                        This opinion will be unpublished and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                        UNPUBLISHED OPINION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.]


                                             2
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


                                            3
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.”


                                              4
       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


                                            5
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




                                             6
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)


                                              7
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)


                                              8
(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


                                              9
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


                                              10
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.




                                             11
(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


                                             12
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


                                              13
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.




                                            14
