State of Minnesota, Respondent, vs. Ricky Lee Chilson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-504

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ricky Lee Chilson,

Appellant.

 

 

Filed December 23, 2003

Affirmed

Halbrooks, Judge

 

 

Olmsted County District Court

File No. KX-02-4328

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, John S. Garry, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 3rd Floor, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction and sentence for one count of fifth-degree felony assault, arguing that the district court abused its discretion (1) by each of five evidentiary rulings; (2) in instructing the jury; and (3) by sentencing him to twice the presumptive guidelines sentence.  Appellant also argues that respondent committed prosecutorial misconduct during its closing argument and raises two issues in a pro se supplemental brief.  We affirm.

FACTS

            On the evening of October 31, 2002, an Olmsted County Sheriff's deputy investigating a reported fire in a wooded area in Oronoco discovered appellant Ricky Lee Chilson and his girlfriend, Marlene Overton, sitting in an automobile parked next to a burning fish house.  The deputy saw that both appellant and Overton were very intoxicated and transported them to the Crisis Receiving Unit (CRU), a detoxification unit.  As the deputy placed Overton in his patrol car, he noticed that she had several bruises on her face and what appeared to be a burn on her chin.  She told the deputy that she "got beat up," but refused to elaborate. 

When Overton arrived at the CRU, she was admitted by Deputy Valerie Coe of the Olmsted County Sheriff's Department.  A breath test administered at the CRU indicated that Overton's alcohol concentration was .22.  Deputy Coe observed that Overton's face, hands, wrists, and upper arms were badly bruised and that Overton's nose and wrist appeared to be broken.  In response to Deputy Coe's inquiries, Overton told her that appellant had thrown her "head first into the furnace" and told her that "he was going to kill her and bury her body and no one would find her."  Overton also told Deputy Coe, "[Appellant assaults me] all the time, he hits me or throws me around but this is the worst he's ever assaulted me."  After informing Deputy Coe she wished to press assault charges and allowing the deputy to take photographs of her injuries, Overton abruptly left the CRU.

The next morning, Richard Kvam, M.D., examined Overton at the Olmsted Medical Center.  Dr. Kvam noted multiple bruises and abrasions on Overton's face, a large swollen bruise behind her left shoulder, bruises on both her left and right upper forearms, a burn on her left arm, a contusion on her shin, and older bruises and abrasions on her lower back.  Overton's nose was fractured.  Overton told Dr. Kvam the injuries occurred in a fall from a ladder.

            Appellant was charged with one count of fifth-degree felony assault, in violation of Minn. Stat. § 609.224, subds. 1(2), 4(b) (2002), and one count of gross misdemeanor domestic assault, in violation of Minn. Stat. § 609.2242, subds. 1(2), 2 (2002).  Fifth-degree assault is typically a misdemeanor offense, but appellant's charge was enhanced because the charged act occurred within three years of the first of two previous domestic-violence convictions.  See Minn. Stat. § 609.224, subd. 4(b).  Before trial, appellant stipulated to the two prior convictions, and the state dismissed the gross misdemeanor charge. 

            At trial, Deputy Coe testified to the statements that Overton made at the CRU accusing appellant of assaulting her.  Over appellant's objection, the district court admitted the photographs of Overton's injuries into evidence.  Overton testified that her injuries occurred when she fell from the roof of the fish house into a woodpile.  She testified that after the fall, appellant had tried to touch her face, and that she had grabbed his hand and twisted his thumb to prevent him from touching her.  Overton denied ever telling Deputy Coe that appellant had ever assaulted her or that she wanted to press charges. 

Dr. Kvam testified that Overton's injuries were "very inconsistent" with having fallen 15 feet face-first into a woodpile and that the disproportionate distribution of injuries to Overton's face and head was "a classic sort of presentation that raises the question of assault."  On cross-examination, Dr. Kvam stated that it was "virtually unimaginable" that Overton's injuries were attributable to the fall she described.

The detective who arrested appellant at the CRU and transferred him to the Adult Detention Center (ADC) testified that on November 1, appellant expressed a desire to press charges against Overton for twisting his thumb and bruising his back.  The detective also testified that at the ADC he had observed what appeared to be drops of blood on appellant's shirt and that appellant's knuckles were cut.  The shirt was admitted into evidence.  In the course of his testimony, the detective described three separate instances of appellant declining to speak with police about the events of October 31 while at the ADC.  After the third description, the court sua sponte stopped the questioning to caution the state about the impropriety of eliciting testimony referring to a defendant's choice to remain silent. 

The state entered evidence at trial to show that appellant had previously been convicted of domestic assault; the evidence consisted of a portion of a complaint, a portion of the plea-hearing transcript, and a sentencing order.  Appellant did not testify at trial and called no witnesses in his defense. 

            During the state's closing argument, the prosecutor, discussing the state's burden of proof, stated that a reasonable doubt "does not mean a fanciful or capricious doubt."  The prosecutor also referred to a statement made by a prospective juror during voir dire to support the proposition that patients in emergency rooms have a tendency to lie to doctors.  In addition, the prosecutor recited, in Spanish, a Mexican proverb noting the veracity of "drunks" after drawing attention to the fact that one of the jurors, whom he named, spoke Spanish. 

The district court instructed the jury to draw no inference from appellant's decision not to testify.  While the court asked appellant's counsel for permission to give the instruction before doing so, it did not ask appellant's permission.

            The jury found appellant guilty as charged.  The presumptive guidelines sentence was a stayed sentence of 12 months and one day.  The district court departed dispositionally and durationally from the guidelines sentence on the grounds that the crime was significantly more serious than a typical fifth-degree assault, that appellant was particularly unamenable to treatment, and that appellant posed an ongoing danger to the public.  The court sentenced appellant to 24 months and two days in prison.  This appeal follows. 

D E C I S I O N

I.

           

            Appellant challenges several of the district court's evidentiary rulings.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  "[T]he test is whether it is likely that the error[] substantially influenced the jury to convict."  State v. Lee, 645 N.W.2d 459, 465 (Minn. 2002).

1.         Appellant argues that he is entitled to a new trial because the detective who transported him from the CRU to the ADC made three references in his testimony to appellant's refusal to talk with the police prior to his arrest.  We disagree.

We observe first that appellant neither objected to the detective's statements when they were made nor requested a jury instruction to cure any harm the statements may have caused.  Generally, if a defendant fails to object at trial to a particular error, "the defendant is deemed to have forfeited his right to have the alleged error reviewed on appeal."  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  The plain error doctrine, an exception to this rule, allows us to consider "errors or defects affecting substantial rights" even though they were not raised at trial.  Minn. R. Crim. P. 31.02; see also State v. Burg, 648 N.W.2d 673, 677 (Minn. 2002).  We may correct the error only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

We cannot conclude here that the detective's statements at trial, to which no objection was made, rose to the level of an error or defect that affected his substantial rights.  It is true that the use of pre-arrest silence is error when introduced in the state's case-in-chief.  State v. Dunkel, 466 N.W.2d 425, 428 (Minn. App. 1991).  But an improper reference to pre-arrest silence constitutes harmless error if this court, looking at the record as a whole, determines that "an average jury would [not] have changed its verdict had the questioned statement been excluded."  State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).  Generally, "courts are reluctant to reverse a conviction or grant a new trial solely on the basis that prejudicial error has been committed by such statement or statements."  Dunkel, 466 N.W.2d at 429 (quoting State v. Johnson, 291 Minn. 407, 415, 192 N.W.2d 87, 92 (1971)). 

Here, although the detective made three separate references to appellant's silence, the references were brief and were made in the course of responding to general questions concerning the detective's initial contacts with appellant at the CRU and the ADC.  See id. (holding improper reference to pre-arrest silence was harmless partly because it was innocuous and volunteered by the witness, not elicited by the prosecutor).  Appellant's pre-arrest silence was not the focus of the detective's testimony.  See State v. French, 402 N.W.2d 805, 809 (Minn. App. 1987) (holding reference to silence harmless because remaining testimony neither focused on nor unduly highlighted silence).  The state made no reference to the statements after it was warned about the impropriety of testimony about a defendant's pre-arrest silence.  See Dunkel, 466 N.W.2d at 429 (holding improper reference to pre-arrest silence was harmless partly because the prosecution did not mention the statement at any point during the trial).  Finally, appellant presents no evidence that his pre-arrest silence was so critical to the state's case that the jury would have changed its verdict had the questioned statements been excluded.  See id. (indicating that the strength of the state's case is a factor in considering whether the admission of testimony referencing the defendant's pre-arrest silence is harmless). 

2.         Appellant argues that the district court abused its discretion by admitting as substantive evidence Overton's out-of-court statements to Deputy Coe that appellant had assaulted her.  The court ruled the statements admissible pursuant to the residual, or catch-all, hearsay exception, Minn. R. Evid. 803(24), which "allows hearsay to be admitted in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by [the principal hearsay rule]."  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  In determining whether a statement is trustworthy, the Ortlepp court considered whether (1) the admission presented a Confrontation Clause problem; (2) the declarant admitted making the prior statement; (3) the statement was against the declarant's interest; and (4) the statement was consistent with other evidence the state introduced at trial.  See id.  We conclude that the district court properly admitted Overton's statements to Deputy Coe under this exception.

First, Overton testified at trial and was available for cross-examination; there is therefore no Confrontation Clause violation here.  As to the second factor, although appellant admits that Overton made the statements to Deputy Coe, he argues that the statements were not reliable because, among other reasons, Overton was "drunk," the statements "were made well after the fact," and the statements were not made against penal interest.  Yet when Deputy Coe had Overton recount the assault a second time, she told the same story.  The statements were made soon after Overton's arrival at the CRU, within hours of the time Overton was injured.  Overton's statements were against her interest due to her relationship with appellant.  See Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (holding that an inculpatory statement made against declarant's interest "dramatically increases its reliability"); see also State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987) (holding that declarant's prior statements inculpating defendant were reliable where they were against her interest because she was hostile to prosecutor and supportive of accused), review denied (Minn. Mar. 18, 1987).

Fourth, Overton's statements to Deputy Coe were corroborated by other evidence presented at trial, including Overton's statement to the deputy at the fire scene that she "got beat up," the doctor's testimony that Overton's injuries were consistent with an assault, and appellant's statement to the detective at the ADC that he and Overton had had a physical confrontation on the night of October 31.  We conclude that Overton's statements to Deputy Coe were properly admissible under the residual hearsay exception.

3.         Appellant next argues that the state's decision to call Overton as a witness constituted a misuse of Minn. R. Evid. 607 that the district court should not have permitted.  Minn. R. Evid. 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness."

However,

[a] problem arises when a prosecutor calls a witness who has given a prior statement implicating the defendant, but that witness has since retracted the statement and signified an intent to testify in defendant's favor if called by the prosecutor.  If the prosecutor is permitted to call this witness and use the prior statement for impeachment purposes, there is a large risk that the jury, even if properly instructed, will consider the prior statement as substantive evidence.

 

Oliver, 502 N.W.2d at 777-78 (quoting Ortlepp, 363 N.W.2d at 42-43).  A party may not misuse rule 607 to introduce hearsay, which is otherwise inadmissible, in the guise of impeachment.  See State v. Dexter, 269 N.W.2d 721, 721-22 (Minn. 1978).

But the so-called "Dexter problem" can be overcome if it is determined that the statement used to impeach was also admissible substantively.  Ortlepp, 363 N.W.2d at 43.  Here, the district court admitted Overton's prior statements to Deputy Coe as substantive evidence of appellant's guilt.  Because "[Overton's] prior statement was admissible as substantive evidence under Rule 803(24), [appellant] has no cause to complain that its admission for impeachment purposes violated Dexter."  Id. at 44.

4.         Appellant argues that the district court abused its discretion by allowing the jury to consider evidence of his conviction for a July 2000 felony assault involving a previous girlfriend.  Evidence of the assault was admitted through the probable-cause section of the complaint, an excerpt from the plea hearing, and a copy of the sentencing order that also contained the entry of judgment.  Appellant contends that the complaint excerpt was inadmissible because it contained hearsay.  We disagree.

A reviewing court will not reverse the trial court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show error with prejudice.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  If the trial court erred in admitting evidence, the reviewing court determines "whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  Minn. Stat. § 634.20 (2002) provides for the admissibility of "[e]vidence of similar conduct by the accused against the victim of domestic abuse . . . unless the probative value is substantially outweighed by the danger of unfair prejudice." 

            Appellant's argument that the probable-cause portion of the complaint contained inadmissible hearsay and that the state should have been required to call the police officer who prepared the complaint is without merit.  First, appellant's counsel specifically declined the district court's offer to have the officer testify rather than have the state submit a portion of the complaint.  Second, this court has held that the state may prove a defendant's prior offense by reading "the complaint and the victim's statement to police."  State v. Alt, 529 N.W.2d 727, 730 (Minn. App. 1995), review denied (Minn. July 20, 1995); see also State v. Crocker, 409 N.W.2d 840, 844 (Minn. 1987) (stating that "[w]hile usually the state will need to call witnesses to prove the other crime, this is not always the case").

            We conclude that the district court did not abuse its discretion by allowing the state to prove appellant's prior conviction by making use of an excerpt from the complaint. 

            5.         Appellant next challenges the district court's admission of the 11 photographs of Overton taken by Deputy Coe the night of October 31, arguing that the photographs were highly prejudicial. 

[I]t is within the trial court's discretion to admit photographs, even ghastly ones, so long as they show something that a witness could describe and are material to some relevant issue.  The exhibits in this case allowed the jury to better visualize the crime scene.  And the extent and type of harm to the victim is material to the issues of intent and premeditation.

 

State v. Hummel, 483 N.W.2d 68, 74 (Minn. 1992).  The rule regarding the admission of photographs is that

[p]hotographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice.

 

State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992) (quoting State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950)). 

            Under this standard, the district court did not abuse its discretion by admitting the photographs.  The photographs are probative of the nature of Overton's injuries in that they depict Overton as she appeared on the night of the alleged assault.  Dr. Kvam used the photographs to illustrate his testimony concerning Overton's injuries and to explain why he believed her injuries resulted from an assault and not a fall, as she contended. 

It is true that, under Minn. R. Evid. 403, evidence should be excluded if the danger of unfair prejudice substantially outweighs its probative value.  But "in Rule 403, ‘prejudice' does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."  State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998) (quoting State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985)).  Appellant's argument that the photographs are prejudicial in that they depict injuries of unknown origin that could have been sustained by Overton prior to the October 31 assault charged in this case has some merit.  But the fact that the photographs also depict older injuries does not mandate their exclusion, particularly in light of Dr. Kvam's testimony indicating which injuries are more recent and consistent with an assault.  We conclude that the district court's application of the rule 403 balancing test was "sufficient to show a proper exercise of discretion."  State v. Sullivan, 502 N.W.2d 200, 203 (Minn. 1993).

II.

 

Appellant argues that the district court erred when it instructed the jury not to draw any adverse inference from his decision not to testify without first obtaining his permission on the record.  See 10 Minnesota Practice, CRIMJIG 3.17 (1999) (providing for no-inference jury instruction).  "Trial courts are allowed considerable latitude in the selection of language for the jury [instructions]."  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted).  But an instruction on a defendant's right not to testify should ordinarily not be given unless the defendant personally requests it on the record.  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002).  Giving the instruction without obtaining the defendant's consent on the record is error.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000); see also Minn. Stat. § 611.11 (2002) (stating that a defendant's failure to testify shall not create any presumption against defendant, nor be alluded to by the court). 

Here, the district court's failure to obtain appellant's consent on the record before giving the instruction was error.  But because appellant did not object at the time the instruction was given, we will only review the instruction if appellant can show that the error was prejudicial in that it had a significant effect on the jury verdict.  State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998). 

Appellant's assertion that the instruction encouraged the jury to speculate as to why he did not testify or speak with the police before and after his arrest, thereby prejudicially impacting the verdict, is unsupported by record evidence.  Appellant has not met his burden of showing that there is a reasonable likelihood that giving the instruction had a significant effect on the verdict.  We therefore conclude that the district court's error was harmless.

III.

 

Appellant contends that the prosecutor committed prejudicial misconduct during his closing argument, thereby violating appellant's right to a fair trial, by confusing the jury about the state's burden of proof, directing comments to specific jurors, and commenting on evidence outside the record. 

In determining whether misconduct occurred in closing argument, this court "consider[s] the closing argument as a whole rather than focus on particular phrases or remarks that may be taken out of context or given undue prominence."  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation omitted).

Determining whether prosecutorial misconduct was harmless depends partly on the type of misconduct.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  "For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error."  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  "For less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict."  Id. 

            Appellant did not object to any of these comments at trial or ask for a curative jury instruction.  "Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor's comments during closing argument if the defendant fails to object or seek cautionary instructions."  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Although "a court may reverse a conviction despite the defendant's failure to object or seek instructions if the prosecutor's comments were unduly prejudicial[,] [t]he defendant's failure to object implies that the comments were not prejudicial."  Id. (citation omitted).  Unchallenged prosecutorial misconduct is reviewed for plain error that is, it must have been "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object . . . should not forfeit his right to a remedy."  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

            We conclude here that the state's closing argument was not so prejudicial as to warrant a new trial.  Appellant argues that the prosecutor confused the jury as to the applicable standard of proof by contrasting a "reasonable doubt" with "a fanciful or capricious doubt."  In support of this argument, appellant observes that the jury asked the court for definitions of "fanciful" and "capricious" as it was deliberating.  But appellant does not explain how this inquiry proves the jury failed to understand the proper burden of proof, which in any case was also explained by the court during jury instructions.

            Appellant argues that the prosecutor impermissibly made references to specific jurors and evidence outside the record when he recalled a comment made by a prospective juror during voir dire and repeated a Mexican proverb in his closing argument.  The prospective juror's comment concerning the evasive or untruthful statements of emergency-room patients was consistent with evidence introduced by Dr. Kvam.  Appellant's contention that the prosecutor used the Mexican proverb "only little children and drunks always tell the truth" to surreptitiously introduce evidence that alcohol encourages veracity is not compelling; nor does appellant present any evidence that that argument likely played a substantial part in influencing the jury to convict.

            Appellant also argues that the prosecutor sought to unfairly belittle the defense theory.  "While the prosecutor is free to argue that there is no merit to a particular defense or argument, and prosecutors are free to anticipate arguments defense counsel will make, the prosecutor may not generally belittle a particular defense in the abstract."  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997).  "The prosecutor's comments here cannot be characterized as denigrating a defense theme in general."  Id.  He did not argue that injuries apparently due to an assault can never be caused by an accident; instead, the prosecutor argued that that theory was insufficient to exculpate appellant because the evidence supported the conclusion that appellant assaulted Overton. 

It is "the prosecutor's prerogative to present an argument not devoid of color."  Rairdon, 557 N.W.2d at 323 n.5; see also State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996) (stating that the prosecutor has "considerable latitude in closing argument, [and is not] required to make a colorless argument").  By failing to object or seek cautionary instructions and by failing to show undue prejudice, appellant has waived his right to raise an issue on appeal concerning the prosecutor's comments during closing argument. 

IV.

Appellant argues that the district court erred by sentencing him to two years and two days in prison, a double durational upward departure from the presumptive guidelines sentence.  Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines.  Minn. Stat. § 609.11, subd. 8(a) (2002); Rairdon, 557 N.W.2d at 326.  When substantial and compelling circumstances are present, a district court has discretion to depart from the presumptive guidelines and will not be reversed on appeal absent an abuse of discretion.  Rairdon, 557 N.W.2d at 326.  "The core issue for the district court in determining whether to depart durationally from the guidelines is whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime described in the applicable statute."  State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002).

Generally, when aggravating circumstances are present, the upward limit on a durational departure is double the presumptive sentence duration.  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Here, the district court explained the departure as follows:  "This was an especially brutal domestic beating, significantly more serious than the typical fifth-degree assault.  Defendant's lengthy, violent criminal history indicates both unamenability to probation and ongoing danger to the public."  Minn. Sent. Guidelines II.D.2.b.(2) lists "particular cruelty" as an appropriate rationale for an upward departure.  "Gratuitous infliction of pain" will qualify as "particular cruelty."  State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).  The presence of one aggravating factor is sufficient to justify a double durational departure.  State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985). 

The district court stated at the sentencing hearing that the charged assault here "can only be described as a savage, brutal beating, unspeakably cruel to the victim of this offense."  This description is supported by the record.  See State v. Copeland, 656 N.W.2d 599, 604 (Minn. App. 2003) (stating a finding of particular cruelty justifying sentencing departure was rightly based "on the manner of the assault and the severity of the resulting injuries"), review denied (Minn. Apr. 29, 2003).

            Appellant argues that the district court should have disregarded the severity of Overton's injuries in sentencing him because Overton testified that appellant did not cause the injuries.  But the jury found that appellant did cause the injuries, thereby precluding the district court from sentencing appellant based on any other theory of causation. 

Appellant also argues that the district court should have disregarded the severity of Overton's injuries in sentencing him because the infliction of injury is an element of fifth-degree assault that cannot justify a finding that an assault was particularly serious.  Fifth-degree assault consists of "intentionally inflict[ing] or attempt[ing] to inflict bodily harm upon another."  Minn. Stat. § 609.224, subd. 1(2).  Bodily harm is defined as, "physical pain or injury, illness, or any impairment of physical condition."  Minn. Stat. § 609.02, subd. 7 (2002).  Here, the record supports the conclusion that appellant's assault of Overton caused her physical pain, injury, and physical impairment; appellant presumably could have been charged under any of those three factors.  The assault was therefore significantly more serious than a typical fifth-degree assault, and justified the sentencing departure.  See State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (holding that an assault is significantly more serious, justifying upward sentencing departure, where the defendant inflicts each of the independent statutory factors), review denied (Minn. Sept. 29, 1987).

The district court acted within its discretion by departing from the presumptive guidelines in sentencing appellant.

V.

            In his pro se supplemental brief, appellant argues that (1) the evidence was insufficient to support the conviction and (2) he was prejudiced by his exclusion from a chambers meeting between the court, appellant's attorney, and the prosecutor.  These claims are without merit.

            When considering a sufficiency of the evidence challenge, this court reviews the evidence presented at trial to determine whether the jury could reasonably have found the defendant guilty of the crime charged.  State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998).  A defendant bears a heavy burden to overturn a jury verdict.  State v. Bowser, 305 Minn. 431, 437, 234 N.W.2d 890, 893 (1975).  On review, we must view the evidence in the record in the light most favorable to the jury's verdict and assume that the jury believed the state's witnesses and disbelieved the defendant's witnesses.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

            Appellant contends that because Overton recanted her statements to Deputy Coe concerning the assault, those statements were not competent evidence that he assaulted Overton.  This argument disregards the exclusive fact-finding function of the jury, which demonstrably believed Deputy Coe and did not believe Overton.

            As to the in-chambers conference, appellant does not attempt to show that he was prejudiced by his absence from the discussion.  See generally State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001) (holding that violation of defendant's right to be present may be harmless error).

            Affirmed.