State v. Hubert

State of Minnesota, Respondent, v. Moses Louis Hubert, Appellant.

A20-0928

STATE OF MINNESOTA IN COURT OF APPEALS

June 7, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed in part, reversed in part, and remanded

Reilly, Judge

Hennepin County District Court

File No. 27-CR-19-8671

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Florey, Judge.

NONPRECEDENTIAL OPINION

REILLY, Judge

Appellant challenges his conviction for first-degree assault, arguing that the evidence was insufficient to sustain the jury's guilty verdict, the district court erred in its evidentiary rulings, and he is entitled to resentencing because of the revised Minnesota Sentencing Guidelines. We affirm appellant's conviction. But we remand to the district court for resentencing.

FACTS

This appeal arises out of appellant Moses Louis Hubert's conviction for first-degree assault.¹ In March 2019, appellant lived in an apartment building down the hall from S.W. One evening, S.W. and his then-girlfriend D.O. were in S.W.'s apartment when appellant knocked on the door. S.W. let appellant into the apartment. D.O. described appellant as "loud" and "very aggressive," and testified that he was carrying a firearm and a bottle of liquor. Appellant's presence in the apartment with a firearm scared D.O. S.W. placed appellant's firearm on the kitchen counter, and appellant and S.W. began speaking.

Appellant turned to D.O., said some "disrespectful things" to her, and "smacked [her] on [her] rear twice, skin to skin." S.W. and appellant began struggling. During the struggle, appellant hit D.O. twice on the left side of her face with a closed fist. D.O. immediately felt pain in her head and felt dizzy. She also "saw stars" and noticed that her "ears started ringing." D.O. began "making a lot of noise" because she was in pain, and her boyfriend, S.W., hit her on the back of her head and told her to be quiet. Appellant and S.W. continued struggling. Appellant punched S.W. and bit him on the chest. Appellant then grabbed the firearm off the kitchen counter and hit S.W. twice with the butt of the gun above his eye. S.W. pushed appellant out of the apartment.

S.W. and D.O. called the police, who came to S.W.'s apartment. Police officers saw that S.W. was "covered in blood," had blood over his left eye, and had a gash on the palm of his hand. They also noticed that D.O. was beginning to develop bruises on the side of her face. D.O. told officers that appellant was responsible for their injuries. Officers noticed "signs of struggle" in the apartment, including a "blood trail" on the floor, blood on the bedsheets, and blood on the kitchen countertops and on the kitchen floor. Officers found a magazine clip for a rifle and "ammunition scattered throughout the floor and then inside the magazine."

The state charged appellant by amended complaint with first-degree assault, great bodily harm against D.O.; second-degree assault, dangerous weapon against S.W.; first-degree burglary against S.W.; and two counts of threats of violence against S.W. and D.O. Following a jury trial, the jury found appellant guilty of first-degree assault against D.O. and first-degree burglary against S.W. The jury acquitted appellant of the remaining charges. The district court sentenced appellant to 94 months in prison for the assault conviction and 58 months in prison for the burglary conviction. This appeal follows.

DECISION

I. Sufficient evidence supports appellant's first-degree-assault conviction.

Appellant challenges the sufficiency of the evidence for his first-degree-assault conviction. We review a sufficiency-of-the-evidence challenge by carefully examining the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to support the conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). We assume that "the jury believed the state's witnesses and disbelieved anyevidence to the contrary." State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We will not disturb a guilty 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." Ortega, 813 N.W.2d at 100. We review de novo whether an appellant's conduct satisfies the statutory definition of an offense. State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).

The jury found appellant guilty of first-degree assault under Minn. Stat. § 609.221, subd. 1 (2018). Under this statute, "[w]hoever assaults another and inflicts great bodily harm" is guilty of first-degree assault. Minn. Stat. § 609.221, subd. 1. "Great bodily harm" is "bodily injury [1] which creates a high probability of death, or [2] which causes serious permanent disfigurement, or [3] which causes a permanent or protracted loss or impairment of the function of any bodily member or organ, or [4] [which causes] other serious bodily harm." Minn. Stat. § 609.02, subd. 8 (2018); see also State v. Moore, 699 N.W.2d 733, 738 (Minn. 2005) (adding numerals to identify four alternative definitions).

Appellant argues that respondent failed to prove that D.O. suffered great bodily harm. An injury that causes "protracted loss or impairment of the function of any bodily member or organ" constitutes great bodily harm. Minn. Stat. § 609.02, subd. 8. While the statute does not specifically define the term "protracted," we understand it to mean drawn out, prolonged, or lengthened in time. The American Heritage Dictionary 1417-18 (5th ed. 2011). Whether an injury constitutes a particular degree of bodily harm is a question for the jury. Moore, 699 N.W.2d at 737 (Minn. 2005) (noting that whether an injury constitutes great bodily harm is a jury question).

Here, the record shows that appellant punched D.O. twice on the left side of her face with a closed fist. D.O. immediately developed pain in her head and felt dizzy. Several days later, D.O. continued to have headaches and pain, and felt her jaw "starting to lock." D.O. had trouble opening her mouth and was in "excruciating pain." D.O. could not close her jaw properly to eat and noticed "blood and pus" coming out of her mouth. D.O. made several visits to the emergency room and to her primary care doctor.

Respondent called D.O.'s doctors at trial to testify about her injuries. Dr. Marc Salita was D.O.'s primary-care doctor and treated her from April to October 2019 for her jaw pain. Dr. Salita testified that D.O. had trouble opening her jaw and "just couldn't open it up all the way due to pain." D.O.'s condition worsened and she required surgery. Dr. Luke McMahon, an oral and maxillofacial surgeon, testified about this surgery. Dr. McMahon stated that a CT scan revealed that D.O. had "a large area of fluid collection, which is consistent with abscess or infection, and that's typically a surgical disease that requires draining or removing the abscess." This type of infection limits a patient's "ability to either speak or eat" and can spread to the brain if left untreated. Dr. McMahon noticed that D.O. had swelling on the left side of her face and drainage coming out of her mouth. Dr. McMahon performed the surgery to drain the fluid causing D.O.'s infection. D.O. remained in the intensive-care unit of the hospital for two weeks following the surgery. In response to a question from counsel, Dr. McMahon agreed that "blunt force trauma" could have caused D.O.'s injuries, and that her inability to open her mouth was "consistent with" having been struck with a closed fist on the left side of her face.

D.O. continued to visit Dr. Salita and Dr. McMahon. By October, which was nearly eight months after the assault, D.O. was still reporting that she had muscle spasms and discomfort along the left side of her face. Counsel asked Dr. McMahon if he had an opinion about how long D.O.'s jaw issue would last. The doctor responded, "At this point, being that the patient, from my last exam, was six months out from surgery, I don't know that there will be a significant improvement in the jaw range of motion, based on experience." Dr. McMahon noted that together with the jaw issue, D.O. might have "complications related to muscular discomfort or muscle spasm."

D.O. testified that she continues to have lasting effects from her injury. D.O. stated she "can't talk for long periods of time without taking a muscle relaxer," cannot open her mouth as much as she used to, has headaches "[a]t least four times a week," and experiences "[t]remors on [her] face" and "spasms." D.O. did not experience any of these physical effects before the assault. Based on the record, a jury could reasonably infer that D.O. suffered great bodily harm because her injury caused a protracted loss or impairment of the function of her mouth. See State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993) ("In making its factual determination, the [fact-finder] was entitled to make reasonable inferences from the evidence, including inferences based on their experiences or common sense.") (quotation omitted).

Appellant argues that even if D.O. suffered great bodily harm, respondent failed to prove that appellant was the one who inflicted it. This court will not disturb a guilty verdict if the jury could "reasonably conclude that the defendant was guilty of the charged offense." Ortega, 813 N.W.2d at 100. While appellant argues that the testimony couldhave been interpreted in an alternate way, it is not within the scope of this court's review to reweigh the evidence and draw different conclusions. See ...