State of Minnesota, Respondent, vs. David Neal Johnson, Appellant.

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State of Minnesota, Respondent, vs. David Neal Johnson, Appellant. A06-1632, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and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,
David Neal Johnson,


Filed  December 31, 2007


Ross, Judge


Ramsey County District Court

File No. K2-05-2545


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


Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)


Barry V. Voss, 527 Marquette Avenue, Suite 1050, Minneapolis, MN 55402 (for appellant)


Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

David Neal Johnson appeals from an attempted-murder conviction for entering Bob Ryan's home and bludgeoning him with a crowbar.  Johnson argues that the district court improperly prevented him from testifying to his knowledge of the victim's prior bad acts in support of a self-defense theory.  Johnson sought to testify to his belief about the victim's alleged previous affiliation with the Hell's Angels, his alleged violent nature, and his alleged drug dealing.  The district court determined that Johnson's testimony of the victim's bad acts would have to meet the clear-and-convincing evidence standard to be admissible under rule 404(b) of the Minnesota Rules of Evidence.  Because any erroneous application of rule 404(b) was harmless, we affirm.


On July 25, 2005, Bob Ryan's neighbors saw him stumble from his house crying for help and bleeding profusely from his head.  His face was so badly beaten that these neighbors did not immediately recognize him.  David Neal Johnson soon emerged from the house, and a neighbor ordered him to wait until the police arrived.

An ambulance took Ryan to the hospital, where he remained ten days.  He had lacerations four to five inches long about his head and face.  His skull was exposed in several places.  The injuries left Ryan blind in one eye.

Inside Ryan's house, the police found physical evidence of a violent assault.  One blood trail ran from the front to the rear of the house, and another led down the stairs from the second floor to the first.  Forensic splatter analysis indicated multiple blows.  Based on gashes in Ryan's head, the medical examiner told police to look for a metal object, longer than its width, with a formed edge.  Police then found a bloody crowbar underneath the kitchen sink in Ryan's house.

Ryan and Johnson had known each other for 25 years.  Ryan loaned money to Johnson, who had always paid him back.  Johnson owed Ryan approximately $17,000 at the time of the beating, and he had fallen behind on his payments.

According to Ryan's trial testimony, Johnson arrived unexpectedly that evening wearing a sling.  Ryan invited him in and began heading upstairs, leading Johnson.  As Ryan reached the top, he felt a severe blow to his head.  He turned and asked Johnson to call an ambulance.  Ryan saw Johnson strike him in the forehead with a metal bar.  Johnson continued to strike Ryan, and he grinned when Ryan begged him to stop.  Responding to Ryan's protest that the beating might kill him, Johnson quipped, "Yeah, I know."  Ryan threw himself down the stairs to get away, but Johnson followed.  At the base of the stairs Johnson continued to beat Ryan as he lay on the floor.  When Johnson began to go upstairs, Ryan struggled out the front door where his neighbors spotted him staggering.

Before trial, Johnson asked to be allowed to testify to his knowledge of Ryan's alleged previous involvement with the Hell's Angels, Ryan's violent nature, and his drug dealing.  Johnson wanted to use these alleged bad acts to show that he had reason to fear Ryan in support of his assertion of self defense.  The district court interpreted rule 404(b) of the Minnesota Rules of Evidence as imposing a clear-and-convincing evidence standard, and it ruled that Johnson's unsupported testimony would not meet that standard.  A jury convicted Johnson of attempted murder, and this appeal follows.


This appeal turns on whether the district court's exclusion of the bad-acts evidence was harmless error, because the state concedes that the court erred by excluding the evidence of Ryan's prior bad acts.  Rule 404(b) does not direct exclusion of the evidence because Johnson sought to use it to show the reasonableness of his fear, not to prove that Ryan acted in conformity with his allegedly violent history as the aggressor.  See State v. Bland, 337 N.W.2d 378, 383 (Minn. 1983) (allowing of prior bad acts evidence to establish reasonableness of fear).

We apply the harmless-error analysis where, as here, improperly excluded evidence allegedly violates a defendant's constitutional right to present a defense.  State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).  If there is no reasonable possibility that the evidence would have changed the verdict, the defendant's conviction must be affirmed.  Id. at 623.  Put another way, when a jury's verdict is "surely unattributable" to an error, the error is harmless and the verdict will stand.  State v. Vance, 714 N.W.2d 428, 437 (Minn. 2006).

We therefore consider the potential impact of the contested evidence on the verdict in light of Johnson's self-defense theory.  To prevail on this theory, Johnson needed to prove (1) that he was not the aggressor; (2) that he reasonably believed he was in imminent danger of death or serious bodily harm; (3) that there was no reasonable possibility of retreat to avoid danger; and (4) that the degree of force Johnson used did not exceed the force that would appear necessary to a reasonable person under similar circumstances.  State v. Basting, 572 N.W.2d 281, 28586 (Minn. 1997).  Johnson argues that the trial court's error prevented him from proving the second elementthe reasonableness of his belief that he was in imminent, serious danger.  Even if the excluded evidence could establish that Johnson's belief was reasonable, however, there remains no support for the fourth element because Johnson's use of force was excessive.

Self defense does not justify excessive force.  State v. Sanford, 450 N.W.2d 580, 585 (Minn. App. 1990), review granted (Minn. Feb. 28, 1990) and order granting review vacated (Minn. Mar. 22, 1990).  Only a reasonable amount of force is justified during self defense.  State v. Glowacki, 630 N.W.2d 392, 40203 (Minn. 2001).  Reasonable force is the amount of force that a reasonable person in similar circumstances would believe is necessary.  Bland, 337 N.W.2d at 381.  In contrast, the amount of Johnson's force was unnecessary and extraordinary.  Ryan was unarmed while Johnson beat him a with crowbar, repeatedly, all about his head.  Johnson battered Ryan so severely that he split his scalp open and permanently blinded him.  The attack left trails of blood on both levels of the house and down the stairs.  By Johnson's own testimony, after Ryan went to the floor Johnson did not take the opportunity to leave the house.  And he testified that after he struck Ryan in the head and Ryan attempted to move to the rear of the house, Johnson pulled him back toward the front rather than leave.  No reasonable jury could conclude that Johnson's force was reasonable under the circumstances, regardless of whether it believed that Johnson feared that Ryan had originally posed a danger to his life when the attack began.  Hell's Angel or not, Ryan certainly was no threat to Johnson as he lay bleeding beneath Johnson and as Johnson continued to deliver still more forceful blows to the head with his crowbar.

It is also informative that the jury found by special verdict that Johnson showed particular cruelty in the commission of the crime.  Although "particular cruelty" may result from other factors besides excessive force, there is an apparent relationship between the two concepts here.  The only possible bases for the particular-cruelty finding are the unreasonable level of brutality and Johnson's response to Ryan that Johnson knew his action could kill Ryan.  Either basis defeats Johnson's self-defense theory because they independently establish that Johnson intended violence beyond the force necessary for self defense.

The jury rejected Johnson's self-defense theory, and its guilty verdict is surely unattributable to the exclusion of evidence of Ryan's alleged gang associations and drug dealing six years earlier.  The mistaken exclusion was harmless.