State v. Bogenreif

• Decision Date: 26 November 1990
• Docket Number: No. 17011,17011
• Citation: 5 A.L.R.5th 1078,465 N.W.2d 777
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lance BOGENREIF, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 777

465 N.W.2d 777

5 A.L.R.5th 1078

STATE of South Dakota, Plaintiff and Appellee, v. Lance BOGENREIF, Defendant and Appellant.

No. 17011.

Supreme Court of South Dakota.

Considered on Briefs Nov. 26, 1990.

Decided Jan. 30, 1991.

Gary R. Campbell, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Jeff Larson, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

MORGAN, Retired Justice.

Lance Bogenreif (Bogenreif) appeals a judgment entered pursuant to a jury verdict convicting him of aggravated assault. Bogenreif argues that the victim's injuries did not constitute serious bodily injury, that he was entitled to an instruction on self-defense, that he was denied an opportunity to cross-examine the complaining witness, and that the trial court should have granted a mistrial. We affirm.

This case stems from an altercation which took place at the South Dakota State Penitentiary on May 28, 1989, between inmates Bogenreif and James Allen (Allen). In February 1989, Allen entered the state penitentiary. A few weeks after his arrival, other prisoners on his floor accused Allen of being a "snitch" or informer, and told him that they wanted him off their floor. Allen then wrote a letter to Colonel Rist, an officer at the penitentiary, in which he related that he was being threatened and requested that he be moved. He went on to state that he wanted to avoid disciplinary problems, and that if a fight did break out, he wanted Colonel Rist to know that he had not provoked it. A few days later, after meeting with Colonel Rist, Allen was moved to a different cell in another wing of the prison.

About four hours after he moved into his new cell, Bogenreif, who was assigned to an adjacent cell, stopped by Allen's cell and accused him of being a "snitch." Allen denied the accusation and told Bogenreif that he had just moved from one area of the prison and could not do so again. Bogenreif then threatened Allen, stating "Well, you're either going to move to PC [protective custody], to the hospital or worse." According to Allen, the two men did not speak to one another again until May 13, 1989, when Bogenreif again accused Allen of being an informant, and renewed his earlier threat. Later that same day, Allen related the incident to his wife during their visit, and to Colonel Rist in a second letter. In his letter, Allen again stated that he wanted to avoid discipline problems, and added that if there was a fight between Bogenreif and himself, he would not be the one who started it. Allen also related this to his counselor on May 17, 1989.

It is undisputed that Bogenreif and Allen were involved in an altercation on May 28, 1989. On that morning, Allen returned to his cell after brunch, and went to sleep. Although his cell door was locked, all closed doors were later automatically opened for a short time after 1 p.m. to allow inmates an opportunity to leave their cells for recreation. Bogenreif used this opportunity to enter Allen's cell while he slept. According to Allen, he was awakened from what he thought was a nightmare, to find someone standing over him, striking him in the face repeatedly. Allen attempted to block the blows and grabbed the assailant's wrist. As the assailant left his cell, Allen identified him as Bogenreif. Allen then closed and locked the door of his cell and summoned assistance.

Bogenreif's version of the events is predictably different. He claims that Allen instigated the problems between the two men by calling him profane names. At trial, inmate Dirk Pace (Pace) testified that Allen came out of his cell to verbally taunt Bogenreif, Bogenreif told Allen to "keep his mouth shut," and then Allen pushed Bogenreif. Then, according to Pace, Bogenreif pursued Allen into Allen's cell, as Allen attempted to close his cell door.

After being transported to a hospital, Allen was examined and treated by Dr. Michael Olson. Dr. Olson testified at trial that Allen had loosened teeth, abrasions around his cheeks, and a very extensive laceration of his lip. The lip cut was jagged and irregular, and the muscles that permit smiling or frowning were severed. Nerve endings in the area of Allen's lip were disturbed, causing sensitivity to heat and cold. The lip damage, which extended completely through the lip, resulted in a permanent scar. Dr. Olson stated that Allen's injuries were not life-threatening, but he would be affected for the rest of his life:

In terms of life-threatening, no. It was not a life-threatening injury. In terms of more problems, disability, it certainly can and will have an effect. In the case of Mr. Allen, he will have a scar or a cosmetic defect on his lower lip that is going to be there forever. I suspect with time, hopefully, the hot, cold sensitivity will improve. The biggest problem as you have already discussed have been [sic] the dental work.

Dr. Allen Bliss, the first dentist to examine Allen, testified that the alignment of Allen's teeth and his bite had been altered. X-rays revealed that some of his teeth had been moved in their sockets and Dr. Bliss determined that four would have to be removed and replaced with dentures. Dr. Bliss testified that Allen will have permanent difficulty eating.

Dr. Donald J. Fischer, another dentist who treated Allen, testified that three days after the incident Allen was in so much pain that he could not close his mouth. Allen's four upper front teeth were very mobile, and an infection had set in around those teeth. The infection resulted from cracks in the roots of Allen's teeth. Dr. Fischer testified that he extracted Allen's two upper front teeth which had been broken two-thirds of the way down the roots, and that he had to surgically remove fragments of the roots. He also testified that two additional teeth were to be removed shortly after trial. According to Dr. Fischer, the alignment of Allen's teeth will never be the same, he will need a partial denture, and the artificial teeth will never function as well as real teeth.

On the day of the incident, May 28, 1989, Bogenreif was also taken to the hospital. The penitentiary employee who transported Bogenreif asked him about his bandaged and bleeding hand. Bogenreif replied that he "used it on somebody's face." When the treating physician asked him the cause of his injury, Bogenreif again said "I used it on somebody's face."

Bogenreif was subsequently indicted by a grand jury on the charge of aggravated assault. Trial was held on November 30, 1989, and December 1, 1989, and Allen was called as the first witness. On cross-examination Bogenreif's counsel began questioning Allen about the fact that he was transferred out of the penitentiary to the Trustee Unit three months after the assault. The trial court, sua sponte, cut off the line of questioning. At a bench conference, within the hearing of the jury, the court stated "No. That's garbage. I'm going to overrule that testimony on my own motion. We'll be here until Monday if we start worrying about all that stuff." Defense counsel moved for a mistrial. The court denied the motion but did caution the jury to disregard comments to counsel from the bench, by reading the standard pattern jury instruction to the jury. On the following morning, the trial court began by apologizing, in front of the jury, to defense counsel for losing his patience the previous day.

In the course of settling jury instructions, defense counsel proposed two instructions on self-defense. The trial court denied both. On December 1, 1989, the jury convicted Bogenreif of aggravated assault. He was sentenced on January 8, 1990, to three years in the State Penitentiary, with the sentence to run consecutive to the sentence Bogenreif was previously serving. This appeal followed.

Bogenreif raises four issues on appeal:

1. Was there sufficient evidence to support a finding that Allen's injuries constituted "serious bodily injury"?

2. Did the trial court err by refusing to instruct the jury on self-defense?

3. Was Bogenreif denied an opportunity to cross-examine the complaining witness?

4. Did the trial court abuse its discretion by denying Bogenreif's motion for a mistrial?

For his first issue, Bogenreif argues that, as a matter of law, Allen's injuries do not constitute "serious bodily injury" under SDCL 22-18-1.1(4), ¹ the statute under which he was convicted. This issue presents a question of whether the nature and extent of Allen's injuries constituted serious bodily injury, as a matter of law.

In State v. Janisch, 290 N.W.2d 473, 476 (S.D.1980), we held that the phrase "serious bodily injury" as used in SDCL 22-18-1.1(4) "is such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health or limb." In Janisch, we reversed a conviction for aggravated assault where the victim's injuries were limited to "black and blue marks, a puffed eye, and a swollen or cut lip," characterizing such injuries as typical of simple assault. Id.

Bogenreif contends that because Allen's injuries were inflicted with his fists and are such as are likely to occur in a simple assault, the loss of teeth and facial scarring cannot constitute serious bodily injury. See State v. Peters, 274 Minn. 309, 143 N.W.2d 832, 837 (1966). He asks this court to limit the definition of "serious bodily injury" to include only injuries that are life threatening, injuries to internal organs, or injuries that require lengthy hospitalization. In Janisch, we required that the injury be grave, and that it give rise to an apprehension of a threat to life, health or limb. 290 N.W.2d at 476. The parties here do not dispute whether Allen was in apprehension of serious injury; rather, the dispute here focuses on whether the loss of permanent teeth, facial injuries, and a facial scar are grave injuries within the meaning of "serious bodily injury."

Other courts have been faced with the question...