State of Minnesota, Respondent, vs. Demetrius Lee Harper, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1594

 

State of Minnesota,

Respondent,

 

vs.

 

Demetrius Lee Harper,

Appellant.

 

Filed August 19, 2003

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 01101680

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from a conviction of first-degree assault, appellant argues (1) the district court abused its discretion by precluding appellant from impeaching the victim with his recent juvenile delinquency adjudication for giving false information to police; and (2) the elements of first-degree assault were not proven beyond a reasonable doubt.  We affirm.

D E C I S I O N

I.

            Appellant argues that the district court's decision not to allow him to impeach the victim with the victim's juvenile adjudication for a crime of dishonesty denied appellant his constitutional right to confront the witness against him.  District courts have broad discretion in determining whether to allow evidence of a prior conviction for purposes of impeachment.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  We will not reverse such a ruling absent a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

            The general rule regarding the impeachment of a witness with prior convictions is that for a conviction to be admissible against the witness, the conviction must be either a felony offense where the probative value outweighs its prejudicial effect or an offense involving dishonesty or false statements.  Minn. R. Evid. 609 (a).  Regarding juvenile adjudications, Minn. R. Evid. 609 (d) states that "[e]vidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution."  By statute, the disposition of a criminal charge against a child is not admissible as evidence against the child in any case or proceeding, except that an adjudication may be used to determine a proper sentence.  Minn. Stat. § 260B.245, subd. 1(a) (2002).

            Where evidence of a prior adjudication is sought to be admitted, the United States Supreme Court has held that a state's interest in protecting a juvenile offender may be subordinated to the defendant's constitutional right to confrontation.  Davis v. Alaska, 415 U.S. 308, 319, 94 S. Ct. 1105, 1112 (1974).  In Davis, a state witness was on probation from a juvenile court adjudication.  Id. at 310-11, 94 S. Ct. at 1107.  The defendant claimed he was entitled to cross-examine the witness concerning his juvenile record to show the witness testified to avoid being a suspect and to maintain his probationary status.  Id. at 311, 94 S. Ct. at 1108.  The Court held that the defendant's right to cross-examine the witness for bias and influence outweighed the state's interest in protecting the anonymity of juvenile offenders.  Id. at 320,  94 S. Ct. at 1112.

            In 1998, the Minnesota Supreme Court agreed with Davis, holding that "the right of confrontation is paramount to the State's policy of protecting a juvenile offender."  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998) (quoting Davis 415 U.S. at 319, 94 S. Ct. at 1111).  But importantly, the Spann court noted that cases following Davis have ordinarily not allowed the use of juvenile adjudications for general impeachment of credibility.  Id.  The court stated that:

In the absence of a specific challenge to a juvenile's credibility demonstrating a clear motive to falsify testimony, the interest protected in Rule 609(d) should not be subordinated to the defendant's right of confrontation. 

 

Id.  The court held that there was no specific basis to challenge the juvenile's credibility, and thus the juvenile offenses were properly excluded.  Id.

            Appellant contends that evidence of the victim's adjudication should be admitted because unlike the witness in Spann, who had been adjudicated for simple robbery, the victim here was adjudicated for the crime of providing false information to police.  We disagree.  The language in Spann provides that in order for evidence of the adjudication to be admissible, there must be a "specific challenge to a juvenile's credibility demonstrating a clear motive to falsify testimony * * * ."  Id.  Here, appellant does not deny that he shot the victim.  And appellant fails to provide a clear motive for the victim to falsify testimony.  Therefore, we conclude the district court did not abuse its discretion by refusing to admit the impeachment evidence.

II.

            Appellant argues in his pro sesupplemental brief that because the state failed to prove that the assault caused permanent disfigurement, or caused a permanent loss or impairment to any part of the victim's body, appellant should be resentenced to the lesser-included offense of second-degree assault.  Minn. Stat. § 609.221, subd. 1 (2002), provides:

Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

 

Great bodily harm is defined in Minn. Stat. § 609.02, subd. 8 (2002), 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. 

 

A conviction of assault in the first degree will be upheld where the victim possesses permanent scars suffered as a result of the assault.  State v. Currie, 400 N.W.2d 361, 365-66 (Minn. App. 1987).

            Here, a doctor testified at trial that (1) the gunshot wound to the victim's abdomen was life threatening; (2) the victim was in medical danger during the surgery occasioned by the abdominal wound because it was difficult to control the bleeding; (3) the abdominal bullet was not recovered due to its placement in the abdomen; (4) the gunshot wounds to the victim's femur and ankle would cause him to limp for a long period of time; and (5) in the doctor's opinion, the wounds sustained by the victim created a high probability of death and permanent and protracted loss or impairment of the bodily members or organs.  We conclude the elements of first-degree assault were proven beyond a reasonable doubt.    

            Affirmed