                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1453

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               Patrick Michael Aleman,
                                      Appellant.

                              Filed September 12, 2016
                                      Affirmed
                                     Kirk, Judge

                          Crow Wing County District Court
                              File No. 18-CR-14-658

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota (for respondent)

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

      Considered and decided by Schellhas, Presiding Judge; Bjorkman, Judge; and

Kirk, Judge.

                       UNPUBLISHED OPINION

KIRK, Judge

      Following a bench trial, appellant Patrick Michael Aleman was convicted of first-

degree assault (great bodily harm), third-degree assault (substantial bodily harm), and

domestic assault by strangulation. Aleman represented himself. On appeal, he argues
that the first-degree assault conviction must be reversed because the state failed to prove

“great bodily harm” beyond a reasonable doubt. He also argues that he was denied the

right to present a defense when the district court did not allow him to recall the

complainant, C.H., as a witness. Additionally, Aleman challenges the credibility of

C.H.’s trial testimony. We affirm.

                                         FACTS

       At approximately 2:50 a.m. on February 18, 2014, S.C., a friend of C.H., called

911 to report that C.H. was badly injured. Law enforcement and medical assistance

arrived on scene. C.H.’s body was covered in bruises, she had facial injuries, and she

was trembling, crying, and complaining of difficulty breathing. C.H. claimed she had

fallen but did not provide more information that morning. C.H. appeared to be in a lot of

pain and was not able to walk to the ambulance without assistance. S.C. reported that

C.H.’s boyfriend, Aleman, was a possible person of interest and that he was driving a

white Jeep.

       C.H. was treated in the emergency room and released from the hospital. That

evening, S.C. contacted law enforcement again because C.H. decided to provide a

statement. A law enforcement officer went to S.C.’s home to speak to C.H. At that time,

C.H. still appeared to be in a great deal of pain. C.H. reported that Aleman assaulted her.

The officer observed what looked like a bite mark on C.H.’s face, a number of bruises

and cigarette burns on C.H.’s body, including a deep, painful looking burn on her right

breast, and a broken tooth. After taking C.H.’s statement, the officer located and arrested

Aleman, who denied the assault.


                                            2
       At trial, C.H. testified that on February 13, 2014, Aleman punched her in the hip

when he was angry, which caused her to have difficulty walking. Over the weekend,

February 15-16, Aleman remained angry and punched and hit C.H. “a lot” all over her

body, including her face. On Monday, February 17, C.H. was very sore and her face was

swollen. That night, Aleman was angry again and started punching C.H. Aleman

punched C.H. repeatedly in the ribs and the left side of her body. He also bit C.H. on the

lips and cheek and put cigarettes out on C.H.’s body, leaving burn marks.

       C.H. also testified that Aleman head-butted her, breaking her tooth. She testified

that she had the tooth repaired a few weeks after the assault. Before the tooth was

repaired, it hurt and impaired her ability to eat. C.H. had to chew and bite on the sides of

her mouth because chewing with her front teeth would break the tooth further. Aleman

testified that C.H. broke her tooth prior to the February 17 assault, but the other witnesses

who testified corroborated C.H.’s testimony that the injury did not exist before the

assault.

       C.H. also testified that Aleman choked her by placing his hands around her throat

and squeezing. This made it difficult for C.H. to breathe and caused her to get dizzy and

feel like she was going to pass out. After choking her, Aleman smothered C.H. by

placing a pillow over her face, causing her to lose consciousness. When C.H. woke up,

she had difficulty moving and breathing and was in a lot of pain.

       After her initial emergency room visit, C.H. had to seek additional medical

attention for her ribs because they were “popping.” C.H.’s ribs were bruised and possibly

separated. C.H. also testified about rib pain she experienced during a pregnancy after the


                                             3
assault. The rib pain during her pregnancy was related to the injuries Aleman inflicted on

February 17, 2014. C.H. testified that she still experiences rib pain related to the assault

and that she expects to experience intermittent pain for some time.

       Dr. Rebecca Holcomb, who attended to C.H. at the emergency room on February

18, testified that C.H. presented with many injuries, including a fractured front tooth,

which was a very visible injury. C.H.’s lips were very swollen, but she had no bleeding

in her mouth. R.N. Debra Blowers testified that it is possible for someone to be hit in the

face with enough force to break a tooth without the person also experiencing bleeding in

the mouth. Dr. Holcomb noted that the broken tooth put C.H. at a significantly increased

risk for tooth decay, cavity, and injuries to her lips when eating. The broken tooth would

also cause it to be very painful to eat for several days to weeks. It is impossible for a

broken tooth to fix itself.

       Dr. Holcomb also testified that C.H. presented with several small puncture

wounds, bruising, and cigarette burns.1 Dr. Holcomb described a cigarette burn on

C.H.’s right breast as a deep second-degree burn, and a burn at the base of her neck as a

“healing second[-]degree burn.” Dr. Holcomb explained that “[a] second[-]degree burn

is a burn that involves a deeper, firmer or heat-related injury that would have caused

blistering of the skin.” It is possible that the burn was actually a third-degree burn

because it involved deeper tissue. Dr. Holcomb noted that “deep second[-]degree and

third[-]degree burns run a significant risk of scarring.” The burn on C.H.’s right breast


1
 C.H.’s injuries were photographed by hospital staff, law enforcement, and S.C. Those
photographs were admitted into evidence at trial.

                                             4
was several millimeters deep, and would have required “prolonged extremely hot forced

placement on the skin.” C.H. also had a second-degree burn on her lower back. The

burns on C.H.’s right breast and lower back resulted in permanent scarring.

       Dr. Holcomb further testified that if someone is suffocated into unconsciousness,

like C.H. was, there is a risk of death. Dr. Holcomb classified the assault on C.H. as a

“potentially homicidal assault” which is “an assault where the life of . . . the victim could

have been lost . . . due to that assault.”

       The day after C.H. testified, and after Dr. Holcomb and R.N. Blowers testified,

Aleman asked to subpoena and recall C.H. as a witness. Aleman argued that he should

be allowed to recall C.H. because he failed to adequately cross-examine her about how

she was head-butted and wanted to “get more clarification” after hearing the medical

testimony about broken teeth and related bleeding in the mouth. The state objected

because C.H. resided out of the area and because Aleman already had the opportunity to

question her about being head-butted. Aleman acknowledged that he had the opportunity

to cross-examine C.H. and that she had testified about being head-butted. The district

court denied Aleman’s request because he already had the opportunity to cross-examine

C.H. on that point.

       Aleman appeals.




                                             5
                                     DECISION

I.     There was sufficient evidence for the district court to find, beyond a
       reasonable doubt, that C.H. suffered great bodily harm.

       In considering a claim of insufficient evidence, this court’s review “is limited to a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, was sufficient to permit the [fact-finder] to reach

the verdict which [it] did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The

reviewing court must assume the fact-finder “believed the state’s witnesses and

disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.

1989) (Moore I). The reviewing court will not disturb the verdict if the fact-finder, acting

with due regard for the presumption of innocence and the requirement of proof beyond a

reasonable doubt, could reasonably conclude that the defendant was guilty of the charged

offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

       Aleman was convicted of first-degree assault resulting in great bodily harm.

Minn. Stat. § 609.02, subd. 8 (2012), defines “great bodily harm” as a “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 harm.” Whether an

injury constitutes great bodily harm is a question for the fact-finder. State v. Moore, 699

N.W.2d 733, 737 (Minn. 2005) (Moore II, unrelated to Moore I).

       The district court concluded that the state proved beyond a reasonable doubt that

the injuries Aleman inflicted upon C.H. rose to the level of “great bodily harm” because



                                             6
they constituted “serious permanent disfigurement,” “protracted loss or impairment of a

bodily member,” and “other serious bodily harm.” Aleman disputes the district court’s

conclusions.2

      The district court concluded that C.H.’s injuries constituted “other serious bodily

harm” in Minn. Stat. § 609.02, subd. 8, which focuses on the complainant’s injuries as a

whole, including the need for hospitalization, the use of stitches or staples to treat the

injuries, and significant bleeding, bruising, and/or lapses of consciousness. See State v.

Jones, 266 N.W.2d 706, 710 (Minn. 1978) (concluding that the following injuries

constituted other serious bodily harm: loss of consciousness, numbness in her leg for

several weeks, dizziness and headaches until just before trial, and numbness in her teeth

at trial); State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (concluding that the

following injuries constituted other serious bodily harm: “a lacerated liver, a laceration

on her head which required stitches, bruises, other head injuries which caused lapses of

consciousness, and a long scar”), review denied (Minn. Sept. 19, 1985). This court

considers the totality of a complainant’s injuries when evaluating a finding of “other

serious bodily harm.”     See State v. Barner, 510 N.W.2d 202, 202 (Minn. 1993)

(concluding that the following injuries constituted other serious bodily harm: swelling in




2
  Aleman claims the district court relied on circumstantial evidence to find great bodily
harm, so his conviction should be subjected to “heightened scrutiny.” See State v. Al-
Naseer, 788 N.W.2d 469, 473 (Minn. 2010). But the evidence here consisted of
photographs of C.H.’s injuries and scars and testimony about C.H.’s injuries. This is
direct evidence and heightened scrutiny is not required. Bernhardt, 684 N.W.2d at 477
n.11 (defining direct evidence).

                                            7
complainant’s head impaired eating for three days, and complainant had multiple scars

from stab wounds and a hand injury which affected his leisure activities).

       Aleman argues that the district court’s reliance on C.H. being rendered

unconscious in finding “other serious bodily harm” was improper. Aleman, citing State

v. Larkin, argues that unconsciousness only amounts to “substantial bodily harm.” 620

N.W.2d 335, 337 (Minn. App. 2001) (“[W]e conclude that temporary loss of

consciousness, on its own, is substantial bodily harm.”).        Aleman also argues that,

although the district court relied on the totality of C.H.’s injuries including

unconsciousness, the other injuries identified by the district court, C.H.’s burns and scars,

broken tooth, and injured ribs, were not severe enough to constitute great bodily harm.

       In Larkin, this court held that a temporary loss of consciousness alone constitutes

at least substantial bodily harm. Id. Whether or not unconsciousness could rise to the

level of great bodily harm was not addressed in the Larkin decision, although the Larkin

court did mention a supreme court decision which noted that “‘[a]rguably, “great bodily

harm” is inflicted if one knocks someone out briefly.’” Id. at 336-37 (quoting State v.

Stafford, 340 N.W.2d 669, 670 (Minn. 1983)). The state argues that unconsciousness

combined with other significant injuries, such as those suffered by C.H., rise to the level

of “other serious bodily harm” and support the conviction in this case, especially because

the period of unconsciousness C.H. experienced caused a high risk of death.

       The district court heard evidence that C.H. experienced a period of

unconsciousness caused by the assault, and heard and saw evidence that C.H.

experienced multiple burns, permanent scarring, and substantial pain, bruising, and


                                             8
swelling. There were a number of exhibits depicting fading burns, but the photographs of

the burns on C.H.’s right breast and lower back appeared fresh when they were

documented.    The district court also heard evidence that Aleman head-butted C.H.,

breaking her tooth, and that she continues to suffer from rib pain. Viewing the evidence

in the light most favorable to the conviction, the district court reasonably concluded that

C.H.’s injuries, in their totality, amounted to “other serious bodily harm” arising to the

level of “great bodily harm.”

       The district court also concluded that under Minn. Stat. § 609.02, subd. 8, C.H.

experienced “serious permanent disfigurement” amounting to “great bodily harm.” The

district court found that C.H.’s broken tooth amounted to serious permanent

disfigurement, and that, although the scars on C.H.’s right breast and lower back did not

amount to serious permanent disfigurement alone, they did amount to serious permanent

disfigurement when combined with her broken tooth. Viewing the evidence of C.H.’s

broken tooth and scars, which could not heal themselves, in the light most favorable to

the conviction, the district court reasonably concluded that C.H.’s broken tooth was

significant enough to support a finding of great bodily harm. See State v. Bridgeforth,

357 N.W.2d 393, 394 (Minn. App. 1984) (concluding that a lost tooth was sufficient to

establish great bodily harm), review denied (Minn. Feb. 6, 1985). This finding that

C.H.’s broken tooth amounted to a “serious permanent disfigurement” remains

reasonable despite the fact that she later had the tooth repaired. See Anderson, 370

N.W.2d at 706 (rejecting the argument that “a scar is not ‘permanent’ because it could be




                                            9
concluded from [the complainant’s] testimony that she was considering having it

removed by plastic surgery”).

       The district court also concluded that C.H. suffered protracted loss of the function

of her tooth and her rib cage, which amounted to “great bodily harm.” Viewing the

evidence of C.H.’s broken tooth in the light most favorable to the conviction, the district

court reasonably concluded that C.H. experienced protracted loss of the function of her

tooth. See Bridgeforth, 357 N.W.2d at 394. The district court also heard evidence that

C.H. continued to suffer rib pain throughout the year between the assault and trial.

Viewing this evidence in the light most favorable to the conviction, the district court

reasonably concluded that C.H. experienced, and was still experiencing a year after the

assault, protracted loss of the function of her rib cage.

       The state presented sufficient evidence to support Aleman’s first-degree assault

conviction.

II.    Aleman was not denied the right to present a defense when his request to
       subpoena and recall C.H. was denied.

       Criminal defendants have the right to call and examine witnesses in their defense.

See State v. Quick, 659 N.W.2d 701, 715 (Minn. 2003) (“A defendant has a constitutional

right to present a defense, which includes the right to offer the testimony of witnesses so

that the defense can present its version of the facts to the jury.”). “The district court has

wide discretion to regulate the presentation, examination, and conduct of defense

witnesses.” State v. Hannon, 703 N.W.2d 498, 505 (Minn. 2005). This includes the

decision whether to permit a litigant to recall a witness. See State v. Collins, 276 Minn.



                                              10
459, 473, 150 N.W.2d 850, 860 (1967) (allowing prosecutor to recall witnesses to

provide rebuttal testimony was proper exercise of discretion), cert. denied, 390 U.S. 960

(1968).

       “Evidentiary rulings rest within the sound discretion of the trial court and will not

be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of

establishing that the trial court abused its discretion and that appellant was thereby

prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

When the district court’s evidentiary “ruling results in the erroneous exclusion of defense

evidence in violation of the defendant’s constitutional rights, the verdict must be reversed

if there is a reasonable possibility that the verdict might have been different if the

evidence had been admitted.” State v. Graham, 764 N.W.2d 340, 351 (Minn. 2009)

(quotation omitted). “When an error implicates a constitutional right, we will award a

new trial unless the error is harmless beyond a reasonable doubt. An error is harmless

beyond a reasonable doubt if the jury’s verdict was ‘surely unattributable’ to the error.”

State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012) (citations omitted); see also Hannon,

703 N.W.2d at 505 (noting that the state has the burden of proving that the error was

harmless).

       Harmless beyond a reasonable doubt means that “the reviewing court must be

satisfied beyond a reasonable doubt that if the evidence had been admitted and the

damaging potential of the evidence fully realized, . . . a reasonable jury . . . would have

reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). But if there




                                            11
is a reasonable possibility that the verdict might have been different if the evidence had

been admitted, then the error is prejudicial. Id.

       Aleman argues that, after hearing the testimony of the state’s witness, R.N.

Blowers, he did not believe C.H.’s tooth could have been broken by a head-butt without

causing bleeding in her mouth. Because C.H. did not have bleeding in her mouth

associated with the broken tooth, Aleman argues that he should have been permitted to

recall her to explain how this was possible. Aleman argues that the lack of bleeding

inside C.H.’s mouth made it “clear that [C.H.’s] allegation of a head-butt may not be

believable.” Aleman claims that because the district court allowed him to recall two out

of three other local law enforcement witnesses, an effort facilitated by the prosecutor, it

was a more egregious error to prevent him from recalling C.H. Aleman also argues that

the error in failing to allow him to recall C.H. was not harmless.

       Aleman cross-examined C.H. about her injuries and being head-butted. Nothing

in C.H.’s testimony, or in the testimony of any witness other than Aleman, suggested that

C.H.’s tooth was not damaged in the way she claimed. C.H. is not a medical professional

and is not qualified to provide information regarding the force or angle necessary for a

head-butt to damage a tooth without causing bleeding in her mouth. The state presented a

significant amount of evidence in support of the conclusion that Aleman broke C.H.’s

tooth during the assault, and that a head-butt was the immediate cause. The district court

did not abuse its discretion by not allowing Aleman to recall C.H.

       Furthermore, allowing Aleman a second opportunity to question C.H. would not

have provided evidence sufficient to merit reversal of his conviction. Even if C.H. had


                                             12
been recalled and had testified that a head-butt should have caused bleeding in her mouth,

all evidence pointed to Aleman as the perpetrator of the assault and to the assault as the

cause of C.H.’s broken tooth. If there had been error in denying Aleman the opportunity

to recall C.H., it would have been harmless beyond a reasonable doubt.

III.   Aleman’s pro se argument regarding the credibility of C.H.’s trial testimony
       lacks merit.

       Assigning weight and credibility to witness testimony is an exclusive function of

the fact-finder. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995); State v. Pieschke, 295

N.W.2d 580, 584 (Minn. 1980). In his pro se supplemental brief, Aleman argues that this

court must reverse all three of his convictions because C.H.’s testimony was untruthful.

Aleman points to two statements C.H. made during trial which he considers to be

inconsistent with her other testimony. Neither of those statements pertain to the injuries

C.H. suffered, nor to Aleman’s culpability. Aleman provides no legal authority that

supports his argument. The district court found C.H.’s testimony credible and relied on it

when it convicted Aleman of the charged offenses. This court will not reverse Aleman’s

convictions based on a bare assertion that the district court erred in making a credibility

determination.

       Affirmed.




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