State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1019

State of Minnesota,
Appellant,

vs.

Amy Jane Johnson, petitioner,
Respondent.

Filed April 9, 2018
Reversed and remanded
Reilly, Judge

Mille Lacs County District Court
File No. 48-CR-16-2396

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

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for appellant)

Christopher B. Sailors, SailorsAllen Law, Milaca, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
The State of Minnesota challenges the district court’s judgment of acquittal
following the jury’s verdict of guilty for domestic assault. Because there was sufficient
evidence to sustain the jury’s verdict of guilty and rejecti on of respondent’s defense of

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another theory, we reverse the district court’s judgment of acquittal and remand for
sentencing pursuant to the jury verdict.
FACTS
Victim M.J.C. and respondent Amy Jane Johnson were formerly married and share
custody of their two children, a son and a daughter. In November 2016, respondent brought
the children to M.J.C.’s house to stay. At M.J.C.’s house, their daughter refused to get out
of the car, because she did not want to go to M.J.C.’s house that day. Re spondent sent
M.J.C. a text message asking him to come out of the house and encourage their daughter
to get out of the car.
M.J.C. came out of the house and tried to coax his daughter inside. The exchange
became heated. M.J.C. told his daughter he would get rid of her cats if she did not get out
of the car, and she kicked hi m. In response, he backed away from his daughter.
Respondent got out of the car and pushed M.J.C. back, then pursued him and slapped him.
M.J.C. then called the police, and respondent was charged with domestic assault.
At trial, the district court instructed the ju ry on the defense of self or others over the
state’s objection. The jury found respondent guilty of domestic assault. After trial,
respondent filed a motion for judgment of ac quittal, arguing that a ppellant had failed to
present evidence sufficient to rebut her claim of self-defense. The district court granted
respondent’s motion, determining that no reas onable jury could conclude that respondent
was not acting in self-defense.
This appeal followed.

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D E C I S I O N
A judgment of acquittal is reviewed de novo. State v. McCormick, 835 N.W.2d 498,
506 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013). A motion for acquittal is
procedurally equivalent to a motion for a directed verdict. Id. In such a case, “our limited
role is to determine whether the record contains any competent evidence reasonably
tending to sustain the verdict.” Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App.
2000), review denied (Minn. July 25, 2000). On review of a criminal conviction, this court
construes the record “most favorably to the state and will assume the evidence supporting
the conviction was believed and the contrary evidence disbelieved.” State v. Pieschke, 295
N.W.2d 580, 584 (Minn. 1980). “This is esp ecially true where resolution of the case
depends on conflicting testimony, because weighing the credibility of witnesses is the
exclusive function of the jury.” Id. The role of the jury and judge are necessarily separate
in criminal trials. See Minn. Stat. § 631.06 (2016). The jury’s role is to decide questions
of fact, which of course includes wei ghing the credibility of witnesses. See State v.
Janecek, 903 N.W.2d 426, 429 (Minn. App. 2017) (“ [W]e defer to the jury’s credibility
determinations.”). In cases wh ere a credibility determination is the crux of the case, we
are especially deferential to a jury verdict. See State v. Brocks, 587 N.W.2d 37, 42 (Minn.
1998).
I. There was sufficient evidence for the jury to conclude that the state
disproved an element of defense of others.

The state argued the district court erred by determining that there was insufficient
evidence for the jury to determine that the state had di sproved an element of defense of

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another. The district court granted responde nt’s motion for judgment of acquittal after
finding that respondent met her burden of defense of others and the state failed to disprove
one of the elements of self-defense beyond a reasonable doubt.
Minnesota’s law on self-defense is well established:
The defense of self or anothe r has four elements: (1) the
absence of aggression or provocation by the defendant, (2) the
defendant’s actual and honest be lief that he or another was in
imminent danger1 of [an assault against the person], 2 (3) the
existence of reasonable ground s for the belief, and (4) the
absence of a reasonable possibility of retreat to avoid danger.

State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017); see also Minn. Stat. § 609.06, subd.
1(3) (2016). A defendant has the burden of producing evidence to support a claim of self-
defense. Id. (citing State v. Basting , 572 N.W.2d 281, 286 (M inn. 1997)). Once self-
defense is properly raised, the state has th e burden of disproving one or more of these
elements beyond a reasonable doubt. Id. The state argues that a reasonable jury could
have found that the state disproved an element of self-defense and defense of others. We
agree. Here the record contains enough evidence for a reasonable jury to find respondent
did not satisfy any of the four elements of defense of another.

1 The jury did not receive an “imminent danger” instruction, only an instruction for where
the “offense was being committed on the person or the person reasonably believed it was.”
The “imminent danger” el ement was adopted by State v. Soukup , 656 N.W.2d 424, 429
(Minn. App. 2003), review denied (Minn. Apr. 29, 2003), which incorporated defending
against disorderly conduct into the self-defense standard. Though the instruction was not
given, the state still prevails under it, and the standard under which the jury was instructed
is even harder for respondent to meet.
2 Unlike Zumberge, this case does not involve deadly force, so the “assault against the
person” language woul d replace “death or great bodily harm” pursuant to Minn. Stat.
§ 609.06, subd. (1)(3).

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A. Respondent was the aggressor.
The evidence viewed in the light most favorable to the verdict, is sufficient to
establish that respondent was the aggressor. M. J.C. testified that he never hit respondent
and did not push or pull his daughter. Respondent first got out of the car and pushed M.J.C.
When M.J.C. backed up, res pondent pursued and continued hitting him, including a slap
that knocked his glasses off his face. Respondent could have used words to de-escalate the
encounter, but, instead, she resorted to assault. If the jury believed M.J.C.’s testimony, as
we must assume it did, respondent was the aggressor in the encounter.
B. Respondent did not possess an actual and honest belief that her daughter was
in imminent danger of assault against the person.

The evidence viewed in the light most favorable to the verdict, is sufficient to
establish that respondent did not possess an actual and honest belief that her daughter was
in imminent danger of an assault against the person. During her interview with the officer
at the scene, respondent did not report being motivated by a belief that she needed to protect
her daughter from an imminent assault. In stead, respondent reported being angry that
M.J.C. threatened her daughter’s cats, which he lped her daughter cope with her anxiety.
Respondent testified for the first time at trial that she believed M.J.C. was going to hurt her
daughter when she decided to intervene. A reasonable jury could have concluded that
respondent did not believe M.J. C. was about to assault his daughter, because she did not
explain that motivation to the of ficer at the time of the incide nt at the scene. Although
repugnant, a threat involving an animal is not a legal basis to assert self-defense. There
was sufficient evidence for a reasonable jury to conclude that respondent did not possess

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an actual or honest belief that her daughter wa s in imminent danger of an assault against
the person.
C. There were not reasonable grounds for resp ondent’s belief that her daughter
was in imminent danger of being assaulted.

The evidence viewed in the light most favorable to the verdict, is sufficient to
establish that there were not reasonable ground s for respondent’s belief that her daughter
was in imminent danger of being assaulted. Based on the evidence, a reasonable jury could
conclude that a father was speaking with a ra ised voice to his nonc ompliant daughter in
order to get her to unbuckle he r seatbelt, but was not threatening. Therefore, there was
evidence for a reasonable jury to conclude that respondent did not have reasonable grounds
to believe that her daughter was in imminent danger of being assaulted.
D. Respondent had a reasonable possibility of retreat to avoid danger.
The evidence viewed in a light most favorable to the verdict, is sufficient to establish
that respondent had a reasonable possibility of retreat to avoid danger. M.J.C. testified that
he never grabbed his daughter and that he was actually backing away from her after being
kicked. Then, according to M.J.C.’s testimony, respondent’s first action to resolve the
situation was to use physical force against M.J.C. M.J.C. then backed up 10 or 15 feet as
respondent persisted in assaulting M.J.C. Respondent had the chance to retreat once M.J.C.
backed away from her, but she pursued and continued to hit him. Based on this evidence,
a reasonable jury could have concluded that respondent had a re asonable possibility of
retreat to avoid danger.

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This is not a case of no evidence or insufficient evidence. This was a case of ample,
yet conflicting evidence. In such a case, the jury’s task is to reconcile the conflicting
evidence and arrive at a verdic t. Respondent was able to fu lly present her case; she does
not allege that any evidence was improperly ex cluded or erroneously admitted. Also, the
district court adopted respondent’s jury instructions regarding defense of another over the
state’s objection.
There was sufficient ev idence for the jury to conclude that the state disproved an
element of defense of another, and the district court’s judgment of acquittal was improper
in this case.
II. The district court based its ruling on an erroneous definition of assault.
Our de novo review concl udes the district court’s judgment of acquittal was
erroneous in this case. The district court improperly usurped the fact-finding role usually
reserved for the jury. The district court repeatedly c ited respondent’s and her daughter’s
testimony in its judgment of acquittal, at times construing the statements against M.J.C.’s
testimony and the verdict. The district court did not view the evidence in a light most
favorable to the verdict.
We also note that the district court inco rrectly framed M.J.C.’s threat to get rid of
his daughter’s cats as an assault on his daughter’s person. The district court found that:
[M.J.C.’s] threat towa rds the cats was akin to an offer of
physical violence towards his daughter. A threat to deprive a
person who suffers from . . . anxiety . . . of something they love
and use as therapy to maintain mental health is itself an assault
on their mental health. It ca used physical harm to his
daughter’s psyche and instantl y elicited physical reactions

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from the daughter, just as surely as if she had been slapped,
pushed, or kicked.

The district court did not provi de any legal authority to supp ort these assertions, and we
find none. It is well established that “mere words do not justify an assault.” State v. Blank,
352 N.W.2d 91, 92 (Minn. App. 1984). The jury was instructed that assault is “the
intentional infliction of bodily harm upon another or an intentional attempt to inflict bodily
harm upon another or an act done with intent to cause fear of immediate bodily harm or
death in another.” CRIMJIG 7.06. Bodily harm does not include psychological pain.
Affirming the district court’s judgment of ac quittal is inconsistent with the definition of
assault. As a matter of law, M.J.C.’s threat to get rid of the cats did not serve as a basis for
defense of others.
III. We will not apply the circumstantial evidence test.
Respondent argues the stat e’s case was based largely on circumstantial evidence
and asks this court to evaluate the evidence under the circumstantial evidence test. We will
not employ the circumstantial evidence test. A fact is proven by direct evidence when a
person testifies to what th ey personally observed. State v. Harris, 895 N.W.2d 592, 599
(Minn. 2017). Circumstantial evidence is “e vidence from which the factfinder can infer
whether the facts in dispute existed or did not exist.” Id. None of the evidence submitted
at trial was circumstantial. Eyewitness test imony, audio recordings, and photographs are
all direct evidence. There is no reason for us to cons ider the evidence under the
circumstantial evidence standard, because this case did not in volve circumstantial
evidence.

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IV. The evidence does not support a Soukup analysis.
Respondent then argu es that she proved self-defense because she was helping her
daughter escape from a mutual fight. Though Soukup holds that self-defense is not offense-
specific and may be asserted for any “offense against the person,” respondent’s argument
fails for two reasons. 656 N.W.2d at 428 (quoting Minn. Stat. § 609.06, subd. 1(3)). First,
the jury was not instructed that self-defense could be asserted against “any offense against
the person,” only that it could be asserted ag ainst an assault. Re spondent could have
requested jury instructions to include “any offense against the person,” but she failed to do
so. See State v. Vazquez, 644 N.W.2d 97, 99 (Minn. App. 2002) (holding that a defendant
is entitled to an instruction on their theory of the case if there is evidence and law to support
it). Second, even if this court adopted respondent’s theory of intervening in a mutual fight,
the argument fails on the merits. When viewing the evidence in a light most favorable to
the verdict, M.J.C. and his daughter were not engaging in a mutual fight. The evidence
suggests that M.J.C. was backing away after being assaulted by his daughter.
Because there was sufficient evidence to sustain the jury verdict, we reverse the
district court’s judgment of acquittal. We remand this case for further sentencing
consistent with this opinion.
Reversed and remanded.