This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Donovan James Robinson,


Filed June 22, 1999


Shumaker, Judge

Sherburne County District Court

File No. K3-97-1400

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

Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)

Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant).

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.



Donovan James Robinson challenges his conviction of attempted first-degree assault, arguing that the prosecutor committed misconduct by introducing inadmissible, inflammatory evidence, and that the trial court abused its discretion in allowing the jury to hear that evidence. We affirm.


The Incident

Robinson, an inmate at the state correctional facility in St. Cloud, attacked corrections officer John Ramler during an inmates' recreation period. Robinson punched Ramler in the jaw, stuck his thumb in Ramler's mouth and pulled on his cheek, put his finger and thumb into Ramler's eye, and tried to hit him with a pointed stick.

Pretrial Ruling

The state charged Robinson with one count of attempted assault and two counts of assault. Before testimony began at Robinson's jury trial on the charges, Robinson moved to exclude evidence of a bloodstained piece of concrete located near Robinson's hand during the incident. Because there appeared to be no direct evidence linking the concrete to Robinson, the court granted the motion.

Ramler's Testimony

During his direct examination, Ramler testified that, as he held onto him, Robinson "stuck a thumb inside my mouth and tried to tear my mouth open." Ramler described the pulling sensation and said he thought Robinson was "going to tear my mouth open," which is a way to cause a bloody injury. When the prosecutor asked why he thought Robinson was trying to tear his mouth open, Ramler replied:

Well, that type of injury is common in fights. It's to draw the most damage in a quick amount of time and to cause permanent injury.

The prosecutor explored the subject further. Ramler testified that he had seen that injury happen before, and that it requires extensive plastic surgery. Ramler then described the injury:

Well, it would leave a tear from the corner of my mouth all the way to my ear and this - - my jaw would actually be laid open with the skin because that's all it is is skin, and it's to cause permanent injury.

When the prosecutor asked Ramler why he thought Robinson was trying to inflict that particular injury on him, Ramler stated that Robinson was pulling so hard that he was trying to tear his mouth.

The defense attorney did not object at any time during this testimony. It was only when the prosecutor began to move to another subject that the defense attorney stated:

Your Honor, I would like to object at this time. Any statements to the effect of what Sgt. Ramler understands a torn cheek is, is highly inflammatory and irrelevant for the purposes of establishing the burden of proof of the county.

The court overruled the objection.

Bloodstained Concrete

In compliance with the court's pretrial ruling, the prosecutor refrained from introducing evidence of the bloodstained concrete during her direct examinations of witnesses. Corrections officer Dorein Johnson testified that she saw Robinson trying to hit Ramler with a pointed stick. On cross-examination of Johnson, the defense attorney offered into evidence Johnson's incident report and a transcription of an interview Johnson gave to an investigator. The court allowed both exhibits into evidence.

Attempting to explore Johnson's description of how Robinson used the stick, the defense lawyer asked Johnson to read aloud a portion of her transcribed interview. She said:

I am convinced that he would have tried to hit Sgt. Ramler with this club * * * both of which were - and there is a blacked out area - both of which were by his hand.

When the defense attorney tried to impeach Johnson with an inconsistency between the interview and her incident report, Johnson stated that there was additional information in the interview. The defense attorney then said:

That's not what I am asking about. I am asking about that particular statement that you made starting with the line, I am convinced and ended up with by his hand on the next page. Can you reconcile that statement that you are convinced that he would have and it was by his hand with your incident report where he stated and your testimony that you stated that he had it in his hand and he was attempting to hit him with it? I guess I am confused as to why you would make the statement to the investigator that it was by his hand and you are convinced that he would have used it in your testimony and your incident report where you state that he had it in his hand.

On redirect examination, the prosecutor offered into evidence a copy of Johnson's incident report without the redaction of references to the bloodstained piece of concrete. Outside the hearing of the jury, the court noted that the cross-examination of Johnson had shown that the concrete was relevant and that reports referring to it were now admissible. Defense counsel did not object when the prosecutor offered the unredacted documents that referred to the concrete. On redirect and recross-examinations, Johnson testified as to the piece of concrete and the possibility that Robinson could use it as a weapon.

The jury found Robinson guilty of all charges. The court sentenced him for attempted first-degree assault. Robinson appealed.


"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). Such rulings will not be reversed absent a clear abuse of that discretion. State v. Jones, 500 N.W.2d 492, 494 (Minn. App. 1993), review denied (Minn. June 9, 1993). If evidence is inappropriately admitted, we apply a harmless-error test and evaluate "whether there is any reasonable doubt the result would have been different if the evidence had not been admitted." State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (quoting State v. Naylor, 474 N.W.2d 314, 319-20 (Minn. 1991)).

Ramler's Testimony

Defense counsel's objection to Ramler's testimony about Robinson's attempt to inflict severe injury was untimely. The objection came after Ramler had completed all his testimony on the subject.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and * * * [if] the ruling is one admitting evidence a timely objection or motion to strike appears of record * * *.

Minn. R. Evid. 103(a)(1). See also Eilola v. Oliver Iron Mining Co., 201 Minn. 77, 79, 275 N.W. 408, 409 (1937) (holding that objection to the admission of evidence must be made at the time the evidence is offered).

Furthermore, neither of the grounds for defense counsel's objection was proper. Evidence is not excludable because it is inflammatory as long as it conveys an accurate representation of the subject matter. State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950) (holding that evidence is not rendered inadmissible merely because it vividly depicts shocking crime or incidentally tends to arouse passion or prejudice). Evidence that has

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

is relevant. Minn. R. Evid. 401. Robinson was charged with attempted first-degree assault. That crime requires an attempt to inflict great bodily harm. Minn. Stat. § 609.221, subd. 1 (1996) (defining first-degree assault); Minn. Stat. § 609.17, subd. 1 (1996) (defining attempt). Great bodily harm includes serious permanent disfigurement. Minn. Stat. § 609.02, subd. 8 (1996). Ramler described an injury that allegedly would result in serious permanent disfigurement. In doing so, he testified to an element of one of the crimes in issue. His testimony was relevant.

Finally, Ramler gave his testimony in opinion form. He was not testifying as an expert. However, his opinions were based on his perceptions of Robinson's conduct as well as prior similar conduct that Ramler had seen. Except for the reference to plastic surgery - for which there was no foundation - Ramler's opinions were helpful to the jury's understanding of the mechanism and nature of the great bodily harm Robinson was attempting to inflict. Ramler's lay opinions were admissible. Minn. R. Evid. 701 (lay opinion admissible if rationally based on witness's perceptions and helpful to clear understanding of testimony or determination of fact in issue).

Bloodstained Concrete

The trial court initially excluded evidence of the bloodstained piece of concrete because there was no apparent link of that item to Robinson. After defense counsel began to explore the subject of weapons on cross-examination, the court changed its ruling.

The court ruled that the cross-examination opened the door for the admission of the excluded evidence. The ruling was correct. DeZeler, 41 N.W.2d at 318 (holding that where a party introduces inadmissible evidence he cannot complain if the court permits his opponent on rebuttal to introduce similar inadmissible evidence). See also Busch v. Busch Constr. Inc., 262 N.W.2d 377, 387 (Minn. 1977); McNab v. Jeppesen, 258 Minn. 15, 19, 102 N.W.2d 709, 712 (1960). Defense counsel opened the subject of weapons, and the prosecutor limited the rebuttal precisely to the opened issue.

The court also ruled that evidence of the concrete had become relevant because the cross-examination showed that the concrete might have been a dangerous weapon available to Robinson. One of the charges against Robinson was second-degree assault. That crime requires an assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (1996). The bloodstained piece of concrete found in proximity to Robinson's hand became relevant to proof of an element of one of the charges.