                          This opinion will be unpublished and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
                                     A14-2102

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Damien Tito Jones,
                                       Appellant.

                                Filed November 30, 2015
                                       Affirmed
                                    Rodenberg, Judge

                              Ramsey County District Court
                                File No. 62-CR-13-9459

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

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

       Considered and decided by Schellhas, Presiding Judge; Rodenberg, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

       On appeal from his conviction for attempted second-degree intentional murder,

appellant Damien Tito Jones argues that the district court’s refusal to instruct the jury on
the defense of voluntary intoxication and the elements of second-degree assault denied

him a fair trial. We affirm.

                                         FACTS

         Appellant was charged with attempted first-degree murder and attempted

intentional second degree murder. After a jury trial, appellant was acquitted of the

former and convicted of the latter charge.

         On December 9, 2013, at approximately 10:30 p.m., appellant and E.G. began

arguing about E.G.’s desire to end their relationship. E.G. could tell that appellant had

been drinking alcohol because he “turns into someone else” and becomes angry and

aggressive when he has been drinking or is under alcohol’s influence. At some point,

E.G. went into her son’s bedroom because he had awakened during the argument.

Appellant followed E.G. and tried to persuade her to leave the bedroom. When E.G.

refused, appellant threw crackers at her, slapped her, and pushed her head against the

wall. Appellant and E.G. left her son’s bedroom and argued for several more hours. E.G.

eventually returned to her son’s bedroom. Appellant again told her to leave the bedroom.

E.G. declined and asked appellant to leave. Appellant left the room, put E.G.’s large

dogs in the backyard, locked the back door, and returned to the bedroom with a pocket

knife.

         Appellant pulled E.G. from the bed and said, “I’m going to kill you, bitch.” He

stabbed E.G. repeatedly. E.G. and her son begged him to stop and repeatedly said his

name “to get him to snap out of it.” Appellant’s eyes were “big” and “mean, evil

looking.” E.G. eventually shed her robe, ran to the bathroom and locked the door. After


                                             2
appellant left approximately five minutes later, E.G. crawled to her living room area and

called 911.

       St. Paul Police Officers Steven Jaworski and Zachary Nayman arrived at the

scene, entered through the now-open back door, and observed appellant’s jacket with

blood on it and a shoe lying outside on the back porch in the snow.           Paramedics

transported E.G. to the hospital, where they determined that she was suffering from shock

due to severe blood loss and needed surgery to repair nerve damage to her right arm.

E.G. sustained so many wounds that the doctors did not count them. She had two cuts on

her neck near her carotid arteries, a stab wound to her chest that caused her lung to

collapse, a deep cut through her lower abdomen, and an additional wound that punctured

her liver.

       Appellant was arrested approximately three days later. While in custody, he told a

sheriff’s deputy, “I stabbed my girlfriend, I’m not proud of it.” Concerning his alcohol

consumption before the incident, appellant told Sergeant Jesse Mollner that he recalled

that he “made a drink” of whiskey earlier in the evening. He remembered leaving the

residence and admitted leaving his personal vehicle and driving a work van instead. He

claimed that he “didn’t want to offer information that was broken up blocks of

information.”

       The only disputed issue at trial was appellant’s mental state. Sergeant Mollner

testified that appellant’s interview statement was not chronological because “he had a lot

of emotions,” was “hesitant” to provide specific details, and detached himself from the

crime. E.G. testified that appellant is an alcoholic who drinks regularly and has a “high


                                            3
tolerance” for alcohol. She also stated that she did not believe that appellant was so

intoxicated that he did not know what he was doing when he stabbed her. Appellant

moved for jury instructions concerning voluntary intoxication and on the elements of

second-degree assault as an alternative to the charges of attempted murder. The district

court denied both motions, concluding that the evidence was insufficient to warrant a

voluntary-intoxication instruction and that second-degree assault is not a lesser-included

offense to attempted intentional murder. The jury found appellant not guilty of attempted

intentional first-degree murder and guilty of attempted intentional second-degree murder.

Appellant was sentenced to an executed sentence of 240 months. This appeal followed.

                                    DECISION

      We review the district court’s refusal to give a requested jury instruction for abuse

of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). We focus on whether the

refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). A

criminal defendant “is entitled to an instruction on ‘his theory of the case if there is

evidence to support it.’” State v. Lopez, 587 N.W.2d 26, 28 (Minn. 1998) (quoting State

v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977)).

I.    Voluntary-Intoxication Instruction

      Appellant argues that the district court abused its discretion by refusing to give a

voluntary-intoxication jury instruction. Minnesota law provides:

             An act committed while in a state of voluntary intoxication is
             not less criminal by reason thereof, but when a particular
             intent or other state of mind is a necessary element to
             constitute a particular crime, the fact of intoxication may be
             taken into consideration in determining such intent or state of
             mind.

                                            4
Minn. Stat. § 609.075 (2014).         In order for the district court to give a voluntary-

intoxication jury instruction, “(1) the defendant must be charged with a specific-intent

crime; (2) there must be . . . a preponderance of the evidence [showing] that the

defendant was intoxicated; and (3) the defendant must offer intoxication as an

explanation for his actions.”    State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001).

However, a defendant is only entitled to a voluntary-intoxication instruction if there is

evidentiary support for it.     Id.    “[C]onsumption of intoxicants does not create a

presumption of intoxication and the possibility of intoxication does not create the

presumption that a defendant is thereby rendered incapable of intending to do a certain

act.” Id. at 617 The defendant bears the burden of showing by a fair preponderance of

the evidence that he was too intoxicated to form intent. State v. Wahlberg, 296 N.W.2d

408, 418 (Minn. 1980). “In deciding whether an instruction is warranted, we . . . must

view the evidence in the light most favorable to the defendant.” State v. Radke, 821

N.W.2d 316, 328 (Minn. 2012).

       Appellant was charged with specific-intent crimes and offered intoxication as an

explanation for his actions. See Minn. Stat. §§ 609.17, .185(a)(1), .19, subd. 1(1) (2012).

Here, the district court determined that there was no “proof” that appellant was unaware

of his actions because of his alcohol consumption.           In considering a voluntary-

intoxication instruction, the district court was required to view the evidence in the light

most favorable to appellant. State v. Wilson, 830 N.W.2d 849, 855-56 (Minn. 2013).

       In Wilson, the supreme court determined that “[e]vidence that Wilson smelled like

she had been consuming alcohol, was intoxicated, and had been at a bar drinking alcohol

                                              5
[until 1:45 a.m., shortly before the crime occurred] without more, is insufficient to

warrant a jury instruction on voluntary intoxication.” Id. at 856. However, the supreme

court concluded that, combined with two trained officers’ observations that the defendant

looked “very confused,” was “belligerent” and “un-cooperative” at the time of her arrest,

had a “different look on her face,” as well as the defendant’s proffer concerning alcohol

and its effect on her perceptions, the record was sufficient to satisfy the defendant’s

burden of production to support the requested instruction. Id.

       Here, appellant claims the evidence shows he was intoxicated because (1) he

remembers “[making] a drink” of whiskey prior to 10:30 p.m.,1 (2) E.G. testified that she

knew appellant had been drinking because he “turns into somebody different” and

becomes angry and aggressive when he has been drinking or is “under the influence,” and

(3) E.G. and her son said appellant’s name repeatedly during the stabbing “to get him to

snap out of it,” and he had “big” and “mean, evil looking” eyes while he was stabbing

E.G.

       The circumstances here are different than those in Wilson. Here, there is scant

evidence of intoxication. There is no record evidence concerning how much alcohol

appellant had had to drink (other than appellant’s statement to Sergeant Mollner that he

had “a drink”), how long appellant had been drinking, or if appellant continued drinking

during the hours-long argument. E.G. is not a peace officer trained in observing indicia

of intoxication, and her descriptions of appellant are more indicative of rage than of


1
 Appellant’s trial counsel repeatedly alleged that appellant had consumed nearly a full
bottle of whiskey prior to the incident. Our careful review of the record reveals no
evidentiary support for this assertion.
                                            6
intoxication. Further, there is no evidence in the record that appellant exhibited other

indicia of intoxication, such as an odor of alcohol, bloodshot and watery eyes, poor

coordination, or slurred speech. Id. at 856; see State v. Kier, 678 N.W.2d 672, 678

(Minn. App. 2004) (noting that odor of alcohol, bloodshot and watery eyes, and slurred

speech are indicia of intoxication); State v. Clark, 361 N.W.2d 104, 106 (Minn. App.

1985) (noting that poor coordination is one of the “usual signs of being intoxicated”);.

E.G. testified that appellant has a “high tolerance” for alcohol and that she did not believe

that appellant was too intoxicated to be aware of his actions. The record contains little or

no evidence contrary to E.G.’s testimony.

       Appellant’s assertion that Sergeant Mollner’s testimony reflects his intoxication

because he could not remember specific details of the incident or remember the events

chronologically during the post-arrest interview misreads the sergeant’s testimony.

Sergeant Mollner testified that appellant’s interview was not chronological because “he

had a lot of emotions,” was “hesitant” to provide specific details, and seemed to have

detached himself from the crime. Appellant remembered stabbing E.G., leaving the

scene in his vehicle, and switching vehicles after the stabbing.

       We conclude that the district court did not err in declining the requested voluntary-

intoxication instruction on this record. Moreover, and even if we were to conclude that

appellant sufficiently established his intoxication to warrant an instruction, any error

concerning the instruction would be reversible only if it was not harmless. Wilson, 830

N.W.2d at 857. Here, we are satisfied that the omitted instruction would have had no

impact on the verdict.      The omitted voluntary-intoxication instruction would have


                                             7
informed the jury how it may consider evidence of intoxication when determining

whether appellant formed the requisite intent. “The nature of the instructional error

presented here makes it less likely that the error significantly impacted the verdict,

especially because the jury was not affirmatively instructed on an incorrect view of the

law.” Id. (citing Koppi, 798 N.W.2d at 364-65).

       More importantly, the evidence regarding appellant’s intent is overwhelming.

Appellant repeatedly resorted to physical violence during the hours-long argument. After

E.G. told him to leave, appellant put E.G.’s large dogs in the back yard, locked the back

door, and retrieved a pocket knife before returning to E.G.’s son’s bedroom to stab E.G.

Appellant expressed his intentions when he pulled E.G. from the bed and said, “I’m

going to kill you, bitch.” He then stabbed her repeatedly until she escaped and locked

herself in the bathroom. Finally, the severity of E.G.’s blood loss, the cuts to her neck

near carotid arteries, the severing of the ulnar nerve in her right arm, and stab wounds to

her chest and abdomen that collapsed her lung, exposed her intestines, and punctured her

liver further evidence appellant’s intent to kill. See State v. Prtine, 784 N.W.2d 303, 313

(Minn. 2010) (stating that the nature and extent of the victim’s injuries, including 63 stab

wounds around the face and neck, “readily support[ed] the conclusion that [victim’s]

assailant intended to kill.”); State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989) (intent

to kill could be inferred from blood loss due to ten or eleven stab wounds and the

assailant’s act of leaving victim to bleed to death).

       The record contains overwhelming evidence that appellant acted with the requisite

intent and therefore could not and would not have prevailed had a voluntary-intoxication


                                              8
instruction been given. The absence of a voluntary-intoxication jury instruction did not

have a significant impact on the verdict.

II.    Assault Instruction

       Appellant argues that his right to present a defense was violated by the district

court’s refusal to instruct the jury on the elements of second-degree assault under Minn.

Stat. § 609.222, subds. 1 and 2 (2012), as a lesser charge.

       A district court “must give a lesser-included offense instruction when (1) the lesser

offense is included in the charged offense; (2) the evidence provides a rational basis for

acquitting the defendant of the offense charged; and (3) the evidence provides a rational

basis for convicting the defendant of the lesser-included offense.” State v. Dahlin, 695

N.W.2d 588, 598 (Minn. 2005). Denial of a requested lesser-included-offense instruction

is reviewed for abuse of discretion. Id. at 597.

       A lesser-included offense is one that is (1) a lesser degree of the same crime;

(2) an attempt to commit the crime charged; (3) an attempt to commit a lesser degree of

the same crime; (4) a crime necessarily proved if the crime charged were proved; or (5) a

petty misdemeanor necessarily proved if the misdemeanor charge were proved. Minn.

Stat. § 609.04, subd. 1 (2014). “In determining whether one offense necessarily is proved

by the proof of another, ‘the trial court must look at the statutory definitions rather than

the facts in a particular case.’” State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997)

(quoting State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982)). A person who “with intent to

commit a [murder], does an act which is a substantial step toward . . . the commission of

the [murder]” is guilty of attempted murder. See Minn. Stat. § 609.17, subd. 1 (2014).


                                             9
The mens rea required to commit second-degree murder is “intent to effect the death of

that person or another, but without premeditation.” Minn. Stat. § 609.19, subd. 1 (2014).

       One element of second-degree assault is that the assault must have been completed

using “a dangerous weapon.” Minn. Stat. § 609.222, subds. 1, 2. The charged offenses

of attempted first- and second-degree murder do not include that element. Consequently,

second-degree assault is not a lesser-included offense of attempted first-degree murder,

State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983), or of attempted second-degree

murder, Gayles, 327 N.W.2d at 3.

       Appellant urges us to adopt the Eighth Circuit’s reasoning in U.S. v. Brown, which

held that a defendant charged with armed bank robbery was entitled to an instruction on

the offense of accessory after the fact because “it would be impossible for [Brown] to

assist the offender if he was the offender.”       33 F.3d 1002, 1003 (8th Cir. 1994).

However, the Minnesota Supreme Court has declined to consider adopting the Brown

analysis.   State v. Flowers, 788 N.W.2d 120, 133 (Minn. 2010) (“[W]e decline to

consider adopting Brown”).2 The district court did not abuse its discretion by denying

appellant’s request for a second-degree assault instruction.




2
  We also observe that this case is unlike Brown, because appellant was the only offender,
and thus it was possible for him to both assault and attempt to murder E.G. The state had
the discretion to charge appellant with attempted first- and second-degree murder, rather
than with second-degree assault; it chose to do so and prevailed at trial on the latter
charge. See State v. Kiminski, 474 N.W.2d 385, 389 (Minn. App. 1991) (“[The state has]
discretion to choose the more serious or the less serious [charge], or both, when the facts
to them appear to involve more than one criminal statute.”).
                                            10
III.   Cumulative Effect of Alleged Errors

       Appellant argues that the aggregation of alleged errors demonstrates that he did

not receive a fair trial. A defendant is deprived of a procedurally fair trial when “the

number of errors and the seriousness of some of them” render us “unable to determine

whether the jury based its verdict on the admissible evidence and the reasonable

inferences derived therefrom.” State v. Mayhorn, 720 N.W.2d 776, 792 (Minn. 2006).

“Cumulative error exists when the cumulative effect of the . . . errors and indiscretions,

none of which alone might have been enough to tip the scales, operate to the defendant’s

prejudice by producing a biased jury.” State v. Penkaty, 708 N.W.2d 185, 200 (Minn.

2006) (quotation omitted). Here, there are no errors to accumulate. Appellant is not

entitled to a new trial.

       Affirmed.




                                           11
