State of Minnesota, Respondent, vs. Abdihakim Hussein Mohamed, Appellant.

State of Minnesota, Respondent, vs. Abdihakim Hussein Mohamed, Appellant. A04-633, Court of Appeals Unpublished, February 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-633

 

State of Minnesota,

Respondent,

 

vs.

 

Abdihakim Hussein Mohamed,

Appellant.

 

Filed February 22, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 03066478

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Abdihakim Hussein Mohamed challenges his conviction of first-degree assault, claiming that (1) the district court erred in admitting the victim's identification of appellant; (2) the district court plainly erred in omitting a jury instruction; (3) the evidence was insufficient; and (4) the district court abused its discretion in sentencing appellant by failing to grant a further downward departure from the presumptive sentence.  We affirm.

D E C I S I O N

I.

 

            Appellant argues that the victim's on-the-scene identification of appellant as her assailant was unnecessarily suggestive.  An appellate court reviews pretrial motions to suppress evidence by independently considering the facts to determine, as a matter of law, whether the district court erred in its decision.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            To determine whether a pretrial identification procedure violated appellant's due process rights, the first inquiry focuses on whether the procedure was unnecessarily suggestive.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification.  Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968). 

            Here, the record indicates that after the police officers responded to the crime scene, an observer pointed them in the direction of the assailant.  The officers found appellant sitting in a parking lot near the crime scene and placed him in a squad car.  At this time, of her own volition, the victim arrived at the scene and spontaneously identified appellant as the person who assaulted her.  Because the police did not single out appellant to the victim as her assailant, we conclude that the identification was not unnecessarily suggestive.  See Simmons, 390 U.S. at 384, 88 S. Ct. at 971; State v. Kelly, 668 N.W.2d 39, 44 (Minn. App. 2003) (holding that police identification procedure was not unnecessarily suggestive where victim led police to an apartment that he saw his attackers enter, police asked for residents to step out of apartment, and victim identified the appellant as one of his attackers). 

We conclude that the district court did not err in admitting the on-the-scene identification of appellant as the assailant.

II.

            District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  "An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court's instructions must define the crime charged.  In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).

            Appellant argues that the district court failed to instruct the jury pursuant to CRIMJIG 3.20.  But appellant neither requested the instruction at trial nor objected when the district court did not give a CRIMJIG 3.20 instruction.  Thus, our review is limited to whether there is plain error, and appellant must show:  (1) error; (2) that was plain; and (3) that affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If those three prongs are met, we may correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.  See id.

            The supreme court has held that a district court does not plainly err by omitting CRIMJIG 3.20 if the jury is instructed to convict of a lesser offense when it has a reasonable doubt as to an element that distinguishes the lesser and the greater offenses.  State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995) (affirming the district court where it omitted CRIMJIG 3.20 but instructed the jury according to CRIMJIG 11.02, which includes an instruction that if the jury had a reasonable doubt as to premeditation, the only element distinguishing first- and second-degree murder, then the defendant would only be guilty of second-degree murder). 

Here, the district court gave CRIMJIG 13.04.  After listing the elements of first-degree assault, CRIMJIG 13.04 states "[i]f you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty."  See 10  Minnesota Practice,CRIMJIG 13.04 (1999).  The district court then gave CRIMJIG 13.16, the instruction on third-degree assault, which ends similarly to the quoted language of CRIMJIG 13.04.  See 10 Minnesota Practice,CRIMJIG 13.16 (1999).  We conclude that the instructions, as the district court gave them, properly instruct on reasonable doubt.  Therefore, the district court did not plainly err in not giving CRIMJIG 3.20. 

III.

In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court 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 defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant argues that the evidence of the victim's injuries, including two teeth broken at the gum line, a loose tooth, and a loose denture, is insufficient to support his conviction of first-degree assault because the state failed to prove "great bodily harm" as defined by Minnesota law.  See Minn. Stat. § 609.221 (2002) (requiring "great bodily harm"); see also Minn. Stat. § 609.02, subd. 8 (2002) (defining "great bodily harm" to mean "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm").  Rather, appellant argues, the evidence is sufficient to support, at most, third-degree assault requiring "substantial bodily harm."  See Minn. Stat. § 609.222 (2002); see also Minn. Stat. § 609.02, subd. 7a (2002) (defining "substantial bodily harm" to mean "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member").

The record indicates that the district court properly denied appellant's pretrial motion to dismiss the first-degree assault charge on the ground that, as a matter of law, the victim's injuries did not constitute great bodily harm.  This court has held that a tooth is a bodily member, and the loss of a tooth can be a permanent loss of the function of a bodily member, constituting great bodily harm for purposes of assault.  State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985).  Thus, the issue was properly left to the jury.  And based on the victim's injuries, the evidence is sufficient to support the jury's determination that appellant was guilty of first-degree assault.

IV.

            The decision to depart from the presumptive sentence rests in the district court's discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  And appellate courts generally will not interfere with a district court's refusal to depart downward.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). 

Generally, in determining whether to depart in sentencing, a district court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question."  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  The Minnesota Sentencing Guidelines provide that a district court may depart downwardly if "substantial grounds exist" to mitigate the offender's culpability.  Minn. Sent. Guidelines II.D.2.a.(5).   

Here, the district court expressed dissatisfaction with the presumptive sentence and the lack of guidelines as to a "typical" first-degree assault.  The court proceeded to impose a downward departure, citing:  (1) the disparity in sentences between first- and third-degree assault; and (2) the relative nonseverity of the offense.  Respondent does not challenge the district court's downward durational departure.  And because the district court properly exercised its discretion in sentencing, we cannot conclude that the district court abused its discretion by failing to depart further as requested by appellant.

Affirmed.