In the Matter of the Welfare of: D. K. B.-W., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1820

In the Matter of the Welfare of: D. K. B.-W., Child.

Filed August 21, 2023
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-JV-21-2323

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant D.K.B.-W.)

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

Mary F. Moriarty, Hennepin County Attorney, Adam Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Larkin, Presiding Judge; Connolly , Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from the district court’s order adjudicating appellant guilty of first-degree
assault, appellant argues that the district court clearly erred in making credibility findings
that are not based on the evidence and misapplied the law of self-defense. We affirm.
FACTS
On September 23, 2020, appellant D.K.B.- W., then 14 years old, and victim T.B.,
an adult man, engaged in a confrontation with each other and with several other teenagers
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over a basketball that had been taken from T.B.’s sons. Appellant punched T.B. once in
the face. T.B. sustained an injury to his left eye, where he had previously received a corneal
transplant, and now has permanent vision loss. Appellant ran from the park where the
confrontation took place. Respondent State of Minnesota charged appellant with first-
degree assault in a juvenile delinquency petition.
The district court conducted a four- day bench trial between August and October
2022. Several witnesses testified, including appellant, T.B., T.B.’s wife, and fr iends of
appellant who were present during the confrontation. Appellant and one friend testified
that T.B. threw a punch at that friend and the punch hit appellant. Appellant testified that
he then punched T.B. However, T.B., T.B.’s wife, T.B.’s neighbo r, and a teenage girl
testified that appellant punched T.B. first and T.B. did not throw a punch.
Appellant asserted the affirmative defense of self-defense. The district court found
appellant guilty of assault in the first degree. In rejecting appellant’s self-defense
argument, the district court found T.B. more credible than appellant. In one of the
conclusions of law the district court stated:
[Appellant], and by extension those close to him, stands to lose more
with the outcome of this case than any other witnesses. Additionally,
no other witness other than his close friend and [appellant], testified
that [T.B.] threw a punch. [Eyewitnesses], who have nothing to lose,
also saw no punch by [T.B.]. Weighing the testimony of all the
witnesses and the evidence in the case, this Court finds the testimony
of [appellant] and his friend to be less credible due to what
[appellant] has to lose.”

(Emphasis added.) This appeal follows.
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DECISION
Standard of Review
The parties dispute the standard of review that this court should apply when
evaluating appellant’s claim. Appellant argues the standard of review is clearly erroneous
because he is challenging the district court’s findings of fact regarding witness credibility.
Respondent State of Minnesota counters that appellant is actually making a sufficiency-of-
the-evidence argument: that the district court’s credibility determinations were insufficient
to support the verdict. Because this court defers to the factfinder’s credibility
determinations, we agree with the state. When reviewing a claim of insufficient evidence,
this court views the record in the light most favorable to the conviction to determine
whether the evidence was sufficient to permit the factfinder to reach the verdict. State v.
Ortega, 813 N.W.2d 86, 100 (Minn. 2012). “In reviewing the sufficiency of the evidence
the court applies the same standard to bench and jury trials.” In re M.E.M., 674 N.W.2d
208, 215 (Minn. App. 2004). Assessing a witness’s credibility and the weight to be given
a witness’s testimony “is exclusively the province of the [factfinder]” and this court defers
to the factfinder’s credibility assessment. State v. Mems, 708 N.W.2d 526, 531 (Minn.
2006) (quotations omitted). This court assumes “the [factfinder] believed the state’s
witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101,
108 (Minn. 1989). Witness testimony that is inconsistent or conflicting does “not
necessarily constitute false testimony or serve as a basis for reversal.” Mems, 708 N.W.2d
at 531 (quotations omitted).
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I. Witness Credibility Determination
The district court found that the state’s witnesses were credible. In doing so, the
court applied the factors from the criminal jury instructions. App ellant argues that the
district court’s credibility finding was error because the district court relied on evidence
that appellant had the most to lose where the record does not include any evidence showing
he had the most to lose; thus, the district court’s consideration of what appellant had to lose
violated the presumption of innocence and ultimately affected appellant’s delinquency
adjudication.
When assessing witness credibility, the factfinder can consider a witness’s: “interest
or lack of interest” in the case, relationship to the parties, ability to know facts, manner,
age and experience, frankness and sincerity, reasonableness of their testimony in light of
all the other evidence, impeachment, and “any other factors that bear on believability and
weight.” State v. Pak, 787 N.W.2d 623, 628 (Minn. App. 2010) (concluding the district
court could instruct a jury to weigh witness credibility using CRIMJIG 3.12); see 10
Minnesota Practice, CRIMJIG 3.12 (2022). A district court’s general witness-credib ility
instruction may include a witness’s “interest or lack of interest in the outcome of [the]
case” and whether each witness had “something to gain or lose.” State v. Horst, 880
N.W.2d 24, 39 (Minn. 2016) (quotations omitted).
The district court, sitting as the factfinder, analyzed appellant’s claim of self-defense
by determining “who threw the first punch,” and answered this question by relying, in part,
on the witnesses’ “interest or lack of interest in the outcome of the case.” The district court
found that the testimony of appellant and his friend was less credible than other witness
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testimony due to what appellant “ha[d] to lose” and found that the testimony of T.B.’s
neighbor and a teenage girl more credible because they had “nothing to lose.”
The district court’s order, read as a whole, clearly used the correct legal standard
reflected in the criminal jury instruction. 1 First, the district court included the factors it
considered:
[P]art of this Court’s obligation as the fact finder in a Juvenile
Court trial is weighing the credibility of witnesses. See
generally 10 Minn. Prac., CRIMJIG 3.12 (6th ed.). In order to
determine the credibility of a witness, the finder of fact may
look at a variety of factors including: (1) interest or lack of
interest in outcome of the case, (2) the relationship of the
witness to the other parties, (3) their ability to know or
remember, (4) their “manner,” (5) their age, (6) their level of
sincerity, (7) the reasonableness or unreasonableness of the
testimony compared to the other evidence, (8) whether or not
they are impeached by other evidence, and (9) any other
relevant factors.

(Emphasis added.) Then, the district court concluded in the next paragraph, “[Appellant],
and by extension those close to him, stands to lose more with the outcome of this case than
any other witnesses” (emphasis added).
The district court also considered the witnesses’ relationships to the parties in
weighing credibility. The district court found appellant’s friend was less credible than
T.B., T.B.’s wife, T.B.’s neighbor, and the teenage girl, in part due to the “long friendship”

1 In State v. Larson, 281 N.W.2d 481 485 n.3 (Minn. 1979), the Minnesota Supreme Court
recommended the civil witness credibility instruction be used in a criminal case. The civil
jury instruction for evaluation of credibility of witnesses includes the guideline of “[w]ill
a witness gain or lose if this case is decided a certain way.” 4 Minnesota Practice, CIVJIG
12.15 (2022). The criminal jury instruction phrases this guideline as the witness’s “interest
or lack of interest in the outcome of the case.” 10 Minnesota Practice, CRIMJIG 3.12
(2022).
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between appellant and his friend. The district court’s consideration of the “long friendship”
between appellant and his friend is supported by the record, because appellant’s friend
testified that he had been friends with appellant “since elementary school.” These findings
are consistent with the factors identified in the jury instruction guides and approved by
caselaw as stating the correct legal standard for evaluating witness credibility. See Pak,
787 N.W.2d at 628.
Appellant cites State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979), to argue
that “the defendant should not be singled out as more or less believable because of his
status as the accused.” However, in Underwood the Minnesota Supreme Court reversed a
jury’s conviction due to five cumulative errors, and only one error was the jury instruction
on the defendant’s credibility. Underwood, 281 N.W.2d at 344. The supreme court held
the instruction may have “create[d] unwarranted suspicion” because it specifically singled
out the defendant:
The Defendant has given his testimony, and you are the judges
of the weight which ought to be attached to it. His testimony
should be weighed as the testimony of any other witness;
considerations of interest, appearance, manner, and other
matters bearing upon the credibility apply to the defendant in
common with all witnesses. He is directly interested in the
result of the trial. In determining the weight to be given to the
testimony of the Defendant, it is proper for you to take such
interest into consideration. You are to give to his testimony
such weight as under all of the circumstances you think it is
entitled to. You have the right to consider his situation, his
interest in the result of the trial, the temptation which may exist
under the circumstances to testify falsely.

Id. at 343.
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We are not persuaded that Underwood is applicable. First, the case in Underwood
was a jury trial and this case was a court trial. We are less concerned that a district court
judge would find the defendant less believable because of his status as the accused than a
jury of laypersons, who could be influenced by a jury instruction that singled out
defendant’s status as the accused. See State v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009)
(“The risk of unfair prejudice to [the appellant] is reduced because there is comparatively
less risk that the district court judge, as compared to a jury of laypersons, would use the
evidence for an improper purpose or have his sense of reason overcome by emotion”).
Second, the district court did not single out appellant but applied the jury instruction to
evaluate the credibility of all witnesses. The district court framed what appellant “ha[d] to
lose” in terms of appellant’s interest in the case, and a witness’s interest in the case is a
permissible factor for the factfinder to consider when making a credibility determination.
See Pak, 787 N.W.2d at 628. The district court did not elaborate further on what appellant
“ha[d] to lose” or on appellant’s interest in the case. The district court also did not elaborate
on why it determined T.B.’s neighbor and the teenage girl had “nothing to lose.”
Appellant fails to show that the district court’s credibility determination in light of
the witnesses’ testimony was improper or that there was insufficient evidence in the record
to conclude that appellant was not acting in defense of self or others when he struck T.B.
Even if the district court erred by considering what appellant “ha[d] to lose,”
the
error was harmless. An error is harmless “[w]hen there is no reasonable possibility that it
substantially influenced the jury’s decision.” State v. Harvey, 932 N.W.2d 792, 810 (Minn.
2019) (quotations omitted). “An error in jury instructions is not harmless and a new trial
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should be granted if it cannot be said beyond a reasonable doubt that the error had no
significant impact on the verdict.” State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997).
There is no likelihood that considering what a witness “has to lose” in this case had
a significant impact on the verdict because the district court could still find beyond a
reasonable doubt that appellant threw the first punch. T.B.’s neighbor and a teenage girl,
who have no relationship to T.B. or his wife, consistently t estified that they did not see
T.B. throw the first punch.
II. Duty to Retreat Applied to Self-Defense Law
Appellant next argues that the district court misapplied the law of self -defense and
defense of others by applying an unqualified duty to retreat to appellant’s claim that he
acted in defense of others. The district court stated “[appellant] would need to have no
ability to reasonably retreat for self-defense to be valid.” Whether a district court has
properly interpreted and applied the duty to retreat is a question of law reviewed de novo.
State v. Devens, 852 N.W.2d 255, 257 (Minn. 2014).
Minnesota law authorizes a person to use reasonable force “in resisting or aiding
another to resist an offense against the person.” Minn. Stat. § 609.06, subd. 1( 3) (2020).
There are four elements to a self-defense claim: “(1) the absence of aggression or
provocation on the part of the defendant; (2) the defendant’s actual and honest belief that
he or she was in imminent danger of death or great bodily harm; (3) the existence of
reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat
to avoid the danger.” State v. Basting, 572 N.W.2d 281, 285– 86 (Minn. 1997). The
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defense of self-defense is available only to those who act honestly and in good faith. State
v. Baker, 160 N.W.2d 240, 242 (Minn. 1968).
In weighing the evidence in the record, the district court determined appellant and
his friend were not credible when they testified that T.B. threw the first punch and held that
appellant’s self-defense claim failed because “the [s]tate [proved] beyond a reasonable
doubt that [T.B.] did not throw the first punch and that [appellant] did not act upon his duty
and ability to retreat.” The district court then analyzed the issue of appellant’s self-defense
claim under a “hypothetical scenario” in which T.B. threw the first punch and whether
appellant had a duty to retreat in that circumstance. Consequently, the district court did
not err in analyzing the law of self- defense under a “hypothetical scenario.” Because the
district court properly weighed witness credibility, and this court defers to its credibility
determinations, it is not necessary to address the district court’s application of the duty to
retreat in a “hypothetical scenario” in which T.B. threw the first punch.
Appellant alternatively argues that, even if appellant threw the first punch, appellant
still had a valid self- defense claim, because appellant reasonably believed force was
necessary to prevent harm. In applying the four elements of self-defense, the district court
reasoned the “first three elements of self -defense in this case can be boiled down to one
question: who threw the first punch.” Again, this question is resolved by the district court’s
conclusion that appellant did. The district court concluded appellant entered the
confrontation between T.B. and another teenager on his own, and T.B. did not specifically
confront appellant. The district court concluded “there [was] no indication that [appellant
and his friends] would have been pursued had they [run] or that they had an inability to do
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so.” Thus, the district court did not misapply Minnesota’s self-defense law by requiring
appellant to retreat, based on its finding that appellant was the initial aggressor.
III. Cumulative Error
Finally, in the alternative, appellant argues the district court’s two errors—a clearly
erroneous credibility finding and a misapplication of the law of self-defense— have the
cumulative effect of depriving appellant of a fair trial. In rare cases, “the cumulative effect
of trial errors can deprive a defendant of his constitutional right to a fair trial when the
[errors], none of which alone might have been enough to tip the scales,” prejudice the
defendant by producing a biased jury. State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012).
Here, the district court made a valid credibility determination and did not misapply the law
of self-defense concerning appellant’s duty to retreat. Therefore, there was no error, let
alone cumulative error.
Affirmed.