This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Arturo Bernal,


Filed January 20, 1998


Randall, Judge

Rice County District Court

File No. K0-96-1209

Hubert H. Humphrey III, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jeffrey D. Thompson, Rice County Attorney, Courthouse, 218 NW Third Street, Faribault, MN 55021 (for respondent)

John M. Stuart, State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414; and

Phyllis J. Kirwin, Special Assistant Public Defender, Suite 205, 6401 University Avenue N.E., Fridley, MN 55432 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg,




Appellant challenges the sufficiency of the evidence to support his first-degree assault conviction. We affirm.


While walking down a Faribault street in the early morning hours of September 8, 1996, Dennis Nesje met Vincent Hardy, an acquaintance. They began arguing, and during the argument, Hardy picked up a beer bottle and threatened Nesje with it. He put it down, but later picked it up and threw it towards a store, shattering the bottle.

A car drove up and stopped during the argument, and appellant Arturo Bernal and his girlfriend Melissa Freelove got out. Bernal had a short conversation with Nesje and Hardy. Nesje then walked away heading northeast, Bernal and Freelove got back into the car and headed south, and Hardy went to his nearby apartment. As Nesje was walking, he was struck by a broken bottleneck on the right side of his head near his ear. Nesje turned and looked at his assailant and then continued walking home. After arriving at his apartment, he attempted without success to wake his roommate, then called 911. The police arrived and called an ambulance. While waiting for the ambulance, Nesje gave police a description of his assailant. At the hospital, Nesje reported that he had seen his assailant during his confrontation with Hardy. Nesje later identified Bernal in a photo lineup.

Bernal was charged with first- and second-degree assault, in violation of Minn. Stat. §§ 609.221, 609.222, subd. 2 (1996). A jury returned a guilty verdict on both charges. Concluding that both charges stemmed from the same conduct, the district court entered judgment of conviction for first-degree assault only, sentenced Bernal to six years imprisonment, and fined him $1,000 and a $220 surcharge for the first-degree assault conviction. This appeal by Bernal followed.


When the sufficiency of the evidence is challenged on appeal, the appellate court must limit its review to examining the record "to determine whether the evidence, when viewed in a light most favorable to the conviction," supports the jury's verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the witnesses called by the prosecution and did not believe any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict must not be disturbed if the jury could reasonably have determined the defendant was guilty after giving "due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).


Bernal argues on appeal that if the jury had given due regard for the presumption of innocence and for the necessity of proving guilt beyond a reasonable doubt, it could not have reasonably concluded Bernal committed the assault. Bernal points out that only Nesje's testimony supports his conviction, and no other evidence was presented to link Bernal to the assault. He asserts that the jury could not have reasonably believed that Bernal got into his car and drove away, but then changed his mind and returned to where Hardy and Nesje had been fighting, retrieved a broken bottle neck, walked down the street after Nesje, and assaulted him, all within a couple of minutes. He further maintains that his brief encounter with Nesje, when he intervened in Nesje and Hardy's argument, was not enough to provoke him to later assault Nesje.

Bernal also argues that Nesje's testimony was unreliable. Bernal argues Nesje's ability to see his assailant was impaired because it was dark outside, the assailant approached him from behind, and his attention would have been drawn to the injury and not his attacker. Further, Bernal asserts Nesje's testimony was unreliable because he had been drinking prior to the assault. Nesje drank several beers throughout the day prior to the night of his assault, drinking his last around 1:30 a.m. Hardy and Freelove both testified that Nesje was drunk when they saw him just before the assault. Bernal additionally asserts that Nesje's confusion about the length of his argument with Hardy indicates he was impaired by alcohol. Nesje testified his argument with Hardy lasted 25 to 35 minutes, while Hardy, who was not drunk, testified it could have lasted two hours. Bernal also argues Nesje would have been tired because he had played rugby the previous day and traveled to and from a rugby tournament in Iowa. Bernal argues that Nesje's "tiredness" cuts into the credibility of Nesje's ability to identify his attacker.

Bernal also notes that Nesje never mentioned Bernal's tattoos when describing his attacker to police and that Nesje was unsure whether the attacker had facial hair. Bernal further explains that Nesje testified his attacker wore a white shirt with dark horizontal stripes, but Hardy testified, and Bernal told police, that he was wearing a white t-shirt or tank-top that night. Additionally, Bernal asserts that Nesje may have identified him in a photo lineup because Nesje was confused after his encounter with Bernal prior to the assault.

It is the jury's role to make determinations about the credibility and weight of witness testimony. State v. Anderson, 379 N.W.2d 70, 77 (Minn. 1985); see also State v. Jones, 556 N.W.2d 903, 913-14 (Minn. 1996) (stating "[t]he jury is in the best position to evaluate the evidence surrounding the crime and determine the credibility and weight" of witness testimony). A defendant's conviction may be upheld based on a single eyewitness's identification. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976). However, not all single eyewitness cases are identical. If a single eyewitness identifies a defendant "after only fleeting or limited observation, corroboration is required if the conviction is to be sustained." State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981).

Here, although only Nesje's testimony supports Bernal's conviction, this evidence is sufficient to support his conviction. Nesje testified he turned to see his attacker after being hit, and at that time they were only five to six feet apart. Evidence at trial indicated that although it was night, the area was well lit. Further, Nesje had seen Bernal only a few minutes before. Additionally, despite evidence indicating Nesje and Bernal departed in opposite directions after meeting on the street, Nesje was on foot and Bernal was driving. It would not have been unreasonable for the jury to have believed Bernal circled back. Also, the extent of Bernal's involvement in the argument between Hardy and Nesje was disputed. Nesje's testimony indicated that Bernal verbally hassled him, causing him to walk away.

There is evidence that the majority of Nesje's drinking took place before and after a rugby game earlier in the day and that he had eaten a large meal after the game. A police officer responding to Nesje's 911 call testified that Nesje smelled of alcohol, but appeared to be functioning well and was not "slurring words and stumbling around." It is also notable that Nesje is approximately six feet three inches tall and weighs 270 pounds. Based on the evidence, the jury could have reasonably concluded that Nesje was not so impaired that he could not identify his attacker. There is also no evidence to support appellant's theory that Nesje was "too tired" to identify his assailant. Nesje's state of mind, tiredness, and ability to recall were just simple issues of fact for both attorneys to bring to the attention of the jury, and for the jury to decide.

Nesje's failure to mention Bernal's tattoos in identifying him to police and Nesje's uncertainty about whether Bernal had facial hair are factors involving credibility. But, the issue remains simple. In light of Nesje's ability to make an otherwise accurate description of Bernal, this record suggests that the jury was entitled to believe or disbelieve Nesje's ability to recall, and there is nothing we see that compels us to rule, as a matter of law, on a credibility issue. Similarly, the fact that Nesje described his assailant's shirt as striped, while both Bernal and Hardy described Bernal's shirt that night as being white, is nothing more than a credibility distinction for the factfinder. Nesje gave police a description of his attacker as soon as they arrived and told police at the hospital that he had met his assailant, Bernal, during his argument with Hardy. The jury was in the best position to assess Nesje's credibility.

Bernal next points out that he had an alibi for the time of the assault. Freelove testified that she was with Bernal the entire time and at no point did they go to the area where the assault took place. Further, Bernal notes that Christopher Goodwin and Elizabeth Dwyer, who were sharing a hotel room with Bernal and Freelove during the weekend that the assault took place, testified that Bernal and Freelove left the motel between 10:00 p.m. and midnight on the night of the assault and returned an hour to an hour and a half later with snacks and cigarettes. Both stated that Bernal and Freelove acted normally when they returned and they observed no blood on Bernal.

The jury could have determined Freelove's testimony was not credible. See Anderson, 379 N.W.2d at 77 (noting the weight and credibility given to witness testimony are for the jury to decide). Further, neither Dwyer nor Goodwin could testify as to Bernal's actions outside the hotel.

Finally, Bernal argues that no motive has been established and no circumstantial evidence supports the guilty verdict. Rather, he argues, circumstantial evidence indicates that someone else assaulted Nesje and that he had no motive to commit the assault. Bernal maintains that he and Nesje did not know each before their interaction during Nesje and Hardy's argument, and further claims that no animosity existed between them. Instead, he argues there was animosity between Hardy and Nesje and points out that Hardy had threatened Nesje with a beer bottle earlier that night. Further, although Hardy identified Bernal as the person who intervened in his argument with Nesje, he later recanted when told he might have to testify. Bernal argues that all of this evidence indicates Hardy committed the assault.

Bernal compares his case to Webb, in which the supreme court reversed a first-degree murder conviction based entirely on circumstantial evidence, holding that the evidence was insufficient to support the conviction. 440 N.W.2d at 427. The supreme court concluded the evidence "was not inconsistent with rational hypotheses other than guilt," and appellant's guilt had not been proven beyond a reasonable doubt. Id. at 431. The supreme court also noted the lack of a motive, stating that although establishing a motive is not necessary to support a first-degree murder conviction, "a motive helps form inferences from the circumstantial evidence, and adds credibility to the state's case." Id.

Here, the circumstantial evidence pointing to Bernal is supported by direct evidence in the form of the victim's eyewitness testimony, and we note that the lack of an established motive goes only to the weight of the evidence. Id. On these facts, that issue does not come close to mandating a reversal.

When viewed in the light most favorable to the prosecution, the evidence is sufficient to support the jury's verdict.


Bernal argues that even if the evidence was sufficient to prove he assaulted Nesje, the evidence was insufficient to support a first-degree assault conviction because Nesje's injury did not result in "serious permanent disfigurement" under the statutory definition of "great bodily harm." Bernal concedes Nesje's scar is permanent, but argues it is not a serious disfigurement. He argues that Nesje's scar is relatively small and located where it is not noticeable. He concedes the injury supports second-degree assault because before receiving medical attention Nesje suffered temporary substantial disfigurement, as a flap of skin hung down the side of his face.

First-degree assault occurs when a person "assaults another and inflicts great bodily harm." Minn. Stat. § 609.221 (1996). "Great bodily harm" is defined as

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8 (1996). One may be convicted of second-degree assault for assaulting "another with a dangerous weapon" or for assaulting "another with a dangerous weapon and inflict[ing] substantial bodily harm" Minn. Stat. § 609.222, subds. 1, 2 (1996). Substantial bodily harm is defined 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.

Minn. Stat. § 609.02, subd. 7a (1996).

In State v. Gerald, this court reversed a conviction for first-degree assault, where the victim had two, one-half inch scars, one on the back of his neck and one in his ear. 486 N.W.2d 799, 802-03 (Minn. App. 1992). This court concluded the injuries did not fit the statutory requirement of "great bodily harm." Id. at 802. In contrast, this court upheld a first-degree assault conviction where the victim had a two-thirds inch, raised scar on his right center chest and a six-centimeter, raised scar on the front of his neck. State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995); see also State v. Currie, 400 N.W.2d 361, 366 (Minn. App. 1987) (upholding first-degree assault convictions where victims had numerous scars on their backs), review denied (Minn. Apr. 17, 1987); State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (upholding first-degree assault conviction where victim suffered numerous injuries and had permanent scar running the length of her upper body), review denied (Minn. Sept. 19, 1985).

Here, Nesje was hit on the side of his head by a broken glass bottleneck. The wound bled profusely, and, according to the treating emergency room physician's testimony, Nesje suffered a severe face laceration and the tragus of his ear was severed. Nesje was transferred to St. Mary's Hospital in Rochester for evaluation by a plastic surgeon due to the internal ear injury. Physicians in Rochester closed Nesje's wound with approximately 40 stitches.

Nesje suffered a permanent scar as a result of this injury. Photographs introduced at trial indicate the wound extends in a circular fashion onto Nesje's face. A responding police officer confirmed this at trial. Nesje testified the wound started at the ear lobe inside the ear, then "came down around to the bottom part of [his] ear in a circular motion." As Bernal points out, Nesje's scar is not as extensive or pronounced as the numerous scars on the backs of the children in Currie or the scar in Anderson which ran the length of the victim's upper body. But it is easily comparable to the neck and chest scars in McDaniel where this court called the six-centimeter, neck scar "highly visible." 534 N.W.2d at 293. Further, the injury extends onto Nesje's face making it impossible to completely hide the scar.

Taking all the medical testimony into account, a reasonable jury could have determined Nesje's scar is a serious permanent disfigurement.[1] We conclude the evidence was sufficient to support Bernal's first-degree assault conviction.


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

[ ]1 Bernal argues in his reply brief that the state improperly argues on appeal that the victim also suffered "other serious bodily harm" within the definition of "great bodily harm" under Minn. Stat. § 609.02, subd. 8. We recognize Bernal's argument, but we do not reach the issue of "other serious bodily harm," as we conclude the record supports "serious permanent disfigurement."