This opinion will be unpublished and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
                                     A14-1921

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                  Michael Jamah Griffis,
                                       Appellant.

                                  Filed August 24, 2015
                                        Affirmed
                                     Chutich, Judge

                               Dakota County District Court
                                File No. 19HA-CR-13-49

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

James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Carson J. Heefner, Heefner Nelson Law, P.A., St. Paul, Minnesota (for appellant)

         Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Michael Griffis fired a gun three times in self-defense during an

argument with his brother at Griffis’s home. On the third shot, Griffis hit his brother in

the chest and his wife in the hand. Griffis challenges his conviction of reckless discharge
of a firearm. Because sufficient evidence supports the guilty verdict and because the

district court did not err in concluding that Griffis was reckless in firing his gun, we

affirm.

                                          FACTS

          On December 31, 2014, appellant Michael Griffis, his wife, and his brother

celebrated New Year’s Eve together. His brother had been recently released from prison

and to comply with the terms of his release, he was living with Griffis and Griffis’s wife

at their home in Inver Grove Heights. Griffis, his brother, Griffis’s wife, and another

couple attended two house parties that night. The group was asked to leave the second

house party early because Griffis and his brother got into a heated argument.

          On the drive back to the Inver Grove Heights home, Griffis and his brother

continued to argue.     The argument escalated when the car pulled into the garage.

Griffis’s wife testified that his brother jumped out of the car and “was in [Griffis’s] face,

just continuing to try to provoke him.” Griffis said that he was not going to fight his

brother and went into the house. The brother followed him into the foyer. Griffis’s wife

told the brother to leave and asked Griffis to go into another room. The brother ignored

the directive and kept yelling at Griffis. While Griffis’s wife was standing between the

two men in the foyer, Griffis’s brother reached around her and “sucker-punched” Griffis

in the face. Griffis’s wife testified that Griffis froze and then turned around and retreated

to his bedroom.




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       The brother continued to follow Griffis, yelling down the hallway that he was

going to beat him up. At the same time, Griffis’s wife had the brother by the arm and

was trying to pull him back down the hallway.

       When the brother reached Griffis’s partially closed bedroom door, he kicked it

open. Griffis was waiting in the “low and ready position” with a gun. Griffis testified

that he had retrieved the gun from his closet because he was afraid of his brother. He

also testified that he did not know if his brother had picked up a 9 millimeter handgun

from the living room where they had looked at it before attending the parties.

       When the brother kicked open the bedroom door, Griffis’s wife was partially

draped over him to prevent him from entering the bedroom. She testified that when the

door to the bedroom was kicked open, she could see Griffis loading a gun. Griffis fired

one shot near the base of a dresser to stop the brother’s advance. Griffis’s brother kept

advancing, however, and Griffis shot again at waist level. The brother continued to

advance, and Griffis shot a third time. The third bullet hit Griffis’s wife’s hand, passed

through her hand, and struck the brother in the chest.

       The state charged Griffis with one count of first-degree assault, two counts of

second-degree assault, and one count of reckless discharge of a firearm within a

municipality. 

, subd. 1, .222, subd. 2, .66, subd. 1a(a)(3) (2014).

Griffis opted for a bench trial. Before trial, the parties stipulated to the following three

facts: (1) the incident occurred in Dakota County; (2) Griffis fired the gun; and (3) the

bullets recovered from Griffis’s room were fired from his gun.




                                             3
       The district court concluded that Griffis acted in self-defense and acquitted him of

the assault charges. It convicted Griffis of recklessly discharging a firearm, however,

because the district court concluded that he knew that his wife was present when he fired

the gun and consciously disregarded the risk posed to her by doing so. Griffis appealed.

                                     DECISION

       “When reviewing a claim of insufficient evidence, our inquiry is limited to

whether the fact-finder could have reasonably concluded that the defendant was guilty

beyond a reasonable doubt.” Gulbertson v. State, 

 (Minn. 2014).

“We view the evidence in the light most favorable to the verdict and assume[] that the

fact finder believed the state’s witnesses and disbelieved any contrary evidence.” 

 (alteration in original) (quotation omitted). “This is especially true where resolution

of the case depends on conflicting testimony, because weighing the credibility of

witnesses is the exclusive function of the [fact finder].” State v. Pieschke, 

 (Minn. 1980).

       Minnesota Statutes section 609.66, subdivision 1a(a)(3), prohibits a person from

“recklessly discharg[ing] a firearm within a municipality.” A person acts “recklessly” if

he “consciously disregards a substantial and unjustifiable risk that the element of an

offense exists or will result from his conduct.” State v. Cole, 

 (Minn.

1996) (quotation omitted); see also State v. Engle, 

 (Minn. 2008)

(applying the Cole definition of “reckless” to Minnesota Statutes section 609.66,

subdivision 1a(a)(3)).   A fact-finder in a reckless-discharge case must examine the

totality of the circumstances surrounding the shooting and focus on what the defendant


                                            4
“knew and did not know when he pulled the trigger.” State v. Kycia, 

 (Minn. App. 2003).

       Griffis first argues that the district court erred in convicting him of recklessly

discharging a firearm because the record “is completely void of any evidence” to show

that he knew his wife was in the doorway when he fired his gun. He contends that the

shooting took place over a matter of seconds and that he could not possibly have noticed

his wife standing behind his brother. After a careful review of the record, we disagree.

       Sufficient evidence supports the district court’s conclusion that Griffis recklessly

discharged a firearm when he shot his wife. The district court viewed exhibits and heard

testimony describing the location of each person during the time that Griffis fired the

gun. Griffis’s wife testified that she was at least “[p]artially” draped over Griffis’s

brother and that she saw Griffis loading his gun in the bedroom after the door was kicked

open. That she was able to see Griffis before the shooting started suggests that he was

able to see her as well. In addition, the injury to her hand demonstrates that at least some

part of her was draped over Griffis’s brother trying to hold him back when Griffis fired

the gun for the third time. Finally, Griffis knew that his wife had been trying to break up

the fight between him and his brother the entire night. She told Griffis’s brother to “shut

up” in the car ride home, she stood in between the men in the garage, and she was in

between them when Griffis’s brother punched him.

       Given the totality of the circumstances here—the constant physical presence of

Griffis’s wife throughout the entire dispute, her testimony that she could see Griffis

loading the gun and that she was partially draped over his brother, and the injury to her


                                             5
hand—the district court reasonably concluded that Griffis knew his wife was present

when he fired the gun.

       Finally, at oral arguments, Griffis argued that the evidence was insufficient to

convict him of reckless discharge of a firearm as a matter of law. Griffis appears to argue

that because the district court found his actions in shooting at his brother to be justified

under self-defense, shooting his wife cannot also be considered a reckless act. Griffis’s

brief did not raise this issue. But because his argument relates to whether, as a matter of

law, the evidence was sufficient to convict him under section 609.66, subdivision

1a(a)(3), we will address it here.

       Griffis’s argument relies on the doctrine of transferred intent, which Minnesota

recognizes. State v. Hall, 

 (Minn. 2006). Transferred intent “is the

principle that a defendant may be convicted if it is proved he intended to injure one

person but actually harmed another.” 

 (quotation omitted). Courts have applied

transferred intent in the context of self-defense to justify the accidental injury or killing of

an innocent bystander. See, e.g., Holloman v. State, 

 (Wyo. 2002)

(“[I]f self-defense is justified against the intended victim and would excuse the assault or

homicide of that victim, then the assault or homicide of the unintended victim is excused

or justified, and no criminal conviction can be obtained.”).

       No Minnesota court has addressed the question of whether the firing of a gun,

although justifiable as self-defense, can still be criminalized as a reckless act under

section 609.66, subdivision 1a(a)(3). The general rule in most jurisdictions is that if a

person acting in self-defense unintentionally injures or kills a third party, that person is


                                               6
not guilty of homicide or assault and battery. See, e.g., Rogers v. State, 

 (Miss. Ct. App. 2008) (“[W]hen an accused, acting in necessary self-defense, intends

to injure or kill the aggressor only, unintentionally injures an innocent bystander, that

transferred intent does not apply because the law justifies the accused’s actions towards

the aggressor.”).

       But this general rule is not absolute, and courts have recognized that it will not

apply if the person asserting self-defense has acted recklessly or negligently. See People

v. Morris, 

 (N.Y. App. Div. 1985) (stating that if a defendant’s

actions were justified as self-defense, he would not be criminally liable for injuries to an

innocent third party, unless the injury to the bystander was caused by the defendant’s

reckless or negligent conduct); People v. Jackson, 

 (Mich. 1973)

(concluding that the unintended killing of an innocent bystander is not murder if it was

justified under self-defense, but noting that it may be manslaughter if the circumstances

show that the defendant’s conduct toward the bystander was reckless); Ruffin v. State,

 (Md. Ct. Spec. App. 1970) (“We are of the opinion that even though

appellant purportedly was acting in self-defense, his action in firing the weapon in a

direction of the apartment building, where he had cause to believe that third parties were

present, was so grossly negligent as to constitute criminal negligence.”).

       On the other hand, at least one court has held that a defendant’s self-defense

justification prevented the state from charging him with assault or reckless endangerment

for shooting an innocent bystander. See Commonwealth v. Fowlin, 

, 1131-

34 (Pa. 1998) (holding that a defendant, who had been ambushed and pepper-sprayed in


                                             7
the face at a nightclub with over 200 people, could not be criminally liable of recklessly

endangering another or aggravated assault when he fired his gun multiple times and

injured an innocent bystander because he acted in self-defense).

           Because the gravamen of our inquiry focuses on recklessness, we agree with the

line of cases holding that a defendant who is justified in exercising self-defense can be

criminally liable for reckless or negligent conduct that injures a third party. We therefore

conclude that Griffis’s right to assert self-defense does not excuse the recklessness of his

actions in firing a gun three times and injuring his wife, an innocent bystander in the line

of fire.

           Our conclusion is further supported by the Model Penal Code and the Minnesota

Supreme Court’s definition of recklessness under Cole.            The Model Penal Code—

although not adopted or precedential in Minnesota—states that self-defense does not

excuse reckless or negligent conduct that results in an injury to an innocent third party.

See Model Penal Code § 3.09(3) (stating that when a person acts in justifiable self-

defense but “recklessly or negligently injures or creates a risk of injury to innocent

persons,” then the self-defense justification “is unavailable in a prosecution for such

recklessness or negligence towards innocent persons”).

           Moreover, in Cole, our supreme court held that “[t]he term ‘reckless’ refers to the

risk created, not the mental intent which resulted in an act which produced fear or

injury.” 

. Because “reckless” refers to the risk created and not the

intent of the actor, the doctrine of transferred intent cannot apply to Griffis’s charge.

And, as discussed above, sufficient evidence supports the district court’s conclusion that


                                                8
Griffis disregarded a substantial and unjustifiable risk to his wife—and therefore acted

recklessly—when he fired the gun three times at his brother.

      Affirmed.




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