State v. Myers
| Decision Date | 26 October 1989 |
| Docket Number | No. 89-0281-CR,89-0281-CR |
| Citation | 153 Wis.2d 397,451 N.W.2d 804 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Eugene J.R. MYERS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Crawford County.
REVERSED.
Appeal from a judgment of the circuit court for Crawford county: John R. Wagner, Judge.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
Eugene Myers appeals from a judgment of conviction for aggravated battery, sec. 940.19(2), Stats., party to the crime, sec. 939.05. The primary issue is whether the evidence was sufficient for the jury to find that the battery caused "great bodily harm," within the meaning of sec. 939.22(14), Stats., 1985. We conclude it was not, and we therefore reverse the judgment. The second issue is whether we may direct the trial court to convict or consider convicting Myers on a lesser-included offense. We conclude we may not, since the jury was not instructed on a lesser-included offense and the state did not request the instruction.
The essential facts are undisputed. Myers hired thugs to injure the dispatcher for a trucking company that had stopped contracting with Myers as a driver. On April 1, 1985 the thugs entered a trailer home in Prairie du Chien and attacked its two male occupants, one of whom was the intended victim. The other victim, Michael Cockroft, received the most severe injuries. He was hit on the head one to three times with a baseball bat. His head wound required nine stitches and left a two-inch scar. Tests taken at two hospitals disclosed no other physical or neurological damage.
Cockroft had headaches shortly after the attack. The medical records of his treating physician state that in May 1985 the physician found "no neurological deficit or impairment" and that the initial impression as to the cause of the headaches was "post-traumatic syndrome." A prescribed medication provided some relief. Cockroft received no medical treatment for his headaches in September 1985 through February 1988. In March 1988 his headaches prevented him from continuing his working as a truck driver. New tests taken at that time disclosed no sign of physical abnormality, and the diagnosis was again "post-traumatic syndrome." The March 1988 records described Cockroft's headaches as an "element of mood disorder." Neither his treating physician nor any other medical expert testified at the trial.
Aggravated battery is the crime of causing "great bodily harm to another by an act done with intent to cause great bodily harm to that person or another with or without the consent of the person so harmed." Sec. 940.19(2), Stats. "Great bodily harm" is "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 injury." Sec. 939.22(14), Stats. 1985. 1
Myers and his attorney stated at the instruction conference that he did not want a lesser-included offense submitted to the jury. The state did not request such a submission, and the court instructed the jury only as to the crime of aggravated battery. The jury was additionally instructed that "the term bodily harm does not incorporate psychological or emotional harm, but rather only physical injury," and the correctness of that instruction is not challenged on appeal. The jury returned a verdict of guilty.
Because the facts regarding the injury have been established, we decide as a matter of law whether the evidence was sufficient to support a conviction. State v. Bronston, 7 Wis.2d 627, 633, 97 N.W.2d 504, 508, modified, 7 Wis.2d 642a, 98 N.W.2d 468 (1959), overruled on other grounds, State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 262, 133 N.W.2d 753, 762 (1965), cert. denied, 384 U.S. 1017 (1966), and LaBarge v. State, 74 Wis.2d 327, 334, 246 N.W.2d 794, 797 (1976).
The state makes no argument that the blow to Cockroft's head and his wound constitute great bodily harm. The state argues, however, that his lingering headaches were a physical injury or impairment caused by the assault and constitute great bodily harm for purposes of sec. 939.22(14), Stats., and therefore sec. 940.19(2), Stats.
In certain instances, the state is required to present expert testimony in order to prove an element of a crime. Expert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects not within the realm of ordinary experience or knowledge of humanity. State v. Johnson, 54 Wis.2d 561, 564, 196 N.W.2d 717, 719 (1972).
No medical expert testified at the trial. All the jury had before it were medical records ascribing the headaches to "post-traumatic syndrome" or to a "mood disorder," and Cockroft's testimony that his headaches began after the attack. The jurors had no expert testimony defining the medical terms used in the records. Nor did they have testimony from the treating physician to explain what he meant by the terms he used in Cockroft's medical records. Without such testimony, no reasonable jury could find beyond a reasonable doubt, as they were required by the instructions, that Cockroft's headaches were physical injuries, or manifestations of physical injuries, received in the attack. The judgment convicting Myers of aggravated battery must be reversed.
The state urges that we remand to the trial court with directions to convict Myers of a lesser-included offense not requiring great bodily harm, even though no lesser-included offense was submitted to the jury. The state relies on State v. Bronston, supra, and Dickenson v. State, 75 Wis.2d 47, 248 N.W.2d 447 (1977).
After holding that the evidence was...
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