This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





James Elon Webb,




Filed March 21, 2000


Harten, Judge


Anoka County District Court

File No. K2-99-73


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55102 (for respondent)


Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Courthouse, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)


Jerry Strauss, Rachael A. Goldberger, Strauss & Associates, 250 Second Avenue South, Suite 145, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of felony criminal vehicular homicide/leaving the scene of an accident, arguing that: (1) the district court abused its discretion in admitting crime-scene photographs; (2) the evidence was insufficient to support his conviction, and (3) he was denied his constitutional right to remain silent.  Because we see no abuse of discretion, ample evidence to support the verdict, and harmless constitutional error, we affirm.


            After midnight on August 29, 1999, Bradley Micko was driving a blue Pontiac north on I-35E.  He pulled the car over to the right shoulder of the road.  Shortly after 1:47 a.m., a police officer stopped to check on Micko’s Pontiac.  The officer noticed the Pontiac’s headlights, taillights, and hazard lights were on and the engine was running.  The driver’s door was missing and no one was inside the vehicle.  Debris and vehicle parts littered the roadway surface leading from the front of the Pontiac to a second car, a white Buick Skylark.  The Buick had been abandoned on the right shoulder, 526 feet in front of the Pontiac. 

             The officer concluded that the Buick had struck and killed Bradley Micko, whose body the officer found in a ditch approximately 140 feet north of the Pontiac.  The Buick was registered to James Michael Webb, father of appellant James Elon Webb, but appellant was its primary driver.

An officer who visited appellant’s home at about 5:00 a.m. noticed the smell of alcohol emitting from appellant and transported him to a hospital for a blood test.  Appellant’s blood tested positive for marijuana, but the time of use could not be determined. 

Appellant’s father gave a statement that was read into the record at trial:

Investigator’s question:  “[H]as [appellant] ever indicated to you that he passed out or that he fell asleep or that he just wasn’t paying attention when he crashed * * *?”


Appellant’s father’s answer:  “[H]e had gotten out of the car * * * to see how the car was * * * seen the headlights or lights and that was it.  * * * [H]e says the next thing that he knows is that he woke up * * * in somebody’s yard.”


The state charged appellant with two counts of felony criminal vehicular homicide.  A jury found appellant guilty of count II, felony criminal vehicular homicide/leaving the scene of an accident, in violation of Minn. Stat. § 609.21, subd. 1(7) (1998).  The district court sentenced appellant to 52 months in prison.  Appellant challenges his conviction and sentence, arguing that it was an abuse of discretion to admit photographs of Micko’s body, that the circumstantial evidence was insufficient to prove his guilt, and that he was denied his constitutional right to remain silent.


1.         Crime Scene and Autopsy Photographs 

The admission into evidence of photographs is in the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994).  Gruesome photographs may be admitted so long as they picture something that a witness could describe and are material to some relevant issue.  Id. at 565 (citing State v. Hummel, 483 N.W.2d 68, 74 (Minn.1992)).  But Minn. R. Evid. 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Appellant argues that the district court abused its discretion in admitting autopsy and crime scene photographs of the victim because the photographs were not relevant to identify the perpetrator and the probative value of the evidence was substantially outweighed by its prejudicial affect.   

The state sought to admit 30 photographs, 15 from the crime scene and 15 from the autopsy.  The district court reviewed each photograph, heard an explanation from the medical examiner as to the probative value of each photograph, and considered oral arguments from both attorneys as to relevancy. 

The district court excluded six photographs as unacceptably prejudicial, but found that the other 24 were necessary for the prosecution to prove the elements of the charged offenses, negligence, and cause of death, and also to establish the location of the victim upon impact, and the intensity of the impact.[1]

Appellant contends that the only issue was whether the state could prove beyond a reasonable doubt that it was he who drove the car that struck Micko.  But appellant did not stipulate to the other elements of both counts.  Therefore, the state was required to prove them.  See State v. Sullivan, 502 N.W.2d 200, 203 (Minn. 1993).  

Appellant argues that these photographs were prejudicial because they tended to inflame the passions of the jury and create a need to punish someone for this tragedy.  But photographs are not rendered inadmissible because they incidentally tend to arouse the passion or prejudice of the jury.  State. v. Borden, 455 N.W.2d 482, 484 (Minn. App. 1990), review denied (Minn. July 13, 1990).  Moreover, the jury’s acquittal on count I contradicts appellant’s argument that the jury was prejudiced.

Although we conclude that there was no abuse of discretion in admitting the photographs into evidence, we reiterate the language of the supreme court in State v. Jobe, 486 N.W.2d 407, 417 (Minn. 1992).

These pictures are horrifying.  While the fact that they are horrifying does not make them inadmissible, we want to remind courts and prosecutors of our increasing discomfort with the large numbers of autopsy and crime scene photos being admitted.  Given the possible prejudicial effect on the jury of viewing these gruesome scenes, we ask that courts exercise their discretion to ensure that the jury is adequately informed without being overwhelmed.


2.         Sufficiency of Evidence

Appellant argues that the circumstantial evidence was insufficient to prove guilt beyond a reasonable doubt.  A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

The record shows that: (1) appellant was the primary driver of the Buick that struck and killed the victim; (2) three witnesses testified that appellant had been driving the Buick before the accident; (3) a witness testified that appellant was alone and was driving the Buick when he left the witness’s house between 10:00 and 11:00 p.m.; (4) between midnight and 1:47 a.m., appellant’s Buick struck and killed Bradley Micko; (5) at 1:57 a.m. appellant arrived at a gas station approximately two miles from the crime scene, on foot, sweating profusely, with his face red and puffy; (6) after 3:00 a.m., appellant’s parents found appellant walking five to six miles from their home, sweaty, with wet clothes, and having a red mark on the side of his head; (7) appellant’s parents drove him home and he immediately changed clothes; (8) at about 5:00 a.m. the police arrived at appellant’s house and noticed the smell of alcohol emitting from appellant; (9) at 6:55 a.m., appellant’s blood was tested; (10) a BCA toxicologist testified that appellant’s blood tested positive for marijuana; (11) appellant’s father gave the police an inculpatory statement about a conversation he had with appellant; (12) the Buick was never reported stolen; (13) when police executed a search warrant of appellant’s home, appellant’s father removed the keys to the Buick from appellant’s key ring and gave them to the police; and (14) appellant made several telephone calls from jail in which he complained of head and shoulder injuries. 

            Appellant argues that the evidence is insufficient because no witness identified him as the driver of the Buick.  But a fact is proved by circumstantial evidence when its existence can be reasonably inferred from other facts proved in the case.  See State v. Cooper, 561 N.W.2d 175, 178 (Minn. 1997).  Given the facts proved in this case, there is no reasonable inference other than guilt.  Accordingly, we conclude that there was sufficient evidence to support appellant’s conviction. 

3.         Violation of Constitutional Right to Remain Silent

The state may not refer to or elicit testimony about a defendant’s post-arrest silence.  State v. McCullum, 289 N.W.2d 89, 92 (Minn. 1979).  Evidence of a defendant’s silence penalizes him for exercising his constitutional right against self-incrimination and deprives him of a fair trial.  Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973).

 But an improper reference to a defendant’s exercise of Fifth Amendment rights can constitute harmless error.  Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991); State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).  To constitute harmless error, the testimony must be harmless beyond a reasonable doubt.  Robinson, 427 N.W.2d at 224.

Appellant argues that his constitutional right to remain silent was violated when a police officer testified, “I asked [appellant] if he would like to make any statements and he didn’t want to.”[2]  Appellant’s motion for a mistrial was denied.  Appellant did not request that the district court direct the jury to disregard the statement because he believed that it would have been a meaningless instruction.  The officer's testimony did violate appellant’s constitutional right to remain silent.  The issue then becomes whether the error was harmless in these circumstances.

The officer’s statement was brief, undramatic, and incomplete.  See State v. Dunkel, 466 N.W.2d 425, 429 (Minn. App. 1991) (improper reference was harmless because it was innocuous, brief, quiet, and undramatic).  The prosecutor did not elicit this testimony.  See id.  (statement harmless because volunteered, not elicited).  The statement was never again referred to during the trial.  See id.; State v. French, 402 N.W.2d 805, 809 (Minn. App. 1987) (reference to silence harmless because remaining testimony neither focused on nor unduly highlighted silence).  There was strong evidence of appellant’s guilt.  Accordingly, we conclude that the constitutional error was harmless. 


[1]  Under count I, Minn. Stat. § 609.21 subd. 1(2)(ii) (1998), the state had to prove: (1) death, (2) caused by defendent by operating a motor vehicle, (3) in a negligent manner while under the influence of a controlled substance, and (4) the location of defendant’s act.  Under count II, Minn. Stat. § 609.21 subd. 1(7) (1998), the state had to prove: (1) death, (2) caused by defendant’s driving, (3) defendant left the scene of the accident, and (4) the location of defendant’s act.

[2] The district court noted, and the parties agree, that the prosecutor did not deliberately elicit this testimony.  Accordingly, we need not undertake a prosecutorial misconduct analysis.