This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Brad Edward Green,


Filed July 6, 2004


Stoneburner, Judge


Clay County District Court

File No. K6021790


Mike Hatch, Attorney General, Craig R. Anderson, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128; and


Lisa Borgen, Clay County Attorney, 807 North Eleventh Street, Moorhead, MN 56560 (for respondent)


John M. Stuart, Minnesota Public Defender, Michael C. Davis, Special Assistant State Public Defender, Suite 1042 Minnesota Building, Forty-Six East Fourth Street, St. Paul, MN 55101 (for appellant)


            Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.



U N P U B L I S H E D  O P I N I O N




            Appellant, Brad Edward Green, challenges his conviction of and sentence for first-degree assault, arguing that there was insufficient evidence to support the jury’s guilty verdict and that the district court abused its discretion in denying his request for a downward dispositional departure.  Because we conclude that there was sufficient evidence to support the conviction and the district court did not abuse its discretion in sentencing, we affirm.



            T.G., born April 30, 2002, is the son of appellant and his wife, Mandy Green.  At 11:30 a.m. on July 25, 2002, appellant brought T.G. to his appointment with ophthalmologist, Dr. Hope Yongsmith, who was treating T.G. for retinal hemorrhages associated with an earlier incident of shaken-baby syndrome.[1]  Dr. Yongsmith’s examination of T.G. on July 25 revealed that one small retinal hemorrhage remained in his right eye, but that the hemorrhages in the left eye had healed.  Dr. Yongsmith reported that T.G. appeared healthy and content and was cooing. 

            T.G. and appellant returned home from the appointment at a little after noon.  Appellant made a bottle for T.G. and began feeding him.  Appellant’s wife testified that she was with appellant and T.G. during this time, except when she left the room to retrieve a “burp rag” from the dryer in the laundry room downstairs.  When she returned upstairs, she saw appellant holding T.G., who was limp and barely breathing.  Appellant told his wife that T.G. was having a seizure.  They brought T.G. to the emergency room.

When they arrived at the hospital, T.G. was still limp and hardly breathing.  Dr. Rosaleah Bernardo, a pediatric critical-care physician, diagnosed T.G. as having suffered a non-accidental trauma. 

            Appellant was charged with one count of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2002).  At trial, Dr. Nathaniel Karlins, a radiologist involved in T.G.’s care, testified that he examined CT scans taken of T.G.’s brain on May 21 relating to the first shaking incident and compared them to CT scans taken on July 25.  Dr. Karlins testified that T.G.’s July injures were caused by shaking and that his hospitalization in July was related to new brain trauma, not the injuries he suffered in May.  Dr. Karlins further testified that T.G.’s ribs had been broken and that fractures of that nature are associated with an adult’s hands squeezing an infant’s chest while shaking the infant.

            Dr. James Reggin, the neurologist who treated T.G., testified that:  T.G.’s brain injury was consistent with shaken-baby syndrome; his July injuries were not caused by seizures; and that the injuries were inflicted at some point between T.G.’s appointment with Dr. Yongsmith and his arrival at the emergency room.  Dr. Ron Miller, a pediatrician, testified that T.G. was a victim of shaken-baby syndrome in May 2002 and on July 25, and that his rib fractures were caused by a third shaking incident that occurred sometime between the incident in May and the incident on July 25.  Dr. Miller also testified that T.G. was shaken on July 25, sometime between his appointment with Dr. Yongsmith and his arrival at the hospital, and that T.G.’s injuries were not caused by a seizure.

            Dr. John Plunkett, a pathologist, testified for the defense that T.G.’s injuries were more likely caused by an “impact” injury, and that he does not agree with the medical community’s acceptance of shaken-baby syndrome and the constellation of injuries associated with it.  Appellant’s wife testified that she does not believe appellant caused T.G.’s injuries.  Rather, she believes that the injuries were caused by a seizure.  Appellant testified on his own behalf that he did not shake T.G.

            The jury found appellant guilty of first-degree assault.  The state moved for an upward sentencing departure, and appellant moved for a downward sentencing departure.  The district court declined to depart from the presumptive guidelines sentence, and sentenced appellant to 86 months in prison. 

            Appellant challenges his conviction and sentence. 



I.          Sufficiency of the evidence

            In considering a claim of insufficient evidence, our review is limited to a careful 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).  Further, we must assume 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            Appellant argues that the state failed to prove that appellant caused T.G.’s injuries or that he caused them intentionally.  We disagree.  Several physicians with experience in shaken-baby syndrome testified that T.G.’s injuries were the result of a non-accidental, shaking trauma.  These physicians also testified specifically that T.G.’s July injuries were not related to the injuries from May, occurred after T.G. had been examined by Dr. Youngsmith, and were not caused by a seizure.  Appellate courts “have long recognized that the credibility of a witness is an issue for the jury, as the jury is in the best position to make such a determination.”  State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002). 

            A jury is also in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.  According to the majority of the medical evidence offered at trial, T.G. was shaken at some point between the conclusion of his appointment with Dr. Yongsmith and his arrival at the emergency room.  At T.G.’s appointment with Dr. Yongsmith, she reported that T.G. appeared happy and healthy.  Had the shaking occurred at some time before this appointment, Dr. Yongsmith would have witnessed other injuries, such as new retinal hemorrhages or changes in T.G.’s behavior due to brain trauma.  The only two caretakers T.G. had during this time were appellant and his wife.  Appellant was alone with T.G. for a brief period of time right before T.G. displayed the effects of another shaking incident.  The jury reasonably inferred that appellant was the only caretaker who had the opportunity to shake T.G. and that he did so intentionally.  

            Appellant testified that T.G. had a seizure while appellant was alone with him, and he denied shaking T.G. or harming him in any way.  But as previously noted, credibility determinations are the province of the jury and it “has no obligation to believe a defendant’s story.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  Appellant also asserts that T.G.’s later seizure in September 2002 tends to prove that T.G.’s July 2002 injuries could have been caused by a seizure.  But T.G. did not have any seizures between the incident in May 2002 and the incident in July 2002.  The evidence sufficiently supports the jury’s guilty verdict.

II.        Imposition of presumptive sentence

            The decision whether to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Because a sentence provided by the sentencing guidelines grid is presumed appropriate in every case, the “judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.”  Minn. Sent. Guidelines II.D.

            Appellant argues the presence of mitigating circumstances compelling a downward departure in his sentence, including: a substantial lack of capacity for judgment based on appellant’s low IQ; appellant’s age (20 years old at the time of the incident); his lack of a criminal record; the support he receives from family and friends; and his participation in parenting classes.

            According to appellant’s motion for a downward departure, he has an IQ of 74.  But appellant fails to explain, or provide any evidence showing, how appellant’s lower-than-average IQ affected his judgment on the day of the assault.  It is equally unclear why appellant believes his age constitutes a basis for departure from the presumptive sentence.  At the time of the offense, appellant was a 20-year-old adult and was sentenced accordingly.  Additionally, appellant’s previous lack of a criminal record was duly accounted for by the presumptive sentence, which was calculated using a criminal history score of zero.

            The district court received several letters of support for appellant from members of his community.  But as the district court noted at the sentencing hearing, the letters do not address issues relevant to sentencing.  Rather, the letters express disbelief regarding appellant’s ability to commit such an assault.  Appellant’s participation in parenting classes is also largely irrelevant to sentencing.  The jury found appellant guilty, and the district court appropriately exercised its discretion by imposing a guideline sentence.


[1] In May 2002, appellant and his wife brought T.G. to the hospital after he began to vomit and have seizures.  T.G. was diagnosed with a brain injury and a broken leg, secondary to shaken-baby syndrome.  The police were unable to file charges in association with that incident because T.G. had at least eight different caregivers in the three weeks since his birth.