                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2322

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Manuel Hernandes Ayala,
                                    Appellant.

                              Filed December 22, 2014
                                     Affirmed
                                 Rodenberg, Judge

                            Hennepin County District Court
                              File No. 27-CR-13-1744

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and

Smith, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant challenges his convictions of second-degree and third-degree assault,

arguing that (1) there is insufficient evidence to support a conclusion that appellant
inflicted substantial bodily harm, (2) the district court erred in admitting opinion

testimony, and (3) the district court erroneously instructed the jury. We affirm.

                                          FACTS

       In the early morning hours of September 29, 2012, appellant Manuel Hernandes

Ayala and his girlfriend, J.M., were drinking alcohol at their apartment while babysitting

J.M.’s granddaughter. There is conflicting testimony about what happened next.

       J.M. testified at trial that, after arguing with appellant, she went into the bedroom

to try to sleep. J.M. testified that appellant came into the bedroom, struck her twice in the

back of the head with a glass object, and then left the bedroom. J.M. testified that she

realized she was bleeding from the back of her head and she called 911. The 911 call

was admitted as evidence. It corroborated most of J.M.’s testimony.

       Appellant testified that he attempted to stop J.M. from smoking crack cocaine.

She became upset with him and began throwing things at him, including a perfume bottle,

which he ducked to avoid, and which ricocheted and struck J.M. in the back of her head.

Appellant testified that J.M. called the police and that he then walked outside and smoked

a cigarette while waiting for police to arrive. He testified that he let the police into the

building when they arrived, and he then left the area.

       It is undisputed that, after J.M. called 911, the operator dispatched police officers

and an ambulance to the apartment. Officer Sokhom Klann, one of the two officers to

respond, testified that when he arrived he did not see anyone smoking outside the

apartment building, that the door to the building was unlocked, and that he and the other

officer entered the building without assistance from anyone. Officer Klann testified that,


                                             2
when he located J.M. in the apartment, he saw blood on her hands and in her hair and that

she was bleeding from the back of her head. J.M. admitted to him that she had been

drinking alcohol. Officer Klann observed that J.M. had red, bloodshot eyes, but also

observed that she was not stumbling or slurring her words. Officer Klann also testified

that he only spoke with J.M. for approximately five minutes before she left with the

paramedics because his “biggest concern was to get paramedics there to treat her head

injury.”

       Dr. Christopher Wall, the emergency room doctor at Fairview Riverside Medical

Center who treated J.M. on September 29, 2012, testified that J.M. lost approximately

250 milliliters (8.2 ounces) of blood from the laceration on her head. He testified that

J.M. had a six- to seven-inch hematoma (“basically blood collection or bruise underneath

the scalp”) on the left back side of her head and a one-centimeter laceration in the center

of the hematoma. Dr. Wall testified that J.M.’s head swelled at least one-half centimeter.

A CT scan revealed no injury to J.M.’s brain or any skull fracture(s). However, Dr. Wall

testified that “[a]nyone with a head injury is presumed to have a concussion,” and J.M.

complained of a headache, which Dr. Wall testified was an indication of a mild

concussion. While Dr. Wall did not then diagnose J.M. with a concussion, he testified

that he gave her precautionary instructions, including limiting her physical activity.

       Appellant was initially charged with second-degree assault with a deadly weapon

inflicting substantial bodily harm in violation of Minn. Stat. § 609.222, subd. 2 (2012).

The state orally amended the complaint at trial to add one count of third-degree assault

resulting in substantial bodily harm in violation of Minn. Stat. § 609.223, subd. 1 (2012).


                                             3
       The case was tried to a jury. The district court instructed the jury on the two

charges, each with one lesser-included offense: (1) second-degree assault with a

dangerous weapon inflicting substantial bodily harm and second-degree assault with a

dangerous weapon, as a lesser-included offense, and (2) third-degree assault inflicting

substantial bodily harm and fifth-degree assault, as a lesser-included offense.

       When instructing the jury, the district court stated: “The order in which the

instructions are given is of no significance. You are free to consider the issues in any

order you wish. I have not intended by anything I say in these instructions to indicate

that you must consider the issues in any particular order.” After closing arguments, the

district court described the multiple jury verdict forms for the jury, stating:

              If you find the defendant not guilty, then you go to the
              included offense. In other words, if you find the defendant
              guilty, you don't go to the included offense. . . . If you find
              the defendant not guilty, then you go to the included offense
              of assault in the second degree, dangerous weapon.

       No objection was made to the instruction. The jury returned two verdict forms:

one finding appellant guilty of second-degree assault with a dangerous weapon inflicting

substantial bodily harm and the other finding appellant guilty of third-degree assault. The

jury returned neither of the lesser-included-offense verdict forms. The district court

sentenced appellant to 45 months in prison. This appeal followed.

                                      DECISION

       Appellant argues that the evidence supporting the substantial bodily harm element

of the second-degree and third-degree assault convictions, is insufficient.         When

considering a claim of insufficient evidence, we analyze the record to determine whether


                                              4
the evidence, viewed in the light most favorable to the conviction, is sufficient to allow

the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430

(Minn. 1989). A conviction will not be reversed when the jury, giving due regard to the

presumption of innocence and the prosecution’s burden of proving guilt beyond a

reasonable doubt, could have found the defendant guilty of the charged offense. State v.

Clark, 755 N.W.2d 241, 256 (Minn. 2008).

       To find appellant guilty of second-degree assault, the jury was required to find that

(1) appellant assaulted J.M., (2) with a dangerous weapon, and (3) inflicted substantial

bodily harm. Minn. Stat. § 609.222, subd. 2 (2012). To find appellant guilty of third-

degree assault, the jury was required to find that (1) appellant assaulted J.M. and

(2) inflicted substantial bodily harm. Minn. Stat. § 609.223, subd. 1 (2012). Substantial

bodily harm is defined as “bodily injury which involves a temporary but substantial

disfigurement, or which causes a temporary but substantial loss or impairment of the

function of any bodily member or organ, or which causes a fracture of any bodily

member.” Minn. Stat. § 609.02, subd. 7a (2012).

       There was significant testimony at trial regarding the nature of J.M.’s injuries.

J.M. testified that she was hit in the back of her head twice, causing bleeding and a

laceration on the back of her head. Dr. Wall testified at trial that he estimated J.M. lost

approximately 250 milliliters of blood, and her one-centimeter laceration required two

staples to stop the bleeding. Further, he testified that J.M. had a six- or seven-centimeter

hematoma on the back of her head that swelled at least half a centimeter from the back of

J.M.’s head. While Dr. Wall testified that he did not diagnose J.M. with a concussion, he


                                             5
testified at length about the difficulty of diagnosing concussions, especially in the

immediate aftermath of a head injury. J.M. testified that she had recurring headaches

after the incident, which Dr. Wall testified could be consistent with a mild concussion.

Appellant himself testified that J.M. was struck with a perfume bottle, causing the back

of her head to bleed. He claimed that she threw the perfume bottle, causing her own

injury. The jury believed J.M. and found appellant guilty. See Clark, 755 N.W.2d at 256

(“we view the evidence in the light most favorable to the verdict and assume that the

factfinder disbelieved any testimony conflicting with that verdict” (quotation omitted)).

All of this evidence supports the jury’s finding that appellant inflicted substantial bodily

harm on J.M. The verdict is amply supported by the evidence.

       Appellant also argues that testimony from Sergeant Sharon Carpenter and

Dr. Wall regarding J.M.’s injury was inadmissible because that testimony embraced legal

conclusions and addressed the ultimate issue the jury was to decide. Whether opinion

testimony that goes to an ultimate issue should be admitted is a matter left to the

discretion of the district court. State v. Sontoya, 788 N.W.2d 868, 872 (Minn. 2010).

Because appellant did not object to this testimony at trial, we review the admission of that

testimony under the plain-error standard, requiring the defendant to show (1) error; (2)

that was plain; and (3) that affected appellant’s substantial rights. State v. Griller, 583

N.W.2d 736, 740 (Minn. 1998); see also State v. Cross, 577 N.W.2d 721, 726 (Minn.

1998) (stating that failure to object to the instructions results in plain-error review). To

be plain, the error must be obvious or clear. Johnson v. United States, 520 U.S. 461, 467,

117 S. Ct. 1544, 1549 (1997). “If a defendant fails to establish that the claimed error


                                             6
affected his substantial rights, we need not consider the other factors.” State v. Goelz,

743 N.W.2d 249, 258 (Minn. 2007).

       During trial, the prosecutor asked Dr. Wall, “[W]ould you agree that [J.M.]

suffered a significant or substantial injury to the back of her head?” Dr. Wall agreed and

offered an explanation of the injury and how he treated it differently than he would have

if it were a less serious injury.1 Both the prosecutor and trial counsel questioned Dr. Wall

extensively on the difficulty of diagnosing concussions and symptoms that might

accompany a concussion. Sergeant Carpenter also testified that she recommended the

prosecutor charge appellant with second-degree assault “because of the injuries” to J.M.,

implying that she believed the injuries were significant and amounted to substantial

bodily harm. Sergeant Carpenter also testified that, in her experience, glass objects, such

as a perfume bottle, could inflict substantial bodily harm.

       Both attorneys elicited testimony from Dr. Wall regarding the issue of substantial

bodily harm. “[A] party cannot assert on appeal an error that he invited or that could

have been prevented at the district court.” State v. Carridine, 812 N.W.2d 130, 142

(Minn. 2012). In Goelz, the appellant argued that it was plain error to admit evidence of

his faked suicide attempt. 743 N.W.2d at 258. However, the supreme court found that,

“[n]ot only did Goelz fail to object to this testimony, [but also that] he affirmatively

developed and expanded the evidence of his faked suicide during his own testimony.” Id.

1
  Specifically, Dr. Wall testified: “[I]f it was just a hematoma you could have placed ice.
But generally head injuries where there is bleeding will continue to bleed. . . . So simply
holding pressure over the course of several hours may stop the bleeding if you’re in the
field, but generally in that sort of acute setting it is better just to have the staples or
stitches put in in order to seal that wound and prevent further bleeding.”

                                             7
The supreme court concluded that the appellant “waived any error relating to the

admission of the faked suicide attempt because he invited this error.” Id. Similarly here,

appellant failed to object to the opinion testimony from Dr. Wall and attempted to

leverage the opinion testimony to his advantage at trial. He cannot now argue that the

district court plainly erred in admitting this testimony. And the unobjected-to testimony

of Sergeant Carpenter was a fleeting reference to the charges she suggested to the

prosecutor.   The district court properly instructed the jury that the charges against

appellant are not evidence, and this reference to the charges was not plainly erroneous.

       Moreover, even if there was plain error, it did not affect appellant’s substantial

rights. A party seeking appellate relief based on a claim of plain error bears the “heavy

burden” of proving that the error was reasonably likely to have significantly affected the

verdict. Griller, 583 N.W.2d at 741. As discussed above, there was significant evidence

at trial regarding the nature of J.M.’s injuries. Even without the testimony from Sergeant

Carpenter and Dr. Wall concerning the severity of her injuries, there is ample evidence to

support the jury’s conclusion that appellant inflicted substantial bodily harm on J.M.

aside from these unobjected-to slivers of testimony. Appellant has not demonstrated a

reasonable likelihood that the testimony challenged on appeal significantly affected the

verdict.

       Appellant also argues that the district court improperly instructed the jury that it

need not consider lesser-included offenses if it found appellant guilty of the charged

offense. Because there was no objection to this instruction at trial, we again review for

plain error, State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012), using the same three-


                                             8
step test, Griller, 583 N.W.2d at 740. Should we determine that plain error affecting

appellant’s substantial rights has occurred, we consider whether the error should be

addressed “to ensure the fairness and the integrity of the judicial proceedings.” Id.

       District courts have broad discretion and latitude in selecting the language for jury

instructions, and instructions must be reviewed as a whole. Gulbertson v. State, 843

N.W.2d 240, 247 (Minn. 2014). The supreme court has held that it is plain error for the

district court “to suggest the order in which the jury should consider the charges.” State

v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010). Minnesota’s criminal jury instruction

guides provide guidance on the jury instructions to be given when lesser-included

offenses are presented to the jury. See 10 Minnesota Practice, CRIMJIG 3.20 (2013)

(providing draft instructions for lesser crimes). The comment for CRIMJIG 3.20 states:

“The court should be careful not to indicate any order in which the crimes should be

considered. It should not instruct the jury to consider the lesser crimes only if it finds the

defendant not guilty of the charged offense.” CRIMJIG 3.20 cmt. In Prtine, the supreme

court found that the district court provided “complete and proper” jury instructions

regarding the charges and lesser-included offenses. 784 N.W.2d at 316. However, upon

a question from the jurors during deliberations, the district court cited CRIMJIG 3.20

language and “also instructed the jury that it should proceed ‘down the line’ until it

arrived at a guilty verdict and after arriving at a guilty verdict it was not required to

consider the remaining offenses.” Id. at 317. The supreme court found that, while this

supplemental instruction was plain error, it did not affect the defendant’s substantial

rights given the initial complete and proper instructions. Id.


                                              9
       Here, the district court instructed the jury that: “If you find the defendant not

guilty, then you go to the included offense. In other words, if you find the defendant

guilty, you don't go to the included offense.” This was error and the error is plain.

       To determine whether appellant’s substantial rights were affected, we review

whether the error was prejudicial and affected the outcome of the case. Griller, 583

N.W.2d at 741. While the district court plainly erred in the specific instruction about the

order in which to review the verdict forms, the district court, after reading the elements

for each greater charge, also stated: “If you find that any element has not been proven

beyond a reasonable doubt, the defendant is not guilty [of the greater charge].” Appellant

argues that the jury would not have found him guilty of either charge of which he was

ultimately convicted had the district court properly instructed the jury.              But the

instructions, when reviewed as a whole, properly directed the jury to find appellant not

guilty of any offense as to which the state had not proved each element beyond a

reasonable doubt. Additionally, the district court instructed the jury that it was giving the

instructions for each crime “in no particular order,” and properly defined the elements of

both the charged offenses and lesser-included offenses. The erroneous instruction had no

effect on the outcome of the case. It did not affect appellant’s substantial rights.

       We also note that appellant’s principal defense theory at trial was that he did not

inflict the harm on J.M., and that she caused her own injury by throwing a glass perfume

bottle at appellant, which ricocheted and struck her. Appellant did not argue that he was

guilty of the lesser-included offenses rather than the charged offenses. He argued that he

was guilty of no crime at all. This also supports our conclusion that the erroneous


                                             10
instruction had no significant effect on the jury’s verdict. The jury accepted J.M.’s

testimony that her injuries were caused by appellant. And the evidence supporting the

jury’s acceptance of J.M.’s testimony was strong.

       In sum, we conclude that appellant’s convictions for second-degree and third-

degree assault are amply supported by the evidence. The admission of unobjected-to

opinion testimony was not plainly erroneous, and did not affect appellant’s substantial

rights. And appellant has not borne his heavy burden of demonstrating that the district

court’s erroneous jury instruction affected his substantial rights.

       Affirmed.




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