State of Minnesota, Respondent, vs. Anthony Maurice Knight, 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This opinion will be unpublished and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

A03-1673

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Maurice Knight,

Appellant.

 

Filed October 19, 2004

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 03017293

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from his conviction of two counts of second-degree assault, appellant Anthony Maurice Knight argues that the district court erred in denying his motion for judgment of acquittal because the state presented no evidence of a dangerous weapon and abused its discretion in (1) admitting a knife as demonstrative evidence; (2) allowing expert opinion on whether the knife was a "dangerous weapon"; and (3) declining to instruct the jury on the lesser-included offense of fifth-degree assault.  We affirm.

D E C I S I O N

Appellant Anthony Maurice Knight was observed shoplifting on March 4, 2003, at the Mall of America.  When two loss-prevention employees confronted him in a bathroom at the mall, they claim that he brandished a knife, holding it up at shoulder height.  The employees backed away and allowed him to exit.  He was later apprehended by police officers, but no knife was retrieved.

After a jury trial, Knight was convicted of two counts of assault in the second degree under Minn. Stat. § 609.222, subd. 1 (2002), and two counts of terroristic threats under Minn. Stat. § 609.713 (2002).

I.

Knight argues that the district court erred when it denied his motion for a judgment of acquittal based on his argument that the alleged knife was not proven to be a dangerous weapon.  We disagree.

            The standard for ruling on a motion for a judgment of acquittal is whether the evidence is sufficient to sustain a conviction of the offense.  Minn. R. Crim. P. 26.03, subd. 17.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing 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).

            To find Knight guilty of second-degree assault, the jury had to find that he committed an assault using a "dangerous weapon."  See Minn. Stat. §§ 609.222, subd. 1, .02, subds. 6, 10 (2002).  The district court instructed that a dangerous weapon is "anything that in the manner it is used, or intended to be used, is known to be capable of producing death or great bodily harm."  See 10 Minnesota Practice, CRIMJIG 13.10 (1999).

            We conclude that the evidence was sufficient for the jury to find that Knight intended to cause fear of bodily harm and used a dangerous weapon in a way capable of causing great bodily harm.  The eyewitnesses testified that in the bathroom Knight appeared very erratic and unstable, was repeating the same phrase over and over, and appeared to be hiding something under the sweatshirt draped over his hands.  With the two employees as close as three feet from him, Knight suddenly raised his hand to shoulder height and displayed a knife.  At that height, his possible target could be the head or neck of one of the employees.  One employee testified that Knight waved the knife at them.   Both employees saw the object as a knife and backed away in fear, allowing Knight to escape.  We thus conclude that the district court properly denied Knight's motion for a judgment of acquittal.

II.

            Knight argues that the district court abused its discretion by admitting into evidence a table knife from the Nordstrom's café and by allowing expert opinion regarding the dangerous nature of the knife. 

            Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  "On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  A weapon is admissible in a criminal case if it has some relevance to the issues in the case.  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).  "‘Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.

            A.        Admission of a knife into evidence

            "[D]emonstrative or illustrative evidence is ‘admitted, when properly verified, to illustrate or express the testimony of a competent witness, but [is] not original evidence.'"  State v. Stewart, 643 N.W.2d 281, 293 (Minn. 2002) (quoting State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999)); see Black's Law Dictionary 577 (noting that demonstrative evidence is usually offered to clarify testimony).  The standard for admitting demonstrative evidence and visual aids is whether the evidence is relevant and accurate and assists the jury in understanding the testimony of a witness.  Stewart, 643 N.W.2d at 293.

            Knight argues that the café knife should not have been admitted into evidence because it was not proven that this was the weapon at issue.  We disagree.  The evidence produced at trial demonstrates that the café knife was authenticated and relevant to the incident.  First, the two eyewitnesses testified that they saw a "knife" in Knight's hand in the bathroom.  Both saw a blade.  Both eyewitnesses were fearful and backed up for their safety.  One employee testified that the knife from the café was "really close" to the one he observed.  Second, there was testimony and videotape placing Knight, while fleeing the security employees, in the Nordstrom's café in close proximity to silverware, including knives, just before he displayed the knife to the eyewitnesses.  Because the evidence showed that Knight had access to a knife like the one described by the eyewitnesses and that Knight displayed a knife like the one he had access to, we conclude that the district court did not abuse its discretion in admitting it as evidence.

In addition, because the café knife is not inherently a weapon, its admission did not suggest a weapon more violent than that described by the witnesses.  See, e.g., State v. Flores, 418 N.W.2d 150, 159 (Minn. 1988) (approving admission of pistol as demonstrative evidence, even though the actual murder weapon was not found, because cartridge cases and spent bullet found near victim's body were consistent with those fired from pistol).  Moreover, the issue of whether the type of knife described by the witnesses could be characterized as "dangerous" remained a jury question.

B.        Expert testimony

            Knight objected to the testimony of the detective who was responsible for collecting the physical evidence for this case.  The detective testified that he did not recover a knife, but, in his experience with cases in which injury and cuts have been caused by a table knife, a table knife used against a person's neck or upper torso could cause "death or serious injury."  The detective did not testify that Knight used the knife in such a way as to intend death or serious injury. 

            "The admission of expert testimony is within the broad discretion accorded a [district] court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the [district] court clearly abused its discretion."  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (citations omitted).  "[E]specially in criminal cases, district courts should exercise caution in admitting expert testimony because of the potential for experts with specialized knowledge to unduly influence the jury."  State v. Deshay, 669 N.W.2d 878, 885 (Minn. 2003).  "The primary consideration for admission of evidence under Minn. R. Evid. 702 is ‘whether the testimony will assist the jury in resolving factual questions presented.'"  State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003) (quoting State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997)); Minn. R. Evid. 702 1977 comm. cmt. (stating expert with "specialized knowledge" may educate jury so jurors can draw their own inference or conclusion from evidence presented).  Even if the testimony is specialized knowledge and will assist the trier of fact under Minnesota Rule of Evidence 702, however, it should still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice under Minnesota Rule of Evidence 403.  Deshay, 669 N.W.2d at 888.

We conclude that, although expert testimony on the knife's capability of being dangerous may not have been necessary, allowing the testimony did not constitute reversible error.  It was within the discretion of the district court to determine that the detective's specialized knowledge of table knives used in such a way to cause death and serious injury when directed at a vulnerable body part was helpful to jurors who in their own experience would not draw a connection between a table knife and a weapon.  And because the expert testimony was limited to whether a table knife could cause serious injury and did not suggest a specific conclusion regarding Knight, it did not unfairly prejudice Knight.

Importantly, the expert did not opine whether, under the facts described by the witnesses, the type of knife described was capable of inflicting such injury or whether Knight's manner of using the knife was calculated to produce such an injury.  And the court instructed the jurors that they were responsible for weighing the evidence to make these determinations.   Thus, we cannot say that the expert's testimony deprived Knight of a fair trial by usurping the jurors' fact-finding role.

III.

 

Knight argues that the district court erred by denying his request that the jury be instructed on fifth-degree assault.  We disagree.

            The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  "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) (citations omitted).  "The rule is that a trial court must submit a lesser-included offense only if there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense."  LaMere v. State,, 278 N.W.2d 552, 557-58 (Minn. 1979). 

            Defense counsel made a continuing request that the court give the jury a lesser-included instruction of assault in the fifth degree.  Fifth-degree assault is a misdemeanor and requires only that the defendant commit an act with the intent to cause fear in another.  Minn. Stat. § 609.224, subd. 1 (2002).  But on these facts, including the eyewitnesses' testimony that a knife was used in a manner threatening great bodily harm, we cannot say that the district court abused its discretion in concluding that there was no rational basis for acquittal of second-degree assault. 

IV.

In his pro se brief, Knight contends that the two employees lied under oath about running after him because their testimony was inconsistent with their own statements and a third employee's testimony.

Credibility decisions rest with the finder of fact.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Inconsistencies or conflicts between one state witness and another do not necessarily constitute false testimony or a basis for reversal.   State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).  Moreover, the issue of whether the employees were running has no bearing on whether Knight committed the charged offenses.

            Knight also argues that he was denied the effective assistance of counsel.  He states that (1) his counsel never asked him anything about his case or what happened; (2) all she was doing was trying to get him to take a plea; and (3) she let him go to trial in shorts, a T-shirt, and gym shoes.  Apparently, Knight is arguing that his counsel's errors forced him to waive counsel and represent himself at trial.

            "The defendant must affirmatively prove that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'  ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."  Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.  In order to prevail on a claim of ineffective assistance of counsel, appellant must show by a preponderance of the evidence:  (1) that his trial attorney's conduct was objectively unreasonable; and (2) that this unreasonable conduct probably changed the result of the trial.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

            Knight fails to meet this standard.  First, the record does not support his factual assertions.  Second, he cannot show that the attorney's conduct alleged to have been ineffective caused a negative result.  The record indicates that the plea agreements offered by the state would have lessened his sentence.  And there is no evidence that his attire had any effect on the trial or result or that any alleged failure in communication by his counsel had any affect on the outcome of his trial.  Third, he is primarily responsible for the result of the trial because he elected to represent himself during the trial.     

            Affirmed.