State v. Kittleson, 305 N.W.2d 787

State v. Kittleson

305 N.W.2d 787

Minn.

1981

Check Treatment

OTIS, Justice.

Dеfendant was found guilty by a district court jury of a charge of assault in the second degreе (assault with a dangerous weapon), Minn.Stat. § 609.222 (1980), and was sentenced by the trial court to a minimum prison term of one year and one day under Minn.Stat. § 609.11 (1980) and a limited maximum term of 21 months rather than the five years authorized by statute. On this appeal from judgment of conviction defendant contends: (1) that the trial court erred in denying a motion to suppress all evidеnce of the assault on the ground that the assault was the fruit of an illegal war-rantless entry by police into his dwelling; (2) that the trial court prejudicially erred in refusing to submit the lesser offense of pointing a gun at another person or self-defense, and in refusing to give thе instruction on intoxication requested by defense counsel rather than the one requested by the prosecutor; (3) that the evidence of his guilt was legally insufficient; and (4) that thе mandatory minimum-term law, Minn. Stat. 609.11 (1980), is inapplicable to assault in the second degree, Minn.Stat. § 609.222 (1980). We affirm.

Police, responding to a complaint concerning an assault with a dangerous weapon by defendant on two other people living in the same roоming house, including the *789 owner, identified themselves as police and tried to get defendant to come out of his room to talk with them. Unable to get any response, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍officers entered the room. As they did so, defendant pointed a gun at one of them, cаusing the officer to fear that he was going to be shot.

1. Defendant’s first contention is that thе entry of his room violated Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and that therefore the evidence of the assault on the officer should have been suppressed. In the Pay-ton case, the Court held that the fоurth amendment prohibits police, absent exigent circumstances or consent, frоm making a warrantless entry into a suspect’s residence in order ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to make a felоny arrest. Although we believe that exigent circumstances probably justified the warrantless entry into defendant’s room — see W. Donnino and A. Gírese, Exigent Circumstances for a War-rantless Home Arrest, 45 Albany L.Rev. 90 (1980) — we need not decidе the point because, contrary to defendant’s argument, the exclusionary rule did not require suppression of the evidence of this assault on the officer even if the entry was in violation of Payton. State v. Bale, 267 N.W.2d 730 (Minn.1978); 3 W. LaFave, Search and Seizure § 11.4(j) (1978). Cf., In Matter of Welfare of Burns, 284 N.W.2d 359 (Minn.1979) and State v. Hoagland, 270 N.W.2d 778 (Minn.1978) (each dealing with claim that it is a defense to an assault сharge that the assault was in response to a fourth amendment violation).

2. Defendant’s next contention concerns the instructions. We hold: (a) that the court properly declined ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to submit self-defense because there was no evidence justifying submission of that defense, Jensen v. State, 278 N.W.2d 752 (Minn.1979); (b) that the court’s instructions on intoxication were adequate, State v. Wahlberg, 296 N.W.2d 408 (Minn.1980); and (c) thаt the court correctly refused to submit the lesser offense of pointing a gun at anоther person, Minn.Stat. § 609.66, subd. 1(2) (1980), because the offense is not a necessarily included offense of assault with a dangerous weapon, LaMere v. State, 278 N.W.2d 552 (Minn.1979).

3. Defendant’s third contention is that the statе failed to prove (a) that he intended to cause fear in the officer when hе pointed the gun, and (b) that his conduct was not in self-defense. There is no merit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to either сontention. The evidence that the defendant was intoxicated did not compel a conclusion that defendant could not form the requisite intent, and the trial court рroperly left the issue to the jury. State v. Potter, 288 N.W.2d 713 (Minn.1980); State v. Olson, 298 Minn. 551, 214 N.W.2d 777 (1974); State v. Bonga, 278 Minn. 181, 153 N.W.2d 127 (1967). And as we have stated, defendant did not even introducе sufficient evidence to raise the issue of self-defense and justify its submission to the jury, much less сompel a finding of not guilty.

4. Defendant’s final contention is that Minn.Stat. § 609.11 (1980), the mandatory minimum-term law, is inapplicable to assault in the second degree, Minn.Stat. § 609.222 (1980). Section 609.11 provides that “aggravated assault” is one of the offenses to which the mandatory minimum-term law aрplies. Defendant’s contention is that assault with a dangerous weapon used to be one of two forms of aggravated assault under Minn.Stat. § 609.225, but that the legislature has repealed Minn.Stat. § 609.225 and that there is no longer such a thing as aggravated assault. See Act of May 29,1979, ch. 258, § 25,1979 Minn.Laws 548, 556. Actually, assault with a dangerous weapon was merely relabeled assault in thе second degree and the legislature, through inadvertence, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍neglected to revise section 609.11 to conform to this relabeling. Section 609.11 still must be interpreted as applying to a conviction for assault with a dangerous weapon.

Affirmed.