State of Minnesota, Respondent, vs. Nicholas Henry Demers, 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This opinion will be unpublished and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

CX-03-297

 

 

State of Minnesota,

Respondent,

 

vs.

 

Nicholas Henry Demers,

Appellant.

 

 

Filed December 16, 2003

Affirmed
Klaphake, Judge

 

Anoka County District Court

File No. K5022413

 

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

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent)

 

Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN  55415 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following a bench trial, appellant Nicholas Henry Demers was convicted of first-degree assault.  On appeal, he argues that R.N.'s injuries do not constitute great bodily harm and that there is insufficient evidence to support his conviction.  Because R.N.'s stab wound required surgery resulting in two visible abdominal scars and because the evidence was sufficient to support appellant's conviction, we affirm.

D E C I S I O N

            1.         Great Bodily Harm

            Great bodily harm is "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."  Minn. Stat. § 609.02, subd. 8 (2002).

            The doctor who operated on R.N. testified that R.N. had a one-half to one-inch long stab wound that penetrated her abdominal cavity and superficially lacerated the left lobe of her liver.  He stated that the cut to R.N.'s liver was not life threatening and would not have caused significant problems if left untreated, but that any penetration to the abdominal cavity is considered a serious injury.  In order to determine the extent of any damage to organs, including the liver, R.N. underwent exploratory surgery under general anesthesia; no other organ damage was found.  The surgery required an additional three-inch incision.  The doctor testified that whenever someone needs emergency surgery with general anesthesia, there is a greater risk of complications because material can be regurgitated into the stomach and aspirated into the lungs. 

            As a result of the stab wound and exploratory surgery, R.N. has two permanent scars on her abdomen above her navel, but below her rib cage.  One scar is one-half to one inch in length; the other is three inches in length.  She testified that because of these scars she is embarrassed to wear a two-piece bathing suit or expose her stomach.

            Scars, depending on their visibility, permanence, and length, can constitute great bodily harm.  In State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995), the victim had two permanent, raised scars on his neck and chest.  The chest scar was two-thirds of an inch and the neck scar was six centimeters long and highly visible.  The court found these scars constituted serious permanent disfigurement.  Id.; see also State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (concluding long surgical scar running length of victim's upper body constituted serious permanent disfigurement), review denied (Minn. Sept. 19, 1985); but see State v. Gerald, 486 N.W.2d 799, 802 (Minn. App. 1992) (concluding two scars, each one-half inch in length located in victim's ear and back of neck, did not constitute serious permanent disfigurement because of their location).

            Depending on her attire, R.N.'s scars are visible and fall within the range of those considered great bodily harm as discussed in case law.  We therefore conclude that the district court did not clearly err in finding that R.N.'s scars constitute great bodily harm.

            2.         Sufficiency of Evidence

            Appellant argues that there was insufficient evidence to support the district court's determination that he was guilty of assault in the first degree.  When sufficiency of evidence is challenged, our 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 fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The same standard of review is applied to bench trials and to jury trials.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  We must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  This court will not disturb the verdict if the fact-finder, 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).  We defer to the fact-finder on determinations of credibility.  Dale v. State, 535 N.W.2d 619, 623 (Minn.  1995).

            One who "assaults another and inflicts great bodily harm" commits first-degree assault.  Minn. Stat. § 609.221 (2002).  Assault is "the intentional infliction of or attempt to inflict bodily harm upon another."  Minn. Stat. § 609.02, subd. 10(2) (2002).  "‘Intentionally' means that the actor either has a purpose to do the thing or cause the result specified or believes that the act . . . , if successful, will cause that result."  Minn. Stat. § 609.02, subd. 9(3) (2002).  Intent may be proved by circumstantial evidence, which may include the defendant's conduct, the character of the assault, and the events occurring before and after the crime.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999). 

            Several witnesses, including R.N., testified that appellant stated he was going to kill R.N.  One witness, knowing that appellant carried a knife, called R.N. to warn her.  While appellant testified that R.N. said that she was going "to get" him and have him go to jail for trying to kill her, and then stabbed herself, the district court did not find appellant's testimony credible.  See Dale, 535 N.W.2d at 623 (deferring credibility determinations to fact-finder).  Additionally, appellant had been arrested for assaulting R.N. in the past, and admitted to past incidents of threats and restraining R.N.  We conclude that from this evidence the district court could find the requisite intent.

            A witness to the stabbing described the knife he saw appellant holding and later identified it at trial.  Appellant acknowledged, and his roommate confirmed, that appellant owned a knife similar to the one police found near a fence by appellant's apartment complex.  Appellant's roommate testified that he saw appellant's knife in appellant's room two weeks to three months prior to the stabbing.  While the knife found near the scene did not have visible blood or fingerprints on it, tests were positive for the presence of blood.

            Each of the officers who testified stated that other witnesses confirmed R.N.'s version of the events.  The time between the stabbing and R.N. receiving hospital care was roughly 10 minutes, which included a conversation with a policeman indicating R.N. was stabbed.

            When questioned by a detective on March 13, 2002, appellant admitted to using methamphetamine the day before.  Appellant also said numerous times that he did not remember stabbing R.N., that it was possible that he stabbed her but he did not remember, and that R.N. stabbed herself.  The court rejected as incredible the testimony of witnesses called by appellant to impeach R.N.'s testimony and version of the events.

            With regard to the lack of a cut in R.N.'s sweatshirt, the court found credible R.N.'s demonstration of how she moved in reaction to appellant's swing, thus opening "a gap between the sweatshirt and [R.N.] such that the knife might not have had to penetrate the sweatshirt."  The district court concluded that the lack of a cut in the sweatshirt did not conclusively create a reasonable doubt.  Because no physical evidence was presented to resolve this issue, the court determined that the question of who stabbed R.N. was one of credibility, and found R.N.'s version of events more credible and consistent with other witness testimony.

            Based on the evidence presented at trial and the court's credibility determinations, we conclude there was sufficient evidence to support appellant's conviction for first-degree assault. 

            Affirmed.