Opinion
No. C3-97-437.
Filed November 25, 1997.
Appeal from the District Court, Stearns County, File No. K1963069.
Hubert H. Humphrey III, Attorney General, Paul R. Kempainen, Assistant Attorney General, (for respondent).
Roger S. Van Heel, Stearns County Attorney, (for respondent).
Lawrence W. Pry, Assistant State Public Defender, (for appellant).
Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
In an appeal from conviction for second degree assault, Jimmie Bivins challenges the sufficiency of the evidence to establish that a wooden dowel, approximately three feet in length, constituted a dangerous weapon. We conclude that the evidence was sufficient to support the jury's finding that it was a dangerous weapon and affirm.
FACTS
A jury convicted Jimmie Bivins of second degree assault of a juvenile stemming from a dispute over missing drugs. The evidence relating to the assault consisted of testimony, primarily from the juvenile, that Bivins and a person known as L.T. beat him because they believed he had taken the missing drugs. The juvenile testified that L.T. hit him a couple of times in the bathroom of an apartment where they had been selling drugs. After L.T. and the juvenile left the bathroom, Bivins, using the dowel, struck the juvenile several times in the right shoulder area and in the nose. Bivins struck the juvenile as he crawled from the kitchen to the dining room.
The resident of the apartment testified that she knew the juvenile was being beaten during the hour-long confrontation, but turned her back so she would not see it. She testified that she saw Bivins kick the juvenile while Bivins was holding the dowel, and she observed that the juvenile was bleeding from his mouth and nose and holding his stomach and crying.
To stop the beating, the juvenile told Bivins that he had stashed the drugs in a pay phone at a nearby bowling alley. When they got to the bowling alley, the juvenile asked the manager for a towel and some ice to apply to his bleeding nose and lip and then asked her to call the police.
The police retrieved the wooden dowel from the apartment. The dowel was on the kitchen floor with blood on one end of it. The officers also photographed the juvenile's injuries. The photographs demonstrated injuries to the juvenile's shoulder, neck, and rib areas and also a bloody lip. The dowel and the photographs were introduced as exhibits at trial. The district court instructed the jury on the definition of a dangerous weapon and the other elements of second degree assault. The district court also instructed the jury on the alternative charge of fifth degree assault. The jury returned a verdict of guilty on second degree assault and not guilty on aggravated robbery, simple robbery, and fifth degree assault.
DECISION
The specific issue appealed is whether the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the wooden dowel constituted a dangerous weapon. In an appeal challenging the sufficiency of evidence, we review the record and the legitimate inferences from the record in a light most favorable to the adjudication. Dale v. State , 535 N.W.2d 619, 623 (Minn. 1995). We must assume the jury believed the witnesses whose testimony support the conviction and rejected contradictory evidence. State v. Steinbuch , 514 N.W.2d 793, 799 (Minn. 1994) (citing State v. Bias , 419 N.W.2d 480, 484 (Minn. 1988)).
Second degree assault occurs when a person "assaults another with a dangerous weapon," Minn. Stat. § 609.222, subd. 1 (1996), or when a person "assaults another with a dangerous weapon and inflicts substantial bodily harm." Minn. Stat. § 609.222, subd. 2 (1996). Bivins was charged under subdivision 1, which carries a lesser penalty than subdivision 2. Thus, the state was required to prove that the victim was assaulted with a dangerous weapon, but not that the weapon inflicted substantial bodily harm. See 10 Minnesota Practice , CRIMJIG 13.06 (1996) (listing elements of assault with a dangerous weapon).
"Dangerous weapon" is defined by statute to include devices that, in the manner used or intended to be used, are calculated or likely to produce death or great bodily harm. Minn. Stat. § 609.02, subd. 6 (1996); State v. Moss , 269 N.W.2d 732 (Minn. 1978) (describing three different categories of dangerous weapons). "Great bodily harm" is in turn defined by statute 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 (1996).
Bivins essentially argues that the evidence was insufficient to establish that the wooden dowel constituted a dangerous weapon because his use of the dowel created only a "possibility" of great bodily harm and this is insufficient to render an instrument a dangerous weapon. We agree that the evidence must demonstrate more than a mere possibility that a device could be used to produce great bodily harm. But the evidence is sufficient to satisfy the "dangerous weapon" element if it establishes that, in the manner it was used or intended to be used, the device was calculated or likely to produce great bodily harm.
The "great bodily harm" requirement in first degree assault has been satisfied by evidence of loss of consciousness with eyes swollen shut, State v. Jones , 266 N.W.2d 706, 710 (Minn. 1978); a long scar running the length of victim's upper body with a liver laceration, State v. Anderson , 370 N.W.2d 703, 706 (Minn.App. 1985); and a lost tooth, State v. Bridgeforth , 357 N.W.2d 393, 394 (Minn.App. 1984), review denied (Feb. 6, 1985).
Cases defining dangerous weapon for purposes of second degree assault have held that a wooden board three feet long, two inches wide, and three quarters of an inch thick was used as a dangerous weapon, State v. Trott , 338 N.W.2d 248, 252 (Minn. 1983); a pool cue swung like a baseball bat was a dangerous weapon, State v. Upton , 306 N.W.2d 117, 117-118 (Minn. 1981); and a defendant's boots were a dangerous weapon, State v. Mings , 289 N.W.2d 497, 498 (Minn.App. 1980), review denied (March 25, 1980).
The testimony demonstrated that Bivins repeatedly struck the juvenile with the dowel as the juvenile crawled from room to room. Although the record does not indicate the diameter of the three-foot dowel, it was introduced into evidence and the jury was able to consider its exact proportions in making its decision. The force with which the dowel was used was sufficient to cause the juvenile's nose to bleed and to leave blood on the dowel. Furthermore, the juvenile was struck in the shoulder area in a manner that left a scar and visible evidence of the blows. The jury also observed several photographs of the juvenile's injuries that demonstrated the injury that was inflicted by the dowel in the manner that it was used. On these facts, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the dowel was a dangerous weapon.