State v. Basting, 1997 Minn. App. LEXIS 31 (MN Ct. App. 1997)

State:
Date: January 14, 1997
Defendant: Basting

State v. Basting, 1997 Minn. App. LEXIS 31 (MN Ct. App. 1997)

Court of Appeals of Minnesota

[CAUTION: Overturned in part on appeal.  State v. Basting, 572 N.W.2d 281 (MN Supreme Court 1997)]

January 14, 1997, Filed

C5-96-493

1997 Minn. App. LEXIS 31 | 1997 WL 10888

State of Minnesota, Respondent, vs. Jack Allen Basting, Appellant.

Counsel:
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent).
Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent).
Maureen Williams, Law Office of Maureen Williams, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for Appellant).

Judges:
Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge. [*]

Opinion by: Norton

Opinion

UNPUBLISHED OPINION

NORTON, Judge

Appellant challenges his conviction for assault on the basis of insufficient evidence of intent. We affirm.

FACTS

After an altercation in which he struck his ex-wife’s boyfriend, Brian Bowling, and fractured his nose, appellant Jack Allen Basting was charged with assault in the first degree, Minn. Stat. § 609.221 (1994); two counts of assault in the second degree, Minn. Stat. § 609.222, subds. 1, 2 (1994); assault in the third degree, Minn. Stat. § 609.223, subd. 1 (1994); and possession of a firearm by a felon, Minn. Stat. § 624.713, subds. 1(b), 2 (1994).

Appellant waived his right to a jury trial. The court found appellant guilty of assault in the second degree and possession of a firearm by a felon. The court found appellant not guilty of first-degree assault and dismissed the lesser-included offenses of second- and third-degree assault. The court then sentenced appellant for the second-degree assault.

DECISION

Appellant challenges the sufficiency of the evidence to support his conviction of assault, contending he lacked intent and acted out of self-defense when he struck Bowling. When considering a challenge to the sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the conviction and conduct a “painstaking analysis” to determine if the evidence was sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Appellant stands convicted of second-degree assault, which involves use of a dangerous weapon and infliction of substantial bodily harm. Minn. Stat. § 609.222, subd. 2 (1994). A person’s fists, when used to strike another, may be dangerous weapons under certain circumstances. State v. Born, 280 Minn. 306, 308, 159 N.W.2d 283, 284-85 (1968). The facts here present a strong case that appellant’s fists are dangerous weapons, given that he is a professional boxer. Consequently, even if appellant used his fists in self-defense, as he alleges, they still were capable of doing great harm to Bowling and fit the definition of dangerous weapons. See Minn. Stat. § 609.02, subd. 6 (1994) ( defining dangerous weapon as any device designed as a weapon and “capable of producing death or great bodily harm”).

Appellant contends that the evidence in the record does not establish that he had the necessary specific intent to commit second-degree assault and cause substantial bodily harm. But an assault resulting in actual bodily injury requires only the general intent to do the prohibited act of committing a battery. State v. Fortman, 474 N.W.2d 401, 404 (Minn. App. 1991). Appellant admitted striking Bowling with two quick left hooks to the face. The impact fractured Bowling’s nose. To establish felony assault, the state need not prove that appellant intended to inflict a certain degree of bodily harm on the victim. State v. Gorman, 532 N.W.2d 229, 233 (Minn. App. 1995), aff’d, 546 N.W.2d 5 (Minn. 1996). The statute defines “substantial bodily harm” as bodily injury involving a temporary but substantial disfigurement, or causing temporary but substantial impairment of the function of a body part, or fracturing any body part. Minn. Stat. § 609.02, subd. 7a (1994). Bowling’s injury meets the definition of substantial bodily harm for second-degree assault.

Appellant also challenges his conviction on the basis that he acted out of self-defense when he struck Bowling. A person may use “reasonable force” against another “to resist an offense.” Minn. Stat. § 609.06 (3) (1994); see also State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (setting forth elements of self-defense). But a defendant may use only as much force in defending himself as is reasonably necessary under the circumstances. State v. Bland, 337 N.W.2d 378, 381 (Minn. 1983). Appellant suggests that he reacted automatically with two left hooks, because he responds instinctively in such a manner when threatened.

In considering this claim, the trial court assumed that Bowling had thrown the first punch. The trial court noted that one punch from appellant would have been reasonable as self-defense, but two punches showed a deliberate action to hurt Bowling. Despite the fact that appellant is a boxer, he must be able to control his “instinctive” behavior and consciously choose a response appropriate for whatever situation arises.

Given that the state disproved that appellant’s extent of force was “necessary” to avert the danger, the trial court properly rejected appellant’s claim of self-defense. See State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980) ( requiring state to disprove only one element to defeat claim of self-defense).

Affirmed.

Footnotes:

*. Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.