This opinion will be unpublished and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

A05-2418

 

State of Minnesota,

Respondent,

 

vs.

 

Roderick Benjamin Brown,

Appellant.

 

Filed January 9, 2007

Affirmed

Halbrooks, Judge

 

 

Pope County District Court

File No. K8-04-148

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Belvin L. Doebbert, Pope County Attorney, Chad M. Larson, Assistant County Attorney, 100 17th Avenue Northwest, P.O. Box 288, Glenwood, MN 56334 (for respondent)

 

Jeffrey D. Kuhn, Nelson, Kuhn & Wahlquist, Ltd., 14 South Franklin Street, Law Building, Glenwood, MN 56334 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from a conviction of domestic assault with intent to cause fear of immediate bodily harm, appellant argues that (1) the evidence is insufficient to support the guilty verdict; (2) the guilty verdict for one charge of domestic assault is legally inconsistent with a not-guilty verdict for domestic assault with intent to cause immediate bodily harm; and (3) the district court abused its discretion by precluding appellant from cross-examining the victim about the effects of her antidepressant medication at the time of the incident.  We affirm.

FACTS

            Appellant Roderick Benjamin Brown and his wife, Mary Bauer, became estranged after she learned that appellant was involved in a sexual relationship with his ex-wife.  A few weeks later, Bauer demanded that appellant move out of their residence, which was a hobby farm that appellant owned near Lowry.  Appellant moved out in late April 2004.

            At approximately 8:00 p.m. on May 3, Bauer and appellant had a telephone conversation.  Because Bauer believed that appellant was in a good mood, she invited him over.  The parties’ accounts vary as to what occurred after appellant arrived.  Bauer testified that she became frightened when appellant got angry and physically leaned toward her during their conversation on the living room couch.  She stated that appellant swore at her and threatened to kick her out of his house, moving closer to her as he said it.  Bauer is 5’2” tall and weighs 125 pounds; appellant is approximately 6’ tall and weighs 200 pounds.  When Bauer asked appellant to leave, he refused, saying that it was his house and he did not have to.   

            According to Bauer, after appellant refused to leave, she grabbed a telephone by the couch and ran into the bedroom to call 911.  But appellant followed, threw her to the bed, choked her, pushed her face into the comforter to the point of suffocation, and took the phone away.  Appellant also grabbed the bedroom telephone from Bauer when she tried to use it.

            Bauer testified that she broke free and ran to the kitchen to get her cell phone and that appellant chased her, knocked her down, and again attempted to choke her.  Bauer stated that she bit appellant’s hand in order to break free.  Appellant testified that Bauer started the fight by following him into the kitchen as he attempted to get his mail and leave, blocked his exit, grabbed his lapels, swore at him, and took his cell phone. 

Bauer called 911 from a location outside the home.  In her 911 call, Bauer was crying and sounded distressed.  The sheriff’s deputy who responded to the 911 call stated that Bauer was crying, shaken up, and very frightened.  During the ensuing investigation, the police photographed the telephones strewn on the floor with their batteries and battery covers separated.  Bauer had red marks on her arms and around her neck.  Two weeks later, she reported bruises on her legs that she stated were caused by the incident.  Those injuries were photographed in addition to a bite mark on appellant’s wrist.

            Appellant was charged with interference with a 911 call, domestic assault with intent to cause fear of immediate bodily harm, and domestic assault intending to cause immediate bodily harm.  Before trial began, the district court ruled that appellant, who is a physician, was precluded from questioning Bauer about the effects on her memory of the antidepressant medication she was taking.  The fact that Bauer was taking an antidepressant medication was declared admissible.

            The jury found appellant guilty of domestic assault with intent to cause fear of immediate bodily harm but not guilty of the other two counts.  Appellant brought posttrial motions seeking a judgment of acquittal or new trial based on the district court’s evidentiary ruling that prohibited cross-examination of Bauer about the effects of her antidepressant medication.  The district court denied the motions and sentenced appellant to 90 days in jail, execution stayed but for two days on condition of one year’s probation and payment of $500 of the $1,000 fine.  This appeal follows.

D E C I S I O N

I.

 

            Appellant contends that there was insufficient evidence to support the jury’s guilty verdict of domestic assault with intent to cause fear of immediate bodily harm or death of another.  The state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In considering a claim of insufficient evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            The fact-finder has the exclusive function of judging witness credibility.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  And this court will defer to the fact-finder’s credibility determinations.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  “We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a] defendant was proven guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotations omitted).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

            Appellant was convicted of misdemeanor domestic assault against a family or household member, see Minn. Stat. § 518B.01, subd. 2(b)(1) (2002) (defining “family or household members” to include a spouse), by “commit[ting] an act with intent to cause fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.2242, subd. 1(1) (2002).  The mental state of “with intent to” or “with intent that” is defined statutorily as “the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2002).  Intent may be determined circumstantially through “[a] defendant’s conduct, the character of the assault, and the events occurring before and after the crime.”  In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001). 

            Appellant contends that Bauer did not testify to any identifiable act done with the sole purpose of causing her fear of immediate bodily harm or death.  Specifically, appellant challenges Bauer’s testimony that she was afraid of him.  But in addition to Bauer’s testimony that she became frightened when appellant’s demeanor changed from calm to angry, she also testified that appellant swore at her and refused to leave.  She stated that when she was being choked in the kitchen, she was the most afraid that she had ever been in her life.  The tape of Bauer’s 911 call was played for the jury.  And the deputy sheriff testified that Bauer was “crying, shaken up, appeared to be very frightened” when he responded to her 911 call.  The jury also saw photographs of broken telephones with their parts strewn about the floor and a red mark on Bauer’s neck.  While appellant invites this court to sit as a “thirteenth juror” weighing the evidence, see Tibbs v. Florida, 457 U.S. 31, 37, 42, 102 S. Ct. 2211, 2216, 2218 (1982), that is not our function.  Kramer, 668 N.W.2d at 37.  On this record, we conclude that the evidence is sufficient to support the jury’s verdict.

II.

 

            Appellant argues that the jury’s guilty verdict for domestic assault with intent to cause fear of immediate bodily harm or death of another is legally inconsistent with the not-guilty verdict on the count of domestic assault intending to cause immediate bodily harm or death of another.  To be entitled to relief because of inconsistent verdicts, the verdicts must be legally inconsistent.  State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995). 

            This court examines the actual elements of the offenses to determine whether the verdicts are legally inconsistent.  See State v. Cole, 542 N.W.2d 43, 51-52 (Minn. 1996) (structuring the analysis by elements of the allegedly legally inconsistent crimes).  Verdicts of both a crime and its lesser-included offense may be logically inconsistent, but they are not legally inconsistent unless “a necessary element of each offense . . . was subject to conflicting findings.”  Moore, 438 N.W.2d at 108; see Cole, 542 N.W.2d at 50 (describing Moore’s holding as “[v]erdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.”); Netland, 535 N.W.2d at 331 (stating that Moore “suggests that verdicts are legally inconsistent if a single necessary element of a greater and included offense are subject to conflicting findings by the jury”). 

            Appellant was convicted of misdemeanor domestic assault against a family or household member by “commit[ting] an act with intent to cause fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.2242, subd. 1(1).  Appellant was also charged and acquitted of committing misdemeanor domestic assault against a family or household member by “intentionally inflict[ing] or attempt[ing] to inflict bodily harm upon another.”  Id., subd. 1(2) (2002). 

            The two crimes may be divided into three elements.  Both crimes require that the act was “against a family or household member.”  Minn. Stat. § 609.2242, subd. 1.  “Family or household members” include “spouses and former spouses.”  Minn. Stat. § 518B.01, subd. 2(b)(1).

            The second element of both crimes is an element of specific intent:  “with intent to,” Minn. Stat. § 609.2242, subd. 1(1), compared with “intentionally.”  Id., subd. 1(2).  The Criminal Code defines these types of intent differently.  “‘With intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4).  In contrast,

“[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.  In addition, . . . the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”

 

Id., subd. 9(3) (2002).

            The third element of both crimes involves an act: “to cause fear in another of immediate bodily harm or death,” Minn. Stat. § 609.2242, subd. 1(1), compared with “inflicts or attempts to inflict bodily harm upon another.”  Id., subd. 1(2).  Bodily harm is “physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (2002).

            Although the two charges begin with the same element, which defines the victim, the other two elements differ.  The two types of intent have similar basic definitions, but only “intentionally” requires that the actor have knowledge of the facts necessary to make the conduct criminal.  Minn. Stat. § 609.02, subd. 9(3)–(4).  The specified facts are defined in statute as those set forth “after the word ‘intentionally.’”  Id., subd. 9(3).  We must construe statutes so that “[e]very law shall be construed, if possible, to give effect to all its provisions.”  Minn. Stat. § 645.16 (2002).  Thus, “with intent to” and “intentionally” have different meanings.  Therefore, the two crimes require different types of specific intent.

            The third element for each crime modifies the manner and degree of bodily harm inflicted.  Appellant was convicted of “caus[ing] fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.2242, subd. 1(1).  But, appellant was acquitted on the crime requiring “inflict[ing] or attempt[ing] to inflict bodily harm upon another.”  Id., subd. 1(2).  These are two separate crimes.

            The distinction is clear.  To “cause fear in another” does not require that appellant intended to “inflict[ ] or attempt[ ] to inflict bodily harm upon another.”  The only intent appellant needed for conviction is that he intended that his acts make Bauer fearful of “immediate bodily harm or death.”  An individual may act, knowing that the act will not cause bodily harm, while also expecting that the recipient will be fearful that such harm will result.  The jury found that appellant’s specific intent was to create fear, not physical harm or death.  Because these acts are different, the jury could rationally arrive at its verdict.  Further, because the second and third elements of the two crimes describe different acts with different states of intent, the verdict is not legally inconsistent.

III.

 

            Appellant contends that the district court abused its discretion by precluding cross-examination of Bauer about the effects of her antidepressant medication.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion,” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003), including the district court’s ruling on the scope of cross-examination.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1989).  When reviewing evidentiary rulings, “our duty is to look to the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to legal usage.”  State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quotation omitted).  “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  Amos, 658 N.W.2d at 203.  Appellant has not met that burden in this matter.

            An evidentiary error is prejudicial “[i]f . . . there is a reasonable possibility that the verdict might have been different if the evidence had been admitted . . . .”  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994); see also State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989) (defining reversible error as the “reasonable possibility the error complained of may have contributed to the conviction”).  The improper denial of a defendant’s opportunity to impeach a witness is determined by “whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”  Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986) (providing explanation used by Post court at 512 N.W.2d at 102).  Determination of harmless error relies on a series of factors, including “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”  Id.

Appellant sought to attack Bauer’s credibility by means of an argument based on possible side effects of her antidepressant medication.  But even if appellant’s argument were accepted, the state’s case relied on more than Bauer’s testimony.  We therefore conclude that the district court did not abuse its discretion in its evidentiary ruling.

            Affirmed.