This opinion will be unpublished and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

C8-95-2700

State of Minnesota,

Respondent,

vs.

Christopher Leon Thompson,

Appellant.

Mahnomen County District Court

File No. K195283

Filed November 12, 1996

Affirmed

Toussaint, Chief Judge

Hubert H. Humphrey, III, Attorney General, William F. Klumpp, Jr., Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Eric O. Boe, Mahnomen County Attorney, P.O. Box 439, Mahnomen, MN 56557 (for respondent)

Zenas Baer, Zenas Baer & Associates, Special Assistant Public Defender, 331 6th Street, P.O. Box 249, Hawley, MN 56549 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Thoreen, Judge.[*]

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

TOUSSAINT, Chief Judge

Appellant Christopher Leon Thompson claims that the evidence was insufficient to sustain a jury finding of "substantial bodily harm" with a firearm an element of his conviction of second degree assault. The trial judge instructed the jury on the elements of first, second and third degree assault. The jury found Thompson guilty of second degree assault with a dangerous weapon involving infliction of "substantial bodily harm." Thompson was sentenced to the mandatory minimum 36 months. Because we find the evidence was sufficient to support the jury's finding, we affirm.

D E C I S I O N

Where there is a challenge to the sufficiency of the evidence, this court must limit its review 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 they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980)).

This 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) (citing State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)). The verdict will not be disturbed "if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citing State v. McCullum, 289 N.W.2d 89 (Minn. 1979)).

Thompson claims the evidence was insufficient to sustain the jury's finding of "substantial bodily harm." The state argues that Thompson's appeal is moot because regardless of whether or not infliction of "substantial bodily harm" or "great bodily harm" is found, a mandatory minimum 36 month sentence will still be imposed. Thompson committed an assault with a firearm, which carries a 36 month sentence regardless of the level of harm. Thompson argues that the difference lies in the probationary term (7 years, as opposed to 10).

"Where there remains a 'possibility that adverse collateral legal consequences will inure to the complaining party, a case is not moot'." State v. Jones, 516 N.W.2d 545, 549 n. 1 (Minn. 1994) (quoting State ex rel. Djonne v. Schoen, 299 Minn. 131, 133, 217 N.W.2d 508, 510 (1974) (citing Sibron v. New York, 392 U.S. 40, 55 (1968)). Although the sentence for both offenses is the same, if the probationary period is different, the Jones standard is satisfied. Thompson's appeal is not moot.

Thompson argues that he should not have been convicted of assault with a dangerous weapon involving infliction of "substantial bodily harm" because the evidence was not sufficient to support this finding. We disagree.

"Substantial bodily harm" means 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 (1994). To determine if the level of harm required for conviction has been met, the reviewing court must look at the injury itself and its consequences, not the potential consequences, to determine if the evidence is sufficient to sustain the verdict. See State v. Gerald, 486 N.W.2d 799, 802 (Minn. App. 1992). In Gerald, the victim was stabbed in the neck. He sustained two scars that were approximately two inches long. The state claimed that because the wounds were near major arteries and could have resulted in death, the injuries resulted in "great bodily harm." Id. at 802. The Gerald court held that (1) the injuries themselves must be looked at to determine the level of harm, and (2) the victim's injuries did not constitute "great bodily harm."

In this case, however, "substantial bodily harm" is at issue, not the higher level of "great bodily harm." Thompson focuses on the word "substantial" in the statute and ignores the word "temporary." He argues that Bjorge's injuries were not substantial and substantiates this claim by referring to Dr. Harris's testimony that there was no objective sign of "substantial bodily harm." However, Dr. Harris's conclusion derived from his examination of Bjorge on the day of the trial, which was three months after the shooting. Dr. Harris also stated that the scarring would be permanent and the numb patch of the arm may never regain sensation. Bjorge was shot in the arm. The bullet went through his arm, leaving entrance and exit wounds. Bjorge suffered a great deal of pain when moving his arm and the area subsequently became numb. Bjorge's wounds are substantial, though not permanent. Permanency, however, is not an element of the statute.

Thompson cites State v. Halvorson, 506 N.W.2d 331 (Minn. App. 1993) to illustrate an injury that did not rise to the level of "great bodily harm." Again, Thompson refers to a case that requires a higher level of harm than this case. "Great bodily harm" is not at issue in this case.

Thompson also cites State v. Whaley, 389 N.W.2d 919 (Minn. App. 1986). In Whaley, the court determined that a black eye did not rise to the level of "substantial bodily harm." Id. at 926. Bjorge's injuries, however, constitute "substantial bodily harm." Bjorge had a hole in his arm inflicted by a gunshot, which left scars on his arm and numbness. Although Dr. Harris was unable to say when, if ever, the feeling would return to the patch on Bjorge's arm, his injuries involve a "temporary but substantial disfigurement," as well as a "substantial loss or impairment."

There is sufficient evidence in the record to support the jury's finding that the injuries sustained by Bjorge resulted in "substantial bodily harm" supporting in Thompson's conviction for assault with a dangerous weapon.

Affirmed.

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