This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
George Edward Harmon,
Filed June 6, 2000
Douglas County District Court
File No. K7-98-339
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Molly Thompson, Certified Law Student, 525 Park St., Suite 500, St. Paul, MN 55103; and
Christopher D. Karpan, Douglas County Attorney, Courthouse, 305 Eighth Ave. W., Alexandria, MN 56308 (for respondent)
Allen H. Aaron, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN 55345 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
George Harmon appeals from his conviction for second-degree assault, alleging insufficiency of the evidence and denial of a fair trial based on cumulative errors and prosecutorial misconduct. Because the evidence is sufficient to sustain the conviction and any error or misconduct was harmless, we affirm.
Where there is a claim of insufficiency of the evidence, the reviewing court’s role is limited to
ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.
State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). The evidence must be viewed in a light most favorable to the conviction and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence. Id.
Harmon was convicted of second-degree assault under Minn. Stat. § 609.222, subd. 1 (1998) (assault with dangerous weapon). “Assault” is defined as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (1998). A firearm, whether loaded or unloaded, is a dangerous weapon. Minn. Stat. § 609.02, subd. 6 (1998).
Reviewing the evidence in a light most favorable to the verdict, the state introduced testimony that Harmon threatened the victim with a gun and that the victim feared bodily harm. The issues that Harmon raises concerning conflicting evidence offered by the witnesses are questions of credibility, not affirmative evidence of innocence. Credibility determinations are the province of the jury. State v. Daniels, 380 N.W.2d 777, 781 (Minn. 1986). As reviewing court, we are reluctant to second-guess determinations of witness credibility, and a conviction can be based on the testimony of a single credible witness. See Johnson, 568 N.W.2d at 435.
Harmon also argues that a number of errors were made at trial that individually would not require reversal, but that the cumulative effect of those errors deprived him of a fair trial. The alleged errors were not objected to at trial and consist of two broad categories: evidence wrongfully elicited from witnesses and prosecutorial misconduct during voir dire.
Generally, issues raised for the first time on appeal, which have not been addressed by the trial court, are considered waived. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). While this is the broad rule, the reviewing court may, at its discretion, hear any issue required in the interest of justice, so long as it is not an unfair surprise to the other party. Id. Where a defendant has not objected to evidence, this court may consider whether the admission of the evidence was plain error. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). “Plain error” exists where it is shown that the ruling “(1) was error, (2) was plain, and (3) affected [the defendant’s] substantial rights.” Id. (citation omitted). Where each error alone is not sufficient to reverse, the cumulative effect of a number of such errors can require reversal, if the defendant was denied a fair trial. State v. Post, 512 N.W.2d 99, 104 (Minn. 1994).
The ten instances of alleged erroneous admission of evidence cited by Harmon, all questions posed by the prosecutor, were either exceptions to the hearsay rule, appropriate topics for cross-examination, or harmless and not prejudicial to Harmon. The seven instances of prosecutorial misconduct alleged during voir dire, when read in context, were either within the proper scope of voir dire or not so serious or prejudicial that Harmon’s right to a fair trial was denied. See Minn. R. Crim. P. 26.02, subd. 4(1) (scope of voir dire is to discover bases for challenge and gain knowledge for informed exercise of peremptory challenge); State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988) (prosecutorial misconduct is basis for reversal if beyond bounds of propriety and if it plays a substantial role in influencing jury’s decision.).
There is sufficient evidence to sustain the jury’s verdict. The evidence and remarks cited by Harmon as error or misconduct, even if they could be so construed, are harmless and did not deprive him of a fair trial.