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Court splits over definition of second-degree assault

In a 3-2 decision, the state Supreme Court narrowly upheld a second-degree assault conviction yesterday amid sharp disagreement among the justices over how long an injury must last and how well it must be documented to qualify as “protracted,” as the charge requires.

In this case, the victim, a state Fish and Game conservation officer, testified his injuries from being punched in the face lasted about two weeks, but he did not provide detailed evidence of the severity of his injuries at trial, according to court records.

In yesterday’s ruling, the majority offered no clarification for the police and prosecutors filing assault charges, opting instead to let juries conclude which injuries and which evidence is sufficient for a second-degree assault charge. That was good news to Merrimack County Attorney Scott Murray, whose office decides which charges to seek for indictments within the county.

“I think traditionally we’ve been very conservative about construing what that word ‘protracted’ means,” Murray said. “I think this will make it a little bit easier for us. (The opinion) delineates that it’s a jury’s determination, not strictly a legal determination.”

The appeal stemmed from the June 2010 arrest of Wayne Dorrance by two Fish and Game conservation officers after they saw Dorrance speeding through a no-wake zone on Lake Pawtuckaway in Nottingham.

Dorrance, 50, ignored the officers’ signals to stop and later said he did so because he thought the officers were hitmen hired by his ex-wife, according to a news account of Dorrance’s trial. Conservation Officer Christopher McKee eventually caught up with Dorrance’s boat, and when their boats were side by side, he warned Dorrance that he was going to board his boat. Dorrance swore at McKee and told him not to come onto his boat, court records said.

When McKee stepped into Dorrance’s boat, Dorrance punched him in the face, hard enough that McKee’s eye remained swollen shut for three to five days, according to court records. At trial, McKee testified that he also suffered blurry vision for 10 to 14 days and missed about a week of work. McKee said he continued to see an eye doctor after returning to work because of blurry vision.

Dorrance was indicted on several charges including second-degree assault, which under law must cause serious bodily injury, defined as “severe, permanent or protracted loss of or impairment to the health or the function of any part of the body.” Dorrance was convicted and is serving a 3½- to 7-year prison sentence.

On appeal, Dorrance’s lawyer, David Rothstein, argued that prosecutors presented insufficient evidence to uphold the second-degree assault charge and cited supportive case law. The state did the same. The majority of the court – justices Gary Hicks, James Bassett and Robert Lynn – decided the court’s job was not to define “protracted” but to determine instead whether a “rational jury” could have considered McKee’s injuries to be prolonged.

The justices concluded the jury had sufficient evidence to reach its guilty verdict.

In a dissenting opinion, Chief Justice Linda Dalianis disagreed and said the court must first define “protracted” as it applied to McKee’s injuries. Justice Carol Ann Conboy joined Dalianis’s dissent.

“McKee testified that he felt immediate pain, that his eye was swollen ‘almost shut’ for three to five days, and that he had blurry vision for 10 to 14 days thereafter,” Dalianis wrote. “Although he testified that he was transported to the hospital by ambulance after the incident, he provided no indication of what treatment he received for his eye.”

Dalianis also noted that McKee never said he was unable to see to a point where he could not do his work. “Consequently, in my view, his impairment was not ‘protracted’ as a matter of law, and therefore, did not constitute ‘serious bodily injury’ as charged in the indictment,” Dalianis wrote.

Dalianis went on to say she is concerned about charging decisions made in the future as a result of the majority opinion, but she did not elaborate.

Appeals lawyer Joshua Gordon of Concord, who did not work on the case, said the court likely would have been forced to define protracted as Dalianis wanted if McKee’s injuries lingered over less time.

McKee “kind of said two weeks, but the evidence was a lot more squishy than that,” Gordon said. “Two weeks sounds protracted to most people, and it did to the jury. If the injury had lasted four days, you could construct a case where the court would be compelled to decide what protracted means. But you get two weeks with some squish in there . . . that’s long enough for some people to believe it’s protracted.”

Dorrance’s trial attorney, Brian Kenyon of Marshall Law Office in East Kingston, said yesterday he agreed with Dalianis about needing a firmer definition of protracted injuries in this case. Not having a definition “does present maybe some excess in the discretion of the prosecutors,” he said.

But as a former prosecutor, Kenyon said he’s not sure he would have charged the case differently because the victim was a member of law enforcement. “The prosecution has got to back up law enforcement because they are on the same team,” Kenyon said. “I don’t think it was a bad charging decision. I just didn’t think it would satisfy the level (of severity) to satisfy the statutory requirements.”

(Annmarie Timmins can be reached at 369-3323, or on Twitter @annmarietimmins.)

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