State of Minnesota, Respondent, vs. James Michael Kyro, Appellant.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C8-98-573

State of Minnesota,
Respondent,

vs.

James Michael Kyro,
Appellant.

 Filed February 9, 1999
 Affirmed
 Mulally, Judge*

Ramsey County District Court
File No. K5971732

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Steven P. Russett, Assistant Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Mulally, Judge.

 U N P U B L I S H E D   O P I N I O N

 MULALLY, Judge

Appellant was convicted by a jury of second-degree murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1996). He argues that the district court's self-defense jury instruction was inaccurate and misleading. Appellant also raises numerous arguments in his pro se supplemental brief. We affirm.

 FACTS

Appellant James Michael Kyro, age 19, and Andrew Schoen, age 18, had grown up together and were best friends. In May 1997, Schoen moved into an upper-level apartment in St. Paul. Kyro was planning to move to Florida in June, and Schoen agreed to let Kyro stay at the apartment. On May 24, 1997, Kyro and Schoen were drinking at the apartment with two friends, Christina Lunszor and Rachel Lenertz. Kyro and Schoen began arguing.

Kyro, Lunszor, and Lenertz decided to leave through the back door and down an outside staircase. Kyro, however, began fighting with Schoen. The two scuffled on the back stairs and the landing. During the struggle, Schoen stabbed Kyro in the leg with an eight-inch knife. Kyro and Schoen went back into the apartment where the fighting continued. While inside, Kyro stabbed Schoen in the chest. He claims he thought Schoen was going to kill him.

Kyro then limped to Lunszor's car with blood on his leg. Kyro told the two women that he had been stabbed and asked to be driven to his mother's house. En route, he told Lenertz and Lunszor that he stabbed Schoen. Lunszor testified that when they were at Kyro's mother's house, Kyro said that he left Schoen "with a knife sticking out of his chest."

Kyro's mother bandaged his leg and attempted to call Schoen. The line was busy. Schoen, still alive, had called 911 and apparently never hung up the phone. The police arrived at the apartment to find Schoen on the kitchen floor with the phone beside him. He was treated by paramedics at the scene and transported to the hospital. Shortly after his arrival at the hospital, Schoen died of exsanguination from an 11 and 1/2-inch deep wound that went through his lungs and heart. Kyro was taken to Regions Hospital where he was treated for a 3/4-inch wide, 1 and 1/2-inch deep knife wound in his leg. He was subsequently arrested.

Kyro was charged in Ramsey County District Court with second-degree unintentional murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1996) and subsequently convicted. During trial, the state proposed a set of jury instructions on the issue of self-defense. Kyro objected to the state's proposal and instead requested a version of a standard self-defense instruction. His objection was sustained, and his request granted. He now argues that the court's use of the instruction he requested was prejudicial error.

 D E C I S I O N

District courts are afforded "`"considerable latitude" in selection of language in the jury charge.'" State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)) (other citation omitted). When reviewing a particular charge, this court must review the jury instructions "in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted). Even when the defendant did not object to the challenged jury instruction, this court can "reverse if the instructions were misleading or confusing on fundamental points of law." State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). This is an exception to the general rule that a party cannot avail itself of invited error. State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997).

[F]ailure to challenge a jury instruction at trial waives the right to appeal that issue unless the error is one of fundamental law and results in substantial and material prejudice to defendant's rights.

 Id. at 160 (citations omitted); see also Minn. R. Crim. P. 26.03, subd. 18(3) (allowing motion for new trial despite lack of objection to instruction if error is of fundamental law or controlling principle).

At trial, Kyro requested the court give a version of the standard jury instruction CRIMJIG 7.05: "Self Defense--Causing Death." 10 Minnesota Practice CRIMJIG 7.05 (Supp. 1998). The court granted Kyro's request over the state's objection and gave the following instruction:

No crime is committed when a person takes the life of another, even intentionally if Defendant's actions -- action is taken in resisting or preventing an offense which Defendant reasonably believes exposes the Defendant to death or great bodily harm.

In order for a killing to be justified for this reason three conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the Defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. Third, Defendant's election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril. All three conditions must be met, but the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self defense.

(Emphasis added). Under the standard jury instruction, a district court can choose from alternative language: "First, [the killing] [defendant's action] must have been done in the belief that * * * ." 10 Minnesota Practice CRIMJIG 7.05.

Here, the court elected to use "the killing" rather than the alternative language "defendant's action." Although the parties engaged in extensive discussion about the proper self-defense instruction, CRIMJIG 7.05 was the only instruction Kyro proposed and he did not oppose its language despite the availability of the alternative.

Relying on State v. Hare, 575 N.W.2d 828 (Minn. 1998), Kyro contends that the court should have used CRIMJIG 7.06 instead. CRIMJIG 7.06 states:

SELF DEFENSE--DEATH NOT THE RESULT

Defendant is not guilty of a crime, if defendant used reasonable force against ______ to resist (or to aid ______ in resisting) an offense against the person, and such an offense was being committed or defendant reasonably believed that it was.

It is lawful for a person who is being assaulted and who has reasonable grounds to believe that bodily injury is about to be inflicted upon the person, to defend from such attack, and in doing so the person may use all force and means which the person believes to be reasonably necessary and which would appear to a reasonable person, in similar circumstances to be necessary to prevent the injury which appears to be imminent.

The kind and degree of force which a person may lawfully use in self-defense is limited by what a reasonable person in the same situation would believe to be necessary. Any use of force beyond that is regarded by the law as excessive.

* * * *

(The rule of self-defense does not authorize one to seek revenge or to take into his own hands the punishment of an offender.)

10 Minnesota Practice CRIMJIG 7.06 (1990)

Decided in 1998, after Kyro's trial and conviction, Hare analyzed the application of CRIMJIG 7.05 to unintentional murder cases. There, the defendant argued that he did not intend to kill the victim and that his actions were in self-defense and defense of his dwelling. Hare, 575 N.W.2d at 829. At trial, the defendant requested that the court instruct the jury using CRIMJIG 7.06 or, alternatively, a modified version of 7.05. Id. Instead, the court used an unmodified version of CRIMJIG 7.05. Id.

The supreme court held that when a defendant causes the death of a person, asserts self-defense, and claims that the death was not the intended result, CRIMJIG 7.05 is "inappropriate" and "CRIMJIG 7.06 is likely to better fit the facts of the case." Id. at 833 (footnote omitted). The court then iterated its reasoning in prior decisions that the language "`the killing must have been done in the belief that * * * '" is not appropriate "because it implies that the defendant must believe it necessary to kill in order for the killing to be justified" rather than that the defendant's actions, incidentally resulting in death, were justified under the circumstances. Id. (citations omitted) (footnote omitted).

As Kyro argues, CRIMJIG 7.05 can be read as requiring an intent to kill. This is misleading because it can hinge a defendant's prospect of success on the claim of self-defense to an element not essential to the crime charged. Therefore, we conclude, as did the supreme court in Hare, that using CRIMJIG 7.05 in the context of a killing claimed to be unintentional was error.

The state contends that the instruction was not a material misstatement of the law because the parties' theories of the case and evidence presented at trial contemplated an intentional act by Kyro. Therefore, an instruction with a reference to intent was not inappropriate. But this analysis fails for two reasons: (1) under the mandate of Hare, CRIMJIG 7.05 should not be used when the killing is unintentional; and (2) there is a substantive difference between an intentional killing and an intentional act resulting in death. The state also argues that this instruction was not a misstatement of the law because, when examining the jury instructions as a whole, the court later used the language "defendant's election to defend" rather than "election to kill." However, the instruction in Hare was identical in this respect and the supreme court still held it erroneous. Id.

The state also argues that the instruction cannot be erroneous because the defendant requested it. When a district court rejects a specific proposed instruction and adopts, verbatim, one from the CRIMJIG at the request of a defendant, the presumption is that "the court has accurately instructed the jury on the law." Gray, 456 N.W.2d at 259. But this is only a presumption and, although correct on its face, the instruction must be appropriate under the circumstances. See Hare, 575 N.W.2d at 833 (holding although instruction correct on its face, it must be appropriate under the facts of the case). Under the facts of this case, the use of CRIMJIG 7.05 was in error.

Even though the use of CRIMJIG 7.05 was erroneous in the present case, Kyro must still show that the error was prejudicial. See State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997) (stating new trial not warranted if jury instruction error is harmless). Kyro argues that the instruction was prejudicial because the jury may have believed that, even if his actions were justified, because he did not intend to kill Schoen, he could not have believed that killing Schoen was necessary. Kyro also contends that the prosecutor's closing argument enhanced this potential confusion. He claims that the jury's post-verdict comments relayed by the district court indicated that the jury was more concerned with the result of Kyro's actions rather than the reasonableness of them. The thrust of this argument is that the jury's comments show it could have been confused on whether "Schoen's death was justified, preventable, or unnecessary." Because this consideration is "irrelevant to this issue of self-defense," Kyro argues that the error was prejudicial.

Relying on State v. Malaski, 330 N.W.2d 447 (Minn. 1983), Kyro insists that there is no way to know if the jury properly understood the law. In Malaski there was evidence that the jury was confused over a central element of the instruction because the jury came back to the judge to ask for clarification. Id. at 452-53. Furthermore, the clarification was open to misinterpretation. The supreme court concluded that it was likely that the jury could have misunderstood the instruction and granted a new trial. Id. at 453.

Unlike Malaski, there is no way to gauge whether the jury misunderstood the jury instructions in the present case. Although a request for clarification may indicate the presence of jury confusion, the jury here did not ask the district court for clarification of the sort requested by the jury in Malaski. Furthermore, the central issue presented by the parties in this case was whether Kyro acted reasonably and in self-defense. Our review of the record and jury instructions satisfies us that the jury knew that if it found Kyro's actions unreasonable, his claim of self-defense should fail.

Further, the jury's verdict is supported by the evidence presented at trial. Specifically, the doctor who treated Kyro's leg "seriously doubted" that the knife would have remained in the wound as Kyro stated; the medical examiner who performed Schoen's autopsy testified that the fatal wound would have been difficult to inflict unless Schoen was turned sideways or stabbed from behind; and the officer dispatched to the hospital to investigate Kyro's story testified that Kyro said "he ran up the stairs after the other guy and stabbed him in the chest." Kyro was able to present his self-defense argument and the jury was able to consider it. Ultimately, the jury rejected the defense. The question of guilt was framed by the evidence and argument at trial rather than the erroneous instruction. We conclude, therefore, that Kyro was not substantially and materially prejudiced by the erroneous instruction.

We have reviewed the arguments submitted by Kyro in his supplemental pro se brief and conclude that they are without merit.

  Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.