State of Minnesota, Respondent, vs. Andrew Sookhar, Appellant.

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State of Minnesota, Respondent, vs. Andrew Sookhar, Appellant. A06-1706, Court of Appeals Unpublished Decision, November 20, 2007

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).






State of Minnesota,
Andrew Sookhar,



Filed November 20, 2007


Stoneburner, Judge


Hennepin County District Court

File No. 05080191


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Melissa Sheridan, Assistant State Public Defender, Suite 320, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Minge, Judge.


U N P U B L I S H E D   O P I N I O N

Stoneburner, Judge

On appeal from convictions of first-degree aggravated robbery and felony domestic assault, appellant argues that the evidence is insufficient to support the jury's determination that the victim suffered bodily harm, which is an element of each offense.  Appellant also asserts that the district court abused its discretion by admitting evidence of his prior domestic assault against the victim.  We affirm. D E C I S I O N

I.                   Sufficiency of evidence

            Appellant Andrew Sookhar argues that the evidence is insufficient to support his convictions of aggravated robbery and felony domestic assault, both of which require that bodily harm be proved beyond a reasonable doubt.  In considering a claim of insufficient evidence, we carefully review the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to have reached the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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).  Evidence presented through a single witness may be sufficient to sustain a conviction.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  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 the defendant was guilty of a charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

Sookhar was charged with aggravated robbery and domestic assault after he struck his girlfriend (the victim) on the left side of her face and grabbed her cellular telephone.  See Minn. Stat. §§ 609.245 (aggravated robbery),  .2242, subd. 4 (felony domestic assault) (2004).  "Bodily harm," as used in the aggravated-robbery and domestic-assault statutes, means "physical pain or injury, illness, or any impairment of physical condition."  Minn. Stat. § 609.02, subd. 7 (2004).  At trial, the victim testified that the blow "hurt a little."  The victim did not suffer any discoloration, bruising, or injury.             

Sookhar argues that under existing case law, to establish bodily harm as defined in Minn. Stat. § 609.02, subd. 7, the state must present evidence of something more than "a little" pain.  Construction of a statute is an issue of law, reviewed de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  Sookhar concedes that the statute does not prescribe a particular quantum of pain to meet the definition of bodily harm, but nonetheless asserts that negligible pain without concurrent injury is not legally sufficient.  Under the plain language of section 609.02, subdivision 7, pain alone is sufficient to constitute bodily harm, and the fact that the pain involved in cases cited by Sookhar was greater than the pain testified to by the victim in this case is irrelevant.  The victim's testimony in this case is sufficient to support the jury's finding that Sookhar inflicted bodily harm.



II.               Evidence of prior domestic abuse

Sookhar also argues that the district court erred by admitting evidence of his April 2003 assault of the victim.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos,658 N.W.2d 201, 203 (Minn. 2003).  An appellant claiming that the district court abused its discretion by admitting evidence bears the burden of proving that the admission was both erroneous and prejudicial.  State v. Rhodes, 627 N.W.2d 74, 84 (Minn. 2001). 

Minn. Stat. § 634.20 (2004) permits the admission of "[e]vidence of similar conduct by the accused against the victim of domestic abuse . . . unless the probative value is substantially outweighed by the danger of unfair prejudice . . . ."  See State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004) (expressly adopting Minn. Stat. § 634.20 as a rule of evidence for the admission of evidence of similar conduct by the accused against the alleged victim of domestic abuse).  A two-part inquiry is used to determine the admissibility of evidence of prior acts of domestic abuse: (1) whether "the challenged testimony [is] evidence of similar prior conduct" and (2) whether the "probative value [of the testimony is] substantially outweighed by the danger of unfair prejudice."  State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000).  Sookhar concedes that his prior assault of the victim is evidence of similar conduct, but he argues that the evidence was more prejudicial than probative.

"[U]nfair prejudice is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage."  State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).  The supreme court has recognized the probative value of evidence of past acts of domestic violence committed by the same defendant against the same victim.  McCoy, 682 N.W.2d at 161 (discussing the uniqueness of domestic abuse and how admission of evidence of prior assaults can assist the jury by providing a context with which it can better judge the credibility of the principals in the relationship).  In this case the victim's testimony about the prior assault was not inflammatory or unfairly prejudicial, and the district court gave a limiting instruction about use of this evidence, both when it was admitted and at the close of trial.  We conclude that the district court did not abuse its discretion by admitting evidence of the prior assault in this case.