                           This opinion will be unpublished and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
                                      A15-1198

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Robert Michael Heath,
                                       Appellant.

                                    Filed June 20, 2016
                                         Affirmed
                                     Schellhas, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-36534

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

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

         Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         On appeal from his misdemeanor convictions of fifth-degree assault, disorderly

conduct, and trespass, appellant argues that his assault and trespass convictions are not
supported by sufficient evidence and that the district court committed plain error in its

instructions to the jury. We affirm.

                                           FACTS

       In the early morning hours of November 30, 2014, appellant Robert Michael Heath

and his friend L.K. entered a grocery store to purchase water, bringing Heath’s unleashed

service dog into the store with them. On-duty, uniformed security officer Diallo McKenzie

approached Heath to discuss the dog. Heath said that the dog was a service dog and walked

past McKenzie. McKenzie then spoke with a store manager, who instructed him to verify

the dog’s status as a service dog and inform Heath that the dog needed to be leashed.

       McKenzie again approached Heath, who seemed annoyed but showed McKenzie a

laminated card that identified the dog as a service dog. Heath and L.K. then became

argumentative with McKenzie, and according to McKenzie’s trial testimony, “it was just

getting too crazy,” so McKenzie told Heath that he was “86’d for the night.” McKenzie

testified that “86 you off” means that “[y]ou can’t come back in the store and do business

for the night” and that he “told [Heath] that.” When Heath did not immediately leave the

store, McKenzie told him, “‘Take the dog and go outside. You are 86’d for the night.’”

Heath then left the store with the dog, and McKenzie informed the store manager that he

had “put [Heath] out” because “he was just being too . . . much at that time.”

       About three minutes later, Heath reentered the store without the dog, and McKenzie

said to him, “‘Look, man, I told you already you are 86’d. You can’t be here. You got to

go.’” Heath ignored McKenzie, and Heath and L.K. approached a cashier to pay for the

water. McKenzie testified, “[T]hat’s when it got crazy. . . . [T]hey started . . . a lot of jaw


                                              2
jacking, . . . just being disrespectful, this and that and a bunch of F bombs and all this other

type of stuff.” When “it got to a point . . . where it was getting very loud and very

disruptive,” McKenzie told L.K., “‘You got to go.’ . . . ‘You 86’d too. You’re out of here.’”

When L.K. did not leave the store, McKenzie “grabbed her arm” and started to walk her

out of the store. Heath immediately “slammed down” on McKenzie’s wrist, breaking his

hold of L.K. Freed from McKenzie’s grasp, L.K. “leaped” at McKenzie, and L.K. and

McKenzie began “wrestling back and forth.” McKenzie testified that he grabbed L.K. by

her collar and “threw her over the conveyer belt,” and L.K. called out to Heath for help.

Heath then “jumped on [McKenzie’s] back and started grabbing [him].” When McKenzie

turned to push Heath off, L.K. started “coming up off the conveyer belt,” and McKenzie

put her in a “headlock.” Heath then “coldcock[ed McKenzie] in the face,” and McKenzie

gave Heath “a couple body shots,” got him to the ground, and handcuffed him. Both the

store manager and L.K. called 911. A police officer arrived at the store; spoke with

McKenzie, Heath, and L.K.; and cited Heath for fifth-degree assault.

       Respondent State of Minnesota charged Heath with the following misdemeanors:

fifth-degree assault (harm), disorderly conduct (brawling or fighting), disorderly conduct

(offensive/abusive/noisy/obscene), and trespass (return without claim of right). The

responding officer, McKenzie, the store manager, L.K., and Heath testified at a jury trial,

and the jury heard recordings of the manager’s and L.K.’s 911 calls. The jury found Heath

guilty as charged, and the district court sentenced him to 60 days in the workhouse with 55

days stayed for one year.

       This appeal follows.


                                               3
                                     DECISION

       Heath first argues that his assault conviction is not supported by sufficient evidence

because the state failed to prove beyond a reasonable doubt that his use of force was not

justified as defense of others. Heath is correct that the state bears the ultimate burden of

disproving self-defense. See State v. Radke, 821 N.W.2d 316, 324 (Minn. 2012) (“[I]t is

the State that bears the ultimate burden of disproving self-defense.”). Defense of others

parallels self-defense. State v. Richardson, 670 N.W.2d 267, 278 (Minn. 2003). “To meet

its burden, . . . the State need only disprove beyond a reasonable doubt at least one of the

elements of self-defense.” Radke, 821 N.W.2d at 324. Those elements are:

              (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 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. Devens, 852 N.W.2d 255, 258 (Minn. 2014) (quotation omitted). We therefore

consider whether the state presented sufficient evidence to disprove any element of Heath’s

claim of defense of others.

       “When evaluating whether the evidence is sufficient, [appellate courts] carefully

examine the record to determine whether the facts and the legitimate inferences drawn from

them would permit the jury to reasonably conclude that the defendant was guilty beyond a

reasonable doubt of the offense of which he was convicted.” State v. Fox, 868 N.W.2d 206,

223 (Minn. 2015), reh’g denied (June 15, 2015), cert. denied, 136 S. Ct. 509 (2015). In so

doing, “[appellate courts] view the evidence presented in the light most favorable to the



                                             4
verdict, and assume that the fact-finder disbelieved any evidence that conflicted with the

verdict.” Id.

       The evidence in this case, as summarized above, is sufficient to disprove beyond a

reasonable doubt the existence of reasonable grounds for Heath’s belief, if any, that L.K.

was in imminent danger of bodily harm at the moment when Heath hit McKenzie’s wrist.

Because the state presented sufficient evidence to disprove this element of Heath’s claim

of defense of others, we conclude that sufficient evidence supports Heath’s conviction of

fifth-degree assault.

       Heath next argues that his trespass conviction is not supported by sufficient

evidence because the state failed to prove beyond a reasonable doubt that he lacked claim

of right to reenter the grocery store. A person commits trespass who “intentionally . . .

returns to the property of another . . . after being told to leave the property and not to return,

if the actor is without claim of right to the property or consent of one with authority to

consent.” Minn. Stat. § 609.605, subd. 1(b) (2014). Evidence of the absence of claim of

right is “evidence from which it is reasonable to infer that the defendant has no legal claim

of right to be on the premises where the trespass is alleged to have occurred.” State v.

Brechon, 352 N.W.2d 745, 750 (Minn. 1984). That evidence “normally would be in the

realm of property law, such as that the title or right of possession is in a third party and that

no title or permission has been given to defendant, or if given has been withdrawn.” Id.

(emphasis added). “If the state presents evidence that defendant has no claim of right, the

burden then shifts to the defendant who may offer evidence of his reasonable belief that he

has a property right, such as that of an owner, tenant, lessee, licensee or invitee.” Id.


                                                5
       Here, the state presented evidence that McKenzie was a uniformed security officer

who worked at the grocery store and approached Heath in his capacity as a security officer.

McKenzie told Heath that he was “86’d for the night,” which meant that “[Heath could

not] come back in the store and do business for the night.” When Heath did not leave the

store immediately, McKenzie told him, “‘Take the dog and go outside. You are 86’d for

the night.’” Heath then left the store. From this evidence—which we view in the light most

favorable to the verdict, Fox, 868 N.W.2d at 223—a reasonable inference can be made that

Heath had no claim of right to reenter the store about three minutes later, with or without

the dog, because McKenzie expressly had revoked Heath’s implied permission to be in the

store. And Heath failed to counter with any evidence of his reasonable belief that he had a

property right to reenter the store immediately after being told to leave.1 In fact, Heath

presented evidence that McKenzie told him to “‘[g]et out’” and to “get out of here right

now.” The unrebutted evidence is sufficient to prove that Heath reentered the store without

claim of right.

       Heath also argues that his trespass conviction is not supported by sufficient evidence

because the state failed to prove beyond a reasonable doubt that Heath reentered the store




1
  Heath claimed at trial, and continues to claim on appeal, that the Americans with
Disabilities Act, 42 U.S.C. §§ 12101–12213 (2012), entitles him to be accompanied by his
unleashed service dog in any place of public accommodation. Any such statutory right to
be accompanied by the dog is irrelevant to the question of whether Heath had a reasonable
belief that he had a property right to reenter the store in the early morning hours of
November 30, 2014. See Brechon, 352 N.W.2d at 750 (“Subjective reasons not related to
a claimed property right or permission are irrelevant and immaterial to the issue of claim
of right.”).

                                             6
“with the knowledge that he was prohibited from doing so.” Although Heath frames this

argument as an attack on the state’s proof of mens rea, the argument is not substantively

distinct from the claim-of-right argument discredited above and warrants no separate

analysis here. We conclude that sufficient evidence supports Heath’s conviction of

trespass.

       Heath continues by arguing that the district court plainly erred in instructing the jury

on defense of others. Because Heath did not object in district court to the combined

defense-of-self-or-others instruction, that instruction is reviewed for (1) error, (2) that is

plain, and (3) that affects Heath’s substantial rights. State v. Wenthe, 865 N.W.2d 293, 299

(Minn. 2015), cert. denied, 136 S. Ct. 595 (2015). “Jury instructions that confuse, mislead,

or materially misstate the law are erroneous.” State v. Davis, 864 N.W.2d 171, 176 (Minn.

2015). “An error is plain if it contravenes case law, a rule, or a standard of conduct.” State

v. Hokanson, 821 N.W.2d 340, 356 (Minn. 2012) (quotation omitted). A defendant meets

his “heavy burden” to prove that an instructional error affects his substantial rights by

showing “a reasonable likelihood that the giving of the instruction in question would have

had a significant effect on the verdict of the jury.” Wenthe, 865 N.W.2d at 299 (quotations

omitted).

       The defense-of-self-or-others instruction, as relevant here, was given as follows:

                     Self-defense or defense of others. The defendant is not
              guilty of a crime if the defendant used reasonable force against
              Diallo McKenzie to resist or to aid [L.K.] in resisting an
              offense against the person and such an offense was being
              committed or the defendant 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


                                              7
              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 the intentional infliction of bodily harm
              upon another or an intentional attempt to inflict bodily harm
              upon another or 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 state has
              the burden of proving beyond a reasonable doubt that the
              defendant did not act in self-defense. The rule of self-defense
              does not authorize one to seek revenge or to take into his or her
              own hands the punishment of an offender.

Heath assigns error to that instruction on three grounds.

       First, Heath argues that the defense-of-self-or-others instruction did not adequately

inform the jury of the elements of defense of others. But in light of the instruction’s title of

“[s]elf-defense or defense of others,” and its opening words that “[t]he defendant is not

guilty of a crime if the defendant used reasonable force against Diallo McKenzie to resist

or to aid [L.K.] in resisting,” the instruction describes the elements of both self-defense and

defense of others, which are essentially identical. See Richardson, 670 N.W.2d at 278

(stating that “defense of another parallels defense of self” (quotation omitted)). Heath

identifies no authority disapproving the use of a combined instruction on elements of self-

defense and defense of others, and we have found no such authority. Indeed, the Minnesota

pattern jury instructions include a self-defense instruction with just two optional

parenthetical additions for defense of others, 10 Minnesota Practice, CRIMJIG 7.05 (2015),


                                               8
and include no separate instruction for defense of others, id. at 7.01–7.10. We conclude

that the challenged instruction in this case, which was closely modeled after a prior version

of CRIMJIG 7.05, adequately informed the jury of the elements of defense of others.

          Second, Heath argues that the defense-of-self-or-others instruction did not

adequately inform the jury that the state bore the burden to disprove Heath’s claim that he

acted in defense of L.K. Heath’s second assignment of instructional error fails for the same

reason as his first. The instruction’s combined treatment of self-defense and defense of

others, as evident in its title and opening words, extends through the entire instruction. Cf.

CRIMJIG 7.05 (providing no optional parenthetical additions for defense of others as to kind

and degree of force, duty to retreat, state’s burden, or exclusion of revenge and punishment).

We therefore conclude that the challenged instruction’s unequivocal statement that “[t]he

state has the burden of proving beyond a reasonable doubt that the defendant did not act in

self-defense” adequately informed the jury of the state’s burden with regard to defense of

others.

          Third, Heath complains that the district court “did not expressly indicate that [self-

defense and defense of others] applied to the disorderly conduct charges” and “read the

instructions for the defenses immediately after the fifth-degree assault instructions without

repeating them after the disorderly conduct instructions.” Heath is correct 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.” State v. Soukup, 656 N.W.2d 424,

429 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003). But the jury rejected Heath’s

defenses as to the assault charge, and the disorderly-conduct charges arose from the same


                                                9
facts as the assault charge. Heath cannot show a reasonable likelihood that a different or

differently-timed instruction would have led the jury to accept his defenses as to the

disorderly-conduct charges; we therefore conclude that any instructional error did not

affect Heath’s substantial rights.

       Heath also argues that the district court plainly erred by instructing the jury on

trespass because the court did not inform the jury that trespass requires a defendant’s

reentry in the absence of his good-faith belief that such reentry was permitted. But the court

instructed the jury that the second element of trespass is that

              the defendant acted without claim of right to the property or
              consent of one who had the authority to consent. Claim of right
              is defined as a bona fide claim by the defendant of title to or
              ownership of the premises or a bona fide claim by the
              defendant or expression of limited permission given the
              defendant by the lawful possessor of the premises or someone
              authorized by the lawful possessor to give such permission or
              a bona fide claim by the defendant that permission is given to
              the defendant to be upon the premises by a statute, rule or
              regulation duly promulgated by a federal or state agency.

The court therefore correctly instructed the jury that it could find Heath guilty of trespass

only if it found that Heath reentered the grocery store without a reasonable belief that he

had a property right or permission to do so. See Brechon, 352 N.W.2d at 750 (“If the state

presents evidence that defendant has no claim of right, the burden then shifts to the

defendant who may offer evidence of his reasonable belief that he has a property right,

such as that of an owner, tenant, lessee, licensee or invitee. Subjective reasons not related

to a claimed property right or permission are irrelevant and immaterial to the issue of claim




                                             10
of right.” (citation omitted)). We conclude that the trespass instruction did not misstate the

law.

       Affirmed.




                                             11
