Opinion
No. C4-95-2614.
Filed August 13, 1996.
Appeal from the District Court, Winona County, File No. K695532.
Hubert H. Humphrey III, Attorney General, William F. Klumpp, Jr., Assistant Attorney General, (for Respondent).
Julius E. Gernes, Winona County Attorney, (for Respondent).
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, (for Appellant).
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
A jury found Cleveland Brown guilty of fifth degree assault and terroristic threats. The district court entered a conviction on terroristic threats, and Brown appeals. The evidence presented at trial sufficiently supports the jury's verdict, and we affirm.
DECISION
In reviewing a challenge to the sufficiency of the evidence, this court must determine whether, given the facts in the record and the legitimate inferences which may be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). Our review assumes that the jury believed the evidence supporting the conviction and disbelieved contrary evidence. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
Brown was charged with making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1994). The elements of this offense are (1) the defendant made a direct or an indirect threat; (2) the threat was to commit a crime of violence; and (3) the defendant intended to terrorize another or recklessly disregarded the risk of causing such terror. Id.; State v Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).
The victim of Brown's attack testified at trial that Brown grabbed him by the throat and told him that he would kill him.
This verbal and physical threat satisfies the elements of section 609.713.
Brown also challenges the sufficiency of the evidence to support the jury's guilty verdict on fifth degree assault. A person commits fifth degree assault when he "commits an act with intent to cause fear in another of immediate bodily harm or death."
Minn. Stat. § 609.224, subd. 1(1) (1994). The same testimony that supports the conviction for terroristic threats also supports the jury verdict on fifth degree assault. Recognizing that on these facts the assault was an offense included within the terroristic threats conviction, the district court did not formally adjudicate Brown guilty of fifth degree assault. See Minn. Stat. § 609.04 (1994) (barring conviction for lesser included offense).
Brown asserts that this case demands extraordinary relief in the interests of justice. See State v. Kemp, 272 Minn. 447, 449-50, 138 N.W.2d 610, 611-12 (1965) (reversing a jury verdict when exculpatory and impeachment evidence was withheld from the jury). But Brown does not allege that any evidence was withheld from the jury's consideration; he merely asserts that the victim lied.
Juries resolve issues of credibility. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The victim's testimony sufficiently supported the jury's verdict.