This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Juan Lopez Ortiz,
Freeborn County District Court
File No. K600957
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Craig S. Nelson, Freeborn County Attorney, Courthouse, 411 South Broadway, P.O. Box 1147, Albert Lea, MN 56007 (for respondent)
John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant Public Defender, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)
U N P U B L I S H E D O P I N I O N
Appellant contends that the evidence at his trial does not sustain his conviction for first-degree assault. We affirm.
Appellant Juan Ortiz was incarcerated at the Freeborn County jail. At about 10:00 p.m. on the evening of the assault, the deputies allowed the prisoners access to the canteen area for the last time so the prisoners could get a book, or refreshments if they had the money. Appellant went into the canteen to get a book. As he returned to the cell-block area, he dropped the book and punched deputy Oakland. Deputy Oakland fell against the wall, hitting his head on a control box, then fell to the floor. Appellant continued to hit Oakland, then he dragged Oakland partway into a cell and closed the cell door on his chest. Appellant also hit another jailer, but that assault is not the subject of this appeal.
Deputy Oakland was taken to a nearby hospital, where the doctor determined that Oakland suffered a concussion, and had him taken by air to the Mayo Clinic for neurological and CT exams to rule out any possible brain hemorrhaging.
Appellant confessed to hitting the jailers and stated that he did so in order to avoid being extradited to Maryland, where he is certain that he will be killed in prison there. He stated he wanted to commit a crime that would result in a long sentence in Minnesota.
Appellant was charged with assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 2 (2000), assault in the third degree, in violation of Minn. Stat. § 609.223, subd. 1 (2000), assaulting a correctional employee in the fourth degree, in violation of Minn. Stat. § 609.2231, subd. 3(1) (2000), and attempted escape from custody, in violation of Minn. Stat. § 609.485, subd. 2(1) (2000).
This case first came before this court on the issue of whether the evidence was sufficient to establish probable cause to support the charge of first-degree assault. We concluded that although appellant did not use any weapon other than his bare hands in assaulting the deputy, bare hands can be considered “dangerous weapons,” if they are used to administer “deadly force.” State v. Ortiz (Ortiz I), 626 N.W.2d 445, 449-50 (Minn. App. 2001), review denied (Minn. June 27, 2001). We also found that the evidence was sufficient to establish probable cause to support the first-degree-assault charge. Id. at 451.
The case was sent back to the district court for further proceedings. A trial was held before a jury, who found appellant guilty on all of the charged counts. Appellant was then sentenced. Appellant appeals the jury’s verdict, arguing that there is insufficient evidence that he used or attempted to use deadly force in assaulting the victim, and that his conviction for first-degree assault cannot be sustained.
D E C I S I O N
On appeal, we determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient for the jurors to reach their verdict. State v. Matelski, 622 N.W.2d 826, 830 (Minn. App. 2001).
A verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the defendant was proven guilty of the offense charged.
Id. (quotation omitted). We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. Id. Resolution of inconsistencies in eyewitness testimony is the jury’s exclusive function “because it has the opportunity to observe the demeanor of witnesses and weigh their credibility.” State v. Yang, 627 N.W.2d 666, 672 (Minn. App. 2001) (quotation omitted), review denied (Minn. July 24, 2001).
Assault in the first degree against an officer is defined in Minn. Stat. § 609.221, subd. 2(a) (2000):
Whoever assaults a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty * * * .
Deadly force is defined in Minn. Stat. § 609.066, subd. 1 (2000):
[F]orce which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.
Finally, great bodily harm is defined in Minn. Stat. § 609.02, subd. 8 (2000):
[B]odily 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.
In State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001), review denied (Minn. June 27, 2001), we determined that “[b]are hands, even when not deemed ‘dangerous weapons,’ can administer ‘deadly force’ in many situations * * * .” The sole issue in this case is whether the evidence shows that appellant should have reasonably known that his assault upon deputy Oakland created a substantial risk of causing great bodily harm.
The evidence adduced at trial shows that the deputy suffered from a concussion serious enough that the treating physician was concerned about intercranial bleeding. The deputy was briefly unconscious, but did not remember anything for about six hours after the injury. He was hospitalized for three days. He suffered from blurred eyesight, a deep laceration on the back of his head that required staples to close, and occasional migraine headaches, which he continued to suffer from even at the time of trial. Witnesses testified that appellant repeatedly struck the deputy about the head even after the deputy had hit the floor, then dragged the deputy partway into a cell and closed a mechanical door upon his chest as the deputy lay unconscious. In his confession, appellant, who is 5’8” and 265 pounds, stated that the force of his assault frightened even him.
The deputy’s injuries are similar to other cases where the injuries suffered as a result of an assault constituted “great bodily harm.” See State v. Anderson, 370 N.W.2d 703, 705-06 (Minn. App. 1985) (finding that bleeding laceration to liver, laceration on head, bruises to pelvis and mesentery and other areas of body constitute “great bodily harm”), review denied (Minn. Sept. 19, 1985); State v. Jones, 266 N.W.2d 706, 710 (Minn. 1978) (finding that unconsciousness for several hours, near shock, hospitalization for a week, risk of miscarriage, numbness in leg for weeks, dizziness and headaches which subsided just before trial, and numbness in teeth which continued at time of trial constitute “other serious bodily harm”). Cf. State v. Gerald, 486 N.W.2d 799, 801-02 (Minn. App. 1992) (finding that normal vital signs, ½ inch-long knife wounds in both neck and ear that were not bleeding excessively and required two stitches in neck and no treatment to ear injury, were not sufficient to constitute “other serious bodily injury”). The jury’s verdict is supported by credible evidence.
Appellant also argues that although fists can be considered deadly weapons in some instances, this case is not one of them. Appellant cites to State v. Basting, 572 N.W.2d 281, 284-85 (Minn. 1997), as support for his argument that fists are deadly weapons only when the attack is prolonged and brutal, against vulnerable and sometimes defenseless victims. However, the statute under which appellant was charged for first-degree assault does not require the use of a “dangerous weapon”; rather, all that is required is that appellant used “deadly force.” See Ortiz I, 626 N.W.2d at 449 (deadly force need not involve a dangerous weapon). Since the evidence supports the jury’s verdict that appellant used deadly force, the jury did not err in finding appellant guilty of first-degree assault, even though he used his fists in committing the assault.
Finally, appellant argues that respondent’s closing argument at trial that the jury was to consider all of the circumstances, including the surroundings in which the assault took place, does not show that appellant knew there was a “substantial risk of causing” great bodily harm. However, the injuries sustained by the deputy are sufficient, in themselves, to support the jury’s finding that appellant was guilty of first-degree assault. Thus, whether the jury considered the surroundings in which the assault took place does not show that the jury’s verdict was in error.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.