Injury From Bullet Wound That Could Have But Didn't Cause "Great Bodily Harm" Does Not Support Assault First Degree Conviction

State v. Dye, Minn.Ct.App., 11/30/2015.  Mr. Dye shot E.G. in her lower back.  A CT scan showed that the bullet traveled in a straight line through eight inches of tissue into E.G.'s abdomen.  That was it; the bullet did not hit any organs much less "vital" ones.  After Mr. Dye shot her, he left; E.G. called 911.  When the cops arrived she was still on the phone with the 911 operator.  She was in pain but she managed to tell the officers what Mr. Dye was wearing, that he had left in a black car with his sister's kids, and that he was likely going to his baby mama's place.  The paramedics said that E.G. was able to walk, talk, and breath, and also said that there was no excessive external bleeding at the wound's entrance location.

The state charged Mr. Dye with first and second degree assault, and with unlawful possession of a firearm.  The jury convicted him of all three charges.

Mr. Dye said that there was insufficient evidence to have convicted him of assault in the first degree, which required proof of "great bodily harm."  This 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.

The state said that when Mr. Dye fired a bullet into E.G.'s torso that, alone, created a "high probability of death."  The court of appeals said, well, no, we've already rejected that theory back in 1992 in State v. Gerald, 486 N.W.2d 799 (Minn.Ct.App. 1992). There the court had said that just because the injury was located close to a major vein or artery and thus could have been more serious was not enough to prove "substantial bodily harm.  Rather, the injury, itself, must in fact be life-threatening.  So, because E.G.'s injury - determined by the bullet trajectory - did not hit any critical body parts that injury was not life threatening.  Nor was the injury encompassed within the catch-all language, "other serious bodily harm."  That requires that the court consider the totality of the victim's injuries.  For E.G. that meant a victim who was talking, walking, breathing, providing pertinent information to the cops, and being discharged a day later after doctors made a small incision to remove the bullet.

Mr. Dye also complained about the admission of E.G.'s 911 call and her initial statements to police even though she did not testify.  He said that this was a violation of his confrontation rights under Crawford.  The court rejects this assertion, concluding that the statements that E.G. made to the 911 operator were made to meet an ongoing emergency:

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.