This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-1842

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Brown Bridges II,

Appellant.

 

 

Filed October 22, 2002

Affirmed in part and reversed in part

Robert H. Schumacher, Judge

 

Watonwan County District Court

File No. K600447

 

 

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

 

LaMar Piper, Watonwan County Attorney, Todd L. Kosovich, Assistant County Attorney, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

 

            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant John Brown Bridges II was found guilty by a jury and sentenced for malicious punishment of a child.  He argues the evidence that he used a belt to punish his seven-year-old son who had exhibited ongoing behavioral problems at school was inadequate to prove malicious punishment.  Bridges also argues the prosecutor committed prejudicial misconduct in eliciting testimony that the victim claimed Bridges had disciplined the victim's sister with a stick, evidence that was previously ruled inadmissible.  Finally, Bridges argues that he was entitled to jail credit for four days he spent in jail on another charge while this case was pending.  We affirm Bridges's conviction and reverse the district court's denial of four days of jail credit.

FACTS

            On October 24, 2000, Lori Mellor, a social worker for Watonwan County Human Services, received a report that seven-year-old T.B. had a bruise on his leg.  Mellor and Watonwan County Deputy Sheriff Barry Gulden met with T.B. at his school and observed a one-by-five-inch bruise on the back of T.B.'s upper thigh.  T.B. told them his father, Bridges, had hit him with a belt because he did not complete his homework before bedtime.  T. B. said his father hollered at him and spanked him three times with the belt.  T.B. said that it hurt and he screamed loudly.  T.B. told Gulden that he wanted his father jailed because he had been mean to him and to his mother.

            That same day, Dr. Ehab Michael examined T.B. at the St. James Hospital.  Dr. Michael testified at trial that T.B.'s bruise appeared to be less than 24 hours old and was sensitive to the touch.  When Dr. Michael asked T.B. how he got the bruise, T.B. told him that his father had punished him the night before with a belt.  Dr. Michael found the bruise to be consistent with having been caused by a belt.  Bridges was charged with malicious punishment of a child, fifth-degree assault, and domestic assault. 

            Bridges testified that he is the primary caregiver for T.B. and his sister.  He testified that when T.B. started second grade in September 2000, he began to receive letters from the school regarding T.B.'s inappropriate behavior.  The school offered Title I and special-education services for T.B., but Bridges refused because he did not want T.B. to be labeled a special-needs child.  Bridges admitted spanking T.B. with a belt on his bare skin on October 23, 2000.  He testified that when T.B. refused to do his homework and said that he did not have to do anything or listen to his father:

I told him to go ahead and go to his room.  And I went in there and took my belt off and showed him that he was my child and not the wild animal that he thought he was.

 

The principal of T.B.'s school testified that in November 2000, T.B.'s mother authorized the school to provide special services to T.B., and his behavior improved. 

            The district court instructed the jury on the elements of malicious punishment of a child, fifth-degree assault, and domestic assault.  The court also instructed the jury that Bridges was not guilty of a crime if he used reasonable force in the exercise of his lawful authority to restrain or correct his child.  During deliberations, the jury asked the court if this latter instruction applied to all of the counts.  The court responded that it did. 

            The jury found Bridges guilty of all three counts, and the district court sentenced him for his conviction of malicious punishment of a child in violation of Minn. Stat.        § 609.377, subds. 1, 2 (2000).  Bridges was sentenced to 365 days in jail and ordered to pay a fine and surcharge.  The court stayed 335 days of the jail sentence and $500 of the fine, and placed Bridges on supervised probation for two years.  This appeal followed.

D E C I S I O N

            1.         Bridges argues the state failed to meet its burden of proof, and therefore, his conviction should be reversed.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Minn. Stat. § 609.377, subd. 1 (2000), provides:

            A parent * * * who, by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child * * * .

 

Bridges argues that his use of force was reasonable and therefore permitted under Minn. Stat. § 609.379 (2000), which provides in part:

            Subdivision 1.  Reasonable force.  Reasonable force may be used upon or toward the person of a child without the child's consent when the following circumstance exists or the actor reasonably believes it to exist:

 

            (a)  when used by a parent, * * * of a child * * * in the exercise of lawful authority, to restrain or correct the child * * * .

 

Bridges argues that he was "justified in taking some corrective action given his son's behavior" and that he "clearly had a right as a parent to take additional corrective measures."  The state argues that it did not bring this case against Bridges because he chose to punish his son or even because he chose to use corporal punishment.  Rather, the state contends that Bridges "was charged, tried and convicted of malicious punishment of a child because his disciplinary tactics were excessive and cruel under the circumstances."

            The jury heard testimony that Bridges took off his belt and told his seven-year-old son to take his pants down.  Bridges then hit his son with the belt on his bare skin so hard that it left a bruise one inch wide and five inches long that was visible to a social worker, a deputy, and a doctor more than 12 hours later.  Bridges admitted to this conduct in his own testimony.  Viewing the evidence in the light most favorable to the conviction, we conclude that a reasonable jury could conclude that Bridges engaged in unreasonable force or cruel discipline that was excessive under the circumstances.

            2.         Bridges contends that he was denied a fair trial when the prosecutor elicited testimony from a witness relating to a matter that had previously been ruled inadmissible.

            A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt.  Further, whether prosecutorial misconduct was harmless depends partly upon the type of misconduct committed.  For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.  For less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict.

 

State v. Hunt, 615 N.W.2d 294, 301-02 (Minn. 2000) (citations omitted).  "The prosecutor's statements must be taken as a whole when determining if there is a basis for reversing appellant's conviction."  State v. Yang, 627 N.W.2d 666, 678 (Minn. App. 2001) (citation omitted), review denied (Minn. July 24, 2001).

            The conversation among T.B., Mellor, and Gulden was tape-recorded.  The parties agreed that prejudicial material was contained in this tape-recording.  The prosecutor informed the court that

it would be my preference to stay away from any other history that [Bridges] had at all and just isolate it to this, which I can do, I believe, with skillful questioning, if we don't have the tape.  Absolutely I am not going to elicit that testimony.

 

The district court excluded the tape from the state's case-in-chief because of its prejudicial content.  The objectionable statement took place during the following exchange between the prosecutor and Gulden.

Prosecutor:    What type of things did you talk about, generally?

Gulden:           We talked about how [Bridges] disciplines his other child with a stick.

 

Defense:         Objection, Your Honor.  Relevance.

The Court:      Sustained.  The jury shall disregard the last question and answer.

 

            A review of the record shows that this statement is the only reference made during the entire trial to the inadmissible material from the tape-recording.  When the defense attorney objected to this comment, the court sustained the objection and instructed the jury to disregard the last question and answer.  The issue was never addressed again at trial.  Defense counsel never moved the district court for a new trial based on this comment.  It is highly unlikely that this isolated comment played a substantial part in influencing the jury verdict.  We conclude that the statement was harmless and that the verdict rendered was  not attributable to the objectionable statement.

            3.         Bridges argues that the district court erred in refusing to grant him jail credit for four days he spent in jail on another charge while this case was pending.  The state took no position on this issue at the sentencing hearing and takes no position at this time.  "The decision to grant jail credit is not discretionary with the district court."  State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994) (citing State v. Doyle, 386 N.W.2d 352, 354 (Minn. App. 1986)).

[A] defendant is entitled to credit for all time spent in custody following arrest, including time spent in custody on other charges, beginning on the date the prosecution acquires probable cause to charge defendant with the offense for which he or she was arrested.

 

Fritzke, 521 N.W.2d at 862.

            Bridges contends that, while it is too late to ensure that he receives credit for the four days against his 30-day jail term, the record must be corrected to ensure that he receives the credit if he is required at some future date to serve the remainder of his stayed sentence.  We agree and conclude that the district court erred in refusing to grant Bridges four days of jail credit.

Affirmed in part and reversed in part.