This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1131

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dennis Ernest Jones,

Appellant.

 

 

Filed July 5, 2005

Affirmed

Lansing, Judge

 

Marshall County District Court

File No. K9-03-314

 

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael D. Williams, Marshall County Attorney, 423 North Main, Warren, MN 56762 (for respondent)

 

Kerry S. Rosenquist, Rosenquist & Arnason, LLP, 301 North Third Street, Suite 300, Grand Forks, ND 58203 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

LANSING, Judge

A jury found Dennis Jones guilty of aiding and abetting first-degree assault for his participation in injecting a substance in Becky Erickson’s arm that caused her to suffer a stroke and permanent partial paralysis.  In this appeal from conviction and sentence, Jones challenges the absence of a specific jury instruction on intent and the state’s failure to prove lack of consent.  Because the district court properly instructed the jury on the elements of first-degree assault, which do not include lack of consent, and because consent was not raised as a defense except in closing arguments, we affirm.

F A C T S

            The material facts underlying Dennis Jones’s conviction are essentially uncontradicted.  Jones and Tracy Clary went to an apartment in Warren, where Clary lives with his girlfriend, Sandra Wysocki, and their three young children.  Jones told Clary that he wanted to meet a woman who would like to get high and have sex with him.  Wysocki called Becky Erickson, who lived in another apartment in the building, to ask if she wanted to “party” with Clary’s friend.  Erickson agreed to meet Jones, and he went to her apartment.  Jones and Erickson smoked marijuana before he showed Erickson a needle and asked her if she wanted to “get high.”  She replied, “[n]ot right now, maybe later.” 

When Clary and Wysocki left the building to get cigarettes, Jones and Erickson went up to Wysocki’s apartment so Clary and Wysocki’s sleeping children would not be left alone.  Jones repeatedly asked Erickson if she wanted to use drugs, and she repeatedly declined.  After Clary and Wysocki returned to the apartment, and about three hours after Jones first asked her about using drugs, Erickson testified that she finally “gave up.”  Jones produced a syringe and handed it to Clary.  Clary and Erickson went into the bathroom where Clary injected Erickson intravenously in her right arm while Jones stood in front of the open bathroom door.  Wysocki testified that she saw the white powder before it was mixed into a solution and placed in the syringe.  She believed that the powder was methamphetamine or cocaine but said that Clary sometimes injected a substance that he extracted from Benzedrex, an over-the-counter nasal inhalant.  Erickson believed the solution contained methamphetamine, and Jones later told police that it contained methamphetamine.

Immediately after the injection, Erickson experienced intense pain, vomited, had no feeling on her left side, and was unable to walk.  Jones accompanied Erickson back to her apartment and stayed with her until the following afternoon, about fourteen hours after the injection, when she was taken by ambulance to a hospital in Warren and later transferred to a hospital in Grand Forks, North Dakota.  The neurosurgeon who treated her at the Grand Forks hospital determined that she had suffered a brain hemorrhage.  The hemorrhage caused permanent partial paralysis of her left side.  The neurosurgeon testified that the hemorrhage resulted from a dramatic increase of blood pressure caused by the injection.  The nature and development of the hemorrhage and resulting paralysis was consistent with the effects of an injection of methamphetamine or propylhexedrine, the active ingredient in Benzedrex.

            Clary pleaded guilty to second-degree assault.  Jones was charged by amended complaint with three counts: aiding and abetting assault—great bodily harm caused by distribution of drugs, use of drugs to injure or facilitate a crime, and aiding and abetting first-degree assault.  A jury found Jones not guilty of the first two counts but found him guilty of aiding and abetting first-degree assault.  Jones appeals, challenging (1) the absence of a specific jury instruction on intent and (2) the state’s failure to prove lack of consent.

D E C I S I O N

I

District courts are permitted “considerable latitude” in the selection of language for jury instructions, provided that the instructions do not materially misstate the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  “[T]he court’s instructions should be construed as a whole, having in mind the evidence in the case.”  Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974) (quotation omitted).  If the instructions correctly state the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).  Generally, failure to object to jury instructions at trial constitutes waiver that results in a forfeiture of the right to raise the instructions as error on appeal.  State v. Lindahl, 309 N.W.2d 763, 766 (Minn. 1980).  Notwithstanding the failure to object, a reviewing court has the discretion to consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial.  State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998); see also Minn. R. Evid. 103(d) (observing that nothing in rule precludes review of plain error affecting substantive rights).

            Jones asserts that a new trial is necessary because the district court failed to give a specific instruction on intent.  The record discloses no request for a jury instruction other than Jones’s request, in response to a jury question, to instruct that Jones was not charged with criminal sexual conduct.  At the conclusion of the district court’s instructions, Jones did not object or request any additional instructions.  But even if Jones had adequately preserved his challenge, it fails for three reasons.

            First, the instructions on intent correctly stated the law.  The court instructed the jury that Jones could be “guilty of a crime committed by another person [if he] intentionally aided the other person in committing it, or ha[d] intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it.”  This instruction correctly states the law that applies to aiding and abetting.  See Minn. Stat. § 609.05, subd. 1 (2002) (defining criminal liability for aiding and abetting). 

The court also correctly instructed the jury on the intent necessary to prove assault, saying, “The statutes of Minnesota provide that whoever does an act with intent to cause fear in another person of immediate bodily harm or death, or intentionally inflicts or attempts to inflict bodily harm upon another, is guilty of a crime.”  See Minn. Stat. § 609.02, subd. 10 (2002) (defining assault).  And the district court correctly instructed the jury on first-degree assault: “The statutes of Minnesota provide that whoever assaults another person and inflicts great bodily harm is guilty of a crime.”  See Minn. Stat. § 609.221 (2002) (defining first-degree assault).  In defining great bodily harm, the court further instructed the jury that “[i]t is not necessary for the [s]tate to prove that the defendant intended to inflict great bodily harm, but only that the defendant intended to commit the assault.”  See 10 Minnesota Practice, CRIMJIG 13.04 (1999) (defining first-degree assault as assault with great bodily harm).

These instructions establish that intent is an essential element of the crime and link the statute that defines assault with the statute that defines the degree of assault the state had charged.  See State v. Spencer, 298 Minn. 456, 464, 216 N.W.2d 131, 136 (1974) (instructing that intent necessary for aggravated assault, which is now referred to as first-degree assault, is obtained by reading statute defining aggravated assault together with statute defining assault). 

            Second, the district court’s instructions on intent are consistent with the instruction on “intentionally” that Jones asserts should have been given.  That instruction provides that “[i]ntentionally means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.”  See Minn. Stat. § 609.02, subd. 9(3) (2002) (defining intentionally).  Jones interprets the statutory definition of intentionally to require that the actor must intend to inflict the specific degree of bodily harm that the victim suffers.  This interpretation misreads the statute by omitting “has a purpose to do the thing,” and also assumes that “result,” as used in the statute, does not mean assault but the infliction of great bodily harm.  This argument mischaracterizes the crime of first-degree assault.  First-degree assault occurs when a person “assaults another and inflicts great bodily harm.”  Minn. Stat. § 609.221, subd. 1 (emphasis added).  Thus an assault involving infliction of harm requires an intent to do the prohibited physical act of committing the assault, but does not require an “abstract intent to do something further.”  Lindahl, 309 N.W.2d at 767.  Or stated another way, “the specific intent to inflict a degree of harm is not essential for first-degree assault.”  Johnson v. State, 421 N.W.2d 327, 331 (Minn. App. 1988), review denied (May 4, 1988).

            And, third, Jones has not demonstrated that he was prejudiced by the court’s decision not to instruct on Minn. Stat. § 609.02, subd. 9.  No evidence suggests that the intravenous injection was accidental or unintended.  The evidence is uncontradicted that Clary had a purpose to inject Erickson intravenously with the solution and that the solution contained either methamphetamine or a substance extracted from Benzedrex.  The evidence is also uncontradicted that Jones fully participated in the events that culminated in the injection and watched as Clary injected Erickson.  And it is undisputed that the intravenous injection inflicted great bodily harm on Erickson.  The jury instructions correctly stated the law, and Jones has not demonstrated plain error that prejudiced his substantial rights.

II

            Jones alternatively argues that the state failed to prove an assault because Erickson consented to the offense.  He couches this argument both as an affirmative defense to first-degree assault and as a fundamental failure of the state to prove the elements necessary to establish first-degree assault.  We reject both arguments.

To the extent that Jones claims consent as an affirmative defense, he failed to give the required pretrial notice to the state of his intention to raise such a defense.  See Minn. R. Crim. P. 9.02 (requiring defendant to inform prosecution before omnibus hearing of “any defense, other than that of not guilty, on which the defendant intends to rely at trial”).  Furthermore, he requested no jury instruction or special verdict on the issue of consent.  Although Jones made comments about consent in his closing argument, the state countered with claims of duress and coercion.  In the absence of plain error, a defendant may not obtain appellate review of an issue that has not been properly raised or presented at trial.  State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).

Jones has not shown plain error or a fundamental failure to prove the elements necessary to establish first-degree assault.  His argument that the conviction is invalid for failure to prove lack of consent rests on two cases that do not provide support.  The first case, Frey v. McManus, 154 Minn. 175, 177, 191 N.W. 392, 393 (1923), is a civil action claiming damages for sexual assault and battery that holds that the plaintiff must show, by a fair preponderance of the evidence, that the plaintiff did not consent to intercourse with the defendant.  The second case, an unpublished opinion of this court, similarly involved a civil action with a disputed issue of whether sexual intercourse was consensual.  Neither case provides authority for an argument that lack of consent is an element of the criminal charge of first-degree assault.

The elements of first-degree assault require the state to prove that the actor assaulted another and inflicted great bodily harm.  Minn. Stat. § 609.221, subd. 1.  To establish that an assault occurred, the state must prove that the actor intended to “cause fear in another of immediate bodily harm or death” or that the actor “intentionally inflicted or attempted to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10.  Great bodily harm “means 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 (2002).  The express statutory elements for the crime of first-degree assault do not include a complainant’s lack of consent.  Thus the state was not required to affirmatively prove lack of consent to establish the crime of first-degree assault.

Affirmed.