Opinion
No. C7-98-1407.
Filed June 15, 1999.
Appeal from the District Court, Ramsey County, File No. K5973657.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, (for respondent)
John M. Stuart, State Public Defender, Paul C. Thissen, Assistant State Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Lawrence E. Gorman, a/k/a Behr, was convicted by a jury of criminal vehicular injury causing great bodily harm and criminal damage to property. Appellant challenges his conviction for criminal vehicular injury causing great bodily harm, arguing the trial court abused its discretion by refusing to instruct the jury on the lesser-included offense of criminal vehicular injury causing substantial bodily harm. Appellant further argues in his pro se supplemental brief that the trial court abused its discretion by allowing the audiotape of his 911 call to be played for the jury and by granting a double durational departure from the guidelines sentence for criminal damage to property. We affirm.
FACTS
On November 4, 1997, appellant attempted approximately ten times to call his ex-girlfriend, Tracey Brown, from Bailey's Bar. Each time she hung up the phone. Appellant then drove his pickup truck to Brown's home, smashed into Brown's vehicle, and left.
A few blocks away, appellant drove through a stop sign and crashed into a Ford Taurus driven by Donald Krieger. Seventy-four-year old Sarah Krieger was a passenger in the Taurus. After colliding with the Kriegers' vehicle, appellant accelerated, pushing their vehicle across the street and onto the curb. He then backed away from the Kriegers' vehicle, drove back across the street, and collided with another vehicle driven by Glen Jones. Jones had observed appellant's collision with the Kriegers and parked his car at the curb. Before Jones had time to get out of his vehicle, appellant smashed into the front driver's-side fender. Appellant attempted to dislodge his truck from Jones's car, but could not. Appellant then fled the scene on foot.
Sarah Krieger was injured as a result of the accident. She was transported by ambulance to the hospital, where she was admitted to the intensive-care unit. X-rays revealed that Mrs. Krieger had sustained fractured ribs, a fractured collarbone, and cracked and broken teeth. The doctors took periodic x-rays during her stay, monitoring Mrs. Krieger for a possible pneumothorax, a condition in which air escapes the lungs and fills the chest cavity. On November 7, 1997, Mrs. Krieger was discharged with pain medication and oxygen. Mrs. Krieger's doctor alerted her to warning signs that could indicate the development of a pneumothorax.
Mrs. Krieger's condition worsened, and on November 11, 1997, she went to her clinic in a state of respiratory distress. After examining her, Dr. Krauss sent Mrs. Krieger to the hospital. At the hospital, doctors discovered a hemothorax — blood between the lung and the chest wall. They inserted a chest tube and drained 1,300 milliliters of blood from her right chest cavity. Mrs. Krieger also had a small pneumothorax. The combination of the hemothorax and pneumothorax resulted in a total of approximately 1,500 milliliters of blood and air in Mrs. Krieger's chest cavity. After six days of hospitalization, Mrs. Krieger was discharged on November 17, 1997.
Doctors Krauss and Kamman agreed the situation was life-threatening. Dr. Krauss testified the condition was caused by the auto collision. Mrs. Krieger's chest wall was also permanently deformed because her ribs healed in a concave position, resulting in reduced right lung capacity and increasing her risk of pneumonia.
Appellant was charged by complaint with criminal damage to property for the damage he caused to Brown's car, criminal vehicular injury resulting in great bodily harm, and assault in the second degree for running into Jones's car. The jury found him guilty of criminal damage to property and criminal vehicular injury but not guilty of assault.
The trial court sentenced appellant to 42 months in prison for criminal damage to property, a double durational departure from the guidelines sentence, and 60 months in prison for criminal vehicular injury, an upward durational departure from the guidelines sentence. The sentences were ordered to run concurrently. This appeal followed.
DECISION
Lesser-included offense
Appellant argues the trial court abused its discretion by denying his request for an instruction on the lesser-included offense of criminal vehicular injury resulting in substantial bodily harm.
The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.
State v. Buntrock , 560 N.W.2d 383, 386 (Minn. 1997) (quoting Bellcourt v. State , 390 N.W.2d 269, 273 (Minn. 1986)). A trial court should instruct on a lesser offense if: (1) the offense is an included offense under Minn. Stat. § 609.04 (1996), and (2) there is a rational basis for the jury to acquit on the charged offense and convict on the lesser-included offense. State v. Griffin , 518 N.W.2d 1, 3 (Minn. 1994).
The state concedes criminal vehicular injury resulting in substantial bodily harm under Minn. Stat. § 609.21, subd. 2a(7) (1996), is a lesser-included offense of criminal vehicular injury resulting in great bodily harm under Minn. Stat. § 609.21, subd. 2(7) (1996). Therefore, the question is whether the evidence presented a rational basis for the jury to acquit appellant of the charged offense and convict him of the lesser-included offense.
Great bodily harm is defined 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). Substantial bodily harm is defined as
bodily 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 (1996).
Appellant argues the impairment of lung function as the result of Mrs. Krieger's permanently deformed rib cage is speculative because expert testimony indicated she may be more prone to pneumonia and other lung conditions. Appellant ignores Dr. Krauss's testimony that the permanent deformity of Mrs. Krieger's chest wall prevents her right lung from performing normally. This, in itself, is a permanent impairment of a bodily organ, irrespective of whether it may cause further complications. There is no evidence in the record to dispute the permanence of this impairment. Thus, there was no rational basis for the jury to have concluded the impairment was temporary. Moreover, the clear and uncontradicted evidence showed that Mrs. Krieger's chest wall was permanently disfigured.
Appellant relies on State v. Gerald , 486 N.W.2d 799 (Minn.App. 1992), for the proposition that in order to show an impairment of the function of a bodily organ, the state must establish a diminished ability to perform normal activities. See id. at 802 (holding assault victim did not sustain "any permanent loss or impairment of function of bodily member" merely because he experienced tightening sensation when he yawned or chewed; doctor testified his "ability to perform bodily functions such as hear, chew, eat or breathe were not imparied). But Gerald was decided based on the expert testimony; the doctor testified the victim's ability to perform bodily functions was not impaired by his injuries. Id. The situation here is quite different. The uncontradicted expert testimony established that the function of Mrs. Krieger's right lung is permanently impaired.
Further, appellant's contention that Mrs. Krieger's hemothorax and pneumothorax did not create a high probability of death is not supported in the record. Although appellant points out Dr. Kamman, the lung specialist, did not consider Mrs. Krieger to be in acute distress when she was readmitted to the hospital, appellant ignores the fact that Dr. Krauss came to the conclusion the condition was life-threatening in consultation with Dr. Kamman, and Dr. Kamman concurred. See State v. Anderson , 370 N.W.2d 703, 706 (Minn.App. 1985) (interpreting "life-threatening" injury as sufficient to show a high probability of death), review denied (Sept. 19, 1985).
In order to find a rational basis for the jury to acquit on the greater and convict on the lesser-included charge, "proof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury may make this distinction." Bellcourt , 390 N.W.2d at 273 (quotation omitted). Appellant can point to no evidence sufficient to bring the permanence or severity of Mrs. Krieger's injuries into serious dispute, given the unrefuted expert testimony. Therefore, the trial court did not abuse its discretion by refusing to instruct on the lesser-included offense.
911 Audiotape
Appellant contends the trial court abused its discretion by admitting into evidence an audiotape of the 911 call he made. During the call, made after the collisions, appellant falsely claimed his truck had been stolen. Thus, appellant argues the tape was admitted in error because it was not relevant and its prejudicial impact outweighed its probative value. See Minn.R.Evid. 401, 403. Respondent asserts the evidence was introduced to show appellant's perceived need to invent a cover story at the time of the crime, contradicting the defense theory that the brakes were inoperable.
We conclude the tape should have been excluded. The tape's prejudicial impact could have been significant, whereas its probative value was limited. See Minn.R.Evid. 403. The tape itself includes a great deal of profanity. The caller, identified as appellant, exhibited persistent slurred speech and sounded intoxicated. He also stated he was calling from a bar.
Nevertheless, "[i]f the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt." State v. Buggs , 581 N.W.2d 329, 340 (Minn. 1998) (quotation omitted). In the instant case, the evidence of appellant's guilt was overwhelming and uncontradicted. Furthermore, the jury acquitted appellant on the assault charge, negating any inference the jury was unduly inflamed by the audiotape. See generally State v. Washington , 521 N.W.2d 35, 40 (Minn. 1994) (stating acquittal on some counts and conviction on others demonstrates a verdict is not the product of inflammatory prosecutorial misconduct). Under the circumstances of this case, we conclude the error was harmless beyond a reasonable doubt.
Sentencing departure
Appellant further argues the trial court abused its discretion by granting a double durational upward departure from the guidelines sentence for criminal damage to property. This court reviews departures from presumptive sentences under an abuse-of-discretion standard, but there must be "substantial and compelling circumstances" in the record justifying a departure. Rairdon v. State , 557 N.W.2d 318, 326 (Minn. 1996). A sentencing court should evaluate whether the defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." Id. (quoting State v. Back , 341 N.W.2d 273, 276 (Minn. 1983)).
Minn. Stat. § 609.152, subd. 3 (1996), provides:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has more than four prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
The trial court specifically found appellant committed the criminal damage to property as part of a pattern of criminal conduct. The record supports that finding. Appellant violated both an order for protection and a separate no-contact order when he drove to Brown's house and repeatedly rammed her vehicle. The trial court also found appellant had eight prior felony convictions. The record also supports that finding. Given these circumstances, we conclude the trial court did not abuse its discretion by imposing a double durational departure.