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State v. Stewart

Court of Appeals of Minnesota

January 22, 2019

State of Minnesota, Respondent,
Matthew Scott Stewart, Appellant.

          Wright County District Court File No. 86-CR-15-4626

          Keith M. Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and Tom Kelly, Wright County Attorney, Buffalo, Minnesota (for respondent)

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

          Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Stauber, Judge. [*]


         1. Under Minn. R. Evid. 702, the proponent of expert witness testimony must establish foundational reliability with respect to the underlying theory and its application in the particular case, but the weight of that testimony in light of any contrary theory or other evidence is a matter for the fact-finder.

         2. Under Minn. Sent. Guidelines 2.B.1.h (Supp. 2015), if a defendant has a prior conviction that would be classified as a felony conviction under Minn. Sent. Guidelines 2.B.7 (Supp. 2015) but received a misdemeanor or gross misdemeanor sentence, the conviction must be counted in the defendant's criminal-history score as a misdemeanor or gross misdemeanor conviction.



         Appellant challenges his conviction of first-degree assault for causing great bodily harm to his girlfriend's son, arguing that (1) the record evidence is insufficient to support the conviction, (2) the district court abused its discretion by admitting expert testimony on causation and intent, and (3) the district court erred in calculating his criminal-history score. We affirm in part, reverse in part, and remand for resentencing.


         On September 13, 2015, appellant Matthew Stewart spent the morning with A.B., his live-in girlfriend of about four and a half months, and B.G.D., her 23-month-old son. B.G.D. was a generally healthy child, and neither Stewart nor A.B. noticed anything unusual about his behavior as he tried on hats with them at a store, bounced to music in his car seat, and ate his lunch when they returned home around 2:00 p.m. After lunch, he resisted taking a nap, as he often did. He became fussy and began crying. Stewart picked him up and took him to his bedroom.

         B.G.D.'s bedroom was adjacent to the living room, where A.B. was sitting on the couch. She heard Stewart ask B.G.D., "[A]re you done yet?" as they commonly did when B.G.D. threw a tantrum. A short time later, Stewart left the bedroom and spoke with A.B. But B.G.D. continued crying, and Stewart went back into the bedroom. A.B. heard Stewart state B.G.D.'s name in a raised voice. The crying then faded and stopped, and Stewart returned to the living room. While speaking to A.B., Stewart raised a finger and asked her to "hold on a second," then walked back into the bedroom. Stewart yelled for A.B.

         When she entered the bedroom, A.B. saw B.G.D. on the floor wearing only his diaper. She observed that his eyes fluttered, his body was rigid, he was unresponsive, and his breathing was shallow and raspy. She recognized that he was having a seizure[1] and asked Stewart to call 911; she noticed that he was calm as he did so. While they waited, A.B. carried B.G.D. out to the living room. He continued seizing and began to vomit. When emergency responders arrived, A.B. carried B.G.D. to the ambulance and rode with him to the local hospital. Stewart rode along in the front of the ambulance.

         At the hospital, B.G.D. was intubated and placed in a medically induced coma to stop the seizures. A CT scan revealed that B.G.D. had a large subdural hemorrhage over the right side of his brain and significant brain swelling. He was transferred to Children's Hospital in St. Paul, where doctors surgically removed a part of his skull and drained the hemorrhage.

         Based on the nature of B.G.D.'s injuries, the treating doctors asked child-abuse pediatrician Alice Swenson, M.D., to evaluate him. Dr. Swenson examined B.G.D. the following morning, while he was still intubated and sedated post-surgery. She reviewed his medical and social history, noting that he was "a generally healthy boy"; he had no history of broken bones, seizures, or major trauma; he had a history of torticollis, which is not unusual and means "his neck was sort of twisted over to one side for a period"; he had an uncomplicated circumcision; his umbilicus scar did not heal properly and required cauterization; and he sometimes banged his head on his crib or the floor, including an incident on September 12 in which he hit his head on a thinly carpeted floor "so hard that it made a noise, but he did not cry and he seemed fine afterwards." Dr. Swenson reported that "[t]he presence of a subdural hemorrhage and significant brain injury in the absence of a history of a severe accidental trauma or medical explanation is diagnostic of abusive head trauma and child physical abuse." But she recommended additional tests to evaluate for other injuries, if and when B.G.D. stabilized, noting that it was possible B.G.D. would "not survive his injuries."

         B.G.D.'s condition improved gradually. He underwent a dilated ophthalmologic examination on September 16 and a skeletal survey and brain MRI on September 25. Dr. Swenson reviewed and summarized the test results, stating they reveal extensive retinal hemorrhages in B.G.D.'s right eye, no fractures, significant brain injury, and "grossly abnormal" neurological status. She reasoned that the absence of fractures "does not in any way reduce the concern for abuse" and reiterated her determination that B.G.D.'s injuries "are consistent with abusive head trauma and inflicted injury."

         Stewart was charged with first-degree assault. At his jury trial, A.B. testified about the events of September 13 and the statements she gave to doctors and police about those events. She also testified about her relationship with Stewart. She explained that when they were at the hospital with B.G.D., Stewart was more upset about seeing her hug B.G.D.'s father than about B.G.D.'s critical condition. She described incidents of Stewart putting his hands around her throat, pouring soda pop on her head, and threatening to plant drugs on her to facilitate having B.G.D. taken away from her. And she testified that he "constantly" accused her of cheating on him, would not even let her go to the bathroom with the door closed, convinced her to quit her job because of his concern about her cheating, and demanded that she regularly check in with him about what she was doing.

         The state called Dr. Swenson as an expert witness, over Stewart's objection.[2] She explained that "abusive head trauma" or "non-accidental abusive head trauma" (previously called "shaken baby syndrome") occurs when an infant or young child is violently shaken or slammed, which creates severe rotational forces and sudden deceleration that damage the brain. The three markers of abusive head trauma are bleeding around the brain, injury to the brain itself, and retinal hemorrhages; about half of the time, these markers are accompanied by bruises or fractures on other parts of the body. A child subjected to such trauma could exhibit symptoms such as breathing problems, seizures, or vomiting, and would "tend to present immediately," without a "lucid" or normal interval.

         Dr. Swenson then recounted B.G.D.'s injuries and course of medical treatment. She indicated that he exhibited all three markers of abusive head trauma, with a subdural hemorrhage, significant brain swelling, and loss of brain wave differentiation immediately apparent, and retinal hemorrhages apparent at the first opportunity for a dilated ophthalmologic examination. She also explained that B.G.D.'s medical history, family history, and laboratory testing revealed no physical trauma, bleeding disorder, or disease that would otherwise account for his condition. In particular, the fact that B.G.D. sometimes banged his head against the floor, like children do "all the time," would not explain his condition because children cannot create the kind of force needed to cause severe injuries. She therefore opined that B.G.D. experienced abusive head trauma immediately before becoming symptomatic.

         Stewart countered with two experts. Forensic pathologist Carl Wigren, M.D., testified that various conditions can cause subdural and retinal hemorrhages and opined that abusive head trauma does not account for B.G.D.'s condition because he exhibited no fractures or bruises and the retinal hemorrhages were not discovered until after surgery. Biomechanical engineer Andre Loyd, Ph.D., likewise opined that B.G.D.'s injuries were not the result of abusive head trauma, citing studies involving test dummies that suggest Stewart would have been unable to shake a child of B.G.D.'s weight (approximately 28 pounds) with sufficient force to cause the injuries.

         The jury found Stewart guilty, and the district court sentenced him to 132 months in prison based on a ...

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