State v. Gordon

560 N.W.2d 4 (1997)

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Nature of the Case

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Facts

D was in the home of Mary Johnston. Several other people were present, including Jeremiah Fry. Apparently unprovoked, D stood up from where he was seated, spun around, and kicked Fry in the chest. As he kicked Fry, D said, 'Die pale-face pumpkin head.' The kick left a red mark to the right of Fry's sternum. Neither of two witnesses saw whether D's foot made contact with Fry's chest. A police officer saw Fry, interviewed him, and saw a heel imprint on Fry's shirt. When Fry raised his shirt, the officer saw what he described as a 'reddening' on Fry's chest. D was charged with assault causing bodily injury. The State asked the court to instruct the jury that 'marks' constitute an injury for purposes of assault. D argued that no case had recognized a red mark as a bodily injury. Over defense counsel's objection, the court instructed the jury as follows: A 'bodily' injury means a bodily or physical pain, illness, or any impairment of physical condition. A red mark or bruise on the skin would constitute an impairment of physical condition, and therefore an injury. D was convicted to 90 days in jail and fined $200. D appealed.