State of Minnesota, Respondent, vs. Abraham (NMN) Jones, 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This opinion will be unpublished and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

A03-782

 

State of Minnesota,

Respondent,

 

vs.

 

Abraham (NMN) Jones,

Appellant.

 

Filed August 31, 2004

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 02085175

 

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

 

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

 

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

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Abraham Jones challenges his convictions of first-degree and second-degree assault, arguing that (1) the district court erred in not excluding evidence as a discovery sanction; (2) the district court erred in instructing the jury on the lesser-included offense of third-degree assault; (3) the prosecutor engaged in misconduct; and (4) the evidence is insufficient to support the conviction.  We affirm.

D E C I S I O N

 

I.

Appellant argues that the district court erred in allowing the state to admit as evidence the medical records that were first disclosed on the scheduled first day of trial and in allowing the state to file an amended witness list.  We disagree.  In general, the district court is in the best position to determine what harm is caused by discovery violations and whether such harm can be eliminated or alleviated.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  The district court has wide discretion to decide discovery issues and will not be reversed unless it clearly abuses that discretion.  State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995).  But even if the district court abuses its discretion, this court should not reverse if there is no reasonable probability that, without the error, the result of the trial would have been different.  Id. at 198. 

Minn. R. Crim. P. 9.01 governs disclosures by the prosecution, including disclosure of witness names and addresses.  In determining the appropriate sanction for a discovery violation, courts consider:  (1) the reason that timely disclosure was not made; (2) the extent of the prejudice; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.  Lindsey, 284 N.W.2d at 373.  Preclusion of evidence is a severe sanction, to be used only as a last resort.  State v. Richards, 495 N.W.2d 187, 199 (Minn. 1992).

Here, it is undisputed that the prosecutor's failure to discover and disclose the newly acquired medical records was unintentional.  On appeal appellant argues that the prosecutor should have discovered this new evidence earlier and should have known that the victim's surgeon and another doctor were potential witnesses.  But prior to trial, appellant conceded that the prosecutor was not at fault for failing to discover the medical records.  And because appellant never objected to the addition of one eyewitness to the witness list, this challenge is waived.  Because it is undisputed that the prosecution did not deliberately conceal the documents and the potential witnesses, this factor weighs in favor of admitting the medical records and allowing the state to amend its witness list. 

Appellant argues that he was prejudiced by admission of the medical records and the subsequent amendment of the state's witness list because only the victim's surgeon, who was added to the witness list at this time, testified to injuries that could possibly satisfy the "great bodily injury" element of first-degree assault.  But the district court remedied any prejudice appellant may have suffered by ordering a two-day continuance and requiring the prosecution to disclose the witnesses it actually intended to call by noon the following day.  Thus, appellant had two days to examine the newly acquired medical records and prepare for the testimony of the newly added witnesses.  And because preclusion of evidence is a severe sanction to be used as a last resort, we conclude that the district court did not abuse its discretion in refusing to preclude this evidence.

II.

            Appellant also argues that the district court erred in the manner in which it instructed the jury on the lesser-included offense of third-degree assault.  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).  A defendant's failure to request specific jury instructions or to object to instructions before they are given to the jury constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But a reviewing court can reverse if the instructions constituted plain error or were misleading or confusing on fundamental points of law.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).  Plain error is:  (1) error; (2) that is plain; and (3) that affects substantial rights.  Griller, 583 N.W.2d at 740.  An appellant bears the "heavy burden" of showing that the error affects substantial rights, which is satisfied if the appellant shows that the error was prejudicial and affected the outcome of the case.  Id. at 741. 

            Appellant argues that the district court committed plain error by giving both its original instruction and a later curative instruction on the lesser-included offense of third-degree assault.  Because appellant did not object to this language at trial, this court will only reverse if the instructions constituted plain error. 

            Here, the state concedes that the district court erred in the manner in which it instructed the jury on the lesser-included offense.  While this court is not bound by the state's concession, we conclude that the district court erred.  CRIMJIG 3.20 states that "[t]he law provides that upon the prosecution of a person for a crime, if the person is not guilty of that crime, the person may be guilty of a lesser crime." 10 Minnesota Practice, CRIMJIG 3.20 (1999).  The comment to CRIMJIG 3.20 cautions courts not to indicate the order in which the crimes should be considered and not to instruct the jury to consider the lesser crimes only if it finds the defendant not guilty of the charged offense.  See State v. Dahlstrom, 276 Minn. 301, 311, 150 N.W.2d 53, 61 (1967) (concluding that the district court should not instruct the jury on the order of procedures to be followed). 

            Here, the district court gave the following instruction:

You should consider the lesser included offense of assault in the third degree if you find the defendant not guilty of the charge of assault in the first degree.  If you find the defendant guilty of assault in the first degree you would not consider the lesser included offense of assault in the third degree.

Because the district court essentially instructed the jury to only consider the third-degree assault offense if it found appellant not guilty of the first-degree offense, the district court erred. 

            But considering the jury instructions as a whole, we cannot say that appellant was prejudiced by the error such that the error affected the outcome of the case.  Here, the district court cited the language of CRIMJIG 3.20 regarding lesser-included offenses, instructed the jury generally about the burden of proof and presumption of innocence, and made it clear that the only difference between first-degree and third-degree assault was the extent of harm suffered by the victim.

            First-degree assault occurs when a defendant inflicts great bodily harm, Minn. Stat. § 609.221, subd. 1 (2002), and third-degree assault occurs when a defendant inflicts substantial bodily harm.  Minn. Stat. § 609.223, subd. 1 (2002).  Great bodily harm is defined as a bodily injury that creates a high probability of death, causes serious permanent disfigurement, or 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).  Substantial bodily harm is defined as a bodily injury that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member.  Minn. Stat. § 609.02, subd. 7a (2002). 

            Here, appellant struck the victim in the head with a baseball bat, causing him to suffer broken facial bones.  Thus, it is undisputed that at the very least appellant's conduct caused substantial bodily harm and therefore constituted third-degree assault.  But as indicated by the state and contrary to appellant's argument, evidence shows that the victim suffered protracted and possibly permanent loss or impairment of his facial nerves.  At trial, the victim's surgeon testified that several weeks after the incident, the victim still had dysfunction of the left frontal branch of his facial nerves as well as decreased sensation in his left anterior cheek.  The surgeon also testified that the nerve damage to the victim's face could take up to two years to heal or may never heal.  In addition, the victim testified that at the time of trial, five months after the incident, he still experienced numbness on the left side of his face and complete loss of sensation on his left cheek because of nerve damage.  Because of these impairments, the victim has difficulty talking and cannot raise his left eyebrow. 

            Therefore, consistent with the jury's determination, the evidence indicates that the victim's injuries are protracted and possibly permanent, thus satisfying the "great bodily harm" element of first-degree assault.   And we therefore conclude that appellant has not met his "heavy burden" of showing that the district court's error was prejudicial and affected the outcome of the case. 

III.

            In his pro se brief, appellant argues that the prosecutor engaged in misconduct.  Appellate courts reviewing claims of prosecutorial misconduct "will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  There are two distinct harmless-error standards for prosecutorial misconduct; serious misconduct will be found "harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error," while for less serious misconduct, the standard is "whether the misconduct likely played a substantial part in influencing the jury to convict."  Id. (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

            Generally, a prosecuting attorney cannot personally endorse the credibility of witnesses.  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).  A prosecutor's closing argument "need not be colorless, [but] it must be based on the evidence produced at trial, or the reasonable inferences from that evidence."  Id. at 363 (quotation omitted).  A "prosecutor is free to specifically argue that there is no merit to a particular defense in view of the evidence or no merit to a particular argument."  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  But a prosecutor may not belittle the defense in the abstract or suggest a defendant raised a particular defense because it was the only defense that "might work."  State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).  And the prosecutor may "point to circumstances which cast doubt on a witness' veracity or which corroborates his or her testimony, but he may not throw onto the scales of credibility the weight of his own personal opinion."  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).     

            Here, appellant argues that the prosecutor engaged in misconduct by stating: 

[Appellant's attorney] has a pad where he lays out the discrepancies that he has gleamed or seen in the testimony of people who heard things different[ly] or saw things different.  But he didn't have one there from anyone who saw or heard anything consistent with what the defendant said.  Specifically, to what [appellant] said [the victim] said, "I'm going to f--k you up."  No one bolsters that, not [the victim], not [the eyewitnesses]."

            Appellant contends that the prosecutor's statement improperly shifted the burden of proof.  Throughout a criminal trial, the state has the burden to prove all elements of the crime beyond a reasonable doubt, and the burden of proving innocence cannot be shifted to the defendant.  In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071 (1970). A prosecutor may not shift the burden of proof to the defendant by commenting about the defendant's failure to call witnesses or to present evidence.  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).

            But even if the prosecutor's statement was improper, we conclude that the district court remedied the statement with a curative instruction.  See State v. Race, 383 N.W.2d 656, 664 (Minn. 1986) (stating that prosecutorial error is curable by corrective instructions).  At trial, appellant objected to the statement and requested the district court to inform the jury that appellant did not have an obligation to prove his innocence or his version of the events.  The state argued that it had not shifted the burden; it was merely rebutting appellant's attempt to discredit the witnesses by discrepancies in their stories.  Appellant proposed a curative instruction to inform the jury that it was to consider the evidence as a whole, rather than closing arguments, to remedy the statement.  Appellant then informed the jury that appellant did not have an obligation to present any evidence or witnesses to bolster his defense because it was the state's burden to prove his guilt beyond a reasonable doubt.  Moreover, as previously referenced, considering the large amount of evidence indicating appellant's guilt, we cannot say that any misconduct likely played a substantial part in influencing the jury to convict.

            Appellant also argues that the prosecutor engaged in misconduct by bolstering the credibility of certain witnesses during closing arguments.  Appellant cites several examples from the state's closing argument and rebuttal.  First:  "[The victim] is a business man.  And [the victim] is engaged in a trade in order to make money.  . . .  That is to build your clientele, keep your clientele, to keep them coming back, you have to treat them well."  Second:  "It makes no sense that [the victim] would assault someone in his own barber shop."  Third:  "I submit to you that the defendant's testimony . . . was made up."  But again, even if the prosecutor improperly vouched for the victim's credibility, we cannot say that any misconduct likely played a substantial part in influencing the jury to convict.   

IV.

            Appellant also argues in his pro se brief that the evidence is insufficient to sustain his conviction.  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).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  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).  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).  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). 

            Here, appellant argues that the evidence shows that he acted in self-defense, and he extracts parts of the two eyewitnesses' testimony to support his self-defense theory, including parts that indicate that he felt threatened.  It is undisputed that appellant asked the victim if he was threatening him.  The victim testified that he told appellant he was not threatening him but if he continued to brag about his earlier conduct in the convenience store, he would have to leave.  In contrast, appellant testified that the victim walked over to him, pointed at his head, and said, "I'll f--k you up."  Ultimately, appellant's entire self-defense theory relies on the victim's alleged threatening comment made as he approached appellant.  But the victim denied making any threatening comment to appellant and neither eyewitness testified that the victim made any such comment.  The jury's verdict indicates that the jury did not find appellant credible, did not find that the victim made any threatening comment to appellant, and ultimately did not find that appellant acted in self-defense.  And this court will not disturb a verdict that relies on the jury resolving inconsistent testimony.  See Pieschke, 295 N.W.2d at 584.

            Appellant also argues that the evidence is insufficient to prove that he inflicted great bodily harm on the victim.  But as previously stated, the victim's surgeon testified that nerve damage to the victim's face could take years to heal or could never heal.  And appellant testified that at the time of trial, which was five months after the incident, he was still experiencing numbness on the left side of his face and complete loss of sensation on his left cheek.  Therefore, we conclude that the evidence supports the jury's finding that appellant inflicted great bodily harm on the victim, and therefore, was guilty of first-degree assault.

            Affirmed.