State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0857

State of Minnesota,
Respondent,

vs.

Ronald Dean Smaller,
Appellant.

Filed May 21, 2018
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-15-8365

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Pres iding Judge; Reilly, Judge; and Klaphake,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his two convictions of aiding and abetting second-degree
murder. Appellant argues that the state failed to prove that his felony assaults were a
substantial causal factor for the victim’s d eath, that two experts testified to legal
conclusions that substantially affected the ve rdict, and that this court should adopt the
merger rule. Appellant also raises a number of pro se arguments. We affirm.
FACTS
On November 11, 2014, victim E.F. celebra ted his 40th birthday with his family.
Afterward, he walked to the Tin Cup, a ne ighborhood bar. He then walked partway to
another bar, the Tiki Hut, and called his daughter to have her drive him the rest of the way.
Appellant Ronald Dean Smaller was also at the Tiki Hut that night. Within minutes of the
victim arriving at the Tiki Hut, appellant began speaking loudly on his cell phone. The bar
owner approached appellant to address his di sruptive behavior. The victim accompanied
the bar owner during the conversation, wh ich occurred around 11:45 p.m. After the
conversation, appellant began to leave the Tiki Hut with two of his companions. On his
way out of the Tiki Hut, appe llant’s male companion stopped to speak with the victim.
Then, appellant’s female companion physically assaulted the victim’s daughter by pulling
her off of a bar stool. The victim reacted to the assault and tried to pull the two women
apart. Appellant’s male companion punched the victim. Appellant also began punching
the victim. The victim fell to the ground and was motionless. Appellant began kicking the

3
victim in the neck and head at least four times. The victim appeared to be unconscious. In
all, the assault lasted about 45 seconds.
The victim remained uncon scious on the ground as a ppellant and his companions
left. The victim woke and re sumed sitting at the bar. Police arrived just before midnight
and took witness statements. The victim refused medical help and decided to go home.
On the ride home, the victim reported an in creasing pain in his head and body; still, he
refused medical help and returned home. Around 1:00 a.m., police were dispatched to the
victim’s home, where they found him unconscious on the floor of his bedroom. The victim
was pronounced dead at approximately 1:40 a.m. on November 12, 2014.
The Ramsey County Medical Examiner, Dr. William McGee, conducted an autopsy.
The autopsy concluded that the victim suffer ed sustained injuries to his face and an
abrasion on his right shoulder. The victim also had internal injuries to his neck muscle
tissue and scalp tissue. Dr. McGee determin ed the victim likely died of a cardiac
arrhythmia caused by homicide.
The victim was diabetic and had received treatment for advanced coronary artery
disease from his primary physician. In April 2014, the victim had a stent inserted in his
main coronary artery by his ca rdiologist, Dr. McKinley. Following that procedure, the
victim made excellent progress and expe rienced improved health. At medical
appointments in July and ea rly November of 2014, the vi ctim’s physicians observed
“overall improvement” in his health conditi on and “excellent progress.” The victim’s
physicians testified that, given the trajectory of his health, the victim should be alive today.

4
Appellant was charged with two counts of aiding and abetting second-degree felony
murder, predicated on second- and third-degree assaults.1 At the court trial, the cardiologist
and medical examiner testified that the assault was a substantial cause of the victim’s death.
Dr. Wigren , the defense expert, is a forensic pathologist who reviewed the medical records
in this case. He testified that the cause of death could not be determined. The district court
found Dr. McKinley and Dr. McGee’s test imony credible and found Dr. Wigren’s
conclusion not credible. The district cour t found that the state had proven beyond a
reasonable doubt that appellant intentionally assaulted the victim with a dangerous weapon,
his feet, and with the intent to inflict substa ntial bodily harm, and that the assault was a
substantial causal factor in the victim’s death. The district court determined appellant was
guilty of both counts of aiding and abetting second-degree murder and sentenced appellant
to 252 months in prison for the count of aiding and ab etting second-d egree murder,
predicated on second-degree assault.
This appeal followed.

1 Second-degree assault is an assault with a deadly weapon or assault with a deadly weapon
that inflicts substantial bodily harm. Minn. Stat. § 609.222 (2016). Third-degree assault
is an assault resulting in the infliction of substantial bodily harm. Minn. Stat. § 609.223,
subd. 1 (2016).

5
D E C I S I O N
I. There was sufficient evidence for the district court to find that appellant’s
assault was a substantial cause of the victim’s death.

Appellant argues that there was insufficien t evidence that appellant’s assault was a
substantial causal factor in the victim’s death. Appellant claims that the state failed to
prove that but for the assault the victim would still be alive.
When considering the sufficiency of the evidence, this court engages in a
painstaking review of the record to determine whether the evidence, when viewed in a light
most favorable to the conviction, was suffi cient to permit the fa ct-finder to reach the
decision she did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989); State v. Cox , 278
N.W.2d 62, 65 (Minn. 1979) (applying the same standard for the review of sufficiency of
the evidence to ju ry trials and court trials). The reviewing court assumes the fact-finder
believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore,
438 N.W.2d 101, 108 (Minn. 1989). If the state failed to prove any of the elements of the
crime beyond a reasonable doubt, the conviction must be reversed. Burks v. United States,
437 U.S.1, 18, 98 S. Ct. 2141, 2150-51 (1978).
Appellant was convicted of two count s of aiding and abetting second-degree
murder. A person aids and ab ets a criminal act if they intentionally aid another in
committing a crime. Minn. Stat. § 609.05, subd . 1. A person is gu ilty of second-degree
murder if they “cause the death of a human being, without intent to [kill], while committing
or attempting to commit a felony offense.” Mi nn. Stat. § 609.19, subd. 2(1) (2016). A
person causes the death of another in Minnesota if their acts were a substantial causal factor

6
leading to the person’s death. State v. Gatson, 801 N.W.2d 134, 146 (Minn. 2011). It must
be shown that appellant’s assaul t led to the victim’s death. State v. Olson , 435 N.W.2d
530, 534 (Minn. 1989) (“It must be shown th at the defendant’s acts injured the [victim’s]
brain which then led to the [victim’s] death.”).
The district court used circumstantial ev idence to determine whether the assault was
a substantial causal factor in the victim’s death. Circumst antial evidence is evidence the
fact-finder uses to infer other facts in dispute. State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017). “[C]ircumstantial evidence always requires an inferential step to prove a fact that
is not required with direct evidence.” Id. Circumstantial evidence routinely proves
causation in second-degree murder cases, which includes a medical expert’s testimony
about causal factors they did not personally witness. See State v. Mosley, 414 N.W.2d 461,
466 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987); see also State v. Laine, 715
N.W.2d 425, 431 (Minn. 2006 ) (treating medical examiner testimony as circumstantial
evidence to show causation in a first-degree domestic-abus e murder case). Though a
conviction based on circumst antial evidence merits higher scrutiny, “circumstantial
evidence is entitled to the same we ight as direct evidence.” State v. Bauer, 598 N.W.2d
352, 370 (Minn. 1999). The circumstantial-evidence standard requires a two-step analysis.
State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, this court must “identify the
circumstances proved,” “defer to the jury’s acceptance of the proof of these circumstances”
and reject evidence conflicting with the circumstances proved by the state. Id. at 598-99
(quotations omitted). Next, this court must “determine whether the circumstances proved

7
are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
Id. at 599 (quotations omitted).
First, we identify the circumstances prove d. The circumstances proved by the state
that are consistent with the verdict include: (1 ) the victim died of an arrhythmia; (2) the
victim had heart health issues; (3) the victim was prone to heart problems; (4) the victim’s
heart health was improving; (5) catecholamine surges 2 cause arrhythmia; (6) physical
assaults cause a catecholamine surges; (7) the victim experienced a violent physical assault;
(8) a catecholamine surge remains in effect for at least an hour and can remain in effect for
up to several hours; (9) appellant was not breathing and had no pulse just over an hour after
he was assaulted.
The district court used the circumstance s proved to make inferences, which allowed
it to conclude that the assault was a substantial causal factor in the victim’s death. First,
the court inferred that the victim experien ced a catecholamine su rge brought on by a
physical assault. This inference is well s upported by the circumst ances proved, because
the victim experienced a violent physical assault and physical assaults cause catecholamine
surges. Second, the court inferred that the catecholamine surge caused a fatal arrhythmia.
This inference is also well supported by the circumstances proved, because the victim had
a weak heart and was more prone to experiencing arrhythmia during a catecholamine surge.
The district court believed the state’s experts when they testified th at the assault was a
substantial factor in appellant’s death and disbelieved the de fense expert’s testimony that

2 A bodily chemical similar to adrenaline that causes an increase in heart rate followed by
a sudden increase in blood pressure.

8
the cause of death could not be determined. The inferences adopted by the district court
are consistent with the circumstances proved, and there is no other rational hypothesis for
the cause of the victim’s death, especia lly considering that his heart condition was
improving.
Appellant argues that the victim’s d eath could have an alternate cause—the
emotional trauma of seeing the victim’s daughter assaulted.
3 According to appellant, if the
emotional trauma of seeing his daughter assa ulted triggered a catecholamine surge first,
the physical assault could not be the true cause of his death. We are not persuaded.
The victim’s daughter was assaulted mere seconds before the victim was physically
assaulted himself, so the two incidents cannot be characterized as separate. The victim was
sitting next to his daughter when she was assaulted, and, within seconds, he intervened in
the assault, which then immediately led to appellant and his companions assaulting the
victim. None of the experts could separate one part of the assault from another for the
purpose of determining causation. Likewise, we will not parse out the seconds-long period
of time when the victim was not involved in the assault as a separate assaultive act capable
of providing an alternative causal factor in the victim’s death. The actions of appellant and
his companions were concurring causes of the victim’s death, because they all occurred as

3 Appellant also argues that the conversation the victim witnessed between the bar owner
and appellant could be a cause of the victim’s death. The district court found that the
conversation was “friendly a nd brief,” not a heated argum ent as appellant suggests.
Appellant does not claim this finding of fact was clearly erroneous, and we defer to a
court’s findings of fact. State v. Barshaw, 879 N.W.2d 356, 366 (Minn. 2016). Therefore,
we dismiss the possibility that a “friendl y and brief” conversation could trigger a
catecholamine surge as inconsistent with the circumstances proved.

9
part of a single assault. State v. Hofer, 614 N.W.2d 734, 737 (Minn. App. 2000), review
denied (Aug. 15, 2000) (“When the acts or omissi ons of two or more persons combine to
bring about a harmful result, those acts or omissions are concurring causes of the harm.”).
Furthermore, appellant was convicted of aiding and abetting second-degree murder,
not for acting as the principal. Appellant approached the victim and his daughter with his
two companions. When his female compani on began assaulting the victim’s daughter,
appellant remained. When the victim began to intervene in his daughter’s defense,
appellant’s male companion struck the victim. Then, appellant began punching the victim
too. Finally, the victim fell to the ground, seemingly unconscious, and appellant kicked
him multiple times in the head and neck. The evidence sh ows that appellant was present
for the entire 45-second assault and intended for his presence to aid in the assault of the
victim’s daughter and then the victim hims elf. That victim’s daughter was assaulted
seconds before the victim does not create an independent causal chain. Appellant aided
and abetted in the entire assault, which was a substantial causal factor in the victim’s death.
There was sufficient evidence for the district court to find that appellant’s assault
was a substantial causal factor in the victim’s death.
II. The state’s experts did not testify to a legal conclusion that substantially
impacted the outcome of the trial.

Appellant argues that Dr. McKinley and D r. McGee testified to legal conclusions
and that their testimony prejudicially affected the verdict. We are not persuaded because
witnesses’ statements were not legal c onclusions, and the testimony likely had no
prejudicial effect on the verdict.

10
We review unobjected-to admissi on of evidence for plain error. State v. Strommen,
648 N.W.2d 681, 686 (Minn. 2002). To dem onstrate plain error, appellant must show:
(1) error; (2) that is plain; and (3) that affects his substantial rights. State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). Plain error must be clear or obvious and must clearly
contradict caselaw, a rule, or a standard of conduct. State v. Matthews, 779 N.W.2d 543,
549 (Minn. 2010). A plain error affects appellant’s substantial rights if the absence of the
error would have had a significant effect on the verdict. Id. at 551. If the three prongs are
met, the court may choose to address the error to ensure fairness and preserve the integrity
of the proceeding. Id. at 549.
In Minnesota, an expert may give an opin ion as to an ultimate fact issue if that
testimony is helpful to the fact-finder. State v. Vang, 774 N.W.2d 566, 578 (Minn. 2009).
Testimony is helpful if it is within the realm of the witness’s expertise and adds precision
or depth to the fact-finder’s ability to reach a conclusion. State v. Helterbridle, 301 N.W.2d
545, 547 (Minn. 1980). An expert may not make a legal conclusion, and such statements
would be inadmissible. State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).
Appellant argues that Dr. McKinley and Dr. McGee’s testimony that the assault was
a “substantial factor” in the victim’s death ar e legal conclusions and the district court’s
failure to sua sponte redact those statem ents was plain error. Appellant cites State v.
Moore, 699 N.W.2d 733 (Minn. 2005), in which a doctor testified that the loss of a tooth
met the definition of “great bodily harm.” Id. at 739. There, the court determined that the
testimony was inadmissible because the doctor testified that a given injury satisfied a legal
definition. Id. at 740. The court noted that an expert may “provide a medical explanation

11
in the context of the legal definition,” but that ultimate legal conclusions were not allowed.
Id. Furthermore, the context in which the te stimony is elicited can show how the fact-
finder will receive the information. Id. In Moore, the state asked the doctor whether “her
injury meets the definition of great bodily harm.” Id. at 739. The question called for a
specific legal conclusion, and instructed the jury to reach a certain result. Id. at 740.
Here, the witnesses were simply giving me dical explanations in the context of the
legal definition for substantial causal factor. The prosecutor asked both Dr. McKinley and
Dr. McGee whether they thought, based on their medical training and experience, that the
assault was a substantial factor in causing the victim’s death. The witnesses did not claim
to know whether the assa ult satisfied the legal definition for a substantial causal factor.
The prosecutor only asked the wi tnesses to testify about the victim’s health and whether
various stimuli could explain his demise. The admission of the testimony was not plain
error.
The experts’ testimony also did not affect appellant’s substantial rights. An error
affects substantial rights only if there is a reasonable likelihood that the error had a
substantial effect on the verdict. Strommen, 648 N.W.2d at 688. Concerning the somewhat
parallel issue of prejudice, the risk of prejud icial evidence is reduced in a court trial,
because a judge is more lik ely to use the evid ence for a proper purpose and not be
improperly swayed by emotions. State v. Burrell , 772 N.W.2d 459, 467 (Minn. 2009)
(emphasizing the lessened prejudicial effect of past criminal history being presented to a
judge as opposed to a jury).

12
Here, even if it was plain error, th e admission of the expert testimony had no
substantial effect on the verdict. If the distri ct court determined that the defense’s expert
was credible, it would have credited his test imony over the state’s witnesses. However,
the district court chose to believe the state’s witnesses. Furthermore, none of the state’s
witnesses’ testimony was of the character that the district court would have no choice but
to convict. Instead, the witnesses merely e xpressed their opinion that the assault was a
substantial factor in the victim’s death, and the district court chose to credit that testimony.
The experts’ testimony was not plain error that substantially affected the verdict.
III. We will not adopt the merger rule.

Appellant argues that this court should adopt the felony-murder merger rule and
announce that he is immune from prosecution for murder. The merger doctrine holds that
a felony cannot support a conviction of felony murd er if the felony is independent of the
homicide. See State v. Abbott, 356 N.W.2d 677, 679 (Minn. 1984) (declining to adopt the
merger rule in Minnesota). The Minnesota Cour t of Appeals is an error-correcting court,
and we cannot and will not overturn established supreme court precedent. State v. Grigsby,
806 N.W.2d 101, 114 (Minn. App. 2011), aff’d on other grounds, 818 N.W.2d 511 (Minn.
2012). The Minnesota Supreme Court has dec lined to adopt the merger doctrine in
Minnesota, and we will not deviate from that course. Id.

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IV. Appellant’s Pro Se Arguments
A. There was sufficient evidence to prove appellant committed the underlying
offense of second-degree assault.

Appellant claims there was insufficien t evidence to prove he committed the
underlying offense of second-degree assault. A person co mmits second-degree assault if
he assaults another with a dangerous weapon or if he assaults another with a dangerous
weapon and inflicts substantial bodily harm. Minn. Stat. § 609.222, subds. 1, 2. Appellant
argues that he did not use a dangerous weapon in his assault of the victim and that he did
not inflict substantial bodily harm. We will reverse a conviction for insufficient evidence
only if a painstaking review of the record sh ows the evidence, if vi ewed in a light most
favorable to the conviction, cannot support the conviction. Webb, 440 N.W.2d at 430.
Appellant argues he did not use a danger ous weapon. A dangerous weapon is “any
. . . instrumentality that, in the manner it is used . . . is calculated or likely to produce death
or great bodily harm.” Minn. Stat. § 609.02, subd. 6 (2016). When a person uses his feet
to kick a victim on the ground while the victim is without effective means of defense, the
person’s feet are deadly weapons “calculated or likely to produce death or great bodily
harm.” State v. Davis , 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn.
Jan. 31, 1996). Here, appellant used his feet to kick the victim in the neck repeatedly when
the victim was unconscious on the ground without an effective means of defense. There is
sufficient evidence to prove that appellant used a dangerous weapon to assault the victim.
Appellant next argues that he did not inflic t either great or substantial bodily harm,
because “all blows [were] to the head but there were no reports of any internal damage to

14
the skull or the brain . . . no reports of any brain damage, no skull fractures, no concussion,
or any great bodily harm.” Substantial bodily harm is “b odily injury wh ich involves a
temporary but substantial disfigurement, or which causes a temporary but substantial loss
or impairment of the function of any bodily member or organ, or which causes a fracture
of any bodily member.” 4 Minn. Stat. § 609.02, subd. 7a (2016). A temporary loss of
consciousness can amount to substantial bodily harm. State v. Larkin, 620 N.W.2d 335,
338 (Minn. App. 2001). Bruising and scratching on the face and neck can also qualify as
substantial bodily harm. State v. Carlson , 369 N.W.2d 326, 327-2 8 (Minn. App. 1985),
review denied (Minn. July 26, 1985). Here, appellant ’s face and neck were bruised, and
he fell unconscious during the assault. There is sufficient evidence to prove that appellant
inflicted substantial bodily harm, using his feet.
We determine the evidence is sufficient to conclude th at appellant committed the
underlying offense of second-degree assault.
B. Dr. McGee’s credibility is not at issue on appeal.

Appellant claims Dr. McGee’s testimony should be viewed as less credible because
the testimony was inconsistent and because Dr. McGee has te stified incorrectly in past
trials. This court does not weigh a witness’s credibility on appeal; that role belongs solely
to the fact-finder at trial. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). Therefore,
we will not evaluate the credibility of Dr. McGee’s testimony.

4 We do not address whether appellant inflicte d great bodily harm, because the infliction
of great bodily harm is not an element of second-degree assault.

15
C. The failure of the victim’s wife to te stify does not create reasonable doubt
of appellant’s guilt.

Appellant argues there is a reasonable d oubt as to appellant’s guilt because the
victim’s wife did not testify. Appellant argues that she could have identified a superseding
cause for the victim’s deat h between when the assault occurred and when he fell
unconscious on his bedroom floor. Appellant does not describe how the wife’s testimony
would have exonerated him; he merely raises the possibility that her testimony could
provide evidence of a superseding cause. Appellant does not claim that his lawyer’s failure
to call victim’s wife as a w itness was ineffective assistance of counsel. And even if
appellant’s lawyer had called the victim’s wife to testify, th e selection of evidence to be
presented to the jury is a matte r of trial strategy that is gene rally not subject to appellate
review. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Because appellant’s argument
raises only a hypothetical doubt as to his in nocence, and we determin e that the victim’s
wife’s absence did not affect the outcome of the trial, we will not disturb the verdict.
D. The verdict was supported by sufficient evidence.

Appellant argues the district court abused its discretion when it denied appellant’s
motion for acquittal. A motion for acquittal shall be granted “if the evidence is insufficient
to sustain a conviction.” Minn. R. Crim. P. 26.03, subd. 18(1)(a). Based on the foregoing
analysis, there is sufficient evidence for the district court to find that appellant’s assault of
the victim was a substantial causal factor in th e victim’s death. The district court did not
abuse its discretion when it denied appellant’s motion for acquittal.
Affirmed.