This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Donald Carlos Rutledge,

Filed April 6, 1999
Affirmed as modified
Anderson, Judge

Hennepin County District Court
File No. 97063384

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from a judgment of conviction of first-degree criminal sexual conduct, third-degree assault, and terroristic threats, in violation of Minn. Stat. §§ 609.342, subd. 1(e)(i); 609.223, subd. 1; and 609.713, subd. 1 (1996). Because we conclude that the trial court did not abuse its discretion in admitting expert testimony but did err in sentencing on all three counts, we affirm as modified by vacating the sentences for third-degree assault and terroristic threats.


Appellant Donald Rutledge was charged with assaulting, sexually assaulting, and threatening to kill R.M., a friend of Rutledge with whom he had been drinking over a two-day period.

A cab driver picked up R.M. in front of Rutledge's apartment building in the early morning hours of July 22, 1997. R.M.'s upper body was covered with blood, and her left eye was severely swollen. At the hospital, an examination revealed that R.M. had redness in the genital and rectal areas consistent with sexual assault; swelling of her left eye; a 1.5 cm. cut about the eye; bruises on her breasts, left arm, and chin; and abrasions on her back. R.M. told the emergency room staff that she had been beaten and sexually abused by a friend who wanted to have a sexual relationship with her. R.M. identified Rutledge to the police as her assailant.

The emergency room physician who examined R.M., Dr. Clinton, testified that the laceration about R.M.'s left eye required stitches. He testified that R.M.'s injuries would have required "significant force" to inflict. When the prosecutor asked Dr. Clinton whether, based on his training as a medical professional, R.M.'s injuries constituted "serious bodily harm," defense counsel objected, arguing that the witness should not be allowed to give an expert opinion on an issue of fact reserved to the jury. The trial court ruled that Dr. Clinton could give his medical opinion whether R.M. suffered "serious bodily harm," and Dr. Clinton testified that she had.

The jury found Rutledge not guilty of first-degree assault and one of the two counts of first-degree criminal sexual conduct. Rutledge was convicted of the other count of first-degree criminal sexual conduct, third-degree assault, and terroristic threats. The district court sentenced him to 129 months for first-degree criminal sexual conduct, a one and one-half times upward departure from the presumptive sentence. The court also gave Rutledge concurrent sentences of a year and a day for both the third-degree assault and the terroristic threats convictions.



Rutledge argues that the trial court improperly permitted Dr. Clinton to testify that R.M. suffered "serious bodily harm." The decision to admit expert testimony is within the trial court's discretion and will not be reversed absent obvious error. State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997).

Dr. Clinton was not asked whether R.M.'s injuries constituted "substantial" bodily harm, which is an element of third-degree assault, the offense for which Rutledge was convicted. See Minn. Stat. § 609.223, subd. 1 (defining third-degree assault as infliction of substantial bodily harm). Rather, Dr. Clinton was asked whether the injuries constituted "serious" bodily harm, which is part of the definition of "great bodily harm," an element of first-degree assault, of which the jury found Rutledge not guilty. Minn. Stat. §§ 609.02, subd. 8, 609.221, subd. 1 (1996). Because Rutledge was acquitted of first-degree assault, we conclude he cannot show reversible error in the admission of Dr. Clinton's expert opinion. See State v. Nielsen, 467 N.W.2d 615, 619 (Minn. 1991) (holding any error in admitting DNA evidence without proper foundation did not have a significant impact on the verdict); cf. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (noting that harmless error standard for erroneous admission of evidence is whether wrongfully admitted evidence significantly affected the verdict).

A conviction will not be reversed for the erroneous admission of expert testimony absent a showing of prejudice. State v. Chambers, 507 N.W.2d 237, 239 (Minn. 1993). It would be speculative to find that Dr. Clinton's testimony had any impact, let alone significant impact, on the jury's verdict of guilty of third-degree assault. That offense does not require a showing of "serious bodily harm." Minn. Stat. §§ 609.02, subd. 7a (1996), 609.223, subd. 1. The prosecutor did not argue that Dr. Clinton's opinion was relevant to third-degree assault, and there is no basis to believe the jury might have thought it relevant.


Rutledge argues that the trial court erred in imposing sentence on all three counts. A defendant may not be sentenced on multiple counts for conduct committed against the same victim in the same behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996); State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980). The state, on appeal, concedes that the third-degree assault and terroristic threats were part of the same behavioral incident as the first-degree criminal sexual conduct and may not be punished by separate sentences. Accordingly, we vacate the concurrent sentences imposed for third-degree assault and terroristic threats.

Affirmed as modified.