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This opinion will be unpublished and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
A19-0111

State of Minnesota,
Respondent,

vs.

Danny Hugh Burns,
Appellant.

Filed January 21, 2020
Affirmed
Hooten, Judge

Clay County District Court
File No. 14-CR-18-1867

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Smith, Tracy M., Judge.

2
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from the judgment of conviction for second -degree assault,
appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that
he was not acting in self-defense. We affirm.
FACTS
On May 10, 2018, Dilworth police officers responded to a report of an assault at an
apartment. The victim of the assault alleged that appellant Danny Hugh Burns arrived at
the apartment, asked to speak with the victim’s mother , and then “went crazy” when the
request was denied. Burns responded by “cussing and swearing” and allegedly threatening
to kill the victim.
The victim indicated that he asked Burns to leave and attempted to remove him from
the apartment. A physical altercation between the two ensued in the apartment. The victim
alleged that Burns punched him but admitted that he pushed Burns to the ground. During
the scuffle, the two ended up under the kitchen table, with the victim on top of Burns,
holding him by the beard, while Burns “was sticking [ the victim ] in the eyes with his
thumbs and throwing punches.”
The victim released Burns after about a minute because he believed that Burns “had
given up the struggle,” told him to leave , and went to check on his mother. The victim
alleges that after the fight ended, he heard Burns searching for something in the kitchen
and observed him “approaching him with a steak knife in his hand.” As Burns approached
the victim, “his lips were curled, his gums were visible, and he was screaming” that he was

3
“going to teach” the victim a lesson, and threatened to kill him. The victim grabbed a
mirror in an attempt to protect himself and his mother as Burns began lunging toward the
victim and his mother with the knife. The victim asked Burns to drop the knife, telling him
“they could handle [this] like men.” Burns dropped the knife, and the victim grabbed him
by the chest and threw him out of the door.
The victim called the police, who arrived a short time later and arrested Burns. The
victim indicated that he and Burns were friends for several decades and Burns was married
to the victim’s sister, but the relationship between the two men began to sour in recent
years.
Burns was charged with second-degree assault with a dangerous weapon and threats
of violence. Burns agreed to a bench trial and represented himself before the district court.
He did not call any witnesses and did not testify, but present ed the affirmative defense of
self-defense, arguing that the victim was the aggressor in the assault. The dis trict court
rejected Burns’ contention that he assaulted the victim in self-defense and found him guilty
of both counts. At sentencing, the district court determined that the two counts arose from
the same behavioral incident and entered a sentence for second-degree assault with a
dangerous weapon only. Burns was sentenced to 45 months ’ imprisonment. Burns
appeals.
D E C I S I O N
Burns challenges the sufficiency of the evidence to support his conviction for
second-degree assault with a dangerous weapon, arguing that the state failed to prove that
he was not acting in self-defense.

4
When reviewing a sufficiency of the evidence claim, we undertake a thorough
review of the record to determine whether the evidence, viewed in the light most favorable
to the verdict, was sufficient to permit the jury or fact-finder to reach the decision it did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Under this standard, we assume that
the jury or the fact-finder “believed the state’s witnesses and disbelieved contrary
evidence.” State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998). A court should not disturb
a verdict unless it concludes that the jury could not have reached the decision that it did on
the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004).
In Minnesota, a person may use reasonable force to defend himself against an
assault. Minn. Stat. § 609.06, subd. 1(3) (2018). The supreme court has emphasized that
the use of force for the purposes of self-defense is permitted if certain factors are present:
(1) the absence of aggression or provocation on the part of the
[defendant]; (2) the actual and honest belief of the [defendant]
that he was in imminent danger of death, great bodily harm, or
some felony and it was necessary to take the action he did; (3)
the existence of reasonable grounds for such belief; and (4) the
duty of the [defendant] to retreat or avoid the danger if
reasonably possible.

State v. Johnson , 152 N.W.2d 529, 532 (Minn. 1967). If a defendant argues his actions
were in self -defense and presents evidence supporting this contention , the state has the
burden of proving the nonexistence of one of the factors described above beyond a
reasonable doubt. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980). The state need
only show the absence of one of the factors to sustain the conviction. State v. McKissic,
415 N.W.2d 341, 344 (Minn. App. 1987).

5
Burns alleges that the state failed to prove the nonexistence of the four self-defense
factors. We review only the fa ctors that the district court clearly determined and do not
address the first two factors laid out above.
A. The existence of reasonable grounds for an actual and honest belief by the defendant
that he was in danger of imminent bodily harm

Burns alleges that he had a reasonable belief that he was at risk of imminent bodily
harm because of the altercation with the victim in the kitchen and the cramped nature of
the apartment. We co nclude that the records support beyond a reasonable doubt that the
district court’s determination that Burns did not have reasonable grounds to believe he was
in imminent danger. Although Burns may have believed he was in danger of imminent
bodily harm during the altercation in the kitchen, the record supports the contention that
the physical confrontation between Burns and the victim ended when the victim left the
kitchen and told Burns to leave the apartment. There was no indication of any further
physical altercation ensuing between the two men after the victim left the kitchen. Burns
could have left the apartment, but chose to retrieve a kn ife from the kitchen and begin
swinging it at the victim, threatening to kill him. This does not support a determination
that there were reasonable grounds for an actual and honest belief of imminent bodily harm.
B. The duty to retreat to avoid the danger if reasonably possible

Burns next contends that the state failed to prove that he had a reasonable possibility
of retreat because the apartment was so small and Burns could not leave the apartment
without passing the victim. But there is no evidence i n the record that supports Burn s’
claims that the victim would have stopped Burns’ retreat from the apartment if he chose to

6
leave. Rather, the record supports the assertion that the altercation between Burns and the
victim ended when the victim left the kit chen to console his mother and asked Burns to
leave the apartment. Rather than leave, however, Burns retrieved a knife and attempted to
swing it at the victim, threatening to kill him. Burns had the opportunity to retreat and
failed to do so.
C. Reasonable use of force
A defendant who alleges that his use of force was in self -defense must also show
that the use of force was reasonable. State v. Glowacki, 630 N.W.2d 392, 399 (Minn.
2001). Burns argues that the force he used was reasonable because the victim allegedly
attacked him and the small nature of the apartment made him believe he could not leave
the apartment without using force.
Our review of the record indicates that there is support beyond a reasonable doubt
for the district court’s determinatio n that the force Burns used was unreasonable . At the
end of the altercation between Burns and the victim in the kitchen, the victim left the
kitchen to console his mother and asked him to leave . In response, Burns found a knife
and began swinging it at the victim and his mother, threatening to kill the victim. Burns
had ample opportunity to leave the apartment unscathed, but chose not to. This was not a
reasonable use of force.
Because the evidence is sufficient to support the district court’s findings that the
state disproved one or more factors of self -defense, we affirm Burns’ conviction for
second-degree assault with a dangerous weapon.
Affirmed.