This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-95-2153

State of Minnesota,
Respondent,

vs.

Anthony Cordell Smith,
Appellant.

Filed July 9, 1996
Affirmed
Holtan, Judge*

Hennepin County District Court
File No. 955282

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Barry V. Voss, Voss and Goetz, P.A., 701 Fourth Avenue South, Suite 1740, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Appellant challenges the sufficiency of the evidence supporting his conviction for second-degree assault, arguing the evidence did not prove "substantial bodily harm," and alleges prosecutorial misconduct, contending that the prosecutor unfairly commented on appellant's testimony during trial. We affirm.

FACTS

On June 19, 1994, following an argument, appellant allegedly hit Prentice Puckett on the head with a baseball bat. Puckett testified that after the assault he was "bloody all over" and "losing consciousness" and that his head wound required 10-15 staples to suture. Puckett still retained a scar from the incident at the time of trial, one year later. The examining emergency room physician testified that when he treated Puckett on the night of June 19, 1994, Puckett had an approximately three-inch laceration on his scalp, along with a concussion and accompanying amnesia, injuries consistent with a blow from a baseball bat. On cross-examination, the examining emergency room physician testified that the injuries Puckett received were also consistent with the type of damage caused by hitting one's head on a relatively flat surface, such as a garage floor.

Following the physician's testimony, appellant testified that he did not hit Puckett with a baseball bat and that he and Puckett were fighting when Puckett hit his head on the concrete. In closing argument, the prosecutor stated "it's an amazing opportunity for the defendant now to take the stand after hearing [the emergency room physician] testify and say, well, we were involved in a fight and the defendant went down with the victim and the victim hit his head on the concrete." Appellant's counsel did not object to the statement but noted in its closing argument that "the State makes a lot of hay with the idea that, does it just happen to be coincidence that that's the testimony [the emergency room physician] gave you, and the fact that the defendant has a right to sit here and confront all the witnesses against him and listen to the testimony against him."

During trial, Prentice Puckett and two witnesses (Puckett's father and a neighborhood youth) testified that they saw appellant strike Puckett with a baseball bat. A friend allegedly waiting in appellant's truck testified that he did not see appellant hit Puckett with a baseball bat, or even notice a baseball bat. Puckett and his father both testified that the man claiming to be in appellant's truck was not present during the assault.

The trial court instructed the jury on the elements of assault in the second degree, assault in the third degree, and self defense. The jury found appellant guilty of assault in the second degree. Appellant was sentenced to 21 months, executed, with one day jail credit. This appeal followed.

D E C I S I O N

1. Sufficiency of the evidence.

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 427, 430 (Minn. 1989). A reviewing court 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).

For assault in the second degree, Minn. Stat. ' 609.222, subd. 2, provides: "Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both." Minn. Stat. ' 609.02, subd. 7a, defines "substantial bodily harm" 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."

Appellant contends the "evidence was insufficient as a matter of law to convict [him] of assault in the second degree in the absence of evidence establishing substantial bodily harm," claiming Puckett suffered "bodily harm" but not "substantial bodily harm." Appellant cites State v. Gerald, 486 N.W.2d 799 (Minn. App. 1992) in support of this claim, but Gerald is distinguishable from this case in that it involved the first-degree assault statute and a different type of injury. Id. at 801. Here, there was testimony that Puckett had an approximately 3-inch bleeding laceration on his scalp requiring 10-15 staples, along with a concussion and accompanying amnesia at the time of the assault and still retained a scar from the attack. Viewing the evidence in a light most favorable to the conviction, Prentice Puckett's injuries establish the substantial bodily harm required for second-degree assault.

2. Prosecutorial misconduct.

Ordinarily, a defendant forfeits a claim of prosecutorial misconduct by failing to object to the allegedly improper statements or to seek curative instructions. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). A reviewing court may remand for a new trial, notwithstanding the defendant's failure to preserve the issue, if the prosecutor's comments are unduly prejudicial. State v. James, 520 N.W.2d 399, 405 (Minn. 1994). But see State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (defense counsel that did not object to prosecutor's allegedly improper closing statement, but chose to respond in closing argument, deemed to have forfeited his right to have the issue considered on appeal).

In examining prosecutorial error, Minnesota courts have applied a two-tiered test:

[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Moreover, the alleged error and its impact must be examined within the context of the record as a whole, considering the strength of the state's evidence and the weakness of the defense's evidence. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).

Appellant asserts that the prosecutor prejudicially erred when he noted in his closing argument that "it's an amazing opportunity for the defendant now to take the stand after hearing [the emergency room physician] testify and say, well, we were involved in a fight and the defendant went down with the victim and the victim hit his head on the concrete." Appellant claims this comment was "unusually serious prosecutorial conduct" warranting a new trial, alleging the prosecutor's comment misled the jury into believing that appellant had improperly testified in the defense's case in chief, thereby influencing the jury or affecting the verdict. Appellant acknowledges that the prosecutor's comment was not objected to at trial.

Considering the circumstances of the alleged misconduct and the record as a whole, the statement here was not so serious as to require a new trial. First, the alleged misconduct does not reach that level of prejudice which requires a new trial under our case law. See, e.g., State v. Porter, 526 N.W.2d 359, 363-64 (Minn. 1995) (statements in prosecutor's closing argument that jurors would be suckers for acquitting defendant and that there was no salve or sedative that would make them feel good about acquitting defendant constituted serious misconduct warranting new trial). Second, the evidence against appellant was strong, lessening the chance that the prosecutor's statement influenced the jury's decision to convict. Third, defense counsel elected not to object to the alleged misconduct during trial, instead responding to it in the defense's closing argument.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.