State v. Polo, 1991 Minn. App. LEXIS 792 (MN Ct. App. 1991)

Court of Appeals of Minnesota

August 5, 1991, Decided ; August 13, 1991, Filed

No. CX-90-2694

1991 Minn. App. LEXIS 792 | 1991 WL 151365

State of Minnesota, Respondent, v. Jose Ramon Polo, Appellant

Hubert H. Humphrey, III, Attorney General, Paul R. Kempainen, Assistant Attorney General, St. Paul, Minnesota, Boyd Beccue, Michael Q. Lynch, Kandiyohi County Attorney, Willmar, Minnesota, for Respondent.
John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, St. Paul, Minnesota, for Appellant.

Peterson, Presiding Judge, Foley, Judge, and Kalitowski, Judge.

Opinion by: KALITOWSKI



Jose Ramon Polo was found guilty in a jury trial of one count of criminal assault in the second degree (assault with a dangerous weapon) in violation of Minn. Stat. § 609.222 (1988), and was sentenced to an executed prison term of 30 months. Polo argues on appeal that the trial court erred in refusing to instruct the jury on his theory of the case, defense of another. We affirm.


A party is entitled to an instruction on his or her theory of the case if there is evidence to support that theory. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). “A refusal to give a requested jury instruction lies within the discretion of the trial court.” State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985).

No error results from a refusal to instruct where the evidence does not support the proposed instruction and no abuse of discretion is shown.


Minn. Stat. § 609.06(3) (1988) allows the use of force by a person that is reasonably necessary to resist or aid another to resist an offense against the person.

A person who intervenes to defend another acts in the stead of the other, so that force by the intervenor is justified to the same extent force by the party defended would have been justified.

State v. Grier, 609 S.W.2d 201, 204 (Mo. Ct. App. 1980); see also Taylor v. United States, 380 A.2d 989, 994 (D.C. 1977). In Minnesota,

[a] person may use force to defend himself against an assault if he believes it to be reasonably necessary and if it would appear to a reasonable person under similar circumstances to be reasonably necessary, with the amount of force used to defend himself being limited to that which a reasonable person in the same circumstances would believe to be necessary.

State v. Bland, 337 N.W.2d 378, 381 (Minn. 1983).

In this case, Polo maintained throughout the trial that he never threatened or used a tire iron against the two store employees, and moreover, that he was unable to even enter the trunk of the car to get the tire iron. Since he denied using the tire iron, and in fact denied using any force at all, he was clearly not entitled to an instruction on defense of another. See State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (“While there is no burden on a defendant to prove self-defense, the defendant does have the ‘burden on going forward with evidence to support his claim of self-defense.'”) (citation omitted). Although defense counsel attempted to present this defense theory to the jury during the course of the trial, this theory was inconsistent with Polo’s own testimony. Under these circumstances, we conclude that the trial court did not err in denying the instruction. See State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989); State v. Pacholl, 361 N.W.2d 463, 465 (Minn. App. 1985); see also Hancock v. State, 276 So. 2d 223, 225 (Fla. Dist. Ct. App.) (defendant not entitled to a requested instruction on a defense theory negated by defendant’s own testimony), cert. denied, 279 So. 2d 876 (Fla. 1973).


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