State of Minnesota, Appellant, vs. Justin David Weiss, Respondent.

State of Minnesota, Appellant, vs. Justin David Weiss, Respondent. A06-1607, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1607
 
State of Minnesota,
Appellant,
 
vs.
 
Justin David Weiss,
Respondent.

 

 

 

Filed December 18, 2007

Reversed and remanded

Kalitowski, Judge

Dissenting, Randall, Judge

 

Dakota County District Court

File No. K2-05-498

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 670 Commerce Drive, Suite 110, Woodbury, MN 55125 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Following a jury's determination that respondent Justin David Weiss was guilty of second-degree assault and first-degree riot, the district court granted respondent's motion for acquittal on the second-degree assault charge.  Appellant state contends the district court erred in granting respondent's motion for acquittal because the evidence was sufficient to support the jury's verdict.  We reverse and remand.   

FACTS

            On December 18, 2004, a group of individuals from Apple Valley set up a meeting with a group from Blaine, allegedly to conduct a drug purchase.  Animosity had developed between the two groups the prior evening at a party in St. Paul.  The individuals from Blaine intended to use the meeting to rob the Apple Valley group of their drug purchase money.  And the Apple Valley group intended to lure the Blaine group to an Apple Valley park where they could block their exit and assault them. 

            One of the Blaine residents, Timothy Morin, brought a gun to the meeting.  Several individuals from the Apple Valley group were also carrying weapons, including a baseball bat, pool cue, iron pipe, and brass knuckles.  When Morin, who was driving, reached the park, he pulled up next to a car in the parking lot.  He and another Blaine individual talked to the driver of the vehicle about the drug sale, and were told that the drugs were in the trunk.  As they neared the trunk, a group of 15 to 30 people, including respondent, approached them, at least one holding a visible weapon.

            There is conflicting evidence about what happened next.  Morin testified that he reached into his coat pocket and pulled out a .22 caliber revolver, waved it at the approaching group, and yelled for them to "get the F' back."  Morin said that after a member of the Apple Valley contingent suggested that his gun was not real, he pointed it in the air and fired a warning shot.  But witnesses for respondent testified that Morin was about two feet away when he pointed his gun in their faces and threatened to kill them.  Respondent's witnesses also claimed that Morin was aiming at a person when he fired, and that the shot went at a 45 degree angle above an Apple Valley group member's head.  Respondent testified that Morin told him it was a gun before shooting it.  Respondent and two of his witnesses further testified that respondent took a step back before Morin fired the gun.

            But when respondent was interviewed about the incident two days after it happened, he told a police officer:

"[Morin] told me that he was going to ‘f_ckin' kill me and what the f_ck was I thinking, why are all of these people running down, that I was about to die' . . . I was just like as soon as you point that gun somewhere I was like I'm gonna knock you out and he told me to take another step and he'd kill me and I took another step and was like you're not going to kill anyone and then at that time he looked at me and looked at [another member of the Apple Valley group] and pointed it at [him] and said "back the f_ck up or I'll kill you" and I took another step and he pointed it at me and quick went up and shot it off once in the air . . . ."

 

            Respondent then hit Morin with some object.  Testimony on this point also varies the object is described by different witnesses as:  whatever object respondent had in his hand, something that was not very long or thick, a pool cue from respondent's coat pocket, and a metal pipe.  When interviewed shortly after the incident, respondent claimed that he hit Morin with his fist.  After Morin was struck, he got up and fired the gun again, striking and killing a different individual from the Apple Valley group.  One of respondent's witnesses testified that Morin was shooting in respondent's direction.   

Respondent was charged with assault in the second degree, conspiracy to commit assault in the second degree, and riot in the first degree.  A jury convicted respondent of second-degree assault and first-degree riot.  Respondent moved for a new trial and a judgment of acquittal on both counts.  The district court denied respondent's motion for a new trial, but granted respondent's motion for acquittal on the second-degree assault charge. 

D E C I S I O N

The state argues that, because there was sufficient evidence to support the jury's verdict, the district court's order granting respondent's motion for judgment of acquittal must be reversed.  We agree.

The standard for ruling on a motion for a judgment of acquittal is whether the evidence is sufficient to sustain a conviction of the charged offense.  Minn. R. Crim. P. 26.03, subd. 17.  When a motion for judgment of acquittal is made after the jury is discharged, rule 26.03, subdivision 17(3), provides:  "If a verdict of guilty is returned the [district] court may on such motion set aside the verdict and enter judgment of acquittal, in which case the court shall make written findings specifying its reasons for entering a judgment of acquittal."  Id.

The district court's task in assessing a motion for judgment of acquittal is to determine "whether the evidence is sufficient to present a fact question for the jury's determination, after viewing the evidence and all resulting inferences in favor of the state."  State v. Slaughter, 691 N.W.2d 70, 74-75 (Minn. 2005).  Accordingly, a district court may grant a motion for judgment of acquittal if it determines that the state's evidence, when viewed in the light most favorable to the state, is insufficient to sustain a conviction.  Id. at 75.  A reviewing court must determine whether the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably have concluded that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  And the reviewing court must assume "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).

Here, the state argues that the evidence presented at trial was sufficient to permit the jurors to convict respondent of second-degree assault and that the district court erred in concluding as a matter of law that respondent established self-defense.  Because the state presented sufficient evidence for the jury to find that respondent's self-defense claim failed, we agree. 

At trial, respondent claimed that he had acted in 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 death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

 

State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).  The defendant must raise the defense, but once raised, the state acquires the burden of disproving one of the elements beyond a reasonable doubt.  State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980) (citations omitted). 

The state contends that the district court improperly determined that Timothy Morin was the aggressor.  Because we conclude that, based on the evidence, the jury could have considered both Morin andrespondent to have been aggressors, we agree. 

The district court's analysis of the first self-defense element focused solely on the actions of Timothy Morin.  But the proper inquiry is whetherrespondent was an aggressor or provoker.  And the testimony presented at trial could support a finding by the jury that respondent was an aggressor.  Respondent approached Morin with 15 to 30 of his friends, carrying a weapon and intending to attack him.  And Morin testified that he fired a warning shot in response to the large group coming toward him. 

In addition, the state presented evidence indicating that respondent took steps toward Morin.  When interviewed by the police, respondent stated, "he told me to take another step and he'd kill me and I took another step and was like you're not going to kill anyone and then at that time he looked at me . . . and said ‘back the f_ck up or I'll kill you' and I took another step and he pointed [the gun] at me . . . ."  Thus, the jury could have drawn a logical inference from respondent's statements that he was stepping forward to challenge Morin.  Viewing the evidence in favor of the state, we conclude that the jury could reasonably have found that the state disproved the first element of self-defense. 

The fourth element of self-defense, respondent's ability to retreat, was also disputed at trial.  In his motion for judgment of acquittal, respondent argued that the district court erred at trial by giving a jury instruction that respondent had a duty to retreat.  In granting respondent's motion, the district court agreed.  But because respondent had a duty to retreat, the district court erred in concluding that the instruction was wrong and that, as a matter of law, respondent met his burden of establishing the fourth element of self-defense. 

A person claiming that he acted in self-defense has a duty to retreat and to avoid danger if reasonably possible.  State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983).  In granting respondent's motion, the district court cited State v. Gardner for the proposition that there is no duty to retreat when two armed individuals confront each other in an open space.  96 Minn. 318, 328-29, 104 N.W. 971, 975-76 (1905).  The court also referred to secondary authority stating that the duty to retreat only attaches when an individual uses deadly force.  2 Wayne R. LaFave, Substantial Criminal Law § 10.4(f), at 155 (2d ed. 2003).  But neither of these sources correctly states the law in Minnesota.    

First, Minnesota courts have recognized that the duty to retreat may apply to assault cases.  See State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001); State v. Soukup, 656 N.W.2d 424, 428 (Minn. App. 2003) (stating that "principles of self-defense in homicide cases apply to assault cases as well.").  And courts have held that giving a duty-to-retreat jury instruction is only inappropriate in cases where the altercation occurred in the defender's home.  See State v. Baird, 654 N.W.2d 105, 113-14 (Minn. 2002); Glowacki, 630 N.W.2d at 402.  Here, where the incident occurred at a park, respondent had a duty to retreat unless an exception applied. 

Second, the district court incorrectly concluded that an exception applied as a matter of law.  The court found that respondent did not have a duty to retreat because he was "out in an open park, with a gun pointed at him."  But the district court was required to view the evidence in favor of the jury's verdict.  According to that evidence, respondent chose to approach Morin after arriving at the park intending to attack Morin's group.  In addition, respondent's statements during his interview two days after the incident suggest that he took steps toward Morin ("he told me to take another step and he'd kill me and I took another step and was like you're not going to kill anyone . . .").  Thus, although we may not have reached the same conclusion, the jury was entitled to determine whether respondent satisfied his duty to retreat.  We conclude that the district court improperly took this question out of the jury's hands. 

To defeat a claim of self-defense, the state need only disprove one element.  Spaulding, 296 N.W.2d at 875.  Here, we conclude that the state presented evidence sufficient for the jury to conclude that the state disproved two elements.  Therefore, the district court improperly granted respondent's motion for judgment of acquittal on respondent's second-degree assault charge.

Reversed and remanded.

 

RANDALL, Judge (dissenting)

 

            I respectfully dissent.  The standard for ruling on a motion for judgment of acquittal is whether the evidence is sufficient to sustain a conviction of the charged offense.  Minn. R. Crim. P. 26.03, subd. 17(1).  Here, the district court provided written findings that specified the state's evidence was not sufficient to sustain a conviction and articulated the court's particular reasons for granting respondent's motion for judgment of acquittal.  In the interests of justice and judicial economy and in deference to the discretion of the district court, I would affirm.

It is not the province of a reviewing court to re-try the facts of this case; we are enlisted only to determine the sufficiency of the evidence presented.  Our responsibility extends "no further than to make a painstaking review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt is sufficient to permit the jury to reach that conclusion."  State v. Ellingson, 283 Minn. 208, 211, 167 N.W.2d 55, 57 (1969).  Although we view the evidence through the prosecution's lens, our sight is guided by respondent's entitled presumption of innocence, and by his constitutionally-protected due process right requiring proof of guilt beyond a reasonable doubt.  See Mullaney v. Wilbur, 421 U.S. 684, 703-04, 95 S. Ct. 1881, 1892 (1975) (discussing requirement imposed by Due Process Clause that prosecution must prove beyond a reasonable doubt the absence of properly raised claims of justification or excuse). 

Following a painstaking review of the record, I conclude the state failed to admit sufficient evidence to carry its burden; the district court was right to grant respondent's motion for judgment of acquittal.  Although the majority takes issue with the district court's treatment of two of the four elements of self defense namely, the requirements that defendant must not be the aggressor in the affair and that defendant had a duty to retreat the district court's construction and analysis of these particular factors squared rationally with the facts presented and reached the fairer and more equitable result, considering the unique circumstances.

Although generally the evidence must be viewed in the light most favorable to the conviction, in this context, "[i]n keeping with the presumption of innocence, [district] courts should resolve all doubts as to the legitimacy of a self-defense claim in favor of the defendant."  State v. Boitnott, 443 N.W.2d 527, 533 n.2 (Minn. 1989).  Here, the doubts regarding if respondent or the victim was the first aggressor should have been resolved in favor of respondent.  Both men showed up armed, respondent with a metal pipe and the victim with a gun, presumably expecting a fight.  Although respondent may have approached the victim, it is undisputed that the victim fired his gun, thus escalating their encounter.  Because it is unclear which party should have been considered the "first" aggressor, this dispute should have been resolved in favor of respondent. 

The majority states respondent violated his "duty to retreat and avoid danger if reasonably possible."  State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983).  But here, in an open field confronted by a deadly weapon, retreat was not a viable option for respondent.  As Minnesota recognized more than one hundred years ago: 

The doctrine of ‘retreat to the wall' had its origin before the general introduction of guns. Justice demands that its application have due regard to the present general use and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs, and even knives, as a condition of justification for killing in self-defense; while it would be rank folly to so require when experienced men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or to do great bodily harm. What might be a reasonable chance for escape in the one situation might in the other be certain death. Self-defense has not, by statute nor by judicial opinion, been distorted, by an unreasonable requirement of the duty to retreat, into self-destruction.

 

State v. Gardner, 96 Minn. 318, 327, 104 N.W. 971, 975 (1905).  The Austin court's reluctance to apply Gardner is not controlling here.  332 N.W.2d at 24.  In that case, because the confrontation occurred at a bar, retreat was possible.  Id.  Here the parties were standing in the middle of an open field, analogous to the two men meeting in the woods in Gardner.  Id.  The respondent used non-deadly force to neutralize the threat of deadly force presented by the gun-wielding victim.  To the issue of respondent's duty to retreat, the trial court held in its written findings that:

Defendant was out in an open park, with a gun pointed at him.  Defendant used reasonable force under the circumstances, and there was no reasonable means to retreat or avoid the conflict.

 

I agree with the district court that danger would not have been avoided by retreating.  The grant of the motion of acquittal was appropriate under these circumstances.