State of Minnesota, Respondent, vs. John Walter Moore, 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This opinion will be unpublished and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

A03-1237

 

State of Minnesota,
Respondent,
 
vs.
 
John Walter Moore,
Appellant.

 

Filed September 28, 2004

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. K2-02-3941

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of first-degree assault, appellant John Walter Moore argues that the district court erred in (1) instructing the jury on the "great bodily harm" element of the offense by removing the alternative language that the injury create a "high probability of death" and adding language that the loss of a tooth, which the assault had caused, satisfied the element of the offense; and (2) allowing the treating emergency-room physician to testify that the victim's broken jaw constituted "great bodily harm."  We affirm.

FACTS

            St. Paul Police Officer Felicia Reilly responded to a call about a domestic dispute.  When Reilly arrived at the scene, she saw three young women running around outside the house, waving their arms and screaming, and an older woman, who was identified as the victim, with a small boy.

            The victim's mouth was bleeding, and she was having difficulty talking.  Reilly described the victim as "very emotionally upset and obviously frightened."  The victim told Reilly that she had gone out the night before with a girlfriend and that, when she came home, her boyfriend, the appellant, was very angry.  The victim said that appellant grabbed her and dragged her into the bedroom, screaming, "[Y]ou ain't going to do me like this, I'm going to kill you, I'm going to shoot you."  The victim said that appellant threw her on the bed and choked her and "fisted" her three times in the mouth.  Reilly interpreted "fisted" to mean punched with a closed fist.

            The victim's trial testimony differed from her statement to Reilly.  The victim testified that appellant demanded to know where she had been and hit her arms and her legs.  The victim did not recall if appellant hit her in the mouth and thought that it was the pressure of appellant lying on her that caused her mouth to bleed.

            The victim was taken to a hospital emergency room, where she was seen by Mark Gibson Rayner, M.D., an ear, nose, and throat surgeon.  Rayner testified that the victim had sustained injury to the left side of her face, with bruises on her left cheekbone.  Rayner testified that the victim "had an obvious external deformity of the jaw with a bite, open bite to the right" and that "[e]xamination of her oral cavity showed blood in the oral cavity and a laceration of the left gingiva or the gum line in the posterior or the back aspect on the left jaw and a malocclusion or inability to put her teeth together in the proper position."  The victim was in acute pain, which morphine did not completely relieve.  X-rays showed a complete fracture all the way through the mandible with about a centimeter of displacement involving a wisdom tooth.  Rayner testified that the fracture was consistent with the victim being punched with a fist.

            Immediate surgery was necessary because, due to the type of fracture, there was a high risk of infection if it was not repaired within 24 hours.  A titanium plate and screws were attached to the victim's jaw to align the jaw correctly and provide strength and stability for healing.  Because the victim's wisdom tooth had gone through the roof of her mouth and was nonviable, it had to be removed.  Rayner testified that because the fracture did not heal properly, the victim would require further surgery to remove dead bone and either insert new plates or a bone graft.

            After reviewing the legal definition of great bodily harm, Rayner opined that the victim's injury fell within the criterion of a "protracted loss or impairment of the function of any bodily member or organ."  Rayner further testified:

            Q.        Why does it meet that criteria?

 

            A.        She has continued loss of her abilities to chew and to use her lower mandible and it's undetermined on when that would be resolved.

 

            Q.        Was there a loss of a bodily member?

 

            A.        Well, if you consider a tooth a member, yes. 

 

            On cross-examination, Rayner opined that the victim's injury did not create a high probability of death or cause a serious permanent disfigurement.  Rayner disagreed with defense counsel's assertion that a wisdom tooth is unnecessary for jaw function and testified that, if a person has normal dentition, the wisdom tooth is used for chewing.  When asked whether the victim's injury fell within the definition of substantial bodily harm, Rayner testified that, if the injury was temporary, it would meet that definition, but if it required ongoing surgical work, it would not.  Rayner opined that the victim was "more likely going to have difficulty with [the injury] for the rest of her life," explaining that she had lost a tooth and would start to lose bone where the tooth had been.

The jury found appellant guilty of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2002) (great bodily harm), and third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2002) (substantial bodily harm).  The jury found appellant not guilty of second-degree assault.  The district court sentenced appellant on the first-degree assault conviction to an executed term of 139 months in prison, within the presumptive range for a severity-level-IX offense committed by a person with appellant's criminal-history score.  This direct appeal challenging the conviction followed.

D E C I S I O N

I.

            Appellant argues that the district court erred in instructing the jury on the definition of great bodily harm.

            The district court has broad discretion in selecting language for jury instructions.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).  "[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case."  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

            Minnesota law defines great bodily harm as "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 district court instructed the jury:

"Great bodily harm" in this case means bodily harm that causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm.  It is not necessary for the State to prove that the defendant intended to inflict great bodily harm, but only that the defendant intended to commit the assault.  The loss of a tooth is a permanent loss of the function of a bodily member.

 

            Appellant argues that the district court erred by omitting from the jury instruction the portion of the statute that defines great bodily harm as "bodily injury which creates a high probability of death."  Appellant contends that by omitting that language, the district court minimized the difference between great bodily harm and substantial bodily harm, the latter being an element of third-degree assault under Minn. Stat. § 609.223, subd. 1 (2002).

            Appellant cites Minn. Stat. § 645.08(3) (2002), which states that general words are to be restricted in their meaning by preceding particular words.  But in State v. Currie, 400 N.W.2d 361, 366 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987), this court rejected the argument that "serious permanent disfigurement" requires proof of an injury that creates a high probability of death.  The court explained that "these two clauses are independent and refer to different types of injuries.  Injuries that create a high probability of death need not be particularly disfiguring, nor are all disfiguring injuries necessarily life-threatening."  Id.

            There was no evidence that the victim's injury created a high probability of death, and the district court instructed the jury on the two specific clauses in the definition of great bodily harm that were relevant to this case.  The district court also instructed the jury that substantial bodily harm "means bodily harm 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."  The district court's instruction on the definition of great bodily harm correctly stated the law, and, read as a whole, the instructions on the definitions of great bodily harm and substantial bodily harm fairly and adequately stated the law applicable to this case.  Because there was no evidence that the victim's injury created a high probability of death, the district court did not abuse its discretion by omitting that language from the jury instruction.

            Appellant also argues that by specifically instructing the jury that "[t]he loss of a tooth is a permanent loss of the function of a bodily member," the district court effectively directed a verdict against appellant on the first-degree assault charge.  The supreme court has cautioned against fashioning jury instructions based on language from specific case holdings:

We have noted that it is neither appropriate nor good policy for trial courts to use texts of reported decisions of appella[te] courts because, when used out of context, such texts are sometimes misleading.  We also have noted:  A court, through its instruction, is not authorized to give prominence to and emphasize particular facts disclosed by the evidence, thus singling out elements or views upon the controversy which were proper for argument and discussion by counsel, but which might very justly be declined to be thus noticed by the court.

 

. . . Emphasizing evidence is properly the function of counsel in closing argument, not by the court in its instructions.

 

Alholm v. Wilt, 394 N.W.2d 488, 491 (Minn. 1986) (citations and quotation omitted).

While the supreme court has cautioned against using language from specific case holdings for jury instructions, the instruction that "[t]he loss of a tooth is a permanent loss of the function of a bodily member," correctly stated the law.  See State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984) (in rejecting the argument that there was insufficient factual basis for a plea to first-degree assault, this court concluded that "the loss of a tooth is a permanent loss of the function of a bodily member"), review denied (Minn. Feb. 6, 1985).  Even if giving the instruction was error because it emphasized particular evidence, a conviction will not be reversed based on an error in jury instructions unless the error was prejudicial.  See State v. Hysell, 449 N.W.2d 741, 744-45 (Minn. App. 1990) (affirming conviction when claimed errors in jury instructions did not prejudice defendant), review denied (Minn. Mar. 15, 1990).

            There was considerable evidence about the protracted impairment of the function of the victim's jaw.  Rayner testified that the victim continued to experience loss of her abilities to chew and use her lower mandible and that it was undetermined when the problem would be resolved.  Rayner also testified that, at the time of trial, the victim was doing poorly because the fracture had not healed properly and would require further surgery, involving either replacing the plates in her jaw or a bone graft using bone from another part of the victim's body.  Rayner testified that it was more likely that the victim would have difficulty with the injury to her jaw for the rest of her life than that it would be temporary.  The victim testified that she still had to eat a lot of soft food and that her jaw was not doing very well.   

Furthermore, during deliberations, the jury submitted questions regarding the legal definition of protracted versus temporary loss or impairment, and the dictionary definition of "protracted," showing that it focused on the impairment to the victim's jaw, not the loss of the tooth, which was undeniably permanent.  Based on our review of the entire record, we conclude that any error in instructing the jury regarding the loss of a tooth was not prejudicial.

II.

            Appellant argues that the district court erred in allowing the state's medical expert to opine that the victim's injuries met the legal definition of great bodily harm.

            "The admission of expert testimony is within the broad discretion accorded a trial court."  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).  An expert witness may give testimony on the ultimate issue that the fact-finder must decide.  State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984); Minn. R. Evid. 704.  The primary criterion for admissibility is whether the opinion testimony would be helpful to the fact-finder.  State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982).  But the supreme court "has not allowed ultimate conclusion testimony which embraces legal conclusions or terms of art."  State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).

            Appellant cites State v. Chambers, 507 N.W.2d 237 (Minn. 1993), and State v. Provost, 490 N.W.2d 93 (Minn. 1992), to argue that the district court erred in allowing Rayner to opine that the victim's injuries constituted great bodily harm.  Both Chambers and Provost, however, involved testimony by a medical expert on the issue of defendant's intent.  The supreme court explained:

Because mens rea is a legal construct, a medical opinion is being improperly elicited on a mixed question of law and fact. . . . 

 

            In our view, psychiatric opinion testimony is not helpful on whether a person capable of forming a specific intent did in fact formulate that intent.  Though a subjective state of mind may at times be difficult to determine, there is no mystery to mens rea, the latinism notwithstanding.  Jurors in their every day lives constantly make judgments on whether the conduct of others was intentional or accidental, premeditated or not.  Thus, to do something intentionally is to do it with the purpose of accomplishing that something.  To set a person on fire with the purpose of ending that person's life is to torch with intent to kill.  The psychiatrist may look at what the defendant said and did to give an opinion whether the torching was done with intent to kill or to hurt, but the factfinder can do this too; indeed, it is the factfinder's job to do it, not the expert's as a thirteenth juror.

 

Chambers, 507 N.W.2d at 239 (quoting Provost, 490 N.W.2d at 101-02 (citations and quotation marks omitted)).

            In contrast to the authority cited by appellant, Rayner's testimony related to a medical matter rather than a matter within the common knowledge of jurors.  After opining that the victim's injury met the legal definition of great bodily harm, Rayner went on to explain the factual basis for his opinion, testifying that the victim had continued loss of her abilities to chew and use her lower mandible and that it was undetermined when the problem would be resolved.  By providing a medical explanation of the victim's injury in the context of the legal definition, Rayner's testimony was helpful to the jury, and the district court did not abuse its discretion in admitting it.  But cf. Saldana, 324 N.W.2d at 229, 231-32 (in criminal sexual conduct case, expert opinion that sexual intercourse was nonconsensual and that victim had not fantasized or fabricated her story was inadmissible).

            Affirmed.