State v. Moore, No. A03-1237.

• Decision Date: 14 July 2005
• Docket Number: No. A03-1237.
• Citation: 699 N.W.2d 733
• Parties: STATE of Minnesota, Respondent, v. John Walter MOORE, Appellant.
• Court: Minnesota Supreme Court

699 N.W.2d 733

STATE of Minnesota, Respondent, v. John Walter MOORE, Appellant.

No. A03-1237.

Supreme Court of Minnesota.

July 14, 2005.

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, St. Paul, MN, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, G. BARRY, Justice.

On February 21, 2003, appellant John Walter Moore was found guilty of first-degree assault in violation of Minn.Stat. § 609.221, subd. 1 (2004) (great bodily harm), and third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (2004) (substantial bodily harm), in connection with an incident involving his girlfriend, Joyce Catchings. On appeal, Moore raised three issues: (1) that the district court committed reversible error by instructing the jury that the loss of a tooth constitutes the permanent loss of the function of a bodily member; (2) that it was error to remove the language "creates a high probability of death" from the definition of "great bodily harm"; and (3) it was error to admit expert opinion testimony that Catchings' injuries met the legal definition of "great bodily harm." The court of appeals affirmed Moore's conviction. State v. Moore, No. A03-1237, 2004 WL 2159024 (Minn.App. September 28, 2004) (unpublished). We reverse and remand.

On October 19, 2002, St. Paul Police Officer Felicia Reilly responded to a 911 call regarding a domestic dispute at 875 Geranium Street. When Reilly arrived at the scene a few minutes after receiving the call, she observed Catchings suffering from a bleeding mouth and, according to Reilly, Catchings appeared "very emotionally upset and obviously frightened."

Catchings told Reilly that she had gone out the night before with a girlfriend and when she came home, her boyfriend, appellant Moore, was very angry. Catchings said that Moore grabbed her and dragged her into the bedroom, screaming "I'm going to kill you, I'm going to shoot you." She told Reilly that Moore then threw her on the bed, choked her, and punched her three times in the mouth.¹ Reilly took Catchings to the emergency room at Regions Hospital. Doctor Mark Gibson Rayner examined Catchings and determined that she sustained an injury to the left side of her face and that her jaw was fractured. Rayner testified at trial that Catchings' injury could have been caused by a punch with a fist. Rayner also testified that it was necessary to perform immediate surgery because the fracture had a high risk of infection if not repaired within 24 hours. A titanium plate and screws were attached to Catchings' jaw to align the fracture and allow the jaw to heal. Rayner testified that because the fracture did not heal properly, Catchings would require further surgery to remove dead bone and either insert new plates or a bone graft. In addition, because a wisdom tooth had punctured the roof of Catchings' mouth, the tooth was not viable and had to be removed.

At trial, the state asked Rayner to review the legal definition of "great bodily harm," an element of first-degree assault. Over defense objection, Rayner testified that Catchings' injury met the legal definition of "great bodily harm" because it satisfied the criterion of a "protracted loss or impairment of the function of any bodily member." He testified that her injury met the criterion because Catchings "has continued loss of her abilities to chew and to use her lower mandible and it's undetermined on when that would be resolved." Rayner also testified that if a tooth is a bodily member, Catchings suffered a loss of a bodily member and testified that, in his opinion, her injury was a "serious bodily injury." On cross-examination, he testified that wisdom teeth are used for chewing if one has normal dentition.

The district court instructed the jury, over defendant's objection, in relevant part, that:

Great bodily harm in this case means bodily harm that causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm. * * * The loss of a tooth is a permanent loss of the function of a bodily member.

The jury found Moore guilty of first- and third-degree assault, but not guilty of second-degree assault. Moore was sentenced to 139 months in prison. The court of appeals affirmed Moore's conviction, holding that any error in instructing the jury was not prejudicial and that the district court did not abuse its discretion in admitting Rayner's testimony. Moore, 2004 WL 2159024 at *4-5. We granted review.

I.

The first issue before us is whether the trial court erred by instructing the jury that "[t]he loss of a tooth is a permanent loss of the function of a bodily member." When determining the adequacy of jury instructions, this court reviews for an abuse of discretion. State v. Peou, 579 N.W.2d 471, 475 (Minn.1998). The district court has considerable latitude in selecting language for jury instructions. Id. Jury instructions are viewed as a whole to determine whether they fairly and adequately explain the law. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). An instruction is error if it materially misstates the law. See State v. Pendleton, 567 N.W.2d 265, 269-70 (Minn.1997).

In Minnesota, the definition of "great bodily harm" includes an injury that "causes a permanent or protracted loss or impairment of the function of any bodily member or organ." Minn.Stat. § 609.02, subd. 8 (2004). The question of whether a particular injury constitutes great bodily harm is a question for the jury. State v. Bowers, 178 Minn. 589, 592, 228 N.W. 164, 165 (1929). The district court here, over defense objection, instructed the jury that "loss of a tooth is a permanent loss of the function of a bodily member."

Moore argues that the instruction was improper because it effectively constituted a directed verdict for the prosecution on the element of great bodily harm. The court of appeals concluded that the instruction in this case correctly stated the law as set out in State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn.App.1984), which held that there was a sufficient factual basis for a plea to first-degree assault because the loss of a tooth constitutes a permanent loss of the function of a bodily member. The court of appeals held that even if the instruction was error, it was harmless error. Moore, 2004 WL 2159024 at *4.

But there is a distinction between determining whether the evidence was sufficient to support a plea or conviction, as Bridgeforth concluded, and instructing the jury as a matter of law that an element of the offense has been established, as was done here. While the loss of a tooth in Bridgeforth was sufficient to support the guilty plea to first degree assault, here, instructing the jury that the loss of a tooth is the permanent loss of the function of a bodily member, in effect, instructed the jury that the definition of "great bodily harm" was established. Thus, the instruction removed from consideration by the jury the question of whether the loss of a tooth constitutes "great bodily harm," violating the requirement that criminal convictions must "rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding it was error to instruct the jury that statements were material as a matter of law when materiality was a fact question for the jury); see also State v. Brice, 276 Kan. 758, 80 P.3d 1113, 1122-23 (2003) (holding it was error to instruct the jury that the term "great bodily harm" means a "through and through bullet wound"); United States v. Mentz, 840 F.2d 315, 319 (6th Cir.1988); United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986). Accordingly, we hold that the district court's instruction that the loss of a tooth constituted the permanent loss of the function of a bodily member was erroneous.

Having held that the instruction was error, we turn to the state's contention that this error was harmless beyond a reasonable doubt. The state argues that the error was harmless because there was sufficient evidence to prove great bodily harm. Moore, however, argues that the instruction constitutes reversible error. We agree with Moore.

In Rose v. Clark, the United States Supreme Court addressed the application of the harmless error test and stated in dicta that "harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury." 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Court stated that where the right to have a jury determine guilt is "altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty." Id.; see also White Horse, 807 F.2d at 1432 (holding that an instruction that deprived the jury of the ability to determine whether the facts essential to the conviction were established by the evidence was reversible error); Mentz, 840 F.2d at 323-24. Because a jury instruction that the loss of a tooth constitutes the permanent loss of the function of a bodily member deprives the defendant of the right to have the jury determine that every element of the charged offense has been established, harmless error analysis is not applicable. Accordingly, Moore's conviction is reversed and we remand for a new trial.

II.

Because we conclude that the instruction at issue constitutes reversible error, no further analysis is necessary. But we choose to address the remaining two issues to provide guidance to the district court and counsel on remand.

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