In the Matter of the Welfare of: A.B.R.

In the Matter of the Welfare of: A.B.R. A07-0983, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and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

IN COURT OF APPEALS

A07-0983

 

 

In the Matter of the Welfare of: A.B.R.

 

 

Filed December 31, 2007

Affirmed in part, reversed in part, and remanded

Muehlberg, Judge*

 

 Hennepin County District Court

File No. 27-JV-07-800

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant A.B.R.)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

Considered and decided by Willis, Presiding Judge; Wright, Judge; and Muehlberg, Judge.

U N P U B L I S H E D   O P I N I O N

MUEHLBERG, Judge

Appellant challenges her extended juvenile jurisdiction (EJJ) adjudication alleging (1) discovery violations by the state; (2) jury misconduct; (3) admission of hearsay testimony; (4) prosecutorial misconduct; (5) cumulative effect of the errors;
(6) insufficient evidence; and (7) insufficient written findings to support the disposition.  Because the district court did not abuse its discretion and the evidence amply supports the jury verdict, we affirm appellant's convictions.  But because we conclude that the district court's dispositional order was not supported by sufficient findings, we reverse in part and remand.

FACTS

Appellant A.B.R. was charged with two counts of second-degree assault, arising from an incident in January 2007 that resulted in a stab wound to her boyfriend, S.D.  A.B.R. was 17 at the time of the offense, and the state sought presumptive certification to try A.B.R. as an adult.  The district court denied the state's certification motion and retained the case as an EJJ matter. 

            A jury trial was held in March 2007.  At trial, S.D. testified that he and A.B.R. lived together in an apartment owned by A.B.R.'s grandfather.  On January 17, 2007, he and A.B.R. and two other high-school students spent the evening drinking vodka in the apartment.  S.D. learned of an uncle's death, became upset, and went to lie down and cry in the bedroom around 1:30 a.m.  A.B.R. came into the bedroom and told him that he needed to "snap out of it."  When A.B.R. came into the bedroom a second time, she became more agitated and slapped him several times.  Frustrated, S.D. kicked a hole in the wall.  A.B.R. returned a third time, stood in the doorway, and yelled at S.D.  S.D. testified that A.B.R. did not have anything in her hands at the time, but then testified that as he tried to leave the bedroom, he was cut by a knife.  He offered this explanation:

A:        . . . I cut myself by accident.

Q:        How did you cut yourself, sir?

A:        I accidentallythere was a knife in her hand.  I don't know.  I was feeling sad, I guess, about my uncle.  And [A.B.R.] told me about one time when, I don't know, her and [a friend] told me about when they tried cutting themselves.  And I didn't see like what the big appeal about it was, and they're like, you don't know until you do it.  And so then as I was leaving, I don't know, she was just probably coming to make sure I was all right.  I don't know, maybe yell at me some more.

            And then I was going to leave and then I just did it real quick, because I didn't think I was going to, I was just going to do it a little.  And then I did it pretty hard apparently.  Because after that I just went in the living room and [the friend] was in there, and I got yelled at and the cut was pretty deep.

 

            S.D. testified that he bandaged the wound and returned to the bedroom, where he discovered A.B.R. having an anxiety attack.  After calming A.B.R. down, he returned to the living room, where one of his friends remained.  A.B.R. then came out of the bedroom, removed all of the knives from the kitchen, and put them in the bathroom.  She began hitting S.D. in the chest.  S.D. restrained her by grabbing her wrists, and his wound began bleeding again.  A.B.R. then rebandaged the wound.

S.D. and the friend planned to sleep in the living room, but A.B.R. told them they had to leave.  S.D. testified that A.B.R. came into the living room with a knife, pointed it at his stomach, and counted down from 14.  She told them that she would call the police if they were not out of the apartment by the time she got to zero.  While S.D. and his friend gathered their clothes and belongings, A.B.R. chased S.D. around the apartment with the knife.  S.D. and his friend then left for the hospital. 

            Dr. David Ladmer, who treated S.D., testified that S.D. told him that his girlfriend cut him with a kitchen knife.  Ladmer also testified that the wounda "slice" across the dorsal aspect of his right forearmwas inconsistent with a self-inflicted wound.  Detective Kurt Bahr, an officer who spoke with S.D. at the hospital, also testified that S.D. identified A.B.R. as the person who cut his arm.  A.B.R. objected on the grounds of hearsay, but the district court allowed Ladmer's testimony on the basis of the medical exception and the residual exception and allowed Bahr's testimony for impeachment purposes.  The district court later ruled that Bahr's testimony was admissible as substantive evidence following A.B.R.'s cross-examination of him. 

            During the trial, the state gave A.B.R.'s counsel a number of previously undisclosed photographs, including approximately 20 photos of the apartment, 24 of A.B.R.'s seized clothing, and six to eight of A.B.R. taken during the booking process.  A.B.R. objected to the introduction of the photos of her and of the apartment.  The district court found that while the photos were produced untimely, A.B.R. had not met the burden of showing prejudice.  The next day, A.B.R.'s counsel moved for dismissal with prejudice, or in the alternative, mistrial, arguing that the photos of A.B.R. showed bruises and raised a possible self-defense claim of which she had not been previously aware.  The district court denied the motions, but granted a continuance and ruled that A.B.R. would be permitted to recall S.D. for additional cross-examination and be able to make a second opening statement at the beginning of her case.    

            Out of the presence of the jury, the district court notified the parties that two jurors had expressed frustration over the "fits and starts" of the trial.  One juror expressed concern that the jury might rush to reach a verdict quickly, in order to get it over with.  The district court advised the parties of its intention to remind the jury of its obligation to carefully consider the evidence and told the parties to "get your acts together" and not waste any more time.  A.B.R.'s counsel moved for a mistrial.  At the state's suggestion, the district court asked A.B.R. personally whether or not she wanted a mistrial.  A.B.R. conferred with her attorney and her mother.  Against the advice of her attorney, she declined to move for a mistrial.  As a result, the district court did not rule on A.B.R.'s counsel's motion.  Upon the jury's return, the district court instructed the jury not to let frustration impact their decision.  

            The district court instructed the jury to consider the two counts of second-degree assault and to also consider the lesser included offenses of fifth-degree assault.  The jury returned guilty verdicts for second-degree assault with a dangerous weapon and infliction of substantial bodily harm and second-degree assault with a dangerous weapon. 

            The case was subsequently returned to the juvenile division for disposition.  A.B.R. moved for a stay of disposition pending appeal of the jury verdict, which was denied.  The district court imposed an adult criminal sentence of 21 months but stayed the sentence in favor of juvenile disposition, which required probation until A.B.R. turned 21 and completion of the Hennepin County Home School long-term program. 

            This appeal followed.

D E C I S I O N

I.  Discovery

A.B.R. argues that the state's discovery violations require a new trial.  A reviewing court will not overturn the district court's decision concerning a discovery violation unless there was a clear abuse of discretion.  State v. Bailey, 677 N.W.2d 380, 397 (Minn. 2004).  After a discovery violation has occurred, "a district court is particularly suited to determine the appropriate remedy and has wide discretion in deciding whether to impose sanctions."  Id. (quotation omitted); accord State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  When determining the remedy, the district court should consider the reason disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying such prejudice with a continuance, and any other relevant factors.  Lindsey, 284 N.W.2d at 373.   

A.                Photographs

            It is undisputed that the photographs were produced late.  Here, the district court noted that "the lateness of production is a matter of great concern to the Court," but concluded that A.B.R. had not met the burden of showing prejudice.  It further noted that it would "entertain a motion for a continuance for some additional time" if defense counsel felt that the continuance would be necessary.  Defense counsel then moved for dismissal with prejudice, or in the alternative, mistrial.  The district court denied the motions and ruled that the defense would be permitted to recall S.D. for additional cross-examination and to make a second opening statement at the beginning of her case.  Upon resuming, the district court granted the defense's motion in limine to prohibit the state from using the photos of A.B.R.'s arms.  The district court, however, permitted the state to ask the police officers if they had an opinion as to what, if anything, was on A.B.R.'s arms and permitted the defense to use the photographs.

            A.B.R. argues that the remedy to the discovery violation was inadequate because if she had known about the photos earlier, she could have argued self-defense, which would have changed the voir dire, opening statement, and cross-examination of S.D.  Further, she argues that an expert could have evaluated whether the photos showed dried blood, as claimed by the officer who took the photographs, or whether the photos showed bruising consistent with self-defense. 

            But as the district court concluded, these photographs do not provide new information.  If the photos show blood, they are consistent with S.D.'s testimony that A.B.R. bandaged his wound, and if they show bruises, they are consistent with S.D.'s testimony that at one point he grabbed A.B.R. by both wrists to move her out of the way and that he needed to restrain A.B.R. to prevent her from punching him.  On this record, the district court did not abuse its discretion in concluding that the late disclosure of the photographs was not substantially prejudicial to A.B.R.

B.                 The expert testimony

A.B.R. argues that the state violated discovery procedures by failing to disclose that Dr. Ladmer would testify as an expert to establish the medical necessity of learning the identity of the assailant.  But A.B.R. also concedes that this "is not a discovery violation, as such."  Accordingly, we do not address this argument.

II.  Juror misconduct

A.B.R. argues that the district court abused its discretion by failing to determine the nature and extent of the comments that caused at least one juror to fear that the jury might rush to judgment.  Essentially, A.B.R. argues that by asking her whether she wanted to move for a mistrial instead of ruling on defense counsel's motion for a mistrial, the district court failed in its duty to investigate the possible jury misconduct. 

To justify a new trial on the basis of jury misconduct, a defendant must prove not only misconduct, but also prejudice due to the misconduct.  State v. Peterson, 262 N.W.2d 706, 707 (Minn. 1978).  A district court properly grants a mistrial when it "declines to continue a trial after an error has occurred that will undoubtedly subject a verdict of conviction, if one is reached, to reversal."  State v. Gouleed,720 N.W.2d 794, 802 (Minn. 2006) (citing Illinois v. Somerville, 410 U.S. 458, 464, 93 S. Ct. 1066, 1070 (1973)).  The decision whether to grant or deny a mistrial or a new trial lies within the discretion of the district court and will not be overturned absent a clear abuse of discretion.  State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993) (new trial); State v. Johnson, 672 N.W.2d 235, 239 (Minn. App. 2003) (mistrial), review denied (Minn. Mar. 16, 2004). 

            Where the parties are apprised of the potential juror misconduct, but do not seek a hearing or other judicial remedy prior to the verdict, the ability to challenge the misconduct is waived.  State v. Yant, 376 N.W.2d 487, 491 (Minn. App. 1985), review denied (Minn. Jan. 18, 1986).  Here, A.B.R. was apprised of the misconduct and personally waived her right to seek a mistrial.  Accordingly, we conclude that she has waived the ability to challenge the misconduct.

            A.B.R. argues that the prerogative to move for a mistrial belongs to the defense counsel, rather than personally to the defendant.  But neither A.B.R. nor her attorney objected at trial, and therefore this argument is waived.  State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999).   To overcome such a waiver, an appellant must demonstrate that the district court committed plain error.  Minn. R. Crim. P. 31.02 (stating that appellate court may consider plain error affecting substantial rights even if such error was not raised before district court).  To determine if substantial rights were affected, we analyze whether the "error was prejudicial and affected the outcome of the case."  State v. Griller, 583 N.W.2d 736, 741 (Minn.1998).  Thus, the waiver is overcome if it was plain error for the district court to defer to A.B.R.'s decision not to seek a mistrial over A.B.R.'s counsel's motion for a mistrial. 

The U.S. Supreme Court has "recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal."  Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983).  Additionally, the Minnesota Rules of Professional Conduct require attorneys to "abide by the client's decision . . . as to a plea to be entered, whether to waive a jury trial and whether the client will testify."  Minn. R. Prof. Conduct 1.2(a).  An attorney, however, must consult with the client on matters of trial strategy only when the matter involves a fundamental right.  Erickson v. State, 725 N.W.2d 532, 536 (Minn. 2007). 

            Thus, the question of whether it was plain error to allow A.B.R. to waive the investigation of juror misconduct or the right to move for a mistrial hinges on whether or not this is a fundamental right or a matter of strategy.  This situation is more like those where personal consent of the defendant is needed than those where the counsel may act alone.  The right to a jury trial itself is fundamental and must be personally waived by the individual defendant.  State v. Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002).  Accordingly, it seems that the right to forego investigation of that jury's possible misconduct or to seek a mistrial would also be fundamental.  Therefore, it was not plain error for the district court to accept A.B.R.'s decision regarding the mistral.

            Further, upon learning of the juror's concern that the jury might rush to judgment because of its frustration with delays, the district court instructed the jury that although it understood they were frustrated by the "fits and starts" of the trial, they must not let that frustration interfere with their judgment.  We presume that jurors follow the court's instructions.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  Therefore, because the court gave a curative instruction addressing the potential misconduct, we conclude that A.B.R. was not prejudiced by the district court's acceptance of her waiver.

III.  Hearsay testimony

A.B.R. challenges several of the district court's evidentiary rulings.  We review the district court's evidentiary rulings for abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  A reversal is warranted only when the error "substantially influences the jury to convict."  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  Appellant has the burden of establishing that the district court abused its discretion and that prejudice resulted from the ruling.  Amos, 658 N.W.2d at 203. 

A.                Dr. Ladmer's testimony

A.B.R. objects to the district court's admission of Dr. Ladmer's testimony that S.D. told him that he was cut on the forearm by his girlfriend.  The district court ruled that the statements were admissible as exceptions to hearsay through the medical treatment exception, Minn. R. Evid. 803(4), and the residual exception in Minn. R. Evid. 807.  A.B.R. challenges both bases.

The medical treatment exception to the prohibition against hearsay permits admission of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."  Minn. R. Evid. 803(4).  "[S]tatements attributing fault, including statements identifying the accused perpetrator, are ordinarily not admissible."  State v. Robinson, 718 N.W.2d 400, 404 (Minn. 2006).

In Robinson,the supreme court declined to permit identification of the perpetrator of domestic violence, noting that it was unable to determine "whether the notion that the identification of the perpetrator of domestic violence is reasonably pertinent to medical diagnosis and treatment is generally accepted in the medical profession."  718 N.W.2d at 406.  The court also stated:

We do not foreclose the possibility that we might in the future adopt a properly limited categorical rule of admissibility under the medical exception to hearsay for statements of identification by victims of domestic violence
. . . . If we were to do so, it would likely require a process akin to a Frye-Mack hearing to establish that the proposition that the identity of the perpetrator of domestic violence is pertinent to medical diagnosis and treatment of the victim is generally accepted within the medical profession.

 

Id. at 407 n.3. 

            Here, Ladmer testified that the identity of the perpetrator was pertinent to diagnosis and treatment.  But we need not determine if his testimony meets the standard suggested by Robinson, because even if it is not admissible under the medical treatment exception, it is admissible under the residual exception.

            The residual exception permits admission of a statement not otherwise covered by an exception or exclusion if it has "equivalent circumstantial guarantees of trustworthiness" and

(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 

Minn. R. Evid. 807.  The "guarantees of trustworthiness" are assessed under a "totality of the circumstances approach, looking to all relevant factors bearing on trustworthiness."  Robinson, 718 N.W.2d at 408.  In order to be admitted under this exception, the proponent must make it known to the adverse party "sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name, address and present whereabouts of the declarant."  Minn. R. Evid. 807.

            A.B.R. argues that the required notice was not given, and that she only learned of the statements "partway through the doctor's testimony."  But as Ladmer was testifying, A.B.R.'s counsel referred to his report.  In this report, Ladmer wrote, "he stated he was cut on the right arm by his girlfriend, with whom he lives."  Thus, it is apparent that A.B.R. had prior notice of the statements.  As such, the district court did not abuse its discretion by admitting the statements under the residual exception.  See Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (holding that, under an earlier version of the rule, defense attorney's reference to contested statements in opening argument demonstrated that counsel had notice of the statements).  Therefore, even if the district court erred in admitting the testimony under the medical treatment exception to hearsay, it is harmless, nonreversible error because the testimony was properly admitted under Minn. R. Evid. 807. 

B.                 Detective Bahr's testimony

A.B.R. argues that the district court erred by permitting the state to substantively use Detective Bahr's testimony that while S.D. was in the hospital waiting for treatment he told Bahr that his "girlfriend [A.B.R.]" cut his arm.  "[H]earsay admitted into evidence without, or over, objection becomes substantive evidence in a trial."  State v. Jackson, 655 N.W.2d 828, 833 (Minn. App. 2003).  Here, over A.B.R.'s objection, the district court ruled that because A.B.R.'s counsel questioned Bahr further about what S.D. told him, the testimony came in as substantive evidence.  We see no abuse of discretion in this ruling.  A.B.R. elicited the testimony she now seeks to exclude.

Further, this evidence is admissible as substantive evidence under the residual exception.  Minn. R. Evid. 807; see Oliver, 502 N.W.2d at 778-79 (holding defendant had "no ground for complaint about" admission of a prior statement to impeach a witness because the statement was admissible substantively under the residual exception); State v. Edwards,485 N.W.2d 911, 915-17 (Minn. 1992) (holding even if the district court was correct that statements were not admissible under the excited utterance exception, it abused its discretion in excluding them because they were admissible under the residual exception).

A.B.R. argues that the statements could not come in under the residual exception because the requisite notice was not provided.  But Bahr's report of the incident, like Ladmer's, includes the statements that he testified to at trial.  And as A.B.R.'s cross-examination of Bahr indicates, she had access to Bahr's report with sufficient time to prepare for trial.  Thus, the district court did not abuse its discretion by admitting Bahr's testimony as substantive evidence.

IV.  Prosecutorial misconduct

            A.B.R. argues that the prosecutor engaged in misconduct and that she is therefore entitled to a new trial.  The overarching concern regarding prosecutorial misconduct "is that such misconduct may deny the defendant's right to a fair trial."  State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).  "Prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial."  State v. Henderson, 620 N.W.2d 688, 701-02 (Minn. 2001). 

This court applies the plain-error doctrine to unobjected-to prosecutorial misconduct.  Ramey, 721 N.W.2d at 299.  The plain-error doctrine requires that there be (1) error; (2) that is plain; and (3) that affects substantial rights.  Id. at 302 (citing Griller, 583 N.W.2d at 740).  The burden remains on the defendant to demonstrate both that error occurred and that the error was plain.  Id. "An error is plain if it was ‘clear' or ‘obvious.'"  State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002).  "Usually this is shown if the error contravenes case law, a rule, or a standard of conduct."  Ramey, 721 N.W.2d at 302.  But if "the defendant demonstrates that the prosecutor's conduct constitutes an error that is plain, the burden would then shift to the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights."  Id.

A.        Appeal to the passions of the jury

A.B.R. first argues that the prosecutor improperly elicited testimony designed to appeal to the passions of the jury and create improper sympathy for the victim by "asking Dr. Ladmer irrelevant questions about all the terrible results of a knife wound, even though they had not occurred here."  Because A.B.R. did not object to this questioning or testimony, we review for plain error.  Ramey,721 N.W.2d at 299.

It is misconduct for a prosecutor to appeal to the passions or prejudices of a jury by encouraging a conviction based on sympathy for the victim rather than the evidence at trial.  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  A.B.R. argues that by asking questions about possible harm from a knife wound, the prosecutor improperly encouraged sympathy for S.D.  The challenged testimony arose as the doctor described the procedure for examining and treating S.D.  Ladmer explained that he checked for various potential problems, such as nerve damage or loss of motor function, and that none appeared to be present.  This testimony is not a clear or obvious breach of "case law, a rule, or a standard of conduct," and accordingly, its admission fails the plain-error test.  See Ramey, 721 N.W.2d at 302 (explaining plain-error test).

B.        Vouching testimony

A.B.R. argues that the prosecutor improperly elicited testimony from Dr. Ladmer that the laceration was inconsistent with self-inflicted cutting, could not have been accidental, and was consistent with an intentional assault.  A.B.R. argues that this was vouching testimony, which improperly invaded the province of the jury.  She did not object to Ladmer's testimony on this basis at trial. 

Expert testimony may be admitted if it will assist the jury in evaluating evidence or resolving factual issues.  State v. Blanche, 696 N.W.2d 351, 372 (Minn. 2005).  However, "[b]olstering a witness's credibility exceeds the proper bounds of aiding the jury to reach conclusions about matters not within its experience."  Id. at 374.  Witness credibility determinations remain strictly the domain of the jury.  Id.  It is prosecutorial misconduct to intentionally elicit vouching testimony.  Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). 

Here, Ladmer testified about the characteristics of S.D.'s wound and about the typical characteristics of self-inflicted injuries from "cutting" or suicide attempts.   Ladmer testified that S.D.'s wound was not consistent with injuries he had seen as the result of either cutting or an attempted suicide.  Unlike the testimony that has been deemed to be impermissible vouching, Ladmer did not offer his opinion on the truth or falsity of a witness's testimony, the witness's ability to tell the truth, or the probability that the witness was telling the truth.  See State v. Burrell, 697 N.W.2d 579, 601 (Minn. 2005) (expert's opinion as to whether witness has "made up" his statements or was being "truthful" was vouching); Blanche, 696 N.W.2d at 374 (expert testified that gang member would not falsely accuse another gang member);Van Buren, 556 N.W.2d at 550-52 (testimony by investigating officers that family members believed complainant's allegations).  Thus, Ladmer did not engage in vouching and the prosecutor did not commit misconduct.

C.        Misuse of impeachment evidence as substantive evidence

A.B.R. argues that the prosecutor committed misconduct by improperly using evidence admitted for impeachment purposes as substantive evidence.  But the district court ruled that Bahr's testimony would be admitted for substantive purposes.  We find no misconduct where the prosecutor acted in accordance with the district court's ruling.

 D.       Other alleged misconduct

A.B.R. alleges ten other acts of prosecutorial misconduct.  But "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection."  State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Because the remaining allegations are based on mere assertion without any indicia of obvious prejudicial error, we decline to review them.

 

 

V.  Cumulative effect of errors

            A.B.R. argues that the cumulative effect of the errors denied her a fair trial.  See State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000) (stating that "when the cumulative effect of numerous errors constitutes the denial of a fair trial, the defendant is entitled to a new trial"), review denied (Minn. May 16, 2000).  But as discussed above, the district court did not err in its rulings, nor did the prosecutor commit misconduct.  Accordingly, there is no cumulative effect. 

VI.  Sufficiency of the evidence

            A.B.R. argues that there is insufficient admissible evidence in the record to support conviction.  In considering a claim of insufficient evidence, review is limited to a painstaking analysis of the record to determine whether the evidence, 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).  We assume the jury believed the evidence supporting the state's theory of the case and disbelieved contrary evidence.  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003).  The 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 the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            Here, A.B.R. was convicted of two counts of second-degree assault, in violation of Minn. Stat. § 609.222 (2006).  Count one required the state to prove beyond a reasonable doubt that A.B.R. assaulted S.D. with a dangerous weapon.  Id., subd. 1.  Count two required the state to prove beyond a reasonable doubt thatA.B.R. assaulted S.D. with a dangerous weapon and caused substantial bodily harm.  Id., subd. 2.  Both counts require that the state prove that the defendant either intended to cause fear in another of immediate bodily harm or death, or intentionally inflicted or attempted to inflict bodily harm on another.  Minn. Stat. § 609.02, subd. 10 (2006) (defining assault).

            A.B.R. argues that S.D.'s prior inconsistent statements provided the only identification of her as the assailant, and that because they were inadmissible, the evidence is insufficient to convict her.  But as discussed above, the statements were properly admitted.  Accordingly, the record amply supports A.B.R.'s conviction on both counts.

            A.B.R. next argues that the prosecution did not prove beyond a reasonable doubt that the laceration met the definition of substantial bodily harm.  "Substantial bodily harm" is an injury "which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member."  Minn. Stat. § 609.02, subd. 7a (2006).  Here, Dr. Ladmer testified that the laceration to the top of S.D.'s forearm was about two and one-half inches long and required seven sutures.  He estimated that the wound was one-half to one centimeter deep.  This wound, while temporary, appears substantial.  As such, the evidence is sufficient to support A.B.R.'s conviction.

 

 

VII. Disposition

            A.B.R. argues that the district court abused its discretion by failing to make sufficient written findings to support the disposition.  The district court has "broad discretion to order dispositions authorized by statute in delinquency cases."  In re Welfare of M.A.C., 455 N.W.2d 494, 498 (Minn. App. 1990).  Therefore, "[a]bsent a clear abuse of discretion, a [district] court's disposition will not be disturbed."  Id.  A district court's "dispositional findings of fact will be accepted unless clearly erroneous."  In re Welfare of L.K.W., 372 N.W.2d 392, 397 (Minn. App. 1985).

            An order for out-of-home placement must contain written findings of fact that support the disposition and address (1) why public safety is served by the disposition ordered; (2) why the disposition serves the child's best interests; (3) what alternative dispositions were considered and why such alternatives are not appropriate; and  (4) why the child's present custody is unacceptable and how the correctional placement meets the child's needs.  Minn. Stat. § 260B.198, subd. 1(m) (2006); Minn. R. Juv. Delinq. P. 15.05, subd. 2(A).  Failure to make sufficient written findings constitutes reversible error.  M.A.C., 455 N.W.2d at 499.

            Here, the district court did not make the required written findings.  In its disposition order, the district court noted that the prosecutor "stated that the child would be a threat to public safety if released pending an appeal," but made no findings itself on the matter of public safety.  The other factors are not mentioned. 

            Respondent points to a statement by the district court that "I do believe [A.B.R.] needs to go to the County Home School.  I think she needs to take responsibility for her behavior, and I think she needs discipline and education and some psychological assistance." Although comments made on the record can, in some circumstances,[1] substitute for written findings, this comment does not address the four required findings.

            Respondent also urges that the disposition was based on the psychological evaluation and the probation investigation, and that the disposition was "more than justified."  Although the evidence may ultimately support the disposition, the findings here lack the completeness necessary to demonstrate that the district court considered the required factors in reaching its disposition.  Accordingly, we reverse only on the disposition and remand to the district court for written findings on the required factors.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  In the probation revocation context, "[t]he written findings requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review."  State v. Modtland, 695 N.W.2d 602, 608 n.4 (Minn. 2005) (quotation omitted).