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This opinion will be unpublished and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
A18-1217

State of Minnesota,
Respondent,

vs.

Eugene Foster Cole,
Appellant.

Filed May 28, 2019
Reversed and remanded
Reilly, Judge

Clearwater County District Court
File No. 15-CR-17-363

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Alan G. Rogalla, Clearwater County Attorney, Heather L. Labat, Assistant County
Attorney, Bagley, Minnesota (for respondent)

Cathryn Middlebrook, C hief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and Klaphake,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
On direct appeal from judgment of conviction for domestic assault, appellant argues
that the district court erred by instructing the jury that he had a duty to retreat from his
home in order to assert a self-defense claim. Because the district court’s jur y instruction
was erroneous, we reverse and remand.
FACTS
In September 2017, police officers responded to a report of a domestic assault in a
home shared by J.C. and appellant Eugene Foster Cole. J.C. told the officer that the couple
got into an argument and appellant “held [her] down” with his forearm when she tried to
make an emergency call. Officers observed red marks and bruising on J.C.’s neck and arm
and a cut on her right hand. The state charged appellant with felony attempted domestic
assault by strangulation, gross misdemeanor interference with an emergency call, and
misdemeanor domestic assault, bodily harm. The matter proceeded to trial. Following the
close of testimony, the district court instructed the jury on the charges and on appellant’s
self-defense claim and submitted the case to the jury. The jury found appellant guilty o f
misdemeanor domestic assault and acquitted him of the remaining two charges. This
appeal follows.
D E C I S I O N
Appellant chall enges the district court’s self -defense instruction. “Generally, a
party waives the right to appeal a jury instruction by failing to object to it at trial.” State v.
Glowacki, 630 N.W.2d 392, 398 (Minn. 2001). Here, appellant did not object to the district

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court’s self-defense instruction at trial. Because appellant did not raise a timely objection,
our review on appeal is limited to whether the jury instructions constituted plain error.
State v. Baird , 654 N.W.2d 105, 113 ( Minn. 2002). Under a plain -error analysis, the
appellant must show: (1) an error; (2) that was plain; and (3) that affected appellant’s
substantial rights. State v. Griller , 583 N.W.2d 736, 740 ( Minn. 1998). If these three
prongs of the plain -error test are satisfied, we may corre ct the error if it seriously affects
the fairness and integrity of the judicial proceedings. Id.
We determine that the first two prongs of the Griller plain-error test are satisfied
because there was an error, and the error was plain. In its self-defense instruction to the
jury,1 the district court stated, “ The legal excuse of self -defense is available only to those
who act honestly and in good faith. This includes the duty to retreat or avoid the danger if
reasonably possible.” This instruction was plainly erroneous. Minnesota caselaw is clear
that “[t]here is no duty to retreat from one’s own home when acting in self -defense in the
home, regardless of whether the aggressor is a co-resident.” Glowacki, 630 N.W.2d at 402.
Thus, a self-defense jury instruction containing duty-to-retreat language is a plain error if
the defendant was in his home. Baird, 654 N.W.2d at 113. Here, it is undisputed that
appellant and J.C. were in their shared home when the dispute arose. We therefore
determine that the district court’s instruction was plainly erroneous.
Under the third prong, an error affects a defendant’s substantial rights “if the error
was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. An

1 We note that the record shows that neither the state nor appellant submitted proposed jury
instructions to the district court.

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error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in
question would have had a significant effect on the verdict of the jury.” Id. (quotation
omitted). Appellant claims that the erroneous self-defense instruction confused and misled
the jury because the jury heard conflicting accounts at trial from the witnesses.
We agree. The parties provided conflicting accounts of the events at trial. J.C.
testified that the couple got into an argument and she attempted to pick up her phone t o
make an emergency call . J.C. stated that appellant grabbed her phone, dropped it on the
floor, and “started stomping on it with the heel of his foot.” J.C. testified that she slipped
and fell “face first” on the floor while reaching for her phone, and appellant “ended up
falling right on top” of her. J.C. stated that appellant put his arm around her neck and
pulled her, “cutting off [her] airway.” Appellant’s testimony differed from J.C.’s account.
Appellant stated that the couple got into an argumen t, during which J.C. “tackled” him,
causing him to fall on the floor. Appellant testified that he “spun” around in an effort to
get J.C. off of him, although he denied strangling J.C. or grabbing her phone.
Given this record and the fact that the jury acq uitted appellant of the two more
serious charges, it is difficult to determine whether the jury rejected appellant’s version of
events, or whether it accepted his version but determined he was nevertheless guilty of
domestic assault because he remained in the home. Our decision in Baird is instructive.
In that case, the defendant and his roommate got into an argument and the roommate
approached the defendant holding a screwdriver . 654 N.W.2d at 1 08. The defendant hit
his roommate in the face and pulled his arm. Id. The Minnesota Supreme Court ruled that
the district court’s plainly erroneous jury instruction affected the defendant’s substantial

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rights because “it is simply impossible to determine whether the jury rejected [the
defendant]’s version of the facts or whether it accepted his version but concluded that he
was guilty nevertheless because he failed to retreat.” Id. at 114. The Baird court reversed
the defendant’s conviction and remanded for a new trial. Id. The same reasoning applies
here. Because there is a reasonable likelihood that the plainly -erroneous instruction had a
significant effect on the jury’s verdict, we determine that the third Griller prong is satisfied.
Having determined that the dist rict court’s jury instructions constituted plain error
affecting appellant’s substantial rights, we turn to consider whether a new trial is necessary
to ensure fairness and the integrity of judicial proceedings. Griller, 583 N.W.2d at 740.
“Fairness requires that [the defendant] be given an opportunity to present his account of
the facts to a jury under the proper instructions.” State v. Watkins, 820 N.W.2d 264, 269
(Minn. App. 2012) (emphasis omitted) (citing Baird, 654 N.W.2d at 114). And “ [t]he
fairness and integrity of the judicial proceedings are called into question by the erroneous
instructions and the verdict based on those instructions ” when the jury may not have
properly considered disputed elements of the crime. Id. (quotation omitted). Here , it is
possible that the district court’s erroneous jury instruction compromised the jury’s ability
to weigh the competing evi dence and properly consider appellant’s claim of self-defense.
We therefore conclude that appellant is entitled to reversal of his conviction and we remand
for further proceedings consistent with this opinion.
Reversed and remanded.