not giving this instruction, he argues, the court failed to explain that the state had to prove that he acted with intent to cause fear of immediate bodily harm or death, not just fear. His argument is unpersuasive. The judge instructed the jury under CRIMJIG 13.01 that the element to be proved was intent to cause fear of immediate bodily harm or death. The statutory definition of "with intent to" is simply "the actor either has the purpose to do the thing or cause the result specified or believes the act, if successful, will cause that result." Minn. Stat. § 609.02, subd. 9(4). Its inclusion would not have provided the jury with any additional insight that the intent to be proved was intent to cause fear of immediate bodily harm or death.

We conclude that the concurrent sentences of 30 months on the first assault, 26 on the second assault, and a year and a day on the felony car theft were not an abuse of discretion that exaggerated the criminality of Gustafson's behavior. The district court would not have exceeded the guidelines if it had made the sentences consecutive or sentenced on the remaining crimes committed against the other victims. See State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997) (sentencing on crimes committed against multiple victims in one behavioral incident generally not abuse of discretion when sentences imposed are well within the guidelines range); State v. Gartland, 330 N.W.2d 881, 883 (Minn. 1983) (not abuse of discretion to consider as separate offenses two counts of criminal vehicular negligence against two victims hit by a car while the defendant speeding to avoid police detection); State v. Montalvo, 324 N.W.2d 650, 652 (Minn. 1982) (upholding consecutive sentencing for two counts of aggravated assault in the second degree against two different victims). The three concurrent sentences were well within the range of sentences imposed for comparable criminal incidents.

Affirmed.