Waseca County District Court File No. 81-CR-12-712
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul, Minnesota; and Paul Dressler, Waseca County Attorney, Waseca, Minnesota (for respondent).
Cathryn Middlebrook, Interim Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.
Appellant challenges his fourth-degree assault and misdemeanor domestic-assault convictions, arguing that (1) the district court abused its discretion in denying his motion for a continuance, (2) the district court erred in failing to give a voluntary-intoxication instruction, and (3) the evidence is not sufficient to establish demonstrable bodily harm. We affirm.
On August 2, 2012, Officer Samuel McGinnis and Sergeant Scott Girtler of the Waseca Police Department responded to S.H.'s report that her ex-boyfriend, appellant Hector Perez, Jr., was physically violent toward her. Perez ran out of the apartment, but the officers stopped him in a nearby parking lot. His parents were nearby, heard the commotion, and came over to see what was happening. Perez was uncooperative and struggled when the officers tried to put him in the back of the squad car. During the struggle, Perez kicked Officer McGinnis in the abdomen. Officer McGinnis testified that the kick threw him backwards against the squad car, hurt very much, made breathing difficult for five to seven seconds, and caused his abdomen to be sore for the rest of the night and the next day. The kick left a footprint on Officer McGinnis's vest. Officer McGinnis did not seek medical attention, but he photographed his vest. Sergeant Girtler did not see the kick, but saw Officer McGinnis fall back against the car door and gasp for air. Perez's mother attempted to record the incident on her cell phone.
Perez was charged with three assault offenses and obstruction of legal process. Trial was scheduled for September 12. Three business days before trial, Perez moved for a continuance. He cited several reasons, but primarily based the request on his desire to have his mother's cell phone analyzed to locate or recover video of the incident. The district court denied the request. The jury found Perez guilty of fourth-degree assault of a peace officer and misdemeanor domestic assault—committing an act with intent to cause fear in another of immediate bodily harm or death. This appeal follows.
I. The district court did not abuse its discretion in denying Perez's motion for a continuance.
A district court has discretion to grant or deny a continuance, and this court will not reverse unless denial of a continuance prejudiced the appellant by materially affecting the outcome of the trial. State v. Larson, 788 N.W.2d 25, 30-31 (Minn. 2010). Generally, a motion for a continuance must be made in writing and supported by affidavits or substantial reasons supporting the continuance. See O'Neil v. Dux, 257 Minn. 383, 387, 101 N.W.2d 588, 591-92 (1960). Lack of diligence in preparing for trial weighs against granting a continuance, see State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005), as does seeking a continuance on the eve of trial, State v. Ahearn, 292 Minn. 449, 450, 194 N.W.2d 256, 256 (1972). And if the evidence a party seeks to secure during the continuance period is unlikely to be obtainable, or unlikely to be helpful if obtained, denial of the motion is not an abuse of discretion. See State v. Holmes, 325 N.W.2d 33, 34-35 (Minn. 1982) (affirming denial of continuance because defendant had tried but failed to locate out-of-state witness and it was not clear that witness's testimony would have helped defendant).
Perez argues that the district court abused its discretion in denying a continuance because the trial was scheduled 41 days after the offense and his inability to recover and have an expert analyze his mother's cell phone materially affected the outcome of the trial. We disagree. First, it is unclear whether cell phone video actually exists. Perez's mother testified that she attempted to record the incident but her efforts were unsuccessful. Second, even if the video exists, Perez's parents both testified at trial on his behalf; any video evidence likely would have been cumulative. Third, Perez knew about the video and had reasonable access to it, but was not diligent in obtaining it prior to trial. Finally, Perez did not raise the issue until three days before trial, and never made a written request for a continuance. While ...