This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Bradley Allen Wendt,


Filed February 25, 1997


Crippen, Judge

Renville County District Court

File No. K095607

Hubert H. Humphrey III, Minnesota Attorney General, Catherine M. Keane, Robert A. Stanich, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Simmons, Renville County Attorney, Commerce Building, P.O. Box D, Olivia, MN 45277 (for Respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.



Appellant challenges the trial court's admission of medical opinion testimony by an expert witness. We affirm.


Appellant fired a shotgun from his car at one driven by Michael Helgeson. The shot hit Helgeson in his left wrist and right knee.

After realizing he had been shot, Helgeson drove himself to a hospital. His injuries required immediate surgery. Shell shot had entered his left wrist, shattering a bone and severing a nerve before exiting his arm. To avoid further serious harm to damaged bone, doctors did not remove the shot lodged in Helgeson's right leg. Helgeson may still need additional surgery, and it could not be determined at the time of trial that he will be able to recover from his injuries.

Dr. Darko Florschutz, the surgeon who operated on Helgeson, testified as to the physical damage caused by the shotgun slug.

Q: In your medical opinion, Dr. Florschutz, do you believe that Michael Helgeson's injuries constitute great bodily harm?

* * * *

COURT: [after overruling the objection] I['m] gonna overrule the objection. You may answer the question, sir.

A: Uh, I believe that it, uh, did sustain a, uh, great bodily injury.

Q: What do you base that opinion on?

A: Uh, mainly on the fact that, uh, he has a severed, uh, very important nerve which, uh, it's very important for a function of the hand. Uh, which, uh, will, uh, which may or may not recover. I know it will not recover 100 percent. That I know.

Q: Okay. Any other, uh, basis for your opinion, um, as a result of those injuries?

A: Uh, the bone grafting that, uh, I did, uh, seemed to be healing well thus far, but it doesn't mean that he will, uh, develop a good and strong bone what he did have before. He may or may not.

The jury found appellant guilty of, among other things, first-degree assault, inflicting "great bodily harm." Minn. Stat. § 609.221 (1996). Great bodily harm is defined in Minn. Stat. § 609.02, subd. 8 (1996). Appellant claims that the trial court abused its discretion by permitting the doctor to offer opinion testimony on whether Helgeson suffered great bodily harm.


"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Admission of an expert's opinion testimony also rests within the discretion of the trial court and will not be reversed absent clear error. State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995); State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).

A qualified expert may give opinion testimony if technical knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue." Minn. R. Evid. 702. In addition, Minn. R. Evid 704 provides that otherwise admissible opinion testimony may address the "ultimate issue" to be decided by the trier of fact. Dr. Florschutz's testimony is admissible under Minn. R. Evid. 702, 704.

Appellant contends that the doctor's testimony amounted to a legal conclusion that is beyond the scope of opinion permitted in State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990). In DeWald, an officer testified that, in his opinion, the defendant had killed the victim. Id. In upholding the trial court's admission of the testimony, the supreme court determined that the officer's testimony was proper because his conclusion was factual rather than legal and offered in response to leading questions by both the prosecutor and the defense attorney. Id. The court also noted that the officer specifically avoided the term "murder," instead stating that the victim had been "killed." Id.; cf., State v. Saldano, 324 N.W.2d 227, 231 (Minn. 1982) (holding error to admit counsellor's opinion that complainant had been "raped."). The testimony in the immediate case comes within the analysis in DeWald. Dr. Florschutz spoke as a doctor about an "injury" and not as an expert on the legal definition of "harm." And his opinion testimony came as the result of leading questions by both the prosecutor and the defense attorney.

There is room for argument that the testimony of Dr. Florschutz constitutes a legal conclusion. Our decision in the case rests ultimately on the conclusion that any error in admitting this opinion testimony was harmless. See State v. Howard, 324 N.W.2d 216, 222-23 (Minn.1982) (discussing harmless error standard in Minnesota), cert. denied, 459 U.S. 1172 (1983). The evidence abundantly supports the conclusion that Helgeson suffered great bodily harm. "Great bodily harm" is an injury that "creates a high probability of death," that "causes serious permanent disfigurement," that "causes a permanent or protracted loss or impairment of the function of any bodily member," or that includes any "other serious bodily harm." Minn. Stat. § 609.02, subd. 8 (1996). Helgeson suffered permanent scarring and disfigurement due to the shotgun slug tearing away the soft tissue in the area of his left wrist and right knee, and he may never fully regain the use of his left hand.

In his pro se brief, appellant raises essentially two additional issues. Neither has merit. Appellant first claims that the trial court improperly failed to define "great bodily harm" and "substantial bodily harm." But the record indicates that the court read the statutory definitions of both terms to the jury.

Appellant also claims ineffective assistance of counsel. To succeed on such a claim, he must affirmatively prove that his attorney's representation "fell below an objective standard of reasonableness" and that but for the attorney's conduct, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (applying Strickland standard). Based on the evidence at trial, there is no indication that the verdict would have differed but for the attorney's conduct. Furthermore, appellant bases his claim of ineffective assistance of counsel on questions of trial tactics. Trial tactics may not properly serve as the sole basis of an ineffective assistance of counsel claim. Weaver v. State, 408 N.W.2d 200, 202 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).