State of Minnesota v. Hamzeh Daghighian ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1417
State of Minnesota,
Respondent,
vs.
Hamzeh Daghighian,
Appellant.
Filed August 17, 2015
Affirmed
Hooten, Judge
Dakota County District Court
File No. 19HA-CR-12-4053
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Toussaint, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from his conviction of second-degree assault and terroristic threats,
appellant argues that the evidence was insufficient to prove that he had the requisite
intent to be convicted of either offense and that he was denied a fair trial because the
district court improperly instructed the jury on self-defense. We affirm.
FACTS
Appellant Hamzeh Daghighian was charged with one count of second-degree
assault and one count of terroristic threats arising out of an incident on November 24,
2012. A jury trial was held in April 2014. The following facts were established at trial.
Sometime around 2010, N.M., a woman in her mid-20s, met appellant, a man in
his late-40s, while playing poker at bars. She considered appellant a “poker friend,” but
not a close friend. On the evening of November 24, 2012, N.M. and the victim, a male
friend in his late-30s whom N.M. had known since 2008 or 2009, went to a bar and
restaurant in Burnsville. After they had been standing at the bar for about 20 minutes,
appellant walked up to N.M. and grabbed her by the buttocks “aggressively” and
“firmly.” The victim, who had seen appellant before, but did not know him, asked
appellant not to touch N.M. Then N.M. said to appellant, “[Y]ou’re lucky my hands are
full with these drinks or I would have slapped you.” N.M. testified that appellant “had
never touched [her] inappropriately” prior to that night. Five minutes later, appellant
grabbed N.M.’s buttocks again, and she “slapped him on the back.” The victim “stepped
in between” N.M. and appellant and told appellant “not to put his hands on [N.M.]
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again.” The victim spoke firmly but did not yell, did not use a threatening tone of voice,
did not get “in [appellant’s] face,” and did not touch appellant when he spoke to him.
The victim did not have any weapons or anything that could be construed as a weapon on
his person.
Appellant then said to the victim in an “aggressive” tone, “[L]et’s step outside.”
The victim replied, “[A]ll right. Let’s go.” The victim thought that appellant was
“looking for a fight,” but the victim’s “goal was to step [outside] and get him away from
[N.M.] and calm him down and get him to leave.” When N.M. heard appellant say “let’s
go outside” to the victim, N.M. assumed that this was an invitation by appellant to fight
with the victim.
Appellant and the victim started walking toward the bar’s exit. Appellant “was
walking at a very brisk pace,” with the victim following behind more slowly. It seemed
to the victim like appellant “was in a hurry to get something.” By the time the victim
exited the door, appellant was already at appellant’s vehicle, which was located about 15
to 20 yards away. The victim saw appellant “reaching for something inside the driver’s
seat of his vehicle.”
Appellant retrieved a handgun from inside his vehicle, walked up to the victim,
and “stuck the gun” into the victim’s chest. The victim did not know whether the gun
was loaded, and appellant intentionally held the gun in such a way that the victim could
not see that it was unloaded. Appellant asked the victim why he was “threatening” him.
The victim replied that he was not threatening him; he just wanted appellant to “keep his
hands off of [his] friend.” Appellant asked the victim why he had touched him, and the
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victim told appellant that he had not touched him. After a minute or so, appellant moved
the gun up to the victim’s face, “brush[ing] it up against [his] chin when [appellant]
moved it.” The victim tried to calm appellant down by saying, “[W]hat are you doing[?]
You can’t pull a gun on me like this.” Appellant replied that he could do “whatever he
wants” and that he had a “conceal and carry license.” Appellant started walking away.
The victim pulled out his phone and started calling 911, but appellant told him not to call
the police. The victim told appellant that he would not call the police if appellant left.
Appellant then left. The victim never touched appellant either inside or outside of the
bar, and he did not threaten or yell at appellant.
An uninvolved witness observed the incident. The witness had eaten dinner with
his family at the bar that night. As the witness was exiting the bar, he saw appellant walk
to his vehicle and retrieve a handgun “out of a cubby hole out of the . . . driver’s side
door.” The victim was not pursuing appellant and did not appear to have anything in his
hands. Appellant quickly walked back to the victim with the gun in his hand and put the
gun “up to [the victim’s] face.” The victim did not appear to be yelling and did not
“appear to be aggressive or threatening.” The victim was “[j]ust standing there.”
Eventually, appellant walked back to his car “in a hurry” and drove off. The witness
called 911 to report the incident.
The victim went back inside the bar and told N.M. what had happened outside. He
explained that, during the incident, the whole situation seemed surreal. When he started
talking with N.M., the gravity of the situation set in and he “started getting scared that”
he “could have been dead if [he had] said the wrong thing.”
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At trial, appellant testified that he had pre-existing injuries that prevented him
from committing the assault in the manner described by the victim and the disinterested
witness and that he merely took action to defend himself from an impending assault by
the victim. The jury found appellant guilty of both charged offenses. The district court
entered convictions on both charges but sentenced appellant to 36 months in prison only
on the second-degree assault conviction. This appeal followed.
DECISION
I.
Appellant argues that there is insufficient evidence to convict him of either
second-degree assault or terroristic threats because the state did not prove beyond a
reasonable doubt that he had the requisite state of mind to commit either offense.
When reviewing the sufficiency of the evidence, we undertake “a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient” to support the conviction. State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). “[W]e will not disturb the verdict
if the jury, acting with due regard for the presumption of innocence and the requirement
of proof beyond a reasonable doubt, could reasonably conclude that the [appellant] was
guilty of the charged offense.” Ortega, 813 N.W.2d at 100.
A state of mind, such as intent, “generally is proved circumstantially, by inference
from words and acts of the actor both before and after the incident.” State v. Johnson,
616 N.W.2d 720, 726 (Minn. 2000). “A conviction based on circumstantial evidence . . .
warrants heightened scrutiny” compared to a conviction based on direct evidence. State
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v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). This heightened scrutiny comes in the
form of a two-step analysis when reviewing sufficiency-of-the-evidence challenges based
on circumstantial evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).
“The first step is to identify the circumstances proved,” considering “only those
circumstances that are consistent with the verdict.” Id. at 593–99. “As with direct
evidence, we construe conflicting evidence in the light most favorable to the verdict and
assume that the jury believed the [s]tate’s witnesses and disbelieved the defense
witnesses.” Id. at 599 (quotation omitted). “The second step is to determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. (quotations omitted). “Circumstantial evidence must
form a complete chain that, as a whole, leads so directly to the guilt of the defendant as to
exclude beyond a reasonable doubt any reasonable inference other than guilt.” State v.
Hanson, 800 N.W.2d 618, 622 (Minn. 2011). We give no deference to the jury’s choice
between reasonable inferences. Al-Naseer, 788 N.W.2d at 474.
A. Second-degree assault conviction
The second-degree assault statute provides that “[w]hoever assaults another with a
dangerous weapon” is guilty of a felony. Minn. Stat. § 609.222, subd. 1 (2012).
“Assault” is defined, in relevant part, as “an act done with intent to cause fear in another
of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (2012).
“Dangerous weapon” includes “any firearm, whether loaded or unloaded.” Id., subd. 6
(2012). “‘With intent to’ or ‘with intent that’ means that the actor either has a purpose to
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do the thing or cause the result specified or believes that the act, if successful, will cause
that result.” Id., subd. 9(4) (2012).
The circumstances proved in this case are as follows. After the victim told
appellant not to touch N.M., appellant “aggressive[ly]” asked the victim to “step outside,”
which statement indicated to the victim and N.M. that appellant wanted to fight the
victim. The victim was 15 or 20 yards away from appellant when appellant rushed to his
car and got his handgun. Appellant then quickly walked up to the victim and pressed his
gun against the victim’s chest and then face, “brush[ing] it up against” the victim’s chin.
The victim “tried to calm him down.” Appellant held the gun in such a way that the
victim would not know whether it was loaded. When the incident was over, the victim
realized that he “could have been dead if [he had] said the wrong thing.”
We conclude that the circumstances proved are consistent with a rational
hypothesis of guilt. Pointing a gun at another has been held by this court and by the
Minnesota Supreme Court as sufficient to satisfy the intent element of second-degree
assault. See State v. Cole, 542 N.W.2d 43, 51 (Minn. 1996) (holding that appellant’s
“intent to cause fear in [the victim] was carried out by his intentional pointing of a gun at
her”); see also In re Welfare of T.N.Y., 632 N.W.2d 765, 770 (Minn. App. 2001)
(“Pointing a weapon at a police officer or another person has been held to supply the
requisite intent to cause fear.”).
Appellant argues that “the circumstances proved also support the reasonable
inference that [appellant] merely intended to [defuse] the situation.” This argument is
unpersuasive. Rather than defusing the situation, appellant escalated the situation by: (1)
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aggressively suggesting that he and the victim go outside; (2) rushing to his car to get his
gun even though the victim was 15 to 20 yards away and was not acting in a threatening
manner; (3) pointing the gun at the victim’s chest and intentionally holding it so that the
victim could not tell whether it was loaded or unloaded; (4) speaking in an angry or
excited manner to the victim; (5) moving the gun up to the victim’s face, brushing the
gun against the victim’s chin; and (6) telling the victim not to call 911.
Appellant also argues that he lacked the requisite intent because, even though he
pointed a gun at the victim, he did not verbally “express an intention of causing [the
victim] immediate bodily harm.” We disagree. Intent can be proved “by inference from
words and acts of the actor both before and after the incident.” Johnson, 616 N.W.2d at
726. While the words that appellant used during the incident may not have specifically
indicated that appellant intended to cause the victim immediate bodily harm, his conduct
did express such an intent. The circumstances proved are consistent only with guilt, and
therefore there is sufficient evidence to support appellant’s second-degree assault
conviction.
B. Terroristic threats conviction
The terroristic threats statute provides that “[w]hoever threatens, directly or
indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a
reckless disregard of the risk of causing such terror” is guilty of a felony. Minn. Stat.
§ 609.713, subd. 1 (2012). A “crime of violence” includes second-degree assault. Minn.
Stat. § 609.1095, subd. 1(d) (2012). In the context of this statute, “purpose” means “aim,
objective, or intention.” State v. Smith, 825 N.W.2d 131, 136 (Minn. App. 2012)
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(quotation omitted), review denied (Minn. Mar. 19, 2013). To “terrorize” means “to
cause extreme fear by use of violence or threats.” Id. (quotation omitted).
The circumstances proved are as stated above. We conclude that the
circumstances proved are consistent with guilt because they indicate that appellant had
the purpose of causing extreme fear in the victim by shoving a gun into the victim’s chest
and face in the midst of this confrontation. At the very least, appellant recklessly
disregarded the risk of causing such extreme fear. The victim’s extreme fear further
supports a finding that the state proved the intent element of this offense. See Sykes v.
State, 578 N.W.2d 807, 811 (Minn. App. 1998) (“The effect of a terroristic threat is not
an essential element of the offense, but the victim’s reaction to the threat is circumstantial
evidence relevant to the element of intent.”), review denied (Minn. July 16, 1998).
Appellant’s argument on appeal is limited to his contention that the circumstances
proved support two rational inferences consistent with innocence: that he “was simply
intending to [defuse] the altercation,” and that he “acted out of fear of personal harm.”
Appellant again points out that he “merely” pointed the gun at the victim and did not
make any verbal threats. And, he argues that there was no evidence of “long-term
planning of threatening conduct” or that the threats had a “continual nature.”
As discussed above, appellant’s first inference is irrational because the
circumstances proved indicate that he escalated the situation, rather than defusing it. We
conclude that appellant’s second inference—that he acted out of fear of harm—is also
irrational. His second inference depends entirely on his own testimony that: (1) his
previous injury rendered him physically compromised; (2) people in the bar were pushing
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chairs and discussing the fight that was about to happen between him and the victim; (3)
the victim was only a few feet away from appellant when appellant got the gun; and (4)
appellant believed that he was in imminent danger of bodily harm at the hands of the
victim and that he could not have escaped safely. The jury clearly rejected appellant’s
version of the incident by finding him guilty. Moreover, the statute does not require
“long-term planning of threatening conduct” or “continual” threats, as appellant suggests.
See Minn. Stat. § 609.713, subd. 1. Because the circumstances proved are consistent only
with guilt, there is sufficient evidence to support appellant’s terroristic threats conviction.
II.
Appellant next argues that the district court committed reversible error by
improperly instructing the jury on self-defense. Prior to trial, appellant filed a motion in
which he proposed his preferred jury instructions, including the self-defense jury
instruction that is at issue here. The district court did not rule on this motion. At trial, the
district court gave a self-defense jury instruction that was not appellant’s preferred
instruction, but defense counsel did not object. After appellant was convicted, he filed a
motion for a new trial, claiming that the district court’s self-defense instruction contained
a fundamental error of law because it misstated the law. “Objections to [jury]
instructions claiming error in fundamental law or controlling principle may be included in
a motion for a new trial even if not raised before deliberations.” Minn. R. Crim. P. 26.03,
subd. 19(4)(f). The district court denied appellant’s motion.
A district court has “broad discretion” when selecting the language for jury
instructions. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). “But a district court
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abuses that discretion if its jury instructions confuse, mislead, or materially misstate the
law. We review the jury instructions as a whole to determine whether the instructions
accurately state the law in a manner that can be understood by the jury.” Id. (citation
omitted). We review the interpretation of a statute de novo. State v. Ndikum, 815
N.W.2d 816, 818 (Minn. 2012).
Minnesota’s self-defense statute provides that “reasonable force may be used upon
or toward the person of another without the other’s consent . . . when used by any person
in resisting . . . an offense against the person.” Minn. Stat. § 609.06, subd. 1(3) (2012).
The district court instructed the jury as follows:
The [appellant] is not guilty of a crime if the
[appellant] used reasonable force against [the victim] to resist
an offense against the person, and such an offense was being
committed or the [appellant] reasonably believed that it was.
It is lawful for a person, who is being assaulted and
who has reasonable grounds to believe that bodily injury is
about to be inflicted upon the person, to defend from an
attack. In doing so, the person may use all force and means
that the person reasonably believes to be necessary and that
would appear to a reasonable person, in similar
circumstances, to be necessary to prevent an injury that
appears to be imminent. An assault is an act done with intent
to cause fear of immediate bodily harm or death in another.
The kind and degree of force a person may lawfully
use in self-defense is limited by what a reasonable person in
the same situation would believe to be necessary. Any use of
force beyond that is regarded by the law as excessive.
The [s]tate has the burden of proving beyond a
reasonable doubt that the [appellant] did not act in self-
defense.
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(Emphasis added.) Appellant argues that the district court’s inclusion of the emphasized
language was misleading because it suggested that appellant had to be resisting “an
assault,” rather than “an offense against the person,” as the self-defense statute provides.
Appellant contends that the district court’s instruction “conflicted with the plain language
of the statute by telling the jury that it was lawful for [appellant] to act in self-defense
only if he was being assaulted, which suggested that he must be under assault before he
can assert that right.”
We agree with appellant that the statute’s language, “an offense against the
person,” is somewhat broader than the instruction’s language, “an assault.” See State v.
Soukup, 656 N.W.2d 424, 429 (Minn. App. 2003) (holding that “self-defense is
applicable to a charge of disorderly conduct where the behavior forming the basis of the
offense presents the threat of bodily harm”), review denied (Minn. Apr. 29, 2003).
However, we conclude that the district court’s instruction did not “confuse” or “mislead”
the jury or “materially misstate the law.” Kelley, 855 N.W.2d at 274. While appellant is
correct that “a person is also allowed to lawfully use reasonable force in self-defense to
defend against crimes other than assault,” he fails to identify any crime besides assault
that the jury could have reasonably considered that he was defending against. The only
evidence supporting his self-defense claim was his own testimony that he believed the
victim was about to assault him.
Moreover, when looking at the district court’s instruction “as a whole,” id., we
believe that the instruction fairly and adequately stated the law. In the first paragraph, the
district court instructed the jury that appellant was not guilty of a crime if he used
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reasonable force against the victim to resist “an offense against the person” that the
victim was committing against appellant, or if appellant reasonably believed that the
victim was committing such an offense. This language mirrors the statute. In the second
paragraph, the district court instructed the jury that: (1) appellant could lawfully defend
from an attack if he was “being assaulted” by the victim and had “reasonable grounds to
believe that bodily injury [was] about to be inflicted upon” him; (2) in that event,
appellant had the right to use reasonable force “to prevent an injury that appear[ed]
imminent”; and (3) “[a]n assault is an act done with intent to cause fear of immediate
bodily harm or death in another.” The instruction clearly communicated to the jury that,
if it believed appellant’s version of the incident—that appellant reasonably believed that
the victim was about to inflict bodily injury upon him—then it must conclude that
appellant acted in self-defense and it must acquit him. We conclude that the district court
did not abuse its discretion by giving the self-defense jury instruction that it gave.
Even if the district court’s instruction was erroneous, a new trial would be
warranted only if the error “might have prompted the jury, which is presumed to be
reasonable, to reach a harsher verdict than it might have otherwise reached.” State v. Lee,
683 N.W.2d 309, 316 (Minn. 2004) (quotation omitted). Under the harmless error test, if
“beyond a reasonable doubt the [error] did not have a significant impact on the verdict,
reversal is not warranted.” Id. (quotation omitted).
A new trial would not be warranted here because there is no reasonable chance
that the jury would have acquitted appellant if the district court had given appellant’s
preferred instruction. The victim and a disinterested witness consistently testified that
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appellant, not the victim, was the aggressor; that the victim was not pursuing appellant
when appellant got the gun; and that the victim was not acting aggressively or in a
threatening manner during or prior to the confrontation. The only evidence tending to
indicate that appellant acted in self-defense was appellant’s own testimony, which the
jury rejected. There was no reversible error.
Affirmed.
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