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This opinion will be unpublished and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
A19-0701

State of Minnesota,
Respondent,

vs.

James Obonyo Onuko,
Appellant.

Filed March 9, 2020
Affirmed
Kalitowski, Judge*

Hennepin County District Court
File No. 27-CR-18-26784

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and
Kalitowski, 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
KALITOWSKI, Judge
In this appeal, appellant argues that his conviction for second-degree assault with a
dangerous weapon must be reversed because : (1) the district court committed plain error
when it included a clearly erroneous jury instruction; and (2) appellant received ineffective
assistance of counsel. We affirm.
FACTS
In the evening of October 27, 2018, Bloomington police, responding to an assault
complaint, found the victim drenched in blood and crying that h er boyfriend, appellant
James Obonyo Onuko, beat her with a baseball bat. The victim suffered a fractured jaw ,
two broken bones in her hand, a broken nose, four broken teeth, and several lacerations on
her face and around her mouth.
The victim and Onuko do not agree on the series of events that led to the beating.
The victim claims that she was sitting on a couch in the apartment that the pair shared when
Onuko approached her from behind, grabbed her cell phone, and struck her with a baseball
bat.
Onuko claims that while sitting on his bed, the victim approached him while holding
a baseball bat. Onuko grabbed for the bat, successfully wrestled the bat away from the
victim, and tried to escape the apartment. He admits that he accidently struck the victi m
in the face with the bat twice during the struggle.
The state charged Onuko with one count of second-degree assault with a dangerous
weapon in violation of Minn. Stat. § 609.222, subd. 2 (2018), to which Onuko claimed self-

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defense. During the jury tri al, the district court read a jury instruction regarding self-
defense. The district court informed the jury that “[s]elf-defense means that [Onuko] used
reasonable force against [the victim] to resist an assault against him.” The district court
defined “reasonable force” as, “[t]he kind and degree of force one may lawfully use in self-
defense” that is “limited by what a reasonable person in the same situation would believe
to be necessary.” “Any use of force beyond that,” the district court added, “is regarded by
the law as excessive.”
Initially, a proposed jury instruction included language informing the jury that
Onuko had a duty to retreat despite being in his own home. The district court informed
Onuko’s attorney that a defendant does not have a duty to retreat in his or her own home—
though force used in self -defense must still be reasonable. The final instruction provided
to the jury read: “T he legal excuse of self -defense is available only to those who act
honestly and in good faith. This includ es the duty to avoid the danger if reasonably
possible.” (Emphasis added).
The jury found Onuko guilty of one count of second-degree assault with a dangerous
weapon.
D E C I S I O N
I. The district court’s self -defense jury instruction was plain error, bu t was
not prejudicial.

Onuko challenges the district court’s self -defense jury instruction arguing that the
instruction allows for the jury to erroneously infer that he had a duty to retreat in his home
before defending himself.

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“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). When an appellant
fails to raise a timely objection, our review on appeal is limited to whether the jury
instruction constituted plain error. State v. Baird , 654 N.W.2d 105, 113 ( Minn. 2002).
Under the 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).
A. The district court’s jury instruction was plainly erroneous.
Under the first prong of the plain -error analysis, a jury instruction is an error if it
materially misstates the law. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). Under
the second prong of the plain-error analysis, an error is plain if it is “clearly contrary to the
law at the time of appeal. ” State v. Johnson , 699 N.W.2d 335, 340 (Minn. App. 2005) ,
review denied (Minn. Sept. 28, 2005).
It is settled law in Minnesota that an individual does not have a duty to retreat from
his or her home before defending himself or herself. See Glowacki, 630 N.W.2d a t 402
(holding that a defendant does not have a duty to retreat from his own home, or a duty to
avoid danger, before u sing reasonable force in self-defense). Because the district court’s
instruction stated that the legal excuse of self -defense was only available to those who
“act[ed] honestly and in good faith,” including “the duty to avoid the danger if reasonably
possible,” the instruction was contrary to settled law and its inclusion constituted plain
error.

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B. The district court’s jury instruction did not affect Onuko’s substantial
rights.

Under the third prong of the plain -error analysis, an error that is plain 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 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. An appellant claiming that an erroneous instruction affected
his substantial rights bears a “heavy burden of proving that there is a reasonable likelihood
that giving the instruction in question had a significant effect on the jury verdict.” State v.
Kelley, 855 N.W.2d 269, 283 (Minn. 2014) (quotation omitted) . “An erroneous jury
instruction will not ordinarily have a significant effect on the jury’s verdict if there is
considerable evidence of the defendant’s guilt.” Id. at 283-84.
Onuko claims that the inclusion of the “duty to avoid” instruction was a prejudicial
error that affected his substantial rights because: (1) it lessened the state’s burden of
proving beyond a reasonable doubt that Onuko did not act in self-defense; and (2) it made
it impossible to determine whether the jury rejected Onuko’s narrative of the events of that
evening, or whether it accepted his version but concluded that he was guilty because he
failed to avoid danger.
We reject Onuko’s first argument because Glowacki makes it clear that the simple
act of including a plainly erroneous self-defense jury instruction is not prejudicial per se.
630 N.W.2d at 403 (holding a self-defense instruction constituted plain error, but was not
prejudicial). Under these circumstances, the inclusion of an erroneous jury instruction is

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not sufficient to demonstrate that the state’s burden of proof is somehow reduced.
Therefore, the inclusion of the “duty t o avoid” jury instruction does not, in and of itself,
show prejudice.
For his second argument, Onuko relies on Baird to support the proposition that it is
impossible to determine if the jury rejected his self -defense claim because they did not
believe his version of the events that evening, or because he f ailed in his “duty to avoid.”
But Baird is distinguishable.
In Baird, the Minnesota Supreme Court determined that a plainly erroneous jury
instruction on self -defense affected the defendant’s substantial rights because “it [was]
simply impossible to determine whether the jury rejected [the appellant]’s version of the
facts or whether it accepted his version but concluded that he was guilty nevertheless
because he failed to retreat.” 654 N.W.2d at 114. The supreme court determined that Baird
was prejudiced by the inclusion of the instruction because a reasonable jury could have
found that Baird’s actions were reasonable under the circumstances. Id.; see also
Glowacki, 630 N.W.2d at 402 ( noting that a defe ndant’s use of force, though in self -
defense, must still be reasonable).
Here, the record indicates that Onuko severely beat the victim with a wooden
baseball bat. He fractured her jaw, snapped two bones in her hand, smashed her nose,
shattered four of her teeth, and split-open her skin, leaving deep wounds on her face and
around her mouth. A subsequent investigation of the apartment revealed a blood -like
substance splattered on the floor in the living room, on the front door, and on a baseball
bat in the grass in the backyard. Onuko suffered no injuries from the encounter. Unlike in

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Baird, where a jury could determin e that Baird’s conduct was reasonable, in light of the
extensive and significant injuries inflicted on the victim by O nuko, we conclude that no
reasonable jury could find Onuko’s force was reasonable. See Baird, 654 N.W.2d at 114;
see also Glowacki, 630 N.W.2d at 403 (holding that when the injuries suffered by a victim
significantly exceed the injuries expected based on a defendant’s version of events, the
force used is unreasonable).
In addition, unlike in Baird, Onuko testified that he tried to take the baseball bat
away from the victim and leave the apartment. Thus, a reasonable jury may have found
this admission sufficient to conclude that Onuko satisfied the instructed requirement of
avoiding or retreating from the danger before he defended himself.
Because no reasonable jury could find that the force used by Onuko was reasonable
under the circumstances, we conclude that the erroneous instruction did not affect the jury’s
verdict and thus, Onuko was not prejudiced by its inclusion. Accordingly, the giving of
the instruction does not satisfy the plain-error test and Onuko is not entitled to a new trial.
II. Appellant’s ineffective-assistance-of-counsel claim fails.

Onuko argues that his attorney’s failure to object to the inclusion of the “ duty to
avoid” instruction constituted ineffective assistance of counsel. Ineffective -assistance-of-
counsel claims are reviewed de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003)
(citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)).
The Sixth Amendment guarantees a defendant the effective assistance of counsel.
State v. Wright, 719 N.W.2d 910, 919 (Minn. 2006). An appellant must show: “(1) that his
counsel’s representation ‘fell below an objective standard of reasonableness’; and (2) ‘there

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is a reasonable probability that, but for counsel’s unprofessional errors , the result of the
proceeding would have been different.’” Nissalke v. State , 861 N.W.2d 88, 94 (Minn.
2015) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). “If a claim fails
to satisfy one of the Strickland requirements, we need not consider the other requirement.”
State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
To satisfy the second prong of Strickland, an appellant must show that an error was
prejudicial and affected the outcome of the case. State v. Bobo , 770 N.W.2d 129, 138
(Minn. 2009). An 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.”
Griller, 583 N.W.2d at 741.
Here, we have concluded that the giving of the clearly erroneous jury instruction did
not prejudice Onuko. We also conclude that his attorney’s failure to object to the inclusion
of the erroneous jury instruction did not prejudice Onuko. Because the record is replete
with evidence that supports the jury’s determination of guilt, Onuko has failed to meet his
burden in demonstrating that there is a reasonable probability that the verdict would have
been different but for the attorney’s conduct. And because we find no prejudice, we need
not assess the other Strickland prong. See Mosley, 895 N.W.2d at 591 (“If a claim fails to
satisfy one of the Strickland requirements, we need not consider the other requirement.”).
Finally, we find no merit in the claims made by Onuko in his pro se suppl emental
brief, because appellant fails to cite any relevant authority to support his assertions of error.
See State v. Butcher , 563 N.W.2d 776, 780 (Minn. App. 1997) (noting that inadequately

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briefed issues are not properly before an appellate court), review denied (Minn. Aug. 5,
1997).
Affirmed.