State v. Wellman

341 N.W.2d 561, 1983 Minn. LEXIS 1354
CourtSupreme Court of Minnesota
DecidedDecember 9, 1983
DocketC4-82-1012
StatusPublished
Cited by22 cases

This text of 341 N.W.2d 561 (State v. Wellman) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wellman, 341 N.W.2d 561, 1983 Minn. LEXIS 1354 (Mich. 1983).

Opinions

WAHL, Justice.

This is a child abuse case. Defendant was found guilty by a district court jury of three counts of assault in the third degree, Minn.Stat. § 609.223 (1982) (assault involving infliction of substantial bodily harm). The counts were based on separate assaults against the same victim on three separate occasions. The trial court sentenced defendant to consecutive terms of 1 year and 1 day for the first assault, 1 year and 1 day for the second, and 36 months for the third. Appealing from judgment of conviction, defendant argues for outright reversal of all three convictions on the ground that the evidence was insufficient. Alternatively, he seeks a new trial on the ground (a) that the trial court prejudicially erred in denying a defense mistrial motion when the prosecutor elicited rebuttal evidence indicating that twice previously defendant’s ex-wife had charged him with assault and (b) that the unobjected-to admission of statistical evidence constitutes plain error of a prejudicial nature. Finally, defendant challenges the length of his sentence. We affirm.

The abused child is Jonathan, the son of the woman with whom defendant was living. The three convictions are based on incidents that occurred in February, April, and May of 1981, incidents that grew out of a pattern of abusive conduct by defendant directed toward Jonathan which began in the fall of 1979, when the child was 2½ years old.

[563]*563On February 19 or 20, 1981, the mother came home and discovered that Jonathan had sustained a nose injury. She testified that defendant, who had been alone with Jonathan at the time, said that Jonathan had been taking a nap upstairs and had gotten up and was coming down when he fell down the steps. Jonathan had a rug burn on his face, his nose was swollen, and he was bruised in a number of places, including on his thigh. The mother testified that she questioned him and he said that he had fallen down the stairs but she testified that she did not believe him because defendant was there with him and Jonathan seemed scared. A doctor subsequently diagnosed the victim’s injury as a fracture of the nose cartilage. Surgery was necessary to repair the damage.

On April 29, 1981, defendant beeame angry with Jonathan when he did not cooperate with defendant in a color-recognition test that defendant was administering. Defendant slapped the boy so hard that he fell down, then picked him up by the hair, then twisted his arm and pulled it behind his head until it made a popping sound. The mother took Jonathan to a doctor and told the doctor that he had been playing in the back of the pickup truck and had fallen out, which was defendant’s explanation for what had happened. The doctor X-rayed the arm and found that the humerus was fractured in two places in the area of the elbow. He testified at trial that it was unlikely that a fall from a pickup truck would cause such an unusual fracture and that it more likely was caused by someone holding part of the arm still and twisting the other part. He also noted bruising about the face which was not recent in origin. An orthopedist operated on Jonathan’s arm, putting some pins in it.

On May 19, 1981, the mother left Jonathan at home with the defendant and went to visit a friend. Defendant called her home, saying that Jonathan had fallen off the couch and hurt his leg. The mother took the victim to a doctor, who X-rayed the leg and found a spiral fracture of the tibia. He testified that a rotational motion or a twisting is necessary to cause such a fracture.

After child welfare authorities were contacted, a hearing was held to determine whether the mother should be permitted to retain custody of her children. She broke up with defendant shortly before the hearing, and he apparently was arrested following the hearing.

At trial, the witnesses who testified against the defendant were the mother, her oldest child (who corroborated some of the testimony about the abuse of Jonathan), and the doctors who treated Jonathan. A diagnostic radiologist with a pediatric subspeciality testified that in his opinion both the arm and leg fracture were unusual fractures caused by “severe twisting force” and not by falls. He testified, without objection, that there was less than a one percent chance that a fall of 2 feet from a couch would cause a leg fracture of that sort. He further testified that, considering both fractures, he was medically certain that they did not occur spontaneously or accidentally. He also testified that the two breaks were the types of breaks one frequently sees in child abuse cases.

Defendant testified that he had not abused the child and that all the injuries were the result of the accidents. His brother and two other relatives testified that they saw defendant with Jonathan on many occasions and that he never mistreated the child in their presence. One of these witnesses testified that she never saw defendant abuse any children. On cross-examination, the prosecutor asked her if she was “aware if he has ever had any convictions or abusive criminal charges.” The trial court sustained a defense objection to this question.

After the defense rested, the prosecutor recalled the mother as a rebuttal witness. One of the sets of questions referred to a post-breakup meeting she had with defendant. Defendant testified that the meeting occurred on the date of the court hearing about custody of the children, that it was at her request and that she told him that [564]*564she wanted to have sexual intercourse. She testified in rebuttal that the meeting was at his request but that she wanted to talk with him also. Asked why she had wanted to talk with him, she said, “When I was talking to him I wanted to hear what he had to say. He told me that * * * I should watch what I say when I was in Court because he already had two charges of assault from his ex-wife.” Defense counsel immediately objected and asked that the answer be stricken. The trial court sustained the objection, ordered the answer stricken and instructed the jury to disregard it.

A short time later, in a hearing outside the presence of the jury, defense counsel moved for a mistrial. The trial court stated that it did not think that the prosecutor intentionally elicited the evidence and, in any event, did not think it was prejudicial in light of the cautionary instruction. The court also gave a cautionary instruction as part of its final instructions to the jury. Earlier, when discussing the instructions with the court, defense counsel said that he felt that the instructions should be “sufficient” from defendant’s point of view.

1. Defendant’s first contention is that the evidence of his guilt was legally insufficient. He makes this contention primarily with respect to the conviction based on the broken nose, but in a footnote to his argument with respect to that issue he states that he is also challenging the sufficiency of the evidence with respect to the other convictions.

If the only injury in this case were the broken nose, the argument that the evidence was insufficient to establish that the injury resulted from an assault would be stronger. But in this case there were three injuries, and we believe that the jury was entitled to consider each injury in the context of the others. Doing that, we conclude that the evidence was sufficient that each of the injuries resulted from assaultive conduct by defendant, who was the child’s caretaker on each occasion.

2. Defendant makes two arguments in support of his contention that he did not receive a fair trial and that a new trial on all charges is required.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Minnesota v. Mark William Latimer
Court of Appeals of Minnesota, 2016
State v. Stone
784 N.W.2d 367 (Supreme Court of Minnesota, 2010)
Dillon v. State
781 N.W.2d 588 (Court of Appeals of Minnesota, 2010)
State v. Williams
608 N.W.2d 837 (Supreme Court of Minnesota, 2000)
State v. Munger
597 N.W.2d 570 (Court of Appeals of Minnesota, 1999)
State v. Hanson
572 N.W.2d 307 (Supreme Court of Minnesota, 1997)
Rairdon v. State
557 N.W.2d 318 (Supreme Court of Minnesota, 1996)
State v. Halvorson
506 N.W.2d 331 (Court of Appeals of Minnesota, 1993)
State v. Rachuy
502 N.W.2d 51 (Supreme Court of Minnesota, 1993)
State v. Lomax
437 N.W.2d 409 (Supreme Court of Minnesota, 1989)
State v. Leonard
400 N.W.2d 206 (Court of Appeals of Minnesota, 1987)
State v. Mortland
395 N.W.2d 469 (Court of Appeals of Minnesota, 1986)
State v. Edmison
398 N.W.2d 584 (Court of Appeals of Minnesota, 1986)
State v. Cermak
365 N.W.2d 238 (Supreme Court of Minnesota, 1985)
State v. Udstuen
345 N.W.2d 766 (Supreme Court of Minnesota, 1984)
State v. Gissendanner
343 N.W.2d 668 (Supreme Court of Minnesota, 1984)
State v. Dietz
344 N.W.2d 386 (Supreme Court of Minnesota, 1984)
State v. Wellman
341 N.W.2d 561 (Supreme Court of Minnesota, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
341 N.W.2d 561, 1983 Minn. LEXIS 1354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wellman-minn-1983.