State v. Gebremariam

OPINION STRINGER, Justice. In the early hours of New Year’s Day 1995, an altercation occurred in a hot tub at the Ramada Inn in Rochester, Minnesota. Hostilities rapidly escalated to the point where appellant Michael Gebremariam threw beer bottles and liquor bottles at the victims, for which he was charged with second-degree assault with a dangerous weapon. At trial, the first and second sets of trial court instructions as to the charged offense were in error. On the third attempt, the trial court instructed the jury in accordance with the appropriate CRIMJIG and conviction followed. The court of appeals concluded that the jury was correctly instructed in the final instructions, and thus the initial errors were not prejudicial to appellant. Because we determine that it was not beyond a reasonable doubt that the errors in trial court’s instructions did not contribute to appellant’s convictions, we reverse and remand for a new trial. Celebrating the New Year, appellant and his friend Due Dong Ngoc Le joined Amy Carlson, her boyfriend Eric Norrie, and Nor-rie’s friend Travis Newcomb in the Ramada Inn hot tub. The two groups did not know one another prior to that time. Soon after they immersed in the hot tub, appellant and Le began to splash water at the other group. Carlson first splashed them back, but then told them to “knock it off.” Appellant responded that Carlson was being a bitch. Norrie demanded that appellant apologize to Carlson, but appellant refused and responded that Carlson did not deserve an apology because she was “acting like a f — ing bitch.” Norrie again demanded an apology stating, “Hey, nig, I think you owe her an apology.” Appellant and Le then exited the hot tub and walked toward Norrie and Carlson. When appellant and Le were approximately 3 to 10 feet from Carlson and Norrie they began to throw beer bottles and liquor bot783 ties at them with force comparable to a pitcher throwing a baseball. Appellant claimed he threw the bottles out of fear of Norrie because of Nome’s use of racial epithets and his threatening manner. Carlson, Norrie and Newcomb all denied that Norrie made threatening movements toward appellant. In any event, a large liquor bottle hit Carlson in the back of the head. Appellant and Le ran out of the building with Norrie and Newcomb in pursuit shouting racial epithets at appellant. A short time later Norrie and Newcomb gave up the chase and appellant and Le voluntarily returned to the hotel escorted by an employee of the Ramada Inn. Nome’s racial slurs continued as appellant spoke with police at the hotel. Carlson sustained a cut on the back of her head from being hit by a liquor bottle requiring several stitches and leaving a scar. The state charged appellant with second-degree assault alleging that appellant violated Minn.Stat. § 609.222, subd. 1 (1998) prohibiting assault with a dangerous weapon. The statutory definition of a dangerous weapon is “any * * * instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” Minn.Stat. § 609.02, subd. 6 (1998); see also State v. Basting, 572 N.W.2d 281, 284 (Minn.1997). Great bodily harm is statutorily 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. The trial court’s first instructions to the jury significantly differed from the statutory definition of either the term “dangerous weapon” or “great bodily harm.” The court instructed: “[a] dangerous weapon is anything designed as a weapon and is known to be capable of producing great bodily harm. Great bodily harm means bodily harm which creates a high probability of death or which causes serious permanent disfigurement.” In so instructing, as to the dangerous weapon definition the trial court substituted “anything” for “instrumentality,” injected the term “designed as a weapon” and omitted the reference to “manner it is used or intended to be used.” The trial court further substituted “capable of producing great bodily harm” for “calculated or likely to produce death or great bodily harm.” With respect to the definition of great bodily harm, the trial court entirely omitted the last phrase “or which causes a permanent or protracted loss of impairment of the function of any part of the body or other serious bodily harm.” The trial court soon realized its error in the definition of great bodily harm and after bringing the error to the attention of counsel, instructed the jury a second time, stating in part: A dangerous weapon is anything designed as a weapon and is known to be capable of producing death or great bodily harm. Great bodily harm means bodily harm which creates a high probability of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss of impairment of the function of any part of the body or other serious bodily harm. Thus the court corrected the great bodily harm instruction but repeated its first erroneous instruction on the dangerous weapon definition. Shortly after deliberations began the jury asked for clarification of the definition of a dangerous weapon. The court and counsel then realized that both previous sets of instructions had omitted a portion of the definition of dangerous weapon. In the third instruction the court followed the appropriate CRIMJIG standard, 13 Minn. Dist. Judges Ass’n, Minnesota Practice, CRIMJIG 13.06 (3d ed. Supp.1998), and instructed that a dangerous weapon is “anything which in the manner it is used or intended to be used is known to be capable of producing death or great bodily harm.”1 Elementary to a fair trial and due process is that the jury is fully and accurately instructed as to the elements of the charged offense in a context of sufficient clarity and rationality that the jury can apply them to achieve a fair result. See ge?ierally Swanson v. La Fontaine, 238 Minn. 460, 469, — 784 — 57 N.W.2d 262, 268 (1953); State v. Hutchison, 121 Minn. 405, 409, 141 N.W. 483, 484 (1913). That did not happen here. Because the jury verdict would be based almost exclusively on whether the bottles were “dangerous weapons” and “likely to produce great bodily injury,” fair and accurate instruction on these definitions was critical. The court’s first and second instructed definitions referring to a dangerous weapon as “anything designed as a weapon” surely would have significantly misled the jury as to the instrumentality. Similarly the court’s first instructions on great bodily harm omitted a major category of the physical injury consequences of using a dangerous weapon. Ultimately the jury was accurately instructed on the elements of the charged offense,2 and there is no contention at this point that the third set of instructions was not error-free.3 But our concern as to whether the jury was fairly instructed is not so easily resolved given the numerous errors that pervaded the first two sets of instructions. In Randall v. Goodrich-Gamble Co., 238 Minn. 10, 54 N.W.2d 769 (1952), we ordered a new trial where “[t]he instructions of the court [were] so ambiguous * * * that the majority of the court [felt] that there should be a new trial in the interests of justice.” Id. at 14, 54 N.W.2d at 771. Regardless of whether the errors favor one party or the other, we have grave doubts that after the fundamentally incorrect definition of the basic elements of the charged crime — “dangerous weapon” and “great bodily harm” — a third definition, even if correct, could sufficiently inform the jury as to the charged offense or assure a fair verdict under the circumstances here. Where the multiple, inconsistent and incorrect instruction may well have confused the jury, we conclude that the appellant’s conviction must be reversed and a new trial ordered in the interest of justice. See Minn. R.Crim. P. 28.02, subd. 11; State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992); Randall, 238 Minn. at 14, 54 N.W.2d at 771. Reversed and remanded. PAGE, Justice, took no part in the consideration or decision of this case. Footnotes [1] CRIMJIG 13.06 is itself at variance with the statutory definition of a dangerous weapon. [2] We are not hesitant to affirm a conviction when the jury’s instructions are corrected where it is apparent that the accused has suffered no prejudice. See State by Mondale v. Mecklenburg, 273 Minn. 135, 150, 140 N.W.2d 310, 319-20 (1966); Goodsell v. Taylor, 41 Minn. 207, 210, 42 N.W. 873 (1889). [3] Thus the fact that neither counsel objected to the erroneous instruction is irrelevant, as is the concern of the concurring and dissenting opinions relating to the necessity of harmless error analysis.