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Jury clears N.D. player in elbowing incident

RAPID CITY, S.D. -- A jury deliberated about three hours and found a North Dakota men's basketball player not guilty of simple assault for elbowing a South Dakota Tech opponent in the face nearly a year ago.

Matt Klabo buried his face in his hands after the jury acquitted him Thursday.

"I'm just glad it's over," the former Valley City State University player said.

The elbow to the face of Korey Kirschenmann on Feb. 18, 2005, knocked the 6-foot-8 Kirschenmann to the court and left him with a concussion and a cut that required 14 stitches.

In closing arguments, Pennington County State's Attorney Glenn Brenner said Klabo clearly had crossed a criminal line and that the law is clear on simple assault.

If someone intends to inflict bodily injury and does, it is simple assault, he said.

"Laws don't end when you step on the basketball court. I'd bring this case again," Brenner said after the verdict.

Klabo's father, Mike, of Lignite, N.D., said the jury verdict confirmed that there was more to the story of the elbow than many portrayed.

"I'm glad the truth came out," he told the Rapid City Journal. "There's been some discussion between Matt and Mr. Kirschenmann that they would like to be friends, to go out socially and let this thing end."

The incident occurred a few seconds after Kirschenmann swung his hands with the ball at Klabo's face. Klabo said he was hit in the nose with a basketball and that he threw his elbow in reaction to being hit.

Klabo's lawyer, Ken Barker of Belle Fourche, said the sequence was an example of the kind of rough, physical exchanges that can be expected periodically in a basketball game, but that it was not criminal assault.

Barker's defense strategy was based in part on the rule of implied consent, meaning in essence that the player knowingly puts himself at risk for injury as the "reasonably foreseeable consequences" of participation in the game.

Kirschenmann's bump to Klabo's nose started the sequence that ended with the elbow, Barker said.

"The fact of the matter is, there was a ball to the face, and that's what provoked the response," Barker said.