This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-942

 

 

In the Matter of the Welfare of N.T.J.

 

Filed April 27, 2004

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Hennepin County District Court

File No. J6-02-068996

FAM-244345

 

 

Leonardo Castro, Hennepin County Chief Public Defender, Melissa Haley, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant N.T.J.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State)

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            N.T.J. appeals the adjudication and disposition of a juvenile petition alleging criminal vehicular operation resulting in substantial bodily harm.  We affirm the adjudication because the findings and evidence are sufficient to establish that the accident resulted in substantial bodily harm.  But we reverse and remand the disposition order because it does not contain findings addressing N.T.J.’s best interests or considering alternative dispositions.  We grant in part and deny in part N.T.J.’s motion to strike portions of the state’s brief.

F A C T S

            The district court adjudicated N.T.J. delinquent for committing criminal vehicular operation resulting in substantial bodily harm in violation of Minn. Stat. § 609.21, subd. 2a(7) (2000).  The stolen car N.T.J. was driving collided with a motorcycle driven by William Heller at about five in the afternoon on June 15, 2002, in a residential area of Minneapolis.  The force of the collision propelled Heller off his motorcycle and onto the car.  He struck the windshield, bounced off the car, and landed on the street.

N.T.J. and a passenger got out of the car and ran.  N.T.J. was apprehended by a neighbor who had heard squealing tires, saw the crash, and chased N.T.J. for a block and a half before he was able to stop her.  Another neighbor detained her until police arrived.

The police obtained preliminary information from Heller while waiting for the ambulance.  Heller, who was lying on the street, told them that he had pain in his groin and back.  Heller described his injuries as “road rash” on his right arm and extreme pain in his lower back, across his hips at the belt line.

            The ambulance transported Heller to Hennepin County Medical Center (HCMC). The emergency room staff examined Heller and took X-rays that ruled out a fracture of the pelvis or of the coccyx.  They diagnosed a forearm abrasion and pelvis contusion and released Heller approximately three-and-one-half hours after he arrived at the hospital.  The hospital reports indicate that at release Heller was pain-free; Heller testified that at release he was still in significant pain.  HCMC provided Heller with prescriptions for ibuprofen and other pain medications, including motrin and vicodin.

Heller had planned to return to his home in California the day following the accident.  Because of the pain he was experiencing, he delayed his return for three days.  He testified that during that time he continued to be in a lot of pain, both from the abrasions on his arm and the injury to his lower back.  Photographs introduced by the state depicted the injuries to Heller’s arm and the severe bruising around his belt line above his buttocks.

When Heller returned to California he was unable to resume his employment as a graphic arts equipment operator, a job which required both travel and lifting capacity.  He stated that he was barely able to stand, and that it hurt when he moved or walked.  He obtained medical treatment from a physician who specialized in back injuries.  The physician took X-rays and prescribed physical therapy to strengthen the muscles and tissues that had been damaged.  Heller received physical therapy three times a week for six weeks.  The physical therapy included muscle strengthening activities, muscle stimulation through electric current applied to his back, and therapeutic massage.  After five weeks he noticed improvement to his condition, and his doctor released him to return to work six weeks after the accident.  He continued to have pain for about a month after he returned to work.

            Hennepin County charged N.T.J. with felony criminal vehicular operation.  Following a contested hearing, the district court adjudicated N.T.J. delinquent and issued a summary order stating that the reasons for the court’s finding were set forth on the record.  The order listed six dispositions: probation, ten days sentence to service, attendance at a victim impact panel, a letter of apology, a requirement to remain law abiding, and a stayed out-of-home placement.

            N.T.J. appeals, contending that the evidence is insufficient to support an adjudication for criminal vehicular operation resulting in substantial bodily harm and that the district court’s failure to issue written dispositional findings requires a remand for additional findings or that the disposition be vacated.  N.T.J. also moved to strike portions of the state’s brief.

D E C I S I O N

I

            The state must prove the truth of a delinquency petition beyond a reasonable doubt.  In re Welfare of S.W.T., 277 N.W.2d 507, 514 (Minn. 1979) (citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970)).  When an adjudicated delinquent challenges the sufficiency of the evidence to support the adjudicative findings, we review whether the record and any legitimate inferences drawn from it reasonably permit the district court’s finding.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).  We evaluate the record and the legitimate inferences from the facts in the record in the light most favorable to the adjudication to determine whether the fact-finder could have reasonably concluded that the defendant was guilty of the charged offense.  Id.  The credibility of witness testimony and the weight given to the evidence are issues for the district court’s determination.  Id.

            N.T.J. disputes that the evidence is sufficient to prove that her driving conduct caused substantial bodily harm as required for criminal vehicular operation prohibited under Minn. Stat. § 609.21, subd. 2a(7) (2000).  “Substantial bodily harm,” as an element of criminal vehicular operation, 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 (2000).

At trial the state presented evidence, primarily through Heller’s testimony, of impairment of the function of Heller’s back, arm, and hand.  To prove substantial bodily harm the state must prove that the victim suffered substantial impairment of the function of a “bodily member or organ,” as that term is used in section 609.02.  When we apply a statutory term that is free from ambiguity we look only at its plain meaning.  Minn. Stat. § 645.16 (2002).  In a biological context the plain meaning of organ is “[a] differentiated part of an organism such as an eye . . . that performs a specific function.”  The American Heritage Dictionary 1239 (4th ed. 2000).  A “member,” as it applies to a body, is “[a] part or an organ of a human or animal body.”  Id. at 1095.  Applying the plain meaning of the statute’s terms, a person’s back would be considered a differentiated part of an organism or a part of a human body; thus proof of a substantial impairment of the function of the back would satisfy the requirement of showing substantial bodily harm.  See, e.g., Neal v. State, 658 N.W.2d 536, 548 (Minn. 2003) (upholding a determination of substantial bodily harm based on a broken nose and multiple abrasions).

The state presented both direct and circumstantial evidence of Heller’s back injury to prove the petition’s charge that Heller had suffered substantial bodily harm.  Direct evidence of Heller’s injuries included (1) an HCMC emergency department report detailing the treatment Heller received on the evening of the accident and the hospital staff members’ assessments of his condition, (2) photographs of the abrasions on his back and right arm, and (3) Heller’s testimony about the pain he suffered and his inability to work for six weeks after the accident.

The emergency department records substantiated the diagnosis of a forearm abrasion and pelvis contusion, the absence of fractures, and the prescription of pain medication, including motrin and vicodin.  The document notes “orthopedic injuries” in the “Discharge Instructions” section and indicates that a follow-up care plan was given to Heller.  The photographs, taken a few days after the accident, show the abrasions on Heller’s right arm and also show the bruising on Heller’s lower back.  These photographs supplement the HCMC reports and support Heller’s testimony.

Heller provided detailed testimony on the extent of his injuries and the effect on his life.  He testified that at the time of the accident he experienced severe pain that would qualify at an “eight-and-a-half or nine” on a scale of one to ten.  The pain grew worse in the days following the accident.  The pain in his back delayed his return to California for three days and required intensive physical therapy three times a week for six weeks after the accident.  Heller was able to resume work only after he was approved to return by a physical therapist provided by his employer.  This approval was obtained six or seven weeks after the accident.  Following his return to work he experienced pain and weakness in his hand that made him unable to handle certain aspects of his job and required him to make adjustments, including using his left hand for various tasks.  At the time of the hearing, a year after the accident, his hand still hurt and his back continued to cause him “minor discomfort.”  In addition to the impairment of function that prevented him from working, he had to refrain from personal recreational activities for several months after the accident.

Circumstantial evidence confirms the force of the impact on Heller’s body and is consistent with his description of his injuries.  Photographs showed the area of the collision and the extensive damage to Heller’s motorcycle and the car that struck it.  Heller, N.T.J., and other witnesses described the circumstances of the accident, the speed of the vehicles, and the force of the collision.  That testimony also described the impact of the vehicle on Heller’s body, his contact with the pavement, and his transport to the hospital in an ambulance. 

Although the medical reports are not definitive, Heller’s testimony on his injuries, the associated pain, and his inability to work establish that he suffered, at minimum, a temporary but substantial impairment in the function of his back.  The evidence supports the district court’s determination that Heller’s injuries amounted to substantial bodily harm.

N.T.J. argues that Heller’s injuries do not constitute “substantial bodily harm” because they only amount to “bodily harm.”  Criminal vehicular operation resulting in bodily harm is prohibited by Minn. Stat. § 609.21, subd. 2a, and constitutes a lesser degree of the offense with which N.T.J. was charged.  “Bodily harm” is also defined by statute as “physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (2000).

            The statute does not provide a specific demarcation between “bodily harm” and “substantial bodily harm.”  Some guidance is available from case law.  Bodily harm occurs when a victim feels pain or suffers some physical manifestation of pain.  See State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967) (concluding that experiencing pain from being struck constitutes sufficient evidence of “bodily harm”); see also State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (concluding that a bruise was sufficient evidence to establish the element of physical injury).  A black eye has also been held to constitute bodily harm.  State v. Whaley, 389 N.W.2d 919, 926 (Minn. App. 1986).  In contrast, a victim’s loss of consciousness was determined to be substantial bodily harm.  State v. Larkin, 620 N.W.2d 335, 337 (Minn. App. 2001).  A broken finger has also been held to constitute substantial bodily harm.  State v. Witucki, 420 N.W.2d 217, 221 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988).  And the Minnesota Supreme Court recently upheld a finding of substantial bodily harm on evidence that the victim suffered “a broken nose and multiple abrasions throughout his torso and upper and lower extremities.”  Neal, 658 N.W.2d at 541.  We are not persuaded that Heller’s injuries amounted only to bodily harm rather than substantial bodily harm.

The state alternatively argues that it satisfied the element of substantial bodily harm with evidence of Heller’s skin injury.  Because this was not the basis for the district court’s finding, and, because an alternative basis is unnecessary in light of our determination that Heller sustained substantial injury to his back, we do not address this argument.

II

            The district court must provide written findings supporting its delinquency disposition, including why the disposition serves the best interests of the child, what alternative dispositions were considered by the court, and why such dispositions are not appropriate in this case.  Minn. Stat. § 260B.198, subd. 1(m) (2002); see also Minn. R. Juv. Delinq. P. 15.05 (incorporating and further explicating these requirements).

A district court’s failure to make statutorily required written findings generally requires reversal.  In re Welfare of J.S.S., 610 N.W.2d 364, 368 (Minn. App. 2000) (reversing for failure to make sufficient statutorily required written findings); see also In re Welfare of C.A.W., 579 N.W.2d 494, 499 (Minn. App. 1998) (reversing for failure to address factors necessary to justify out-of-home placement); In re Welfare of J.A.J., 545 N.W.2d 412, 415 (Minn. App. 1996) (reversing for failure to make adequate findings to support court-ordered residential treatment).

The district court carefully explained its reasons on the record for adjudicating N.T.J. delinquent.  The court, however, made only limited on-the-record findings that support its disposition.  This is apparently attributable to N.T.J.’s request to expedite the disposition so that she could leave the state to begin college.  The court did not issue written findings, but following N.T.J.’s appeal, the court entered into the file a portion of the hearing transcript with a cover letter indicating that the reasons were set forth on the record for its finding that the state had proven the petition beyond a reasonable doubt.

Although a sufficiency-of-evidence determination may rely on evidence found anywhere in the record, In re Welfare of L.B., 404 N.W.2d 341, 346 (Minn. App. 1987), the district court must provide written findings supporting its disposition.  Minn. Stat. § 260B.198, subd. 1(m); Minn. R. Juv. Delinq. P. 15.05, subd. 2(A).  Both the state and N.T.J. agree that the disposition order that only lists the six disposition requirements is insufficient under Minn. Stat. § 260B.198, subd. 1(m) and Minn. R. Juv. Delinq. P. 15.05, subd. 2.  The state, relying on L.B., 404 N.W.2d at 346, argues that no benefit will be obtained by remanding the case for written findings because N.T.J. is now nineteen years of age and a dispositional order would be moot.  It is significant, however, that L.B. was issued before August 1, 1996, when the supreme court strengthened the written dispositional-order requirement by adopting Minn. R. Juv. Delinq. P. 15.05.  The rule 15.05 requirement applies to all juvenile actions commenced after that date.  Minn. R. Juv. Delinq. P. 15.05, cmt.

N.T.J.’s disposition order is legally inadequate and the limited on-the-record statements relating to the dispositional requirements do not alter the legal inadequacy.  See In re Welfare of N.T.K., 619 N.W.2d 209, 212 (Minn. App. 2000) (reversing disposition for incomplete findings).  We reverse and remand to allow the district court to comply with Minn. Stat. § 260B.198, subd. 1(m) and Minn. R. Juv. Delinq. P. 15.05, subd. 2.

III

            N.T.J. petitioned this court to strike three parts of the state’s brief:  a reference to an online medical diagnostic manual, a reference to a medical report from a physician who treated Heller in California, and the part that advances the state’s argument that skin injuries suffered by Heller constituted substantial bodily harm under Minn. Stat. § 609.21, subd. 2a (7).

“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01 (applied to juvenile proceedings by Minn. R. Juv. Delinq. P. 21.03, subd. 2(C)); see also LaChapelle v. Mitten, 607 N.W.2d 151, 168 (Minn. App. 2000) (granting appellant’s motion to strike materials in respondent’s appellate brief that were not part of the record at trial), review denied (Minn. May 16, 2000).  An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received into evidence in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). 

Litigants generally cannot raise matters or theories on appeal that were not argued in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But “[a] respondent can raise alternative arguments on appeal in defense of the underlying decision when there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.”  State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003).  The Minnesota Rules of Criminal Procedure provide grounds for such an exception: “The court may permit a respondent, without filing a cross-appeal, to defend a decision or judgment on any ground that the law and record permit that would not expand the relief that has been granted to the respondent.”  Minn. R. Crim. P. 29.04, subd. 6.

            The online medical manual was neither referred to nor introduced at trial and is not included among the exhibits in the record on appeal.  Similarly, the medical reports related to diagnosis and treatment Heller received in California were not admitted by the district court.  Accordingly, we grant N.T.J.’s motion to strike references to the  online medical diagnostic manual published by the Merck pharmaceuticals company in the State’s brief, as well as references to medical records that describe treatment that the complainant received in California.

We do not agree, however, that the state’s alternative argument on Heller’s skin injury should be stricken.  This argument does not seek to expand on the relief granted the state at trial.  The photographs of Heller’s injuries, his testimony, and the HCMC medical reports provide sufficient facts in the record for the appellate court to consider the skin-injury theory, and the legal grounds for the alternative argument are the same as for the back injury, namely Minn. Stat. § 609.21, subd. 2a(7).  Although we declined to consider the argument, under Roby and Grunig it may still be included in the brief.  We therefore deny N.T.J.’s motion to strike the part of the brief addressing this alternative basis for finding substantial impairment.

Affirmed in part, reversed in part, and remanded.