(dissenting).
Neither the facts of this case nor the law governing it permit us to disturb these first degree assault and attempted second degree murder convictions. The trial court did not commit error, reversible or otherwise, in excluding evidence that appellant consumed alcohol or drugs before his criminal conduct occurred.
1.
Initially, we must respect the broad discretion of the trial court in its evidentiary decisions. State v. Larson, 389 N.W.2d 872, 874 (Minn.1986). The court’s discretion was not clearly abused in the circumstances of this case.
2.
Evidence on appellant’s accident theory is inadmissible under Minn.Stat. § 609.075 (1990). The statute permits intoxication evidence only on the element of an offense which states “a particular intent or other state of mind.” Appellant does not challenge the particular identification of his intention as one to kill or harm his companion. Under the statute, intoxication evidence challenging appellant’s general intent to shoot his companion is inadmissible.
Appellant’s accident theory rests on a pretended distinction between proving the occurrence of an accident and disproving the general intent to commit a crime. This argument is offered with no supporting authority and it is not tenable. The theory of accident constitutes denial of a general criminal intent, and evidence on the subject is inadmissible under Minn.Stat. § 609.075.
3.
Equally important, appellant’s accident contention constitutes his attempt to create an appellate issue that never surfaced during trial court proceedings. On appeal, appellant contends that intoxication evidence “was relevant to his defense that he was in a physical state in which it was highly probable that he would act in an uncoordinated or clumsy fashion and mishandle something he was holding.” This defense was not proposed to the trial court, and the trial record includes no evidence suggesting that appellant acted clumsily or without coordination or that he mishandled the gun used to shoot Katherine Mootz.
The state’s pretrial motion asked the court to bar appellant from offering evidence of intoxication and to preclude his attorney from cross-examining witnesses on that subject. In response, the defense acknowledged it was not asserting a defense of intoxication, but declared that the evidence “somehow explains as to why there was an accident.” Counsel merely stated that the intoxication evidence “goes to indicating where the defendant and the victim were and their state of mind and their situation at the time the incident occurred.” The state responded that “the only thing that differentiates an accident from the criminal act is the intention,” adding that “the intention is not negated by alcohol.” In granting the state’s motion, the trial court observed that the intoxication evidence was “at the most” an offer to show “diminished capacity.”
Coinciding with the imprecise offer of proof, the defendant at no time offered evidence showing that he was uncoordinated or clumsy when the shooting occurred, that he tripped or fell, or that he mishandled or fumbled the gun. He did not claim the gun malfunctioned. The record of his testimony shows the following pertinent questions and answers:
Q. OK. After that then what occurred?
*132A. I went upstairs, pushed the basement door open which hit the garage door. I then proceeded out the basement door and slammed the garage door shut because apparently I had left it open, and walked into the living room and said, “Katherine, look at this_ gun,” and it discharged.
* aje * % $ *
Q. For what purpose were you going to show her the gun, Mr. Willey?
A. Because I just found it.
Q. You were excited about that?
A. No. Well, yeah, because I had forgotten I had it down there.
Q. Which is it, Mr. Willey? Were you not excited or were you excited?
A. I was excited, I guess.
Q. So, you wanted to share your excitement with Ms. Mootz who was sleeping on the couch?
A. Yes.
Q. Mr. Willey, you fired the gun that shot Katherine Mootz; is that correct?
A. Yes.
Q. And to do that, the gun was pointed in her direction; is that right?
A. Yes.
Q. And you pointed the gun in her direction; is that right?
A. I had it in my hand.
Q. How did you have it in your hand, Mr. Willey?
A. Like this.
Q. With your arm—
A. Katherine, look at this_ gun; I had my hand halfway up.
Q. And why did you do that, Mr. Wil-ley?
A. Because that is the way I was holding the gun.
Q. Just happened to be holding the gun pointed at Katherine Mootz with your arm extended?
A. I didn’t have it pointed at Katherine when I said, look at this_gun. She sat up and it discharged.
******
Q. Mr. Willey, your finger was on the trigger when the gun went off; isn’t that right?
A. Yes.
Q. How did it happen to discharge the gun, Mr. Willey?
A. I have no idea. I don’t know.
Q. What were you looking at when the gun went off?
A. I was looking toward Katherine.
Q. Were you looking and pointing your arm toward Katherine?
A. No, I had my arm up like this.
Q. So, you’re looking at Katherine but you had your arm over here?
A. Yes.
Q. And the gun went off?
A. As I slammed the door, it came around to the left-hand side going into the living room and the gun discharged.
Q. It discharged while you were looking at Katherine, you said that; is that right?
A. Yes.
Q. You had your hand out like this to your side and you were looking at Katherine?
A. Yes.
Q. Katherine is in this direction, Mr. Willey, correct, and the gun is pointed over here?
A. Yes.
Q. You couldn’t have struck her with the bullet, Mr. Willey, if you were looking in her direction?
A. I came around. She was on the couch. I was entering the living room which is where the couch is at.
Q. What happened?
A. And the gun discharged.
Q. Just happened to discharge?
A. Yes, after I said look at this_ gun.
This record establishes no basis for the argument now made by appellant. The concept of clumsiness is created solely for appellate argumentation.
*1334.
Finally, if the trial court’s discretion was abused, “reversal is warranted only when the error substantially influences the jury to convict.” State v. Loebach, 310 N.W.2d 58, 64 (Minn.1981). We cannot reasonably conclude that intoxication evidence would have altered the jury’s verdict.
The victim’s testimony is, of itself, sufficient to find guilt regardless of any evidence of intoxication. Additionally, the jury was presented with a letter of appellant stating that he was despondent due to the victim’s failure to respond to his affection. Appellant repeatedly threatened suicide. In fact, when the police arrived, appellant’s van was running in a closed garage. The evidence was uncontradicted that appellant cocked the trigger and was pointing the gun at the victim when it fired. A firearms expert testified the trigger pull on this particular model .38 caliber pistol is almost double that of a standard issue weapon of the same caliber. The expert stated this gun does not discharge unless the trigger is pulled or the weapon is subject to some extraneous force such as being thrown against a wall or dropped from a high place. Lastly, the jury heard testimony, never directly contradicted by appellant, that he had commented about shooting the victim in a “murder-suicide.”
In all likelihood, intoxication evidence would be prejudicial to appellant’s case. Evidence that a defendant used narcotics and alcohol is improper when used as character evidence and is commonly challenged by defendants on that basis. See State v. Blair, 402 N.W.2d 154, 156-57 (Minn.App.1987). Rather than having the purported effect of explaining how intoxication led to an accident, it is more likely the evidence would explain to a jury how the seemingly rational man seen on the witness stand could commit the criminal act of shooting a woman he allegedly treasured.
Because I find no merit in appellant’s proposition on intoxication evidence, nor on his other stated grounds for appellate relief, I would affirm the judgment of conviction.
I respectfully dissent.