State of Minnesota, Respondent, v. Alfredo Perez Ortigoza, Appellant.

State of Minnesota, Respondent, v. Alfredo Perez Ortigoza, Appellant. A05-1209, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1209

 

State of Minnesota,

Respondent,

 

v.

 

Alfredo Perez Ortigoza,

Appellant.

 

Filed ­­­May 30, 2006

Affirmed

Dietzen, Judge

 

Rice County District Court

File No. K1-04-536

 

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

 

G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Rice County Courthouse, 218 Northwest Third Street, #200, Faribault, MN 55021 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Lydia Villalva Lijó, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges his convictions of interference with an emergency call and misdemeanor domestic assault, arguing that the evidence was insufficient to convict him of the offenses.  Because we conclude that the evidence, viewed in the light most favorable to the jury's verdict, was sufficient to convict appellant of both offenses, we affirm.

FACTS

            Appellant Alfredo Perez Ortigoza lived with his girlfriend, Reynalda Diaz, and her daughter in a mobile home.  When appellant arrived home from work at 8:00 p.m., he intended to take a shower.  Because Diaz was doing laundry in the home's only bathroom, he asked her to leave.

Appellant and Diaz dispute what happened next.  Appellant testified that after showering, he walked to the kitchen and poured himself some juice.  As he walked past the bathroom, he claimed that Diaz told him that "it was her [home]" and uttered an obscenity at him.  When appellant asked, "What did you say?", Diaz repeated the insult, and then grabbed and scratched appellant on the neck.  Appellant pushed Diaz away and left the home. 

Diaz testified that after appellant finished taking a shower he asked her why her breath smelled like liquor and told her that he was tired of her drunkenness.  She then testified that he hit her on the left side of her face, grabbed her by the neck with both of his hands, and told her, "I'm not going to put up with this anymore.  I don't want to live with you anymore.  I want to kill you." 

Diaz testified that she scratched appellant's neck, pushed him back; told him, "I want you to let me go," and ran toward the telephone to call the police.  When she reached the telephone, appellant thrust himself on top of her, grabbed the telephone and threw it to the floor, and then ripped the cord from the telephone.  Diaz then left the home with her daughter and attempted to drive away, but was blocked by appellant.  Diaz then returned to the home, taped the telephone cord back together, and called the police. 

The responding officer, Randy Baumgard, testified that he observed some redness on the left side of Diaz's face but that he saw no marks and bruises.  He found the ripped telephone cord in the home. During the initial interview, Diaz acknowledged that she scratched appellant during their argument. 

Appellant was charged with interference with an emergency call in violation of Minn. Stat. § 609.78, subd. 2 (2004), and misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1 (2004).  Appellant pleaded not guilty to both charges.

At trial, the state called Diaz, her 14-year-old daughter, the 911-operator, and Officer Baumgard to testify.  Diaz's daughter testified that she was sitting on the living room couch watching television when she heard appellant and Diaz arguing.  She did not observe appellant hit Diaz, but saw appellant rip the telephone cord.  She also corroborated the attempted escape from and return to the home.  The 911 operator testified that based on the time of the telephone call that the assault occurred at approximately 9:30 p.m.

The defense called appellant to testify.  Appellant denied striking Diaz with his fist.  He also denied interfering with her efforts to use the telephone, throwing the telephone to the ground, or ripping the telephone cord.  The jury found appellant guilty of both charges. This appeal follows.

D E C I S I O N

Appellant contends that the evidence is insufficient for the jury to have concluded beyond a reasonable doubt that he interfered with the 911 call or assaulted Diaz.  On a claim of insufficiency of the 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, was sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and the weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).  We 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). 

Appellant argues that the evidence was insufficient to sustain his conviction of interference with an emergency call. "A person who intentionally interrupts, disrupts, impedes, or interferes with an emergency call or who intentionally prevents or hinders another from placing an emergency call, . . . is guilty of a gross misdemeanor[.]"  Minn. Stat. § 609.78, subd. 2 (2004).

            Appellant argues that the evidence was insufficient because more than an hour passed from approximately 8:30 p.m., the time Diaz testified the argument ensued, to approximately 9:30 p.m., the time the 911 operator testified that the call was received.  In effect, appellant argues that Diaz's delay in making the call indicates that her testimony was untrue or fabricated.  But appellant's argument goes to the credibility of Diaz's testimony and the weight it should be given.  The jury had before it testimony that appellant prevented Diaz from making the 911 call by throwing the telephone and ripping the telephone cord.  Based on that testimony, the jury could reasonably have concluded that appellant was guilty of the crime charged.   

Appellant next argues that the evidence was insufficient to sustain his conviction of misdemeanor domestic assault because the only physical evidence against him was that the left side of Diaz's cheek was red.  A person is guilty of misdemeanor domestic assault if he or she "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another [household member]."  Minn. Stat. § 609.2242, subd. 1 (2004). 

Here, there was sufficient evidence for the jury to believe that appellant assaulted Diaz.  Viewing the evidence in the light most favorable to the jury's verdict, the jury could have reasonably believed Diaz, who testified that appellant hit her on the left side of her face and threatened to kill her, and that the redness on her cheek was evidence of an assault.  Therefore, the evidence was sufficient for the jury to convict appellant of misdemeanor domestic assault.

            Affirmed.