State of Minnesota, Respondent, vs. Rashad Eric Spicer, 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This opinion will be unpublished and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

A03-430

 

State of Minnesota,

Respondent,

 

vs.

 

Rashad Eric Spicer,

Appellant.

 

Filed May 4, 2004

Affirmed Hudson, Judge

 

Hennepin County District Court

File No. 02076125

 

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

 

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

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, Minnesota 55121 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant appeals from his conviction of first-degree assault, arguing that (1) the trial court committed plain error in allowing police officers to testify to hearsay statements made by eyewitnesses; (2) the trial court erred in its jury instructions; and (3) the trial court abused its discretion in imposing a double durational departure.  Appellant also raises various arguments in his pro se supplemental brief.  We affirm.

FACTS

            On September 19, 2002, at about 9:15 or 9:30 p.m., appellant Rashad Eric Spicer and Obie Strand engaged in a fight.  Several witnesses testified at trial about the events.  Brad Erickson testified that he witnessed two men, a black man (whom Erickson identified at trial as appellant) and a white man (who was identified as Strand), swinging belts at each other on Hennepin Avenue.  A woman, identified as Kristina Powell (appellant's fiancée), attempted to break up the fight.  Powell got in between the two men and Strand hit her with his belt.  Erickson testified that the men began pushing each other.  The two men ended up near the side wall of a parking garage where they started hitting each other with their fists.  Erickson testified that Strand tried to cover himself but was knocked to the ground, and appellant kicked Strand on top of the head at least four times with great force.  Erickson testified that his friend Sidney Payton intervened and pushed appellant away from Strand, then Powell and appellant walked away from the scene.

            Sidney Payton testified that he left his job as a bartender at the Lion's Pub on Sixth Street and Hennepin Avenue around 9:15 or 9:30 p.m. on September 19, 2002.  Payton testified he heard a loud scream as he walked onto Hennepin, and he ran to the parking garage entrance, where about a dozen people were standing in a semi-circle.  Payton testified that a lone black man, whom Payton identified at trial as appellant, was standing in the middle of the crowd.  Payton testified appellant screamed, raised his hands above his head and brought his foot high in the air and then down toward the ground, landing on the head of a man lying on the ground (Strand).  Payton testified that appellant backed up and then headed for Strand again, but Payton dove in and pushed appellant away from Strand.  Payton tried to help Strand, but Strand could not speak and was having trouble breathing.  Payton yelled for someone to call 911, and the police and ambulance arrived quickly.

            John Patenaude testified that he was driving north on Hennepin Avenue when the incident occurred on September 19, 2002.  He saw a black woman arguing with and pointing at or pushing a white man.  Patenaude saw the white man take off his belt and walk toward a black man.  Patenaude testified that the black man was walking backward away from the white man and he took off his belt.  Patenaude testified that the black man fell down and the white man swung his belt at him, but one or two people pushed the white man down.  Traffic moved, so Patenaude drove forward, then stopped and saw the black man "stomp" once on the white man's head.  Patenaude saw the black woman "winding up" to kick the white man in the face.  Patenaude turned the corner and called the police.

            Powell testified that she went inside a restaurant to order food, and when she came out a white man was arguing with appellant and the white man took off his belt.  Powell testified that she got the food and then she and appellant tried to leave.  Powell stated that the man was yelling at appellant, but was not making sense and seemed like he was under the influence of alcohol.  Powell said the man followed her and appellant and took off his belt and attacked them.  Powell testified that appellant tripped and fell backward to the ground and the man swung at appellant's face with his belt.  Powell pushed the man on the side of his face, and he hit her with his arm and belt buckle.  Powell suffered cuts in her mouth and a bruise on her arm.  Appellant got up and the two men hit each other.  Powell testified that as the two men fought, both fell and the white man hit his head on the corner of a brick window frame.  Powell contends that appellant got up and jumped up and down and yelled, but he did not kick the man on the ground.  Another man grabbed appellant, then Powell and appellant left.

            Appellant testified on his own behalf and maintained that he fought Strand to defend himself and his fiancée.  Appellant testified that while he waited outside the restaurant for Powell, Strand stopped to ask him a question.  Appellant ignored Strand, and appellant and Powell walked away as soon as Powell came out with their food.  Appellant heard Strand yell at him, and appellant looked back and saw Strand approaching them while swinging his belt.  Appellant asked Strand what was his problem, but Strand kept yelling and swinging his belt.  Appellant took off his belt to defend himself and Powell, and he walked backward to get away from Strand.  Appellant fell, hit his head, and dropped the belt.  Appellant testified that while he was on the ground Strand swung his belt at appellant, but Powell put out her hand to stop the assault and Strand hit Powell in the face with the belt.  Appellant contends he was afraid for his safety and Powell's safety, so he got up and wrestled with Strand.  Appellant testified that he and Strand pushed each other, but they both fell near the parking ramp, and appellant hit his head again.  Appellant contends he got up right away and jumped up and down, screaming because he was upset and afraid.  Appellant said he held Strand down with his foot on Strand's stomach, twice using a kicking motion to make sure Strand would not get up and attack him again.  Appellant testified that he did not kick or stomp on Strand's head.  Appellant testified another man intervened and pulled appellant away, and then appellant and Powell walked away.

            Officer Christopher Kramer responded to the call around 9:30 p.m.  When he arrived, he found a man by the parking garage doors lying on the ground bleeding from his head with a belt wrapped around his left hand.  Payton told Officer Kramer that he saw a black man "stomping" on the man who was on the ground.  Officer James Lopez was also dispatched to the area, and Erickson flagged him down.  Erickson told Officer Lopez that he had seen two men fighting and one man punched and kicked the other man while he was on the ground.  Officer Lopez had Erickson get in his squad car so that they could look for the man who fought Strand.  Erickson saw appellant and a woman (Powell) walking and said that appellant was the person who kicked Strand.  Officer Lopez stopped the couple and arrested appellant.  Officer Kramer brought Payton to the scene of appellant's arrest and Payton identified appellant as the person he saw fight Strand.

            According to the doctor who treated him, Strand suffered a serious head injury that carried a high probability of death if he had not received medical intervention.  Strand was later transferred to Bethesda Rehabilitation Hospital, where he was still a patient at the time of trial due to his traumatic brain injury.  Strand made gradual improvements, but was still severely cognitively impaired; he could not eat, walk, or sit on his own, and had no control of his bowel or bladder.  Strand's rehabilitation doctor said she would not know for six to twelve months how much additional improvement Strand would make.  Strand's doctor believed the "chain of events" as described by the witnesses was consistent with Strand's condition being the result of a brain injury.  The doctor also noted that Strand had problems with chemical dependency and psychiatric behavioral issues before he received the injury. 

            The state charged appellant with first-degree assault.  The trial court instructed the jury on the elements of first-degree assault, the lesser-included offense of third degree assault, and the defense of self-defense.  The jury found appellant guilty of both first-degree assault and the lesser-included offense of third-degree assault.  The judge sentenced appellant to an executed prison term of 220 months; a departure from the presumptive term of 110 months.  Appellant appeals.

D E C I S I O N

I

"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).  Where a defendant fails to object to the admission of evidence, our review is under the plain-error standard.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  "The plain error standard requires that the defendant show:  (1) error; (2) that was plain; and (3) that affected substantial rights."  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  "If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."  Id. (quotations omitted).

Appellant argues that the trial court committed prejudicial error by allowing the police officers to testify about what the witnesses had told them.  Appellant concedes that there was no objection to this alleged hearsay testimony, but contends he should be granted a new trial because admitting the evidence was plain error and it affected his substantial rights.  We disagree.

Out-of-court statements offered as evidence for the truth of the matter contained in the statements are hearsay.  Minn. R. Evid. 801(c).  Hearsay is generally considered unreliableand, therefore, inadmissiblebecause the declarant is neither under oath nor subject to cross-examination.  11 Peter N. Thompson, Minnesota Practice § 801.02 (2001).  But it is well settled that "[p]rior consistent statements are not considered hearsay if the declarant testifies at the trial and is subject to cross-examination about the statement, and the consistent statement is helpful to the trier of fact in evaluating the declarant's credibility as a witness."  State v. Stillday, 646 N.W.2d 557, 563 (Minn. App. 2002) (quotations omitted) (holding that police officer's testimony regarding what the victim/witness told her was admissible as a prior consistent statement).  Here, all of the eyewitnesses testified at trial and were subject to cross-examination.  Moreover, the eyewitnesses' credibility was central to appellant's self-defense argument.  Appellant's counsel, in his opening statement, noted that Strand was injured when he hit his head on the wall and appellant used his foot to keep Strand down.  In his closing argument appellant's counsel noted that "[t]he motion that each witness, Mr. Erickson, Mr. Payton, Mr. Patenaude made in terms of how [appellant] came down on the -- different from each other . . . but exactly how that kick came about, [it] seems like no one knows, because all three give totally different versions of how this came about."  Plainly, these statements question the credibility of the witnesses' version of the event.  Thus, because the police officers' testimony regarding the witnesses' prior consistent statements was helpful to the trier of fact in evaluating the declarants' credibility as witnesses, the officers' testimony was not hearsay. 

Even if the trial court erred in admitting the officers' testimony of the witnesses' statements, the error was harmless, because the officers' testimony was cumulative to the witnesses' testimony.  See State v. Myers, 413 N.W.2d 122, 126 (Minn. App. 1987) (noting a police officer's testimony regarding statements a witness made was "merely cumulative, and the error in its admission [was] harmless"), aff'd as modified,416 N.W.2d 736 (Minn. 1987).

Because the officers' testimony was not hearsay, and any error in admitting the officers' testimony was harmless, we conclude that the district court did not abuse its discretion in permitting the testimony.

II

Trial courts have considerable latitude in selecting the language for jury instructions, but an instruction may not materially misstate the law.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Appellant argues that the instructions on self-defense materially misstated the law in such a manner that the jury was unable to adequately and fairly consider his theory of the case.

Respondent does not deny that there were errors in the original jury instructions.  But respondent claims that the errors were the result of mistakes made in the transcription of the jury instructions.  The record supports respondent's position.  Rule 110.05 of the Minnesota Rules of Appellate Procedure directs that any disputes between what the trial record shows and what actually happened at trial be heard by the trial court.  The trial court may then direct that any errors be corrected.  Here, the record reveals that the court reporter reviewed the transcript of the trial record, listened to the audiotape of the trial, found errors in the transcript, and corrected the transcript.  In conjunction with the state's motion to correct the record, the court reporter attested to the accuracy of her revisions in an affidavit attached to the state's motion.  Pursuant to Minn. R. App. P. 110.05, the trial court issued an order on November 19, 2003, approving the corrected trial court transcription and the transmittal of a supplemental record to this court.  The corrected trial court transcript reflects the instructions that were actually read to the jury, and contains the language appellant argues the judge should have given to the jury.  Because the corrected jury instructions did not materially misstate the law, we affirm.

III

The decision to depart from sentencing guidelines rests within the trial 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).  When a trial court departs from the sentencing guidelines, it must articulate substantial and compelling reasons justifying the departure.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).

Appellant argues that this court must reverse the trial court's imposition of a double durational departure because the departure was not supported by substantial and compelling circumstances, and because the trial court did not consider mitigating circumstances.  The trial court provided the following reasons for its upward departure:  (1) appellant's actions show a gratuitous infliction of pain on Strand; and (2) the severity of Strand's injuries.

Appellant argues that the record does not support the trial court's finding that appellant acted with particular cruelty.  But three witnesses testified that appellant kicked (or stomped on, or brought his foot down with great force on) Strand's head while Strand was lying on the ground.  Furthermore, the trial court found appellant's actions show "a gratuitous infliction of pain" on Strand.  Gratuitous infliction of pain qualifies as "particular cruelty" within the sentencing guidelines.  State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).  In addition, finding that the victim was treated with particular cruelty can be enough by itself to justify a departure "because that factor is specifically included as an aggravating factor justifying an upward departure in the Minnesota Sentencing Guidelines."  State v. Folkers,581 N.W.2d 321, 327 (Minn. 1998).  The trial court did not abuse its discretion in determining that appellant's actions show a gratuitous infliction of pain on Strand.

Appellant next argues that great bodily harm is an essential element of the offense with which he was charged, and therefore the trial court may not base a durational departure on conduct the legislature accounted for in determining the elements or degree of the charged crime.  Appellant's argument is misplaced because excessive injuries may be considered as an aggravating factor.  This court has held that "[e]ven though the infliction of great bodily harm is an element of first-degree assault, the injury nonetheless can be considered as an aggravating factor in this case because of its serious and permanent nature."  State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (quotations omitted), review denied (Minn. Sept. 29, 1987).  Therefore, the trial court could properly base a departure on the serious and permanent nature of Strand's injuries.  Moreover, Strand's injuries are more serious and permanent than the injuries sustained by victims in several other first-degree assault cases.  See, e.g., State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (finding scars left by an assault is great bodily harm), review denied (Minn. Sept. 20, 1995); State v. Barner, 510 N.W.2d 202, 202 (Minn. 1993) (finding at the very least three days of difficulty eating, multiple scars, and a hand injury fit into the phrase "other serious bodily harm"); State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984) (finding losing a tooth is great bodily harm), review denied (Minn. Feb. 6, 1985).

Here, the trial court detailed the severity of Strand's injuries and his current condition, noting that Strand "is on a ventilator, has to be fed through a tube in his stomach, is unable to sit up without restraints, is unable to walk on his own, has no control over his bodily functions, is not able to recognize family members, is unable to communicate, has memory loss."  The trial court also noted that Strand's injuries "created a high probability of death; caused permanent or protracted loss or impairment of the function of not just any bodily functions but many bodily functions and members or organs, and other serious harm."  On this record, the trial court did not abuse its discretion in imposing an upward durational departure based on the serious and permanent nature of Strand's injuries.

Finally, appellant argues that the trial court abused its discretion because it failed to consider that Strand was the aggressor, which is a mitigating factor under the sentencing guidelines.  But the trial court was presented with this evidence in appellant's memorandum in support of his motion for a downward departure.  The trial court, in its discretion, rejected appellant's mitigation argument given the excessive, gratuitous injuries appellant inflicted upon Strand.  We see no basis to disturb the trial court's decision.

The trial court did not abuse its discretion in imposing a double durational departure and therefore we affirm.

IV

            In his pro se supplemental brief, appellant contends he is entitled to a new trial because (1) the witnesses lacked credibility because their testimony was not identical on every point; (2) his tennis shoes were not tested for blood; and (3) Strand's mother testified but appellant's mother was not allowed to testify.

            Appellant's pro se supplemental brief raises no meritorious issues.  Although appellant claims that the witnesses lacked credibility because their testimony was not identical, the jury determines the weight and credibility that should be afforded to each witness's testimony.  State v. Bowles, 530 N.W.2d 521, 533 (Minn. 1995).  In addition, as the sole judge of credibility, the jury is free to accept part and reject part of a witness's testimony.  State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977).  Appellant also claims his shoes were not tested for blood; however, appellant's attorney used this fact as a trial tactic.  In his closing argument, appellant's attorney rhetorically asked that if appellant had been kicking Strand why was there "no blood on the bottom of his shoe?"  The jury considered and apparently rejected this argument.  Appellant also argues that he did not receive a fair trial because his mother did not testify and the jury did not deliberate long enough.  Appellant did not raise these issues in the trial court and therefore we will not consider them on appeal.  See Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988)(noting this court will generally not consider matters that were not argued and considered in the district court). 

Affirmed.