This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-2274

Charles Williams Atkins, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 30, 1998

Affirmed

Short, Judge

Washington County District Court

File No. K6954053

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue, S.E., Minneapolis, MN 55414-3230 (for appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN, 55101, and

Tom Foley, Washington County Attorney, Linda C. Krafthefer, Assistant County Attorney, 14900 - 61st Street N., Stillwater, MN 55082-0006 (for respondent)

Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.

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

SHORT, Judge

A 26-month-old child suffered second-degree and third-degree burns on more than 25 percent of his body from scalding water in a bathtub. A jury convicted Charles William Atkins of first-degree assault in violation of Minn. Stat. 609.221 (1996), third-degree assault (past pattern child abuse) in violation of Minn. Stat. 609.223, subd. 2 (1996), and malicious punishment of a child in violation of Minn. Stat. 609.377 (1996). On appeal from the judgments of conviction and denial of postconviction relief, Atkins argues: (1) the evidence was insufficient to sustain the convictions; (2) he was denied a fair trial due to prosecutorial misconduct; (3) the trial court abused its discretion in sentencing; and (4) he is entitled to a new trial due to newly discovered evidence of an expert witness's bias. We affirm.

D E C I S I O N

I.

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences taken from those facts, a jury could reasonably conclude the defendant committed the crimes charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We view the evidence in the light most favorable to the verdict, and "assume the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). A conviction based on circumstantial evidence requires a closer examination, but the evidence is proper if the "circumstances proved are consistent" with guilt and inconsistent with any other rational theory besides guilt. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997) (quoting State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)).

Atkins argues the trial court improperly permitted several witnesses to testify that he was responsible for past acts of child abuse against the victim, and that the only other evidence of guilt was circumstantial and insufficient to sustain the convictions. See Minn. R. Evid. 404(b) (stating evidence of other crimes or prior bad acts is admissible in limited circumstances, only if those acts are proven by clear and convincing evidence). However, the challenged testimony was not offered as Spreigl evidence of prior child abuse, but was offered as circumstantial evidence that Atkins had physically abused the victim. See 10 Minnesota Practice, CRIMJIG 13.08.02 (1990) (providing one element of third-degree assault is fact defendant engaged in past pattern of child abuse); see also State v. Drews, 274 Minn. 426, 430, 144 N.W.2d 251, 254 (1966) (stating "state may prove all relevant facts and circumstances which tend to establish any of the elements" of the charged offense).

The record demonstrates: (1) three witnesses testified the victim had no unusual injuries or bruises before Atkins moved into his house; (2) one month after Atkins moved in with the victim's mother, the victim suffered severe bruising to both ears; (3) the day-care provider testified the victim, before his first birthday, had injuries to both ears and a handprint mark across his buttocks with a quarter-sized blister; (4) the victim's mother testified there were problems between Atkins and her son; (5) Atkins admitted that while spanking the victim, he left a hand print, black and blue marks, and a blister on the victim's buttocks; (6) while in Atkins's care, the victim fell asleep in a soiled swimsuit and was burned when Atkins tried to clean the dried feces from the victim's bottom; and (7) the victim's treating physician and the state's expert witness testified the pattern of burns was inconsistent with an accidental injury, and was likely caused by the victim being held under scalding water. Viewing the evidence in the light most favorable to the verdict, we conclude the circumstantial evidence is sufficient to establish, beyond a reasonable doubt, that Atkins was guilty of first-degree assault, third-degree assault (past pattern child abuse), and malicious punishment. See State v. Loss, 295 Minn. 271, 281-82, 204 N.W.2d 404, 410 (1973) (concluding circumstantial evidence sufficient to establish guilt, beyond reasonable doubt, of first-degree manslaughter, given defendant's conduct with infant before the injuries; his previous displays of temper, exclusive control over baby when the injuries that caused death occurred; improbability infant could have accidentally sustained injuries; and competent medical testimony that death was not accidental); State v. Jurgens, 424 N.W.2d 546, 555-56 (Minn. App. 1988) (concluding circumstantial evidence sufficient to support second-degree murder conviction where there was evidence of prior child abuse, medical evidence that fatal injury could not be caused accidentally, evidence that defendant had exclusive control of victim when injury could have been inflicted, and there was almost no evidence spouse had abused child), review denied (Minn. July 6, 1988).

Atkins also argues the trial court erred by failing to: (1) inform the jury of the state's burden on the "pattern" element of the third-degree assault charge; and (2) instruct the jury properly on the requirements of a circumstantial evidence-based case.[1] See Walen, 563 N.W.2d at 750 (explaining circumstances under which verdict based on circumstantial evidence is proper); State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (stating due process rights of defendant are "violated if the burden to disprove the existence of any element of the crime charged is impermissibly shifted to the defendant"). We disagree. The third-degree assault statute does not require proof of a pattern of abuse convictions. See Minn. Stat. 609.223, subd. 2 (1996) (providing third-degree assault occurs when individual assaults minor and individual has engaged in past pattern of child abuse against minor). Furthermore, although convictions based on circumstantial evidence are proper only if the circumstances proved are consistent with the accused's guilt and are inconsistent with any other

rational hypothesis, a trial court need not instruct on that issue. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (quoting State v. Pilcher, 472 N.W.2d 327, 335 (Minn. 1991)); see, e.g., State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (concluding jury instructions proper although instructions fail to state that circumstantial evidence must exclude every reasonable hypothesis except guilt).

After a careful examination of the record, we conclude the trial court's jury instructions were consistent with the Minnesota Practice Jury Instruction Guide, and accurately explained the statutory requirements of third-degree assault. See Minn. Stat. 609.223, subd. 2 (providing elements of third-degree assault); 10 Minnesota Practice, CRIMJIG 3.03 (1990) (providing explanation of proof beyond a reasonable doubt); 10 Minnesota Practice, CRIMJIG 3.05 (1990) (providing explanation for direct and circumstantial evidence). Under these circumstances, the trial court did not commit plain error in its jury instructions. See Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (stating trial court has wide latitude in selecting language for jury instructions); State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984) (holding when reviewing sufficiency of trial court's jury instructions, instructions must be viewed as a whole).

II.

Atkins argues he was denied a fair trial because the prosecutor committed misconduct during opening statements and closing arguments by: (1) discussing, but failing to prove, the fact that Atkins inflicted bruises on the victim's body; and (2) stating Atkins was not being truthful about what happened. See State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (stating prosecutors should not express personal opinion or endorse credibility of witnesses). However, the record demonstrates: (1) during opening statement, the prosecutor informed the jury that several witnesses would testify that they saw unusual bruises on the victim while Atkins lived in the victim's household; (2) at trial, those witnesses testified in accordance with the prosecutor's opening statement; (3) once during closing argument, the prosecutor commented on the veracity of Atkins's testimony; (4) Atkins's counsel failed to object; and (5) there is ample evidence to support Atkins's convictions. Under these circumstances, we conclude Atkins was not denied a fair trial. See, e.g., Rairdon v. State, 557 N.W.2d 318, 324-25 (Minn. 1996) (concluding any improper conduct by prosecutor did not prejudice defendant to extent a fair trial was denied when viewed in light of defendant's failure to object, overwhelming evidence of guilt, and in context of prosecutor's whole closing statement).

III.

Atkins argues his conviction for malicious punishment must be vacated because it is a lesser-included offense of first-degree assault. See Minn. Stat. 609.04, subd. (1) (1996) (providing individual may be convicted of crime charged or included offense, and providing definition of included offense includes a crime necessarily proved if crime charged were proved). But, first-degree assault and malicious punishment require different elements of proof. See Minn. Stat. 609.221 (1996) (providing first-degree assault occurs when individual assaults another and inflicts great bodily harm); Minn. Stat. 609.377 (1996) (providing malicious punishment occurs when parent, guardian, or caretaker, who, in intentionally committing an act or series of acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under circumstances). Because the state does not necessarily prove malicious punishment by proving first-degree assault, we decline to vacate Atkins's sentence for malicious punishment.

Atkins also argues his sentence for third-degree assault (past pattern child abuse) must be vacated because it arises out of the same behavioral incident as his first-degree assault conviction. See Minn. Stat 609.035, subd. 1 (1996) (providing that if an individual's conduct constitutes multiple offenses, the individual can only be punished for one offense). However, Atkins's first-degree and third-degree assault convictions arise from a pattern of abuse that began when the victim was 10 months old and continued until he was 26 months old. Atkins admits he struck the victim so severely as to leave a blister and bruises. Atkins agrees the victim was in his exclusive control when he was scalded. Those events involve no unity of time, place, and objective. See State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524-25 (1966) (stating that when determining whether a series of offenses constitutes single behavioral incident, court considers unity of time and place, and whether the conduct was in pursuit of a single criminal objective). Under these circumstances, we decline to vacate his third-degree assault sentence. See State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995) (stating if factors of time and place are not the same and defendant is not pursuing a single criminal objective, then defendant may be punished for both crimes).

IV.

Finally, Atkins argues the postconviction court abused its discretion in denying him relief when he presented newly discovered evidence of a personal relationship between the state's expert witness and the state. We disagree. The postconviction court found: (1) in July 1994, the expert witness appeared as a witness in a juvenile court proceeding involving his son; (2) in January 1995, the juvenile court terminated jurisdiction over the son; (3) Atkins's trial took place from September 30, 1996 through October 11, 1996, and the expert witness testified on October 8, 1996; (4) on October 27, 1996, a second delinquency petition was filed against the expert witness's son; (5) between the date of the victim's burns and the date the expert witness testified, there was no pending court proceeding involving the expert witness's son; and (6) the expert witness's medical testimony was consistent with that of the two other medical expert witnesses. Given these findings, Atkins failed to show that the newly discovered evidence was material and would produce a different or more favorable result for Atkins on retrial. See Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995) (holding to obtain new trial on basis of newly discovered evidence, defendant must show that: (a) neither defendant nor defense counsel knew of evidence at time of trial; (b) failure to discover evidence before trial was not because of a lack of diligence; (c) evidence is material, not merely "impeaching, cumulative, or doubtful"; and (d) evidence is likely to result in an acquittal at retrial or in a more favorable result) (quoting Race v. State, 504 N.W.2d 214, 217 (1993)) (citations omitted).

Affirmed.

[ ]1 Because Atkins failed to object to the jury instructions at trial, our review is limited to plain errors affecting substantial rights of fundamental law. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (stating if defense counsel does not object to error at trial, defendant forfeits right of appellate court to review, unless there is a plain error affecting the defendant's substantial rights or if the claim touches upon an error of fundamental law in the jury instructions).