This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Roderick Benjamin Brown,
Filed January 9, 2007
Pope County District Court
File No. K8-04-148
Lori Swanson, Attorney General, 1800
Belvin L. Doebbert, Pope County Attorney, Chad M. Larson, Assistant County Attorney, 100 17th Avenue Northwest, P.O. Box 288, Glenwood, MN 56334 (for respondent)
Jeffrey D. Kuhn, Nelson, Kuhn & Wahlquist, Ltd.,
Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Harten, Judge.*
On appeal from a conviction of domestic assault with intent to cause fear of immediate bodily harm, appellant argues that (1) the evidence is insufficient to support the guilty verdict; (2) the guilty verdict for one charge of domestic assault is legally inconsistent with a not-guilty verdict for domestic assault with intent to cause immediate bodily harm; and (3) the district court abused its discretion by precluding appellant from cross-examining the victim about the effects of her antidepressant medication at the time of the incident. We affirm.
Appellant Roderick Benjamin Brown and his wife, Mary Bauer, became estranged after she learned that appellant was involved in a sexual relationship with his ex-wife. A few weeks later, Bauer demanded that appellant move out of their residence, which was a hobby farm that appellant owned near Lowry. Appellant moved out in late April 2004.
At approximately 8:00 p.m. on May 3, Bauer and appellant had a telephone conversation. Because Bauer believed that appellant was in a good mood, she invited him over. The parties’ accounts vary as to what occurred after appellant arrived. Bauer testified that she became frightened when appellant got angry and physically leaned toward her during their conversation on the living room couch. She stated that appellant swore at her and threatened to kick her out of his house, moving closer to her as he said it. Bauer is 5’2” tall and weighs 125 pounds; appellant is approximately 6’ tall and weighs 200 pounds. When Bauer asked appellant to leave, he refused, saying that it was his house and he did not have to.
According to Bauer, after appellant refused to leave, she grabbed a telephone by the couch and ran into the bedroom to call 911. But appellant followed, threw her to the bed, choked her, pushed her face into the comforter to the point of suffocation, and took the phone away. Appellant also grabbed the bedroom telephone from Bauer when she tried to use it.
Bauer testified that she broke free and ran to the kitchen to get her cell phone and that appellant chased her, knocked her down, and again attempted to choke her. Bauer stated that she bit appellant’s hand in order to break free. Appellant testified that Bauer started the fight by following him into the kitchen as he attempted to get his mail and leave, blocked his exit, grabbed his lapels, swore at him, and took his cell phone.
Bauer called 911 from a location outside the home. In her 911 call, Bauer was crying and sounded distressed. The sheriff’s deputy who responded to the 911 call stated that Bauer was crying, shaken up, and very frightened. During the ensuing investigation, the police photographed the telephones strewn on the floor with their batteries and battery covers separated. Bauer had red marks on her arms and around her neck. Two weeks later, she reported bruises on her legs that she stated were caused by the incident. Those injuries were photographed in addition to a bite mark on appellant’s wrist.
Appellant was charged with interference with a 911 call, domestic assault with intent to cause fear of immediate bodily harm, and domestic assault intending to cause immediate bodily harm. Before trial began, the district court ruled that appellant, who is a physician, was precluded from questioning Bauer about the effects on her memory of the antidepressant medication she was taking. The fact that Bauer was taking an antidepressant medication was declared admissible.
The jury found appellant guilty of domestic assault with intent to cause fear of immediate bodily harm but not guilty of the other two counts. Appellant brought posttrial motions seeking a judgment of acquittal or new trial based on the district court’s evidentiary ruling that prohibited cross-examination of Bauer about the effects of her antidepressant medication. The district court denied the motions and sentenced appellant to 90 days in jail, execution stayed but for two days on condition of one year’s probation and payment of $500 of the $1,000 fine. This appeal follows.
contends that there was insufficient evidence to support the jury’s guilty
verdict of domestic assault with intent to cause fear of immediate bodily harm
or death of another. The state must
prove “beyond a reasonable doubt all of the essential elements of the crime
with which the defendant is charged.” State v. Ewing, 250
fact-finder has the exclusive function of judging witness credibility. Dale v. State, 535 N.W.2d 619, 623 (
was convicted of misdemeanor domestic assault against a family or household
member, see Minn. Stat. § 518B.01, subd. 2(b)(1) (2002) (defining
“family or household members” to include a spouse), by “commit[ting] an act
with intent to cause fear in another of immediate bodily harm or death.”
contends that Bauer did not testify to any identifiable act done with the sole
purpose of causing her fear of immediate bodily harm or death. Specifically, appellant challenges Bauer’s testimony
that she was afraid of him. But in
addition to Bauer’s testimony that she became frightened when appellant’s
demeanor changed from calm to angry, she also testified that appellant swore at
her and refused to leave. She stated that
when she was being choked in the kitchen, she was the most afraid that she had
ever been in her life. The tape of
Bauer’s 911 call was played for the jury.
And the deputy sheriff testified that Bauer was “crying, shaken up,
appeared to be very frightened” when he responded to her 911 call. The jury also saw photographs of broken
telephones with their parts strewn about the floor and a red mark on Bauer’s neck. While appellant invites this court to sit as
a “thirteenth juror” weighing the evidence, see Tibbs v.
argues that the jury’s guilty verdict for domestic assault with intent to cause
fear of immediate bodily harm or death of another is legally inconsistent with the
not-guilty verdict on the count of domestic assault intending to cause
immediate bodily harm or death of another.
To be entitled to relief because of inconsistent verdicts, the verdicts
must be legally inconsistent. State v. Netland, 535 N.W.2d 328, 331 (
court examines the actual elements of the offenses to determine whether the
verdicts are legally inconsistent.
was convicted of misdemeanor domestic assault against a family or household
member by “commit[ting] an act with intent to cause fear in another of
immediate bodily harm or death.”
The two crimes may be divided into three elements. Both crimes require that the act was “against a family or household member.” Minn. Stat. § 609.2242, subd. 1. “Family or household members” include “spouses and former spouses.” Minn. Stat. § 518B.01, subd. 2(b)(1).
second element of both crimes is an element of specific intent: “with intent to,” Minn. Stat. § 609.2242,
subd. 1(1), compared with “intentionally.”
“[i]ntentionally” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, . . . the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”
third element of both crimes involves an act: “to cause fear in another of
immediate bodily harm or death,” Minn. Stat. § 609.2242, subd. 1(1), compared
with “inflicts or attempts to inflict bodily harm upon another.”
the two charges begin with the same element, which defines the victim, the
other two elements differ. The two types
of intent have similar basic definitions, but only “intentionally” requires
that the actor have knowledge of the facts necessary to make the conduct
criminal. Minn. Stat. § 609.02, subd.
9(3)–(4). The specified facts are
defined in statute as those set forth “after the word ‘intentionally.’”
third element for each crime modifies the manner and degree of bodily harm
inflicted. Appellant was convicted of “caus[ing]
fear in another of immediate bodily harm or death.” Minn. Stat. § 609.2242, subd. 1(1). But, appellant was acquitted on the crime
requiring “inflict[ing] or attempt[ing] to inflict bodily harm upon
The distinction is clear. To “cause fear in another” does not require that appellant intended to “inflict[ ] or attempt[ ] to inflict bodily harm upon another.” The only intent appellant needed for conviction is that he intended that his acts make Bauer fearful of “immediate bodily harm or death.” An individual may act, knowing that the act will not cause bodily harm, while also expecting that the recipient will be fearful that such harm will result. The jury found that appellant’s specific intent was to create fear, not physical harm or death. Because these acts are different, the jury could rationally arrive at its verdict. Further, because the second and third elements of the two crimes describe different acts with different states of intent, the verdict is not legally inconsistent.
contends that the district court abused its discretion by precluding cross-examination
of Bauer about the effects of her antidepressant medication. “Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear
abuse of discretion,” State v. Amos,
658 N.W.2d 201, 203 (
evidentiary error is prejudicial “[i]f . . . there is a
reasonable possibility that the verdict might have been different if the
evidence had been admitted . . . .” State v. Post, 512 N.W.2d 99, 102 (
Appellant sought to attack Bauer’s credibility by means of an argument based on possible side effects of her antidepressant medication. But even if appellant’s argument were accepted, the state’s case relied on more than Bauer’s testimony. We therefore conclude that the district court did not abuse its discretion in its evidentiary ruling.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.