This opinion will be unpublished and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

CX-96-1140

State of Minnesota,

Respondent,

vs.

Daniel Levester Sconiers,

Appellant.

Filed March 18, 1997

Affirmed

Willis, Judge

Hennepin County District Court

File No. 95078854

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.[*]

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

WILLIS, Judge

A jury found appellant Daniel Sconiers guilty of first- and second-degree assault. Sconiers argues the evidence was insufficient to convict him of first-degree assault. We affirm.

FACTS

During the summer of 1995, Sconiers and Kevin Rochford were neighbors in a rooming house in Minneapolis. When Rochford went to Sconiers's room on the evening of August 31 to ask him to return his radio, Sconiers picked up a hatchet and swung it at Rochford, nicking his chin and hitting him in the chest. Rochford backed up, and Sconiers again swung the hatchet at him. Rochford blocked the blow with his hand, pushed Sconiers down, and left the apartment. Rochford walked to a nearby hospital emergency room, where he received 14 stitches in his hand and 10 stitches in his chest. Rochford has an eight-centimeter scar on his chest, a three-centimeter scar and an eight-centimeter scar on his hand, and tightness and shooting pains in his hand.

D E C I S I O N

Where there is a challenge to the sufficiency of the evidence, this court examines the record to determine whether the evidence is sufficient to permit the jury to reach the verdict that it did. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A person who "assaults another and inflicts great bodily harm" is guilty of first-degree assault. Minn. Stat. § 609.221 (1996). "Great bodily harm" is defined as:

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 (1996).

Sconiers argues that the evidence does not show that Rochford's injuries created a high probability of death, serious permanent disfigurement, permanent or protracted impairment, or other serious bodily harm.

A victim suffers "bodily injury which creates a high probability of death" within the meaning of section 609.02, subdivision 8, only when the injury is actually life-threatening. State v. Gerald, 486 N.W.2d 799, 802 (Minn. App. 1992). "The fact that a lesser injury * * * could have been more serious is not sufficient to satisfy the statute." Id. The state does not argue that Rochford's injuries created a high probability of death.

However, scarring is a form of serious permanent disfigurement, as that term is used in the statute. See State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (concluding that two-thirds of an inch long scar on victim's chest and six centimeter scar on victim's neck were serious permanent disfigurement), review denied (Minn. Sept. 20, 1995); State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (concluding that long scar on victim's upper body was serious permanent disfigurement), review denied (Minn. Sept. 19, 1985). Rochford's scarring is, therefore, comparable with that of victims found to have suffered serious permanent disfigurement.

In Gerald, the court found that the victim's sensation of tightness when he yawned or chewed did not constitute permanent or protracted impairment under section 609.02, subdivision 8. 486 N.W.2d at 802. In that case, however, there was testimony that the victim's ability to chew, hear, eat, or breathe was not impaired by his injuries. Id. Here, there was testimony that Rochford has shooting pains and tightness in his hand that impair his ability to work.

Courts have found "other serious bodily harm" under the statute where a victim's injuries were extensive and severe. See State v. Barner, 510 N.W.2d 202, 202 (Minn. 1993) (concluding that head injuries causing difficulty with eating, multiple stab wounds, and hand injuries constitute other serious bodily harm); Anderson, 370 N.W.2d at 706 (concluding that lacerations and other injuries to the head, a lacerated liver, bruises, and a long scar constitute other serious bodily harm). Rochford suffered deep lacerations to his chest and hand. He has scars from the injuries and his ability to move his hand is impaired.

The evidence was sufficient for the jury to conclude that Rochford suffered serious permanent disfigurement, permanent or protracted impairment, or other serious bodily harm.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.