                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1778

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Quintin Deshun Dye,
                                       Appellant.

                               Filed November 30, 2015
                   Affirmed in part, reversed in part, and remanded
                                      Kirk, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-40543


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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

                                    SYLLABUS

         Whether an intrusive gunshot wound creates “a high probability of death” under

Minnesota Statutes section 609.02, subdivision 8 (2012), is determined at the time it is

known what path the bullet took and what parts of the body were hit.
                                         OPINION

KIRK, Judge

       Appellant Quintin Deshun Dye challenges his convictions of first-degree assault,

second-degree assault, and unlawful possession of a firearm, arguing (1) the evidence

was insufficient to support his conviction of first-degree assault because the victim did

not suffer great bodily harm; (2) appellant’s rights under the Confrontation Clause were

violated when the district court allowed the jury to hear the victim’s statements to the 911

dispatcher and to police officers at the scene; (3) the district court erred in admitting

certain statements of the victim as prior consistent statements because they were

inconsistent with trial testimony; and (4) the prosecutor committed prejudicial

misconduct during his closing argument by vouching for the victim’s credibility,

improperly inflaming the jury’s passions, and suggesting that appellant was to blame for

the victim’s absence at trial. We affirm in part, reverse in part, and remand.

                                             FACTS

       On December 9, 2013, at 2:36 a.m., E.G. called 911 stating that appellant had just

shot her in the lower back. She told the dispatcher that she was at home with her

children. Minneapolis police responded to the call. When the officers arrived, E.G. was

still on the phone with the dispatcher. Before hanging up, E.G. stated to the officers, “He

[left in a] black car [with] his sister’s kids.”

       At trial, Officer Samantha Belcourt testified that, when the officers arrived, E.G.

was hunched over, wincing and appeared to be in a lot of pain. She was also crying,

“very panicky,” and scared. E.G. was trying to position herself to breathe comfortably


                                                   2
and was having trouble communicating and speaking. Officer Belcourt observed what

she believed to be a gunshot wound to E.G.’s lower back. Although the wound was

bleeding, it did not require compression or bandages.

       Officer Belcourt testified that E.G. told her that appellant, her ex-boyfriend, shot

her after a verbal argument between the two occurred outside her house. E.G. indicated

that, before she was shot, she was walking away from appellant toward her house and

appellant was standing outside of his vehicle. E.G. told Officer Belcourt what appellant

was wearing and that he left in a black SUV with a black male. E.G. also told Officer

Belcourt that she thought appellant was going to his “baby mama’s” house.

       The paramedics arrived a few minutes after police. Officer Belcourt testified that

at this time, E.G. was still “panicky” and was “extremely concerned about her children.”

One of the paramedics testified that E.G. was able to walk, talk, and breathe, and there

was not excessive external bleeding.

       Assisted by the officers and paramedics, E.G. walked down the stairs of her house

to the ambulance. However, paramedics had difficulty persuading E.G. to enter the

ambulance. The paramedic testified that E.G. seemed distraught, upset, and repeated

several times “my kids, my kids.” The paramedic also testified that E.G. was in shock

and fearful. E.G. told the paramedic that she feared that the shooter was going to return

and hurt her children.

       Once inside the ambulance, paramedics confirmed that E.G. had been shot. The

paramedic testified that, based on the location of the bullet’s entry, she treated E.G.’s

injury as life-threatening. E.G. was transported to the hospital.


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       The emergency-room physician testified that upon E.G.’s arrival at the hospital,

they treated her injuries as life-threatening and ordered a CT scan of her torso to

determine the bullet’s path. The scan revealed that the bullet had traveled in a straight

line through eight inches of tissue in E.G.’s abdomen. Physicians made a small incision

to remove the bullet from the left side of her lower back. The doctor testified that, if the

bullet had traveled the same distance in other directions, it could have hit critical body

parts, such as her kidneys, aorta, spinal cord, or heart, and would have been life-

threatening.

       E.G. was discharged from the hospital the following day. The doctor was unaware

whether E.G. received any follow-up treatment. The doctor testified that this type of

injury could result in a permanent lump due to scar tissue. He also testified that lying on

her back or side, or sitting against anything that applied pressure to the injured area,

would probably be painful for an extended period of time.

       Officer Belcourt conducted an interview of E.G. while she was being transported

to the hospital and upon their arrival. During this interview, E.G. told Officer Belcourt

that appellant shot her. Sergeant Brian Menne conducted a recorded interview of E.G. at

the hospital the following day. During this interview, E.G. told Sergeant Menne that she

was “almost positive” the male that was with appellant, “Mess,” shot her. Sergeant

Menne testified that E.G. gave him additional information during the interview that she

did not want recorded. He testified that she appeared fearful that if she gave him too

much information she would be in trouble with appellant. Sergeant Menne also testified

that E.G. appeared to be “very scared” and trying to protect appellant.


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       At the conclusion of the trial, the district court instructed the jury on the charged

offenses, first-degree assault, second-degree assault, and unlawful possession of a

firearm. The jury found appellant guilty on all three counts. This appeal follows.

                                          ISSUES

1.     Was the evidence sufficient to support a conviction of first-degree assault?

2.     Did the admission of E.G.’s 911 call statements and initial statements to officers
       violate appellant’s confrontation rights?

3.     Did the district court plainly err in admitting certain statements E.G. made to
       officers at the hospital as prior consistent statements?

4.     Did the prosecutor commit prejudicial misconduct in his closing argument?

                                       ANALYSIS

I.     The evidence in the record does not support appellant’s conviction of first-
       degree assault.

       Appellant challenges the sufficiency of the evidence to support his conviction of

first-degree assault.   Specifically, he claims that the state failed to prove beyond a

reasonable doubt that E.G. suffered great bodily harm.

       When presented with a claim of insufficient evidence, this court’s review is

limited to a careful analysis of the record to determine whether the evidence, viewed in a

light most favorable to the conviction, was sufficient to allow the jury to reach the verdict

that it did. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). “[W]e will not disturb the

verdict if the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

[appellant] was guilty of the charged offense.” Id.



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       The jury found appellant guilty of first-degree assault under Minnesota Statutes

section 609.221, subdivision 1 (2012). Under this statute, first-degree assault occurs

when a person “assaults another and inflicts great bodily harm.” Id. “Great bodily harm”

is defined as

                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.

Minn. Stat. § 609.02, subd. 8.

       Appellant contends that there was insufficient evidence to support the jury’s

conclusion that E.G.’s injuries constituted great bodily harm because her injuries were

not life-threatening. The state maintains that when appellant fired a bullet into E.G.’s

torso, he inflicted bodily injury that created “a high-probability of death.” Id. The state

emphasizes that a bullet that enters the torso where it did on E.G. can hit critical body

parts, such as the lungs, heart, kidneys, aorta, or spine, and that other patients have died

from gunshot wounds in the same area as E.G.’s.

       The state’s argument fails in light of our holding in State v. Gerald, 486 N.W.2d

799, 802 (Minn. App. 1992) (holding that fact that cut was located close to major vein or

artery and could have been more serious not sufficient to satisfy statutory requirement of

“high probability of death”). In Gerald, we explained that, “[u]nder the plain language of

the statute, the injury itself must be life-threatening.” Id. “The fact that a lesser injury is

located near a major organ or vessel and therefore could have been more serious is not

sufficient to satisfy the statute.” Id. Based on the location of the bullet’s entry, both the


                                              6
paramedic and the doctor treated E.G.’s injury as if it were life-threatening. However,

the CT scan later revealed that the bullet traveled in a straight line without hitting any

critical body parts. For an intrusive gunshot wound, we hold that whether an injury is

life-threatening is determined when the path of the bullet and the body parts hit are

known. We therefore conclude that E.G.’s injury was not life-threatening.

       In the alternative, the state argues that appellant inflicted injury causing “other

serious bodily harm.” Minn. Stat. § 609.02, subd. 8. We are not persuaded by this

argument either. “Other serious bodily harm” is not defined by statute, and it “should be

taken in the context of the other three alternative definitions.” State v. Moore, 699

N.W.2d 733, 739 (Minn. 2005). To determine whether a victim’s injuries constitute

“other serious bodily harm,” courts must consider the totality of the victim’s injuries.

See, e.g., State v. Barner, 510 N.W.2d 202, 202 (Minn. 1993) (concluding that victim’s

injuries, including swollen head making eating difficult for three days, multiple stab

wounds that left scars, and injury to his hand, were encompassed by phrase “other serious

bodily harm”); State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (stating that,

“taken as a whole,” victim’s injuries, including lacerated liver, head laceration requiring

stitches, bruises, other head injuries causing lapses of consciousness, and a long scar

running length of upper body constituted “other serious bodily harm”), review denied

(Minn. Sept. 19, 1985).

   Here, although a bullet traveled through eight inches of E.G.’s abdomen, it did not hit

any critical body parts. When paramedics arrived, E.G. was able to talk, breathe, and

walk to the ambulance with some help. She was hospitalized, but, after a small incision


                                            7
was made to remove the bullet, she was released the next day. Although this type of

injury could leave a permanent lump and causes persistent pain, because E.G. did not

testify, the extent of her pain and whether she has any permanent scarring are unknown.

Therefore, the evidence does not support a finding that E.G. suffered other serious bodily

injury within the meaning of the statute.

      The evidence presented at trial, when viewed most favorably to the conviction, does

not support a finding that E.G.’s injuries satisfy the statutory definition of great bodily

harm and, therefore, is insufficient to sustain appellant’s conviction of first-degree

assault. As stated in Gerald:

                The great bodily harm element as defined by the legislature
                mandates that we focus on the injury to the victim rather than
                the actions of the assailant. Although we find it anomalous
                that an individual who commits a grievous assault on another
                may escape a first degree assault conviction because the
                victim is fortunate enough to escape serious injury, we are
                constrained by the language of the statute.

486 N.W.2d at 802-03. We refrain from speculation about the state’s prosecutorial

strategy in this particular case, but we note that the result that the state argues is

incongruous might be avoided in similar cases by a different charging decision. We

reverse and remand for the district court to enter judgment and sentence on second-

degree assault. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).

II.      Admission of E.G.’s statements to the 911 dispatcher and the police upon
         their arrival at the scene did not violate the Confrontation Clause.

      Appellant argues that the district court erred in admitting E.G.’s statements to the 911

dispatcher and to the officers upon their arrival at the scene. Specifically, he argues that



                                               8
admission of the statements violated his rights under the Confrontation Clause because

they were testimonial and E.G. was absent from trial.

       Whether the admission of evidence violates a criminal defendant’s rights under the

Confrontation Clause is a question of law that appellate courts review de novo. State v.

Caulfield, 722 N.W.2d 304, 308 (Minn. 2006). Both the United States and Minnesota

Constitutions guarantee a defendant the right “to be confronted with the witnesses against

him.” U.S Const. amend. VI; Minn. Const. art. I, § 6. The right to confrontation is

violated if testimonial out-of-court statements are admitted into evidence, unless the

declarant is unavailable and the defendant has had a prior chance to cross-examine the

witness. Caulfield, 722 N.W.2d at 308 (citing Crawford v. Washington, 541 U.S. 36, 68,

124 S. Ct. 1354, 1374 (2004)).

       Whether a statement is testimonial turns on the primary purpose of the

interrogation or questioning. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,

2273-74 (2006). If the primary purpose of the questioning is to enable police assistance

to meet an ongoing emergency, the statements are nontestimonial.          Id.   If it is to

“establish or prove past events” for purposes of later criminal prosecution, the statements

are testimonial. Id.

       Davis cites four factors indicating that a victim’s statements were made to meet an

ongoing emergency:

              (1) the victim described events as they actually happened and
              not past events; (2) any “reasonable listener” would conclude
              that the victim was facing an ongoing emergency; (3) the
              questions asked and answers given were necessary to resolve
              a present emergency, rather than only to learn what had


                                            9
              happened in the past; and (4) there was a low level of
              formality in the interview because the victim’s answers were
              frantic and her environment was not tranquil or safe.

State v. Warsame, 735 N.W.2d 684, 690 (Minn. 2007) (citing Davis, 547 U.S. at 826-27,

126 S. Ct. at 2276-77).

       Applying the Davis factors to the instant case, we conclude that E.G.’s 911 call

and her initial statements to officers were nontestimonial, and thus admissible at trial

without her presence. First, both the 911 call and the initial statements to officers were

made within minutes of the shooting, while the shooter was still at large in the area.

Second, at the time the statements were made, E.G. was in shock, crying, panicky, and

appeared to be in significant pain from her recent gunshot wound. Third, the questions

asked and answered were designed to address the ongoing emergency and to ascertain

E.G.’s physical condition. Notably, the shooter fled the scene still armed with his sister’s

children. Fourth, the statements were made in a frantic and non-tranquil environment.

E.G. was scared and extremely concerned that the shooter would return and hurt her

children. Therefore, the district court did not err in concluding that the statements were

nontestimonial and admitting them into evidence.

III.   The district court did not plainly err in admitting statements from law
       enforcement’s full interviews of E.G. because appellant “opened the door.”

       At trial, the district court allowed appellant, after waiving his rights under the

Confrontation Clause on the record, to introduce E.G.’s statement to Sergeant Menne that

she was “almost positive” Mess shot her, as a prior inconsistent statement under rule 806

of the Minnesota Rules of Evidence. Before this statement was admitted, the district



                                            10
court explained to appellant that, by eliciting E.G.’s statement to Sergeant Menne,

appellant was opening the door to E.G.’s entire interview with Sergeant Menne. Further,

appellant was opening the door to E.G.’s full interview with Officer Belcourt. The

district court reasoned that it was in the interest of fairness and completeness to allow the

state to introduce these statements for purposes of rehabilitating E.G.’s credibility. See

Minn. R. Evid. 806.      After the district court’s explanation, appellant proceeded to

introduce E.G.’s statement to Sergeant Menne as impeachment evidence.

       Appellant now argues that the district court erred in allowing the state to question

Sergeant Menne and Officer Belcourt about their full interviews with E.G. Specifically,

appellant argues that although the state could explore some of the facts and circumstances

surrounding the statement appellant admitted as impeachment evidence, beyond that,

only prior consistent statements should have been admitted.

       We begin by noting that appellant invited any error in the admittance of these

statements. “Under the invited error doctrine, a party cannot assert on appeal an error

that he invited or that could have been prevented at the district court. The invited error

doctrine does not apply, however, if an error meets the plain error test.”          State v.

Carridine, 812 N.W.2d 130, 142 (Minn. 2012) (citation omitted). Under the plain-error

test, we consider (1) whether there was an error, (2) whether such error was plain, and

(3) whether it affected the defendant’s substantial rights. State v. Griller, 583 N.W.2d

736, 740 (Minn. 1998). An error is plain if it is “clear or obvious.” State v. Strommen,

648 N.W.2d 681, 688 (Minn. 2002) (quotation omitted). “Usually this is shown if the




                                             11
error contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721

N.W.2d 294, 302 (Minn. 2006).

      Without reviewing whether these statements were admissible under Minnesota

Rule of Evidence 806, we conclude that the district court did not plainly err in admitting

these statements. Appellant “opened the door” to E.G.’s entire interviews with Sergeant

Menne and Officer Belcourt when he introduced E.G.’s statement to Sergeant Menne that

she was “almost positive” Mess shot her.

             Opening the door occurs when one party by introducing
             certain material creates in the opponent a right to respond
             with material that would otherwise have been inadmissible.
             The doctrine is essentially one of fairness and common sense,
             based on the proposition that one party should not have an
             unfair advantage and that the factfinder should not be
             presented with a misleading or distorted representation of
             reality.

State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (citations and quotations omitted). If

the jury had not been presented with evidence from the entire interviews, they would

have been presented with a distorted representation of reality. E.G.’s entire interview

with Sergeant Menne could have indicated to the jury that E.G. only told Sergeant Menne

that Mess shot her because she was fearful of appellant and was trying to protect him.

E.G.’s interview with Officer Belcourt could have indicated to the jury that when E.G.

was not being recorded she made consistent statements with those made at the scene,

specifically that appellant shot her. Therefore, the district court did not plainly err in

admitting these statements.




                                           12
IV.    The alleged prosecutorial misconduct did not affect appellant’s substantial
       rights.

       Appellant asserts that the prosecutor committed prosecutorial misconduct in his

closing argument on three grounds. Because the alleged misconduct was unobjected-to,

we review under a modified plain-error standard.1 Ramey, 721 N.W.2d at 299. Under

that standard, the defendant must demonstrate error that is plain because it “contravenes

case law, a rule, or a standard of conduct.” Id. at 302. If the defendant is able to make

this showing, the burden shifts to the state to demonstrate a lack of prejudice by showing

“that there is no reasonable likelihood that the absence of the misconduct in question

would have had a significant effect on the verdict of the jury.” Id. (quotations omitted).

When considering whether an error had a significant effect on the verdict, we “consider

the strength of the evidence against the defendant, the pervasiveness of the improper

suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut

the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

       First, appellant contends that the prosecutor vouched for E.G.’s credibility, by

arguing the following to the jury:

              [E.G.] didn’t come in here and tell you that he did this, but we
              know that he did. She only made one other statement—or she
              only made a statement that’s inconsistent with that one time,

1
  Although appellant did not object during closing arguments or request a curative jury
instruction, he moved for a mistrial on the third ground after the jury had retired for
deliberations. Even if the third ground were considered “objected to” and reviewed
under the harmless-error test set forth in State v. Caron for more serious misconduct, the
prosecutor’s conduct here is harmless. 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974)
(“[I]n cases involving unusually serious prosecutorial misconduct this court has required
certainty beyond a reasonable doubt that the misconduct was harmless before
affirming.”).

                                            13
              and that was with the detective sitting there with a recorder,
              in the hospital, over a day after this happened, after she’s had
              time to think about the possible consequences of telling the
              police what happened. The night of, when the police arrived,
              she told them the truth.

Second, appellant claims that the prosecutor inflamed the jury’s passions as follows:

“Just because she’s not here doesn’t mean that she doesn’t deserve justice. Think about

that as you deliberate on this case. Thank you.”        Finally, appellant asserts that the

prosecutor improperly suggested that appellant was to blame for E.G.’s absence at trial,

by arguing the following to the jury on rebuttal:

                      [Defense counsel] also talked about how most lay
              witnesses don’t want to be here. Well, that’s true, they don’t
              want to be here. Just like you might not want to be here
              because of work or school, friends, family, your dog. She
              didn’t want to be here because of him. She didn’t want to
              stand up there and have to have him face her while she tells
              all of you that he shot her.

       Assuming, without deciding, that the prosecutor’s comments were plain error, we

conclude the state has satisfied its burden of showing that there is no reasonable

likelihood that the absence of the misconduct would have had a significant effect on the

verdict.   See Ramey, 721 N.W.2d at 302. The record contains strong evidence of

appellant’s guilt. E.G. told the 911 dispatcher and the officers at the scene that appellant

shot her, appellant’s cell phone records indicate that his cell phone was near E.G.’s

residence during the shooting, and appellant evaded law enforcement for days after the

shooting. Further, the three comments were brief, and appellant’s counsel addressed the

first two comments during his closing argument when he emphasized that E.G. was not

present and when he speculated about the reasons for her absence. Moreover, the district


                                            14
court instructed the jury twice that the arguments and remarks of the attorneys were not

evidence, that the jury should rely on its own recollection of the evidence, and that the

jury should disregard attorney statements that were contrary to the statement of the law

provided by the court. Therefore, any error that occurred was harmless.

                                     DECISION

       Because the CT scan of E.G.’s torso revealed that the bullet did not hit any critical

body parts and E.G. suffered only minor injuries, the evidence presented at trial, even

when viewed most favorably to the conviction, is insufficient to support a finding that

E.G.’s injuries constitute great bodily harm. Therefore, we reverse appellant’s conviction

for first-degree assault and remand for the district court to enter judgment and sentence

on second-degree assault.     We otherwise affirm because the district court made no

evidentiary errors and the alleged prosecutorial misconduct did not affect appellant’s

substantial rights.

       Affirmed in part, reversed in part, and remanded.




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