Appeal from the District Court of Laramie County The Honorable Nicholas G. Kalokathis, Judge.
The opinion of the court was delivered by: Hill, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Appellant, James Demasio Martinez (Martinez), challenges the district court‟s judgment and sentence for the crime of aggravated assault and battery.*fn1 The victim of the battery was his girlfriend, Erica Duran (Duran), who was also the mother of his child. He asserts that the district court erred in denying his motion for judgment of acquittal, which was filed at the end of the presentation of the State‟s evidence. That motion was based on Martinez‟s theory that the victim of his crime did not suffer a "severe disfigurement." He also contends that the district court failed to correctly instruct the jury on the governing law and that it erred in allowing the testimony of a substitute witness whose identity was not known to the defense until the day of trial. Finally, Martinez asserts that the district court erred in awarding restitution because its findings with respect to restitution were incomplete. We will reverse because the State did not present evidence which satisfied the "severe disfigurement" element of the crime of aggravated assault. However, because the evidence of simple battery is overwhelming, we will direct entry of a judgment against Martinez for that crime and remand to the district court for sentencing. Because we reverse and remand, we find it unnecessary and imprudent to address the other issues raised.
[¶2] Martinez states these issues:
I. Did the district court err in refusing to grant [Martinez‟s] motion for judgment of acquittal in the absence of any evidence of a severe disfigurement?
II. Did the [district] court err by giving incorrect and inconsistent jury instructions?
III. Did the [district] court err in allowing the testimony of an undisclosed expert witness?
IV. Did the district court err by assessing fees and restitution in the absence of required findings?
The State‟s recitation of the issues is virtually identical to that presented by Martinez.
[¶3] During the late night and early morning hours of May 11-12, 2007, Martinez attacked and beat Duran because he suspected her of cheating on him. He repeatedly punched her in the face and head. The beating continued over a period of an hour and a half. He threatened to kill her. He kicked her in the head and face and tried to stuff both his hands, fingers extended, down her throat. Duran was unable to breathe or scream during that time. She fell in and out of consciousness during the beating. When she was able to, Duran screamed as loud as she could and banged on the door in order to summon help.
[¶4] A neighbor heard her cries and called the police. When the police arrived, they handcuffed Martinez and took him away. Many photos were taken of the injuries inflicted on Duran and some of those photos were introduced in evidence at trial. They graphically depict the injuries that Duran tried to describe in her testimony. The injuries included a wound on the inside of her lower lip that required 20 stitches to close. She could not swallow food for five days because her throat was so sore from Martinez‟s assault. Her throat was swollen and infected and required treatment with antibiotics. She took medication for the pain for about a week. She also suffered a non-displaced fracture to her right sinus, and her right cheekbone was cracked. Her eyes were blackened and bloodied and one was swollen almost shut. She had bruises all over her head, neck, and ears.
[¶5] Her throat was better in about six days. The bruising on her head and face lasted a week and a half. She testified that she has scar tissue around her mouth and eye, but that it is not noticeable. She also testified that a friend commented to her that the side of her face where a bone was cracked appeared to be somewhat flatter than the other side of her face. She was treated at the hospital for four hours and then stayed in her home for many days because she did not want to go out looking like the "elephant woman."
[¶6] A radiologist, who reviewed Duran‟s x-rays and her medical file generally, testified and corroborated portions of Duran‟s testimony. His testimony included his observations that the trauma to Ms. Duran‟s face was "mild to moderate," and he described the fracture to the sinus as "subtle" (it was not detected upon initial observation of the x-rays). The subtle, non-displaced fracture of the sinus would not be noticeable looking at Ms. Duran. The third issue noted above arose because the emergency room physician who treated Duran was scheduled to provide the medical testimony in this case. Because he was not available on the day of trial, the radiologist was substituted in his place, and Martinez did not receive notice of that substitution until the day of trial. We note in passing, that Martinez was not able to establish any meaningful prejudice because of the last-minute substitution.
[¶7] Martinez conceded that he had assaulted Duran, but contended that she did not suffer "severe disfigurement" as contemplated by the aggravated assault statute. He asked the district court to instruct the jury as follows:
The phrase "disfigurement" implies permanent or long-lasting effect."
"Bodily injury" means physical pain, illness, or any impairment of physical condition.
The term severe is defined as "sharp, grave, distressing, violent, extreme, torture, rigorous, difficult to be endured."
The term disfigurement is defined as "that which impairs or injures the beauty, symmetry, or appearance of a person or thing, that which renders unsightly, misshapen, or imperfect, or deforms in some manner."
The district court refused those instructions. The failure of the district court to provide additional guidance to the jury on the subject of "severe disfigurement" gives rise to the ...