State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1851

State of Minnesota,
Respondent,

vs.

Cal Joseph Reckinger,
Appellant.

Filed December 24, 2018
Affirmed
Connolly, Judge

Mille Lacs County District Court
File No. 48-CR-16-149

Lori Swanson, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Joseph Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction of assault with a dangerous weapon, arguing
that the state failed to present the jury with sufficient evidence that appellant did not act in
self-defense, and that his right to self -defense was not revived. Because the facts in the
record and inferences drawn from them provide sufficient evidence to support the jury’s
verdict, we affirm.
FACTS
In January 2016, a ppellant Cal Jos eph Reckinger was involved in a physical
altercation in an apartment unit that resulted in his being arrested and charged with two
counts of first-degree aggravated robbery, second-degree assault with a dangerous weapon,
and aiding -and-abetting second -degree assault with a dangerous weapon. Appellant
pleaded not guilty to the charges.
At trial, the state introduced evidence that appellant and three other individuals
entered an apartment unit belonging to the victim, T.C. Once inside, appellant located T.C.
and his friends A.S. and J.M. in a bedroom playing video games. Appellant was armed
with a gun and a baseball bat, which he used to hit T.C.; he also demanded their cellphones
and other items.
T.C. refused to hand over his possessions and asked appe llant to leave the
apartment. When appellant did not leave, T.C. hit him with a crowbar. T.C. then asked
appellant to leave again. Appellant did not leave and T.C. struck him for a second time. A
fight for the crowbar ensued; T.C. maintain ed possession of the crowbar and struck

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appellant for a third time. Appellant then gained possession of the crowbar, and used it to
strike T.C. Appellant and the other individuals then left the apartment.
Appellant offered a different version of events. He claimed that T.C. invited him
into the apartment where he intended to purchase drugs. He testified that T.C. brought him
to the bedroom and hit him in the head with a crowbar, when he was not paying attention.
Appellant stated that he was hit two more times with the crowbar and was in -and-out of
consciousness. Appellant admitted to pushing T.C. in order to escape , but he denied
possessing a gun or hitting T.C. with the crowbar and stated that only one person was with
him, not three.
In his defense , appellant raised self -defense. The jury found appellant guilty of
second-degree assault but found him not guilty on the three other charges. Appellant filed
a notice of appeal and argues that the state failed to p resent sufficient evidence that
appellant did not have the right to act in self-defense.
D E C I S I O N
In a sufficiency -of-the-evidence claim, this court’s role is limited to ascertaining
whether the facts in the record and the inferences drawn from tho se facts would permit a
jury to reasonably conclude that the defendant was guilty of the charged offense.
Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004). We 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). Inconsistencies in testimony go to witness credibility,
which is an issue for the jury. State v. Pendleton, 706 N.W.2d 500, 511-12 (Minn. 2005).

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Self-defense permits a person to use a reasonable amount of force against another
“when used … in resisting or aiding another to resist an offense against the person.” Minn.
Stat. § 609.06, subd. 1(3) (2018). The defendant has the burden of producing evidence to
support a self-defense claim, but the state retains the burden of proving beyond a reasonable
doubt that a defendant did not act in self-defense. State v. Penkaty, 708 N.W.2d 185, 207
(Minn. 2006). A self-defense claim has four elements: (1) an absence of aggression or
provocation by the party claiming self-defense; (2) an actual and honest belief that great
bodily harm would result; (3) a reasonable basis for this belief; and (4) a lack of reasonable
means to retreat or avoid the physical conflict. State v. Soukup , 656 N.W.2d 424, 428
(Minn. App. 2003), review denied (Minn. Apr. 29, 2003).
The state first needed to prove that appellant was the initial aggressor. See State v.
Gray, 456 N.W.2d 251, 257 (Minn. 1990) (if the state proves beyond a reasonable doubt
the nonexistence of any of the elements, a defendant cannot prevail on a self -defense
claim). Appellant contends that the state failed to prove that he was the initial aggressor,
however, the state presented ample evidence on this point. The state elicited testimony that
appellant was armed with a gun , demanded money and cellphones, and hit T.C. with a
baseball bat after T.C. failed to comply with his demands. See Moore, 438 N.W.2d at 108.
Appellant nonetheless argues that, because the jury acquitted him of the aggravated
robbery charge, which also has an element of aggression, the jury did not believe he was
the aggressor. Appellant’s argument is flawed. The crime of aggravated robbery contains
different elements than that of second -degree assault with a dangerous weapon. Compare
Minn. Stat. § 609.245. subd. 1 (2018) with Minn. Stat. § 609.222. subd. 1 (2018). The jury

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could have found that the state failed to meet its burden on all the elements of aggravated
robbery, but met its burden on all the elements of second-degree assault. For example, the
jury could have concluded that appellant was the aggressor but did not take property. The
jury’s conclusion that the state failed to meet its burden on the aggravated robbery charge
does not demonstrate that appellant was not the aggressor.
Because there is sufficient evidence demonstrating that th e state disproved one of
the self-defense elements beyond a reasonable doubt, appel lant’s self-defense claim fails.
See State v. Radke, 821 N.W.2d 316, 325 (Minn. 2012) (concluding that where the state
disproved one element of a self -defense claim, any ev idence bearing on the other three
elements “would not have changed the outcome” of trial).
Appellant argues, in that alternative, that even if sufficient evidence demonstrating
that he was the initial aggressor had been presented to the jury , his ability t o use self-
defense was revived after T.C. hit him and he no longer engaged in threatening behavior.
The right to self-defense may be revived if the initial aggressor clearly manifests a
good-faith intention to withdraw and removes the victim’s apprehension or fear. Bellcourt
v. State, 390 N.W.2d 269, 272 (Minn. 1986). But evidence that a victim may have had the
upper hand during an altercation does not constitute a legally sufficient withdrawal. Gray,
456 N.W.2d at 258 . In addition, “[i]f the circumstances are such that it is impossible for
[appellant] to communicate the withdrawal, it is attributable to his own fault and he must
abide by the consequences.” Bellcourt, 390 N.W.2d at 272 (quotation omitted).
In this case, appellant did not communicate any intention to withdraw. Appellant,
however, argues that his conduct after being struck with the crowbar was an implicit

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withdrawal, and that although there was evidence presented to the jury indicating that he
was armed with a gun during the altercation, he never threatened to use the gun after he
was hit with the crowbar.
Appellant’s argument is again flawed. First, an implicit withdrawal must be clear
to remove the victim ’s fear or apprehension. Id. Here, appellant’s behavior, or lack of
aggression after getting hit, does not evidence a clear intention to withdraw that would have
reasonably removed the victim’s fear or apprehension. Moreover, the record contains
evidence that appellant was asked multiple times to leave, but did not leave, before he was
hit for the third time with the crowbar. The fact that he did not leave despite the request
rebuts appellant’s argument that his inaction should have been seen as an implicit
withdrawal. Second, the fact that appellant may have been dazed from the third blow to
his head and unable to clearly communicate his intention to withdraw is a circumstance
that is attributable to his own fault and will not revive his ability to use self -defense. See
id.
When viewed in the light most favorable to the jury’s verdict, and assuming the jury
believed the state’s witness es and disbelieved any evidence to the contrar y, the evidence
in the record was sufficient to support the jury’s decision tha t the state disproved
appellant’s self-defense theory beyond a reasonable doubt.
Affirmed.