State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0248

State of Minnesota,
Respondent,

vs.

Guy Israel Greene,
Appellant.

Filed January 8, 2018
Affirmed
Schellhas, Judge

Carlton County District Court
File No. 09-CR-14-1518

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Thomas H. Pertler, Carlton County Attorney, Jesse D. Be rglund, Assist ant County
Attorney, Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Pr esiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
On appeal from his conviction of fifth-de gree assault, appellant argues that the
district court deprived him of his right to present a defense when it denied his request to

2
present testimony about the conditions of his confinement. Appellant also raised two
discernible issues in a pro se supplemental brief. We affirm.
FACTS
Appellant Guy Greene and T.B. were residents at the Minnesota Sex Offender
Program (MSOP) in Moose Lake when they had a physical altercation during which T.B.
sustained an eye injury that required me dical care. Respondent State of Minnesota
consequently charged Greene with one count of third-degree assault and one count of fifth-
degree assault.
Greene moved the district court to subpo ena 20 witnesses for trial. The court
permitted Greene to subpoena nine of the witnesses on th e basis that the remaining
witnesses lacked “direct knowledge of the contested facts in this criminal matter.”
At Greene’s jury trial, the state presente d evidence that Greene and T.B. had argued
over a video game in the multipurpose room at the MSOP facility and continued to argue
throughout various parts of th e building. The state introduced video footage that showed
Greene and T.B. pacing around a common area while appearing to argue with each other.
After T.B. and Greene “got up in each other’s face,” Gree ne poked T.B. in the eye,
prompting T.B. to grab Greene “by the throat.” The parties then grappled with each other
before Greene grabbed T.B. by his hair and attempted to slam his face onto a steel table.
MSOP staff quickly intervened and T.B. received stitches at a hospital for an injury to his
eyelid.
Proceeding pro se, Greene claimed self-defense and testified that T.B. had a
“reputation for aggression” and provoked him to the point where he felt threatened. Greene

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said that he “felt like [T.B.] was lunging at me” and that he “reacted” in self-defense by
poking T.B. in the eye area “to get [T.B .] away from [him].” Greene called several
witnesses who testified that they observed T.B. provoking Greene. At least one of Greene’s
witnesses agreed that T.B. had a reputation for being aggressive to ward staff and other
residents.
The jury found Greene guilty of fifth-de gree assault and not gu ilty of third-degree
assault. The district court sentenced Greene to 365 days in jail. This appeal follows.
D E C I S I O N
Right to present defense
Greene argues that the district court depriv ed him of his right to present evidence to
support his claim of self-defense by denying his request to call or otherwise elicit testimony
about the conditions of his confinement. Evidentiary rulings are reviewed for an abuse of
discretion. State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009). “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
conviction will stand if the error was harmless beyond a reasonable doubt, even if the error
violated the defendant’s constitutional rights. Atkinson, 774 N.W.2d at 589.
Criminal defendants have a “constitutiona l right to a meaningf ul opportunity to
present a complete defense.” Loving v. State , 891 N.W.2d 638, 646 (Minn. 2017)
(quotation omitted). This in cludes the ability to pr esent witness testimony. Id. But “a
defendant’s due process right to present a complete defense yields to the application of an
evidentiary rule unless the rule ‘infringe[s] upon a weighty interest of the accused and [is]

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arbitrary or disproportionate to the purposes [the rule is] designed to serve.’” State v. Pass,
832 N.W.2d 836, 841–42 (Minn. 20 13) (alteration in original) (quoting Holmes v. South
Carolina, 547 U.S. 319, 324–25, 126 S. Ct. 1727, 1731 (2006)).
Under Minnesota law, the state had the burden to disprove at least one of the
following elements of Greene’s self-defense claim beyond a reasonable doubt:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of death or great bodily harm;
(3) the existence of reasonable grounds for that belief; and
(4) the absence of a reasonable possibility of retreat to avoid
the danger.

Loving, 891 N.W.2d at 646 −47 (quoting State v. Johnson , 719 N.W.2d 619, 629 (Minn.
2006)).
1
Quoting State v. Bjork , 610 N.W.2d 632, 637 (Minn. 2000), Greene argues that
testimony about the conditions of his confin ement at Moose Lake was important and
“necessary so jurors could properly evaluate ‘the genuineness and reasonableness of [his]

1 We note that Loving actually provides that the “State has the burden to disprove each of
the following elements of [the defendant’s] self-defense claim beyond a reasonable doubt.”
891 N.W.2d at 646. But Loving is quoting Johnson, which states that the “state has the
burden of disproving one or more of [the self-defen se] elements beyond a reasonable
doubt.” Johnson, 719 N.W.2d at 629 (quoting State v. Basting , 572 N.W.2d 281, 286
(Minn. 1997)); see also State v. Radke, 821 N.W.2d 316, 324 (Minn. 2012) (stating that to
disprove a self-defense claim, the “State need only disprove beyond a reasonable doubt at
least one of the elements of sel f-defense”). The supreme court in Loving does not
acknowledge that it is differentia ting from the standard stated in Johnson, nor does it
otherwise indicate that it is changing the long -standing standard that the state need only
disprove one element of a self-defense claim beyond a reasonable doubt. Thus, the
statement in Loving that the state “had the burden to disprove each of the following
elements of [the defendant’s] self-defense claim beyond a reasonable doubt” appears to be
an inadvertent misstatement. 891 N.W.2d at 646.

5
fear and violent actions.’” He contends that the district court’s exclusion of testimony on
the alleged conditions at MSOP deprived him of his constitutional right to present evidence
supporting his self-defense claim. He argues that the court “abused its discretion by not
letting [him] call MSOP employees to testify or to elicit testimony from his other witnesses
about the conditions of his confinement.”
Greene’s argument is without merit. As th e state points out, the district court never
explicitly ruled that all “testimony as to conditions of confinement was irrelevant.” Rather,
as reflected in the court’s pretrial order, th e court granted Greene’s request to subpoena 9
of 20 witnesses, several whose testimony Greene claimed was relevant as to “conditions of
[his] confinement.” Greene therefore was ab le to present evidence regarding the
“conditions of [his] confinement” at trial. Fo r example, Greene asked his witness, D.L.,
how he felt about “the atmosphere at MSOP” and the type of altercations he has been in at
the facility. Similarly, Greene testified at length regarding the “conditions” at MSOP, such
as the “level of the tension, the anxiety, [and] the depression” at the facility.
Although the district court sustained the state’s objection to some of Greene’s
questions of M.B. about conditions at MSOP, as well as it’s “policies and procedures,” the
court allowed Greene to elicit other testimony from M.B. relating to the “environment” and
“conditions” at MSOP. For example, M.B. testified that the environment is “created so that
we are sort of . . . hostile towards each other.” And Greene had the opportunity to question
several other witnesses about the conditions of confinement at MSOP, but he apparently
chose not to. We conclude that the court di d not deprive Greene of his right to present
evidence to support his defense of self-defense.

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But even if the district court errone ously excluded testimony proferred by Greene,
he is entitled to a new trial only if he can de monstrate that the evidentiary exclusion was
an abuse of discretion and that the error was not harmless beyond a reasonable doubt. See
Atkinson, 774 N.W.2d at 589 (stating that “[a] conviction will stand if the constitutional
error committed was harmless beyond a reasona ble doubt”). An “error is harmless if the
jury’s verdict is surely unattributable to the error.” Id. (quotations omitted).
Here, video of the assault that the state in troduced supports the jury’s verdict and
the jury’s rejection of Greene’s self-defense claim. The video shows Greene and T.B.
walking back and forth, arguing with each other, and Greene waving his hand in T.B.’s
face. The video also shows Greene, on more than one occasion, walking away from T.B.
and then returning and getting in T.B.’s f ace. Moreover, the video shows Greene pushing
T.B., and later, Greene poking T.B. in the eye, which causes the scuffle to ensue. Finally,
testimony at trial indicates that both parties were calling each other names. This evidence
demonstrates that Greene was the aggressor, or at the very least, disproves the absence of
aggression on the part of Greene. See Loving, 891 N.W.2d at 646 (stating that the state has
the burden to prove the “absence of aggression or provocation on the part of the defendant”
(quotation omitted)).
In addition to disproving the first self-d efense element beyond a reasonable doubt,
the state presented evidence that Greene could have retreated. The assault occurred on the
same floor as T.B.’s living unit. But according to T.B., he was unable to return to his room
because his roommate had the door shut, i ndicating that his roommate was “using the
bathroom.” Conversely, Greene’s room was ups tairs from where the assault occurred. In

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fact, Greene admitted that he could have walked away from T.B. and gone upstairs to his
room, but instead he kept following and arguing with T.B. Greene’s testimony
demonstrates that he had a reasonable possibility to retreat to avoid the danger. As a result,
the state disproved, beyond a reasonable doubt, the fourth self-defense element. See id.
(stating that the state has the burden of disproving, beyond a reasonable doubt, “the absence
of a reasonable possibility of retreat to avoid the danger” (quotation omitted)).
Because the state disproved, beyond a reas onable doubt, at least two of the self-
defense elements, Greene’s self-defense argument fails. See Johnson, 719 N.W.2d at 629
(stating that once the defendan t has met his burden “of going forward with evidence to
support a claim of self-defense,” the “state has the burden of dispr oving one or more of
these elements beyond a reasonable doubt ” (quotation omitted)). Moreover, evidence
pertaining to the “conditions of confinemen t” had no bearing on the evidence showing
Greene as the aggressor or whether he had a reasonable possibility of retreat. Accordingly,
the jury’s verdict was surely unattributable to any error in the omission of evidence
depicting the “conditions of [Greene’s] confinement.”
Pro se arguments
In a pro se supplemental brief, Greene argue s that he was denied his right to a fair
trial because the district court allowed the stat e to play the security video footage at half-
speed and without audio. Greene also contends that he was denied due process and the right
to a fair trial because the state violated th e rules of criminal pr ocedure by using MSOP
employees to investigate his case rather than an “official investigator.” Having considered

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these issues carefully in light of the applicable legal standards, we conclude that Greene’s
pro se claims are without merit.
Affirmed.