This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Jason Ryan Gordon,




Filed March 19, 2002


Halbrooks, Judge



St. Louis County District Court

File No. K399601117


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for respondent)


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Alan L. Mitchell, St. Louis County Attorney, 100 North 5th Avenue West, #501, Duluth, MN 55802-1298 (for appellant)




            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of first-degree assault on the grounds that (1) the prosecutor violated the rules of discovery, (2) the evidence is insufficient to support his conviction, (3) the trial court abused its discretion in a variety of matters, (4) the prosecutor knowingly presented false and misleading testimony, and (5) he was denied effective assistance of counsel.  Because the trial court did not abuse its discretion, we affirm.  Appellant has indicated that he intends to pursue postconviction relief on his ineffective-assistance argument and, consequently, we do not address it. 


            Appellant Jason Ryan Gordon and Terri Gordon married in 1993 and separated in 1997.  Appellant moved to the Twin Cities after the separation; Terri remained in the Duluth-Superior area.

            Appellant’s conviction arises out of the events that occurred in the early hours of September 25, 1999.  Appellant drove to Duluth after work on September 24 to see Terri, who was then romantically involved with James Baker.  Appellant and Terri had made plans to meet to talk about their children and other matters.  Both of them went to a series of bars as the night of September 24 progressed.  Terri was with friends Kelly Archambeault and Wes Berntson.  Appellant was accompanied by Chris Carey.

            The two groups arranged to meet at a bar around midnight.  Appellant and Carey then went to a different bar until it closed.  The groups re-encountered each other on the street after closing and discussed further plans.  Appellant wanted Terri to have breakfast with him but she told him that she was going back to Baker’s home.  The groups then left separately.

            Before Terri arrived at Baker’s home, Baker was awakened by someone knocking on his door.  Baker went to the door to determine who was there and recalls being struck on his face by the door before he lost consciousness.  Baker was hospitalized in a coma for several weeks.  When discharged, Baker was unable to speak, walk, or feed himself.  At trial, one year later, he continued to have significant problems with his balance. 

            Appellant was charged with first-degree assault and first-degree burglary.  His defense at trial was that Baker’s injuries were inflicted by Carey when they both went to Baker’s house in the early morning of September 25 and Carey kicked Baker’s door open.  The state argued that appellant was the one who assaulted Baker in response to learning that Baker and his estranged wife had a sexual relationship.

            Following a four-day trial, appellant was acquitted of first-degree burglary, but convicted of first-degree assault and sentenced to 158 months, the presumptive sentence for a severity-level-eight offense committed by an individual with a criminal history score of six or more.  This appeal follows.


1.         Discovery violations.

            Appellant first argues the trial court erred by not sanctioning the prosecutor for violations of the rules of discovery.  Specifically, appellant asserts he is entitled to a new trial because the prosecutor failed to disclose (1) the existence of Officer Leino’s videotape of the crime scene, (2) some additional crime-scene photographs taken by Officer Leino, (3) Officer Leino’s evidence report, (4) records concerning Baker’s rehabilitation after leaving St. Mary’s Hospital, (5) information relating to Officer Leino’s unsuccessful analysis of a footprint at the crime scene, and (6) information relating to Officer Leino’s blood-splatter analysis.  Appellant contends that these violations warrant a new trial without a showing of prejudice.  Alternatively, he argues that he was prejudiced by the state’s failure to comply with discovery rules.

            Minn. R. Crim. P. 9.01, subds. 1(3), (4), provide, in relevant part:

(3) Documents and Tangible Objects.  The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce * * * papers, documents, photographs and tangible objects which relate to the case * * * .


(4) Reports of Examinations and Tests.  The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of * * * scientific tests, experiments or comparisons made in connection with the particular case.


Minn. R. Crim. P. 9.01, subd. 1(7), further provides that the prosecutor’s duties under these rules apply to all

material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney’s office.


In determining whether a discovery violation has occurred and what remedy, if any, is appropriate, the trial court considers (1) the reason for the nondisclosure, (2) the prejudice to the other party, (3) the ability to rectify the error through a continuance, and (4) any other relevant factors.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). 

            This court gives great deference to the trial court on evidentiary matters, and we will not reverse absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Even if a reviewing court concludes that the trial court abused its discretion, “[i]f there is no reasonable probability that the outcome of the trial would have been different had the evidence been disclosed,” it is improper for a reviewing court to order a new trial.  State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988). 

            The rules require the state to disclose and permit defense counsel to inspect and reproduce tangible evidence or reports created or relating to a case.  The record here indicates that the prosecutor disclosed evidence as soon as he became aware of it and that appellant’s counsel had an unlimited opportunity to examine the police department’s file.

            Approximately one year before trial, the state disclosed the following to appellant’s counsel:  (1) eight police reports (including the report of Sergeant Erspamer that specifically referenced blood splatters on the wall and floor where Baker was found and a footprint on Baker’s front door, and stated that Officer Leino photographed and collected evidence at the scene), (2) witness statements, (3) criminal records checks, and (4) copies of Baker’s medical records from St. Mary’s Hospital.  Four months before trial, appellant’s counsel moved for an order to take the deposition of Baker’s treating neurologist and for criminal record checks for Carey and Berntson, a friend of Terri’s who was with her on the night of the assault.  The trial court granted the motion.  At the same hearing, the prosecutor advised appellant’s counsel that he could go to the Duluth Police Department to examine everything on file related to the case and to speak directly to Officer Leino.

            At the pretrial hearing in December 2000, the prosecutor told the court and appellant’s counsel that he had just learned that the investigating officers had videotaped the crime scene and that Officer Leino had concluded that the quality of the footprint on the door was so poor that it could not be compared with the shoes Carey had worn that night.

            Appellant’s counsel requested a continuance of voir dire until the next day so that he could review the evidence.  The trial court denied the motion on the ground that the police file had always been accessible to appellant’s counsel, but Officer Leino brought all the physical evidence to court before jury selection started.  Appellant and his counsel examined all the evidence before trial and viewed the videotape.  The videotape was ultimately not used in the trial.

            Appellant’s counsel asked the prosecutor at the pretrial hearing for the basis of the police department’s conclusion that Baker had been assaulted by appellant as opposed to sustaining injuries by falling after Carey kicked the door open.  The prosecutor relayed the question to Officer Leino, who responded that the blood splatters were consistent with an assault and inconsistent with a fall.  Appellant’s counsel moved for a mistrial at the end of the state’s case, based in part on the fact that Officer Leino had not created a report that memorialized this opinion.  Officer Leino had prepared a report in the case.  Consisting of one page, it listed the evidence that had been in the police file and that he brought to court for trial.  Both counsel saw this report for the first time at trial.  The trial court denied appellant’s motion. 

            Finally, at the pretrial, appellant’s counsel orally requested copies of Baker’s rehabilitation records following his discharge from St. Mary’s Hospital.  These records were not in the prosecutor’s possession and, although he attempted to obtain signed authorizations from Baker before trial, the prosecutor was not able to do so.  Nevertheless, the trial court permitted Baker to testify concerning his rehabilitation and ongoing physical problems.

            We find no abuse on the part of the trial court in its rulings on these discovery matters.  Appellant’s counsel was familiar with the Duluth Police Department’s practice of making its file available to counsel for inspection and review.  The state learned of the existence of a videotape and some additional photographs on the eve of the trial and immediately advised the court and appellant’s counsel, who then reviewed the material before trial commenced.  Ultimately, the tape was not used.  But references to the photographs, the footprint, and the videotape were contained in Sergeant Erspamer’s report, which was disclosed and was on file with the department.  That report referenced the investigating officers’ conclusion that an assault had occurred based on several displays of blood splatter on the wall and floor.  Finally, Officer Leino acknowledged on cross-examination that he could not rule out the possibility that Baker was injured as a result of a fall and appellant’s counsel commented on that concession in his closing argument.

2.         Sufficiency of the evidence.

            In a pro se supplemental brief, appellant raises several additional issues on appeal.  The first is that the evidence was insufficient to show that he caused “great bodily harm” because Baker’s injuries did not “create[] a high probability of death.”  Appellant also contends that Carey’s testimony, which implicated appellant, was “unbelievable.”

When reviewing a challenge to the sufficiency of the evidence, this court performs a painstaking analysis of the record to determine if the evidence, viewed in the light most favorable to the conviction, is sufficient to sustain the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  To that end, we assume the jury “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (citation omitted).  As a result, we will not reverse a conviction if the fact-finder, in accordance with principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty as charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant was convicted under Minn. Stat. § 609.221, subd. 1 (1998), which defines second-degree assault as occurring when someone “assaults another and inflicts great bodily harm.”  Minn. Stat. § 609.02, subd. 8 (1998), defines “great bodily harm” 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.


(Emphasis added.)

            Appellant’s claim that the evidence does not support this conviction is without merit.  The statute does not require that injuries “create[] a high probability of death” so long as they constitute “other serious bodily harm.”  In State v. Jones, 266 N.W.2d 706, 710 (Minn. 1978), our supreme court held that the victim suffered “serious bodily harm” when she lost consciousness, was on the verge of shock, nearly miscarried, suffered numbness in her leg and teeth, and had ongoing headaches. 

Here, Baker was found slumped on the floor in a pool of blood caused by a 6-7 centimeter cut on the back of his head.  His eye was swollen, he had trouble breathing on his own, and the attending neurosurgeon described his condition as “very serious life-threatening.”  After spending several weeks in the hospital, Baker still could not walk, speak, feed himself, or go to the bathroom without assistance.  In light of Jones, we conclude that Baker’s injuries and subsequent difficulties with everyday life activities constitute “serious bodily harm.”

            This court leaves credibility determinations to the fact-finder and thus will not review a witness’s veracity.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  Although appellant believes that other evidence tends to mitigate his guilt, our review is limited to whether the jury could have reasonably reached its verdict, not if another jury could have found otherwise.  Here, Carey’s testimony and Baker’s injuries clearly support the jury’s findings that appellant assaulted Baker in a manner that caused serious bodily harm. 

Carey testified that he and appellant went to Baker’s house after the bars closed and that, when Baker answered his door, appellant yelled at him for sleeping with his wife and then punched him the face.  He also testified that appellant began kicking and stomping on Baker’s head and continued to yell at him for sleeping with his wife.  Carey’s girlfriend, Dayna Engstrom, testified that appellant later told her that he had beaten up Baker badly.  In addition, both Carey and Engstrom testified that appellant’s pants were bloody and that one of his knuckles was swollen.  Finally, Carey testified that appellant became very nervous when he heard that Baker was in serious condition and when some police arrived outside of Carey’s home.  Despite appellant’s denials, Carey’s and Engstrom’s testimony clearly support the jury’s findings that appellant assaulted Baker in a manner that caused serious bodily harm.  See State v. Bakken, 604 N.W.2d. 106, 111 (Minn. App. 2000) (“Inconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal.”) (citation omitted).  We conclude that there is sufficient evidence in this record to sustain appellant’s conviction.

3.         Abuses of discretion.

            Appellant next argues that the trial court abused its discretion in several matters.  Much of his pro se argument focuses on the court’s handling of alleged discovery violations and issues related to the sufficiency of the evidence.  Those issues have already been addressed.  Appellant’s remaining allegations concern the trial court’s decision to not instruct the jury on lesser-included charges and its interaction with the jury in response to a question during deliberations. 

            Appellant contends that the trial court erred by failing to instruct the jury on lesser-included charges even though it had authority to do so.  But appellant specifically asked that no lesser charges be included and the court simply honored this request.  Thus, we find no abuse in the trial court’s decision.

            Appellant also argues the court erred when it “compromised the jury” by refusing to read back Baker’s testimony and by telling the jurors to continue to deliberate after they said that they were deadlocked.  Whether or not to grant a jury’s request for a reading of trial testimony is within the trial court’s discretion.  State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983). 

On the morning of the second day of deliberations, the jury sent a note to the court indicating that it was deadlocked.  The court advised both counsel and asked whether they objected to the court rereading 10 Minnesota Practice, CRIMJIG 3.04 (1999) and asking the foreperson if the jury had unanimity on one of the counts.  The state did not object to such an approach, but appellant’s counsel had some concern.  The court asked the foreperson if additional deliberation would assist them in reaching a verdict.  The foreperson responded, “It is possible,” so the court directed the jury to continue deliberating.  The court also asked whether or not there was a verdict on either count, to which the foreperson said no. 

            It is reversible error for the trial court to coerce a jury into a unanimous verdict.  State v. Buggs, 581 N.W.2d 329, 338 (Minn. 1998); State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996).  In Buggs, the trial court read 10 Minnesota Practice, CRIMJIG 3.04 to the jury in its final charge and twice rebuffed the jury’s request for additional information.  Buggs, 581 N.W.2d at 337.  When the jury later told the court that it needed the information to reach a unanimous verdict, the court instructed it to “try to work through your impasse.”  Id.  Similarly, in Jones, the trial court paraphrased CRIMJIG 3.04 in its final charge.  The jury later indicated that it had reached an impasse.  Jones, 556 N.W.2d at 911-12.  The court then gave the jury the instruction verbatim and told it to continue deliberating.  Id. at 912.  In both cases, the supreme court held that the trial court was within its discretion in its handling of the jury.  Id.; Buggs, 581 N.W.2d at 338-39.  Upon our review of this record and in light of Buggs and Jones, we conclude that the trial court acted within its discretion. 

4.         False and misleading testimony.

            Appellant alleges that the prosecutor acted improperly because he knew, or should have known, that Carey testified falsely.  Because appellant failed to raise this issue in the trial court, he has waived his right to argue it on appeal.  See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (finding that a defendant who fails to object to alleged prosecutorial misconduct generally waives the issue on appeal).

5.         Effective assistance of counsel.

            Appellant’s final pro se argument is that his counsel provided ineffective assistance to him.  But appellant has also indicated a desire to pursue this issue by means of a postconviction petition.  Because it is preferable that such claims be brought by postconviction petition so that the trial court can make the relevant findings, we do not reach this argument.  See State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (deferring a pro se ineffective-assistance-of-counsel claim in favor of postconviction proceedings).