State of Minnesota, Respondent, vs. Jonathan Mark Ebertz, 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This opinion will be unpublished and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

A04-194

 

State of Minnesota,

Respondent,

 

vs.

 

Jonathan Mark Ebertz,

Appellant.

 

Filed December 14, 2004

Affirmed

Stoneburner, Judge

 

Red Lake County District Court

File No. K40390

 

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

 

Daniel Geller, Red Lake County Attorney, Red Lake County Courthouse, Box 416, Red Lake Falls, MN 56750 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from a conviction of first-degree assault, Jonathan Mark Ebertz argues that the evidence was insufficient to support his conviction.  We affirm.

D E C I S I O N

 

In considering a claim of insufficient evidence, this court examines the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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 of guilt 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. 1998).

Appellant was charged with first-degree assault for stabbing a person during an altercation at a campground in Red Lake County.  Appellant concedes that someone stabbed Jordan Foss with a knife causing bodily harm, but asserts that the evidence was insufficient to prove that he committed the assault. 

Witnesses for the prosecution, Blair Comstock, Nathaniel Hedlund, Kyle Verbout, and Jordan Foss, testified about the altercation.  Comstock testified that as he was fighting with another camper, appellant's Rottweiller dog ran over and bit him.  Comstock testified that when he then faced off with appellant, appellant threatened him with a knife saying, "I'll do it, man.  I'll do it.  I'll stab someone."  Foss testified that he intervened and pushed appellant.  Foss saw a flash of metal and appellant's arm suddenly dropped.  Foss then noticed blood on his shirt and realized he was bleeding heavily from his neck.  Appellant left the scene while Foss's friends attended to him and called for help.  Security guards apprehended appellant and held him until police arrived.  Comstock and Verbout identified appellant as the person who stabbed Foss.  Hedlund testified that he saw something shiny in appellant's hand just before Foss was stabbed.  Verbout testified that he heard the threats, saw the knife, and saw appellant stab Foss.    Blood stains on appellant's shirt matched Foss's blood.

Witnesses for the defense testified that appellant was being beaten and denied that anyone made threats or had a knife.  Appellant admitted to saying that he had a knife, but claimed that he actually only had a lighter that he was hoping would be mistaken for a knife.  Neither a knife nor a lighter was found at the scene.  Appellant testified that he curled up to protect himself from those who were beating him and that when he finally stood up he noticed blood on his shirt and thought that he or someone had been cut by broken glass on the ground.

            Appellant argues that the varying accounts about the altercation, the facts that Foss did not hear any threats and that no weapon was found, and the level of intoxication of everyone involved discredits the state's evidence.  But this court must assume that the jury believed the testimony of the state's witnesses and disbelieved any evidence to the contrary.  Moore, 438 N.W.2d at 108.  There is ample evidence in the record from which the jury could reasonably conclude that appellant was guilty.

Affirmed.