State of Minnesota, Respondent, vs. William NMN Whisonant, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1227

 

State of Minnesota,
Respondent,
 
vs.
 
William NMN Whisonant,
Appellant.

 

Filed June 10, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 01095424

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

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

 

John M. Stuart, Minnesota Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and

 

Michael C. Davis, Special Assistant Public Defender, Suite 1042, Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            William Whisonant appeals his convictions of assault with a dangerous weapon and theft, arguing that the state failed to prove that he used a dangerous weapon and failed to prove beyond a reasonable doubt that he was not acting in self-defense.  Whisonant also argues that the district court abused its discretion by admitting Spreigl evidence and by imposing a sentence that exaggerated the criminality of his conduct.  In his pro se brief, Whisonant asserts that he was denied a speedy trial and that there was no probable cause for his arrest.  We affirm.

FACTS

 

            Appellant William Whisonant and his companion were found in a non-public area of a business, and were escorted to the door by an owner of the business.  Almost immediately after Whisonant and his companion left the business, the owners suspected them of stealing a digital camera.  The business owners began to search the neighborhood for Whisonant and his companion and found them several blocks away.  The owners tried to confront Whisonant and his companion about the camera.  Whisonant ran and the owners pursued.  Motorist John Kaczor, who noticed Whisonant running and being pursued, stopped his car, got out, and physically stopped Whisonant and informed him that he was being placed under citizen's arrest until police arrived.  Kaczor is a large man who works as a bouncer.

            When Whisonant's companion caught up, he told Whisonant to throw the camera down and Whisonant did.  Kaczor released Whisonant who began to leave with his companion.  According to Kaczor, Whisonant then turned around and, with his hand in his pocket, asked Kaczor if he wanted to die.  Kaczor ran at Whisonant and grabbed him around the waist to "take him down."  While Kaczor was on top of Whisonant, Whisonant produced what he characterized as a "letter opener" and what the state characterized as a "paring knife" and tried to stab Kaczor.  The object did not penetrate Kaczor's skin.  One of the owners stepped on Whisonant's hand causing him to release the weapon.  Kaczor continued to detain Whisonant until police arrived and arrested Whisonant.  The camera was found in the grass nearby.

            Whisonant was charged with theft and second-degree assault.  At trial, the state was allowed to introduce stolen checks that were found in Whisonant's possession when he was arrested.  The court instructed the jury regarding self-defense, but the jury found Whisonant guilty of both counts.  Whisonant was sentenced to 84 months for the assault pursuant to Minn. Stat. § 609.1095.  This appeal followed.

D E C I S I O N

 

            1.         Sufficiency of evidence

            When considering a claim of insufficient evidence, this court's review is limited to a careful analysis of the record to determine whether the evidence, when reviewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that 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).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Whisonant first argues that the state failed to prove that the object he used against Kaczor was a dangerous weapon, as required for a conviction of second-degree assault.  Minn. Stat.  609.222, subd. 1 (2000).  A "dangerous weapon" is any device designed as a weapon and capable of producing great bodily harm or a device 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 (2000).  Whisonant argues that even if the object he used is correctly characterized as a paring knife rather than as a letter opener, the state failed to prove that the knife was designed as a weapon and capable of producing great bodily harm.

            Kaczor testified that Whisonant, with his hand in his pocket, threatened to kill Kaczor, causing Kaczor to "take him down."  Whisonant then produced the knife and attempted to stab Kaczor in the abdomen.  This evidence, considered in the light most favorable to the conviction, is sufficient to establish that Whisonant intended to use the knife to cause death or great bodily harm.  Because the state met its burden of proving that Whisonant intended to use the knife to produce death or great bodily harm, we do not need to determine whether the state met its burden of showing that this knife was designed as a weapon and capable of producing great bodily harm.

            Whisonant also argues that the evidence is insufficient to show beyond a reasonable doubt that he did not act in self-defense.  See State v. Housley, 322 N.W.2d 746, 750 (Minn. 1982) (holding that state bears burden of proving beyond reasonable doubt that defendant's use of force was not justified).  In general, self-defense is available only to those who act honestly and in good faith.  State v. Baker, 280 Minn. 518, 522, 160 N.W.2d 240, 242 (1968).  Self-defense requires (1) the absence of aggression on the part of the person charged with assault; (2) that the charged person actually and honestly believe that he was in imminent danger of death, great bodily harm, or some felony; (3) the existence of reasonable grounds for that belief; and (4) the duty of the charged party to retreat or avoid the danger if possible.  Id.  Evidence in this case, viewed in the light most favorable to the verdict, is that Kaczor informed Whisonant that he was only detaining him, and the evidence is that Whisonant, rather than walking away from his encounter with Kaczor when he had the opportunity, turned and threatened to kill Kaczor. This evidence is sufficient to support the verdict that, beyond a reasonable doubt, Whisonant was not acting in self-defense when he attempted to stab Kaczor.

            2.         Evidentiary rulings

            Whisonant asserts that the district court abused its discretion by allowing the state to present evidence of stolen checks that he possessed at the time of his arrest.  A reviewing court will not reverse the district court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  Whisonant was cross-examined about the checks to impeach his character for truthfulness, but, Whisonant argues, the district court treated the stolen-check evidence as Spreigl evidence.  Whisonant asserts that the state should not have been allowed to introduce Spriegl evidence after it rested and that such evidence was not necessary to the state's case.  See State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281, 284 (1967).  Although counsel and the court engaged in a series of discussions regarding whether the testimonial evidence of the checks was Spreigl evidence or impeachment evidence, the court instructed the jury that the evidence was admitted for the limited purpose of helping the jury assess the credibility of Whisonant's testimony, and reminded the jury that Whisonant was not being tried for and could not be convicted of any crimes other than the crimes charged.  The evidence was properly admitted under Minn. R. Evid. 608(b) and not as Spreigl evidence, so Whisonant's argument based on Spreigl is without merit. 

            Whisonant also argues that the probative value of this evidence was outweighed by its prejudicial value.  But Whisonant's version of events was substantially different from the version testified to by the state's witnesses, so his credibility was important to the jury's determination.  The district court did not abuse its discretion by concluding that the probative value of the evidence outweighed the prejudice.

            3.         Sentencing   

            Whisonant contends that imposition of the statutory maximum sentence of 84 months for this assault exaggerates the criminality of his conduct and is excessive.   A decision to depart from the presumptive sentence is within the district court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 744, 776 (Minn. 1996).  The district court stated on the record that the sentence was imposed under Minn. Stat. § 609.1095, subd. 2 (2002), the dangerous-offender statute, which allows the court to sentence a defendant to the statutory maximum if he has two or more prior convictions for violent crimes.  See Neal v. State, 658 N.W.2d 536 (Minn. 2003) (holding that dangerous-offender statute by itself may support greater-than-double-departure).  Whisonant has prior convictions of assault, manslaughter and attempted murder.  The maximum sentence was recommended in the pre-sentence investigation report.  The district court acted within its statutory authority and discretion by imposing the maximum sentence.

            4.         Additional issues raised in pro se brief

            In his pro se brief, Whisonant challenges the probable cause for Kaczor's purported citizen's arrest, and asks this court to "look into whether he received a speedy trial." 

            The state argues that Whisonant did not raise the issue of probable cause for a citizen's arrest below and therefore cannot raise this issue on appeal.  An entry in the district court minutes indicates that the district court found probable cause at a pre-trial hearing.  But the transcript of this hearing is not in the record and we do not know if the discussion in district court related to Whisonant's arrest by the police for the assault on Kaczor or related to Kaczor's initial detention of Whisonant.  Furthermore, Kaczor's detention of Whisonant had ended prior to the events that led to Whisonant's later arrest for the assault and theft and Whisonant has not cited any authority that Kaczor's initial actions have a bearing on probable cause for Whisonant's arrest for assault.  Because of the absence of anything in the record on this issue, rendering appellate review impossible, we affirm the district court's determination of probable cause.  See State v. Vang, 357 N.W.2d 128 (Minn. App. 1984) (affirming a petty misdemeanor conviction where limited record available rendered appellate review impossible). 

            To determine whether an appellant's right to a speedy trial has been violated, we consider (1) the length of delay; (2) the reason for the delay; (3) defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant.  Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); See also State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977) (adopting the Barker analysis).  No single factor is determinative and all the factors should be considered together with any other relevant circumstances.  Barker, 407 U.S. at 533, 92 S. Ct. at 2192. 

            The record discloses that Whisonant requested a speedy trial but does not disclose any circumstances surrounding the request or the reason why the trial was scheduled to begin 63 days after the request was made.  The length of delay was minimal.  Voir dire began in Whisonant's trial 63 days after he demanded a speedy trial.  See State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989) (indicating that the length of delay is calculated from the demand for a speedy trial).   

            Three interests are protected by the right to a speedy trial:

(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.

 

Id.  Whisonant is not required to affirmatively prove prejudice.  State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999).  But the increase in anxiety and concern of Whisonant and the oppression of pretrial incarceration are minimal because the delay was extremely limited.  And there is nothing in the record demonstrating any possibility that Whisonant's case was impaired by the delay.  Because the delay was minimal and Whisonant did not suffer any prejudice as a result of the delay, we conclude that Whisonant's right to a speedy trial was not violated.

            Affirmed.