Argued: March 14, 2013.
Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Wayne Dorrance, appeals his conviction by a jury in Superior Court (Lewis, J.) for second degree assault on a law enforcement officer, arguing that the State offered insufficient evidence to prove that the officer suffered serious bodily injury. See RSA 631:2, I(a) (Supp. 2012). We affirm.
The jury could have found the following. On the evening of June 25, 2010, New Hampshire Fish and Game Department Conservation Officers Christopher McKee and Geoffrey Pushee were on patrol on Pawtuckaway Lake in Nottingham when they observed a boat driven by the defendant traveling at full speed in a "no wake" zone. The officers signaled for the defendant to stop, but he turned his boat around and sped away. McKee later caught up with the defendant under a bridge, identified himself, and told the defendant to stop. In response, the defendant uttered profanities and attempted to back out from under the bridge. McKee was able to maneuver his boat alongside the defendant's boat and announced that he was going to board it. The defendant again directed profanities at McKee, telling McKee that he could not board the boat. As McKee started to board the defendant's boat, he saw the defendant's fist "coming right at [his] face, " striking him in the right eye. He arrested the defendant after a struggle.
At trial, McKee testified that he felt "[e]xtreme, extreme pain" after having been punched. By the time he got the defendant's boat back to shore, his eye had swollen shut and he could not see out of it. He testified that his eye remained swollen shut for three to five days, he had blurry vision for about ten to fourteen days thereafter, he missed approximately one week of work, and he "continued to see an eye doctor after returning" to work because of blurry vision issues.
The defendant was indicted for, among other charges that are not challenged on appeal, second-degree assault, based upon what the indictment alleged were McKee's "protracted vision problems." The defendant moved to dismiss that charge at the close of the State's case, arguing that "no reasonable person could find Officer McKee suffered . . . protracted loss of or impairment to the health or of the function of any part of his body." The judge denied his motion, concluding that the evidence presented by the State was sufficient to send the question to the jury.
On appeal, the defendant argues that the State presented insufficient evidence to demonstrate that Officer McKee suffered a serious bodily injury. The controlling statute, RSA 631:2, I(a), provides that a person is guilty of second degree assault if he "[k]nowingly or recklessly causes serious bodily injury to another." "Serious bodily injury" is defined as "any harm to the body which causes severe, permanent or protracted loss of or impairment to the health or of the function of any part of the body." RSA 625:11, VI (2007). The indictment alleged that the defendant's attack on McKee "caus[ed] protracted vision problems"; our review of his conviction is limited accordingly.
To prevail on his challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Wilmot, 163 N.H. 148, 154 (2012). "Whether [the victim's] injuries constituted 'serious bodily injury' is a question of fact for the jury to decide." State v. Scognamiglio, 150 N.H. 534, 536 (2004) (emphasis added); see State v. Plaut, 124 N.H. 813, 813 (1984) (memorandum opinion).
The parties advance different views as to what constitutes a "protracted" impairment for the purpose of RSA 625:11, VI. The State points to a decision from Missouri defining protracted as "more than momentary[;] no minimum degree of trauma must be inflicted in order to constitute protracted loss or impairment." State v. Norwood, 8 S.W.3d 242, 246 (Mo.Ct.App. 1999). The defendant, on the other hand, argues that the injury must be at least as "serious" as a permanent or severe impairment, and must last "for a long time or longer than expected or usual." (Quotation omitted.) We need not decide between these proffered definitions – when a statutory term is undefined, we ascribe to it its plain and ordinary meaning. Appeal of Town of Nottingham, 153 N.H. 539, 553 (2006). A "protract[ed]" impairment is one that is "delay[ed] or prolong[ed] . . . in time." Webster's Third New International Dictionary 1826 (unabridged ed. 2002). Whether an impairment is protracted is therefore a question of degree, and the role of this court is limited to determining whether a rational jury could have considered McKee's injuries to be delayed or prolonged.
We conclude that the evidence was sufficient to support a finding that McKee suffered a protracted impairment to the function of his eye. See RSA 631:2, I(a). Considering the facts recited above in the light most favorable to the State, the jury could have believed McKee had consistently impaired vision for up to nineteen days and, for at least some time thereafter, intermittently impaired vision requiring medical attention. Although our decisions do not shed light on this particular question, injuries of this duration have been held sufficient by appellate courts in other states to demonstrate serious bodily injury. See, e.g., State v. Meyers, 145 P.3d 821, 829, 830 (Haw. App. 2006) (a "reasonable mind might fairly conclude" that victim suffered protracted impairment to function of lungs based on evidence of eight fractured ribs causing severe pain and discomfort that began to alleviate after two weeks); Huerta v. State, 933 S.W.2d 648, 649 (Tex. Ct. App. 1996) (evidence sufficient to raise jury issue on protracted impairment of a bodily organ when the victim was hit and kicked in the groin, urinated blood as a result, and was unable to return to work as a police officer for several days); People v. Mohammed, 557 N.Y.S.2d 35, 36 (App. Div. 1990) (memorandum decision) (victim suffered "protracted impairment of health" based on evidence of "fractured humerus [bone] requiring several weeks of immobilization" (quotation omitted)).
The victim's injuries in this case are also consistent with injuries found by this and other courts to constitute serious bodily injury more generally. In Scognamiglio, for example, we concluded that a rational jury could have found the defendant guilty of causing serious bodily injury when the victim had a broken nose, swollen and discolored eyes, clogged breathing passages, and a sinus infection. Scognamiglio, 150 N.H. at 537. Similarly, in State v. Kiluk, we held that a rational jury could have found the defendant guilty of causing serious bodily injury when the victim had wounds requiring seven stitches and a scratched eyeball resulting in blurred vision. State v. Kiluk, 120 N.H. 1, 4 (1980). Out-of-state decisions are also generally in accord. See, e.g., Coronado v. State, 654 So.2d 1267, 1270 (Fla. Dist. Ct. App. 1995) (victim suffered "great bodily harm" based on evidence of "facial fracture, numbness and a great deal of pain around the eye and face"); People v. Fosselman, 659 P.2d 1144, 1148 (Cal. 1983) (victim suffered serious bodily injury based on evidence that victim's jaw was ...