State of Minnesota, Respondent, vs. Robin David Luevano, Appellant.

STATE OF MINNESOTA

 IN COURT OF APPEALS

  C0-97-1481

State of Minnesota,

Respondent,

vs.

Robin David Luevano,

Appellant.

Filed June 30, 1998

 Affirmed

 Amundson, Judge

Mower County District Court

File No. K7-96-1359

Hubert H. Humphrey III, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Patrick A. Oman, Mower County Attorney, Mower County Courthouse, 201 First Street Northeast, Austin MN 55912 (for respondent)

Michael C. Davis, Special Assistant State Public Defender, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

  U N P U B L I S H E D O P I N I O N

 AMUNDSON, Judge

Appellant challenges his convictions for second-degree assault and possession of a dangerous weapon. He argues that the district court abused its discretion by failing to instruct the jury on third-degree assault and that he was prejudiced by the district court's requirement that he wear a leg restraint in the presence of the jury. We affirm.

  FACTS

On November 9, 1996, Christine Thofson, girlfriend of appellant Robin David Luevano, had a verbal exchange with Joe Becker, who was standing with Steve Rogne and Mike Bramwell in the back hallway of the Silver Bullet Bar. Becker, Rogne, and Bramwell, believing the incident to be over, walked out of the bar and into the alley. There, Luevano confronted the three men verbally and pushed Becker. Becker felt that something was not right in his stomach area and the back of his arm. Becker's intestines were hanging out from an abdominal wound. Becker turned and saw Luevano advancing toward Rogne. Luevano pushed Rogne with a closed fist against Rogne's chest and stomach. Rogne realized that he had been stabbed. Neither Rogne nor Becker saw the knife at the time of the assault.

Luevano was tried before a jury that found him guilty of two counts of second-degree assault and one count of possession of a dangerous weapon. Luevano was sentenced on the two assault convictions to consecutive executed terms of 26 and 21 months. This appeal followed.

 D E C I S I O N

I. Jury Instruction

Luevano argues that the trial court erred when it denied his request to instruct the jury on third-degree assault. "The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it." Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).

There is a two-part test to determine whether to submit a lesser offense: whether the lesser offense is necessarily included pursuant to Minn. Stat. § 609.04 and whether the evidence adduced at trial is sufficient to permit the jury rationally to acquit the defendant of the charged offense and convict him of the lesser included offense. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The first prong is satisfied because third-degree assault is a lesser-included offense of first- and second-degree assault. See Minn. Stat. § 609.04, subd. 1(1) (1996) (defining lesser offense as a lesser degree of same crime). What is left to consider is whether the evidence would support an acquittal of the charged offense and a conviction of the lesser offense. The difference between second- and third-degree assault is that second-degree assault involves the use of a dangerous weapon. Minn. Stat. § 609.222 (second-degree assault); Minn. Stat. § 609.223 (1996) (third-degree assault).

The facts in this case support the district court's decision not to submit jury instructions on third-degree assault. Luevano, whose defense was self-defense and defense of others, admitted having a serrated-edge knife in his hand at the time of the offense. Both victims suffered multiple stab wounds with punctures to one or more vital organs, and the Bureau of Criminal Apprehension was able to identify both victims' blood on the knife. Because Luevano stabbed the victims with a knife, there appears to be no rational basis for the jury to acquit Luevano of the charged offense and find him guilty of the lesser offense. Therefore, the district court acted within its discretion in denying the defense a jury instruction on the offense of assault in the third degree.

 II.  Courtroom Leg Restraint

Luevano argues that the district court erred by deferring to the sheriff's department recommendation that Luevano wear a restraining leg brace in the presence of the jury. The decision to restrain defendant is within the district court's discretion and will not be reversed absent an abuse of that discretion. State v. Widdell, 530 N.W.2d 566, 568-69 (Minn. App. 1995).

The rules of criminal procedure provide:

Defendants * * * shall not be subjected to physical restraints while in court unless the trial judge has found such restraint reasonably necessary to maintain order or security. A trial judge who orders such restraint shall state the reasons on the record outside the presence of the jury.

Minn. R. Crim. P. 26.03, subd. 2 (c); see also State v. Lehman, 511 N.W.2d 1, 3 (Minn. 1994) (a defendant should not be physically restrained during trial unless it is "reasonably and eminently necessary and then only to the extent necessary under the circumstances").

When Luevano was initially restrained, the district court made no finding of the necessity of restraint, nor did the district court state on the record the reasons for restraint, as required by Minn. R. Crim. P. 26.03. On the second day of trial, the district court did state its reasons for restraint of appellant, which were essentially that the sheriff's department policy recommended restraining defendants charged with severe crimes and that the leg restraint was not readily observable.

Minnesota courts have identified certain characteristics of a defendant that the district court may consider in determining whether restraints are necessary, such as physical and emotional traits, past convictions for violent crimes, past escapes, past or present violent conduct, threats of violence, and outside threats of a breach of security in the courtroom. State v. Stewart, 276 N.W.2d 51, 62 n.5 (Minn. 1979); State v. Hogetvedt, 488 N.W.2d 487, 489-90 (Minn. App. 1992). The supreme court recently noted its concern with the state's attempt to justify restraining a defendant merely because he had been charged with first-degree murder. State v. Shoen, __ N.W.2d __, ___, 1998 WL 224565, at * 7 (Minn. May 7, 1998). The supreme court acknowledged that the seriousness of a charge may be a factor the court considers when deciding whether restraints are necessary, but cautioned that the adoption of

a per se rule that all defendants charged with first-degree murder should wear restraints violates the constitutional requirement that an inherently prejudicial practice like shackling or restraining a criminal defendant is permitted only when justified by an "essential state interest specific to each trial."

 Id. at * 8 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 340, 1345-46 (1986)).

  In this case, the district court cited the harmlessness or innocuousness of the restraining device as a reason for allowing the restraint. However, in Shoen, the supreme court rejected this justification, stating:

[T]his rationale fails to take into account the particular circumstances specific to each case. If we were to permit restraints any time the device is purportedly harmless, we can envision a future in which essentially all criminal defendants will be shackled. The constitutional guarantee of a fair trial mandates that the district court thoroughly and explicitly consider whether restraints are reasonably necessary based on the individual defendant's circumstances and that the court refrain from ordering restraints unless no lesser security measures will suffice.

 Id.

Based on the record, we find the district court erred by requiring Luevano to wear a leg restraint.

The next question is whether Luevano was prejudiced by the error. The defendant has the burden on appeal of establishing prejudicial error. Lehman, 511 N.W.2d at 3. If there is no indication in the record that the jury learned the defendant was wearing a restraint, the error is not prejudicial. State v. Scott, 323 N.W.2d 790, 792 (Minn. 1982).

The record does not reveal that the restraint prejudiced Luevano. In Shoen, Shoen exhibited signs of being shackled and a Schwartz hearing was ordered by the supreme court to determine if the jury was aware of Shoen's restraint. Here, there is no evidence that supports the claim that the jury knew Luevano was wearing the restraint. Because Luevano failed to establish that he was prejudiced, the district court's error in requiring Luevano to wear a restraint was harmless.

  Affirmed.