This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Mai Vang,



Filed August 1, 2000

Affirmed; motion granted

Schumacher, Judge


Ramsey County District Court

File No. K4982929



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Mai Vang challenges her first-degree-assault conviction, arguing for a new trial because of an evidentiary ruling and prosecutorial misconduct and claiming that there was insufficient evidence to support the verdict and sentence.  The state moved to strike portions of appellant's brief and appendix.  We affirm and grant the motion to strike.


On July 8, 1999, paramedics went to Vang's house in response to her 911 call reporting that her 3-1/2-year-old stepson, C.J.X., had been injured.  Upon arriving, the paramedics found C.J.X. lying unresponsive on his back between a dresser and a bed.  He was taken to St. Paul Children's Hospital, where it was determined that he had sustained a large depressed skull fracture resulting in brain swelling, destruction of the portion of his brain controlling his eyesight, and extensive retinal hemorrhaging.

Vang was the only adult in the house at the time of the injury.  She told paramedic captain Daniel Saver that C.J.X. might have fallen from the top of the dresser.  At the hospital, Mary Dentz, a pediatric nurse practitioner for the Midwest Children's Resource Center (MCRC), interviewed Vang.  Vang told Dentz that C.J.X. was playing in the bedroom when she heard a loud noise.  She found him lying on the floor with his arms over his head.  She tried to stand him up, noticed the mushy area on the back of his head, and immediately called 911.  When interviewed by the St. Paul police, Vang repeated the account she had told Dentz.

            The state charged Vang with first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (1996).  A jury trial commenced on April 5, 1999.  The state's case included expert medical testimony from six physicians indicating that C.J.X.'s injuries were the result of violent shaking and impact with a hard, blunt object rather than an accidental household fall.  Vang testified on her own behalf, recounting the same version of events she had told Dentz and the police.  Two medical experts testified on Vang's behalf, suggesting that the injuries could have been caused by a fall from the dresser.


1.         Vang contends the trial court improperly allowed unreliable and inflammatory testimonial evidence to be admitted at trial.  Evidentiary rulings rest within the trial court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).  Evidentiary errors require a new trial if there is a reasonable doubt that the result would have been different without the error.  Id.

Prior to trial, Vang moved to exclude any evidence regarding statements made by the victim's brother, C.Y., while asleep at a shelter.  While the state conceded that C.Y.'s sleep talk was inadmissible during the state's case-in-chief because C.J.X., not C.Y., was the victim, it argued the evidence could be admissible if Vang put her character at issue at trial.  The trial court deferred ruling on the motion and subsequently determined that C.Y. was incompetent to testify at trial because he was too frightened to respond at the competency hearing. 

During the state's case-in-chief, defense counsel cross-examined police investigator Sergeant Mead and asked him what basis he had to believe Vang had a history of abusing children.  As Mead began to explain the basis for his belief, defense counsel objected on hearsay grounds.  The trial court overruled the objection and allowed Mead to testify that his belief was based on a statement by the shelter mother that C.Y. had awoken twice during the night crying and saying, "Mommy, don't hit me; Mommy, don't hit me."  On re-direct, the prosecutor asked Mead several questions to show that the statements were made by C.Y., not C.J.X., and had not been verified or corroborated because C.Y. was non-responsive during Mead's subsequent interview of the child. 

Vang moved to strike Mead's testimony referring to what the shelter mother had told him about C.Y.'s sleep talk.  The trial court denied the motion.  The court explained that it overruled Vang's hearsay objection because Mead's response fell within the parameters of the question asked by defense counsel.  Similarly, the court commented that an objection suggesting Mead's answer was non-responsive would also have been overruled because the court believed he responded within the framework of the question asked. 

Vang argues the trial court erred in failing to explain or discuss its reasoning before overruling Vang's hearsay objection.  Vang cites State v. Salitros for the proposition that a trial judge has an obligation to raise all matters affecting the fairness of a trial.  499 N.W.2d 815, 817 (Minn. 1993).  In Salitros, the Minnesota Supreme Court explained that

the trial judge is the administrator of justice and has an affirmative obligation to keep counsel within bounds and to insure that the case is decided on the basis of relevant evidence and the proper inferences therefrom, not on the basis of irrelevant or prejudicial matters.


Id.  We find no support for Vang's claim.  The trial judge did not breach his obligation to ensure the case was decided on relevant and non-prejudicial evidence.

Vang contends the trial court erred in admitting the testimony because it contained inadmissible hearsay.  Absent a clear abuse of discretion, evidentiary rulings rest within the trial court's discretion and will not be reversed.  See Grayson, 546 N.W.2d at 736 (evidentiary error should cause reversal only upon reasonable doubt that different result would have occurred but for admitted evidence).  The record shows that the state did not address C.Y.'s sleep talk in its direct-examination, and defense counsel asked Mead the basis for his belief that Vang had a history of child abuse.  The court overruled Vang's hearsay objection and denied Vang's motion to strike on the grounds that Mead's response fell within the parameters of defense counsel's question.  On this record, there is no indication the trial court clearly abused its discretion.  Vang cannot complain that the testimony was prejudicial because Mead simply provided the information defense counsel sought during cross-examination.

            2.         Vang contends the prosecutor committed misconduct during his cross-examination of defense witnesses.  "A prosecutor may not seek a conviction at any price" and must avoid "inflaming the jury's passions and prejudices against the defendant" or otherwise impeding the jury's task of determining whether the state has proved defendant's guilt beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (quotation and citations omitted).  Even if prosecutorial misconduct exists, however, the defendant is not entitled to a new trial where the court determines that the misconduct was harmless beyond a reasonable doubt.  State v. Buggs, 581 N.W.2d 329, 339-40 (Minn. 1998).  If the jury's verdict was unattributable to the conduct, the error was harmless beyond a reasonable doubt.  Id. at 340; Ashby, 567 N.W.2d at 28.  The trial court's decision to deny a motion for new trial will be upheld unless the record as a whole shows the misconduct was "inexcusable and so serious and prejudicial" that the defendant was denied a fair trial.  State v. Pelawa, 590 N.W.2d 142, 148 (Minn. App. 1999) (quotation and citation omitted)), review denied (Minn. Apr. 28, 1999).

Vang claims the prosecutor committed misconduct when he implied that Vang's husband had committed sexual misconduct by asking him the age of C.J.X.'s biological mother, Erica Reindl.  During cross-examination, the prosecutor asked Vang's husband, "Okay.  So if [Erica is] now 19 and [C.J.X.] is three and a half, that would mean that she was 15 when you had sex and conceived [C.J.X.]; is that correct?"  The court overruled Vang's relevancy objection and Vang's husband answered, "No."  On direct examination of Erica's father, Vang established that Erica was 22 at the time of trial.  The prosecutor verified that information on cross-examination and corrected and apologized on the record for his previous statements.

While Vang argues that the questions prejudicially implied her husband had engaged in unlawful sexual behavior with a minor, there was no evidence introduced or arguments made relating to sexual relations with a minor at trial.  Furthermore, the prosecutor apologized and corrected his mistake on the record.  On this record, we conclude the questions regarding the collateral issue of Erica's age had limited impact on Vang's husband's character and even less impact on Vang's conviction.  The misconduct, if any, was harmless beyond a reasonable doubt.  See Buggs, 581 N.W.2d at 339-40 (explaining error is harmless unless the jury's verdict is attributable to the misconduct).

Vang also argues the prosecutor improperly expressed his personal opinion regarding the testimony of one of Vang's medical experts.  During cross-examination, the prosecutor made the statement that nobody in the courtroom could understand the expert's testimony.  The trial court sustained defense counsel's objection.  It is improper for a prosecutor to express a personal opinion about the credibility of a witness.  Buggs, 581 N.W.2d at 343.  While the prosecutor's conduct was perhaps overly aggressive, there is no indication the jury was influenced by the prosecution's comments.  We conclude any error was harmless beyond a reasonable doubt.

Further, Vang argues that the prosecutor committed misconduct by implicitly criticizing two Hmong witnesses' English-language skills and use of an interpreter, referencing non-testifying individuals during cross-examination, and expressing his personal opinion about the veracity of Vang's husband's testimony.  Vang did not object to any of this conduct at trial.  Failure to object to a prosecutor's comment or conduct in the trial court ordinarily forfeits the defendant's right to appellate review.  Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999), review granted (Jan 18, 2000), review denied (Mar. 28, 2000); see State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (explaining that failure to object implies that comments or conduct was not considered prejudicial). 

But a reviewing court may reverse a conviction if the prosecution's comments were unduly prejudicial even if the defendant did not object to the comments at trial.  Sanderson, 601 N.W.2d at 225.  The reviewing court must decide whether the challenged conduct was in error and so prejudicial that it constituted a denial of the defendant's right to a fair trial.  Id. (citation omitted).  Where the misconduct is "unusually serious," reversal is appropriate unless the error is harmless beyond a reasonable doubt.  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Reversal is only appropriate for less serious misconduct if the conduct had "substantial" influence on the jury's decision to convict the defendant.  Id. at 128, 218 N.W.2d at 200; see State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (stating prejudicial-error test is whether improper comments "likely played a substantial part in influencing the jury to convict").

During cross-examination, the prosecutor asked Vang's husband whether he took high school classes in English, spoke to McDonald's co-workers in English, and answered police questions in English.  During cross-examination of Vang's husband's cousin, the prosecutor asked when he arrived in the United States, whether he attended and enjoyed school, and whether he understood English in school.  Because there is no indication the prosecutor intended to criticize the witnesses' use of an interpreter or inject racial prejudice into the proceedings, the conduct was not so unduly prejudicial that it deprived Vang of a fair trial.

Vang also contends the prosecutor's references to non-testifying individuals while cross-examining one of Vang's medical experts constitutes misconduct.  Generally, it "is improper conduct for a prosecutor to refer to a witness who was not called."  State v. Page, 386 N.W.2d 330, 336 (Minn. App. 1986) (citation omitted) (prosecutor's statements made during closing arguments regarding individual not called at trial is misconduct), review denied (Minn. June 30, 1986).  Here, the prosecutor's reference to attorneys from the Hennepin County Attorney's Office was an attempt to clarify or challenge the veracity of the expert's testimony that he normally did prosecution work and had testified for the county attorney's office in child-abuse cases.  See Sanderson, 601 N.W.2d at 225 (prosecutor may argue credibility of witness).  Even if it was error to reference non-testifying individuals, it is highly unlikely the prosecutor's comments influenced the jury's decision to convict.

            Finally, Vang argues the prosecutor improperly expressed his personal opinion by stating, in questioning Vang's husband:

I have a difficult time believing and where I think you have not been totally truthful with us because you would not tell us if you had any problems with your wife because you do not want to lose her.  What do you say about that?


"As every prosecutor should know, it is improper to express a personal opinion about the credibility of a witness."  Buggs, 581 N.W.2d at 343 (citation omitted).  While this statement may constitute misconduct, it is highly unlikely the jury's conviction was influenced by statements addressing Vang's husband's characterization of their marital relationship.

            In summary, we do not conclude that the conduct in this case by the prosecutor was so prejudicial as to deny Vang a fair trial.

3.         Vang contends the evidence is insufficient to prove beyond a reasonable doubt that she assaulted C.J.X.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.   State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            The state's theory that Vang committed first-degree assault by violently shaking C.J.X. was based primarily on circumstantial evidence, including expert medical testimony.  While a conviction based on circumstantial evidence is subject to stricter scrutiny, circumstantial evidence is entitled to the same weight as other evidence if the circumstances proved are consistent with the hypothesis of defendant's guilt and inconsistent with any rational hypothesis except that of guilt.  Ashby, 567 N.W.2d at 27; State v. Ostlund, 416 N.W.2d 755, 758 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988).  But the circumstantial evidence must form

a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.


Ashby, 567 N.W.2d at 27 (quotations and citation omitted).  A jury is in the best position to evaluate circumstantial evidence and its verdict is entitled to deference by the reviewing court.  Webb, 440 N.W.2d at 430.

            In support of the state's theory, Dr. Samuel Reid testified that he had not seen a head injury as serious as C.J.X.'s caused by a short-distance fall; Dr. Steven Baisch testified that the severity of C.J.X.'s injury was inconsistent with Vang's theory that the fall was accidental because striking the plastic foot-board on the way down was even a shorter distance; Dr. Davis Kispert opined that the injury was caused by an impact with a hard, flat surface inconsistent with the rounded corner of the bed involved here; Dr. Susan Schloff testified that C.J.X.'s severe, extensive, and multi-layered retinal hemorrhaging was consistent with shaken baby syndrome rather than ordinary, non-abusive head trauma; and Dr. Ellen De Vries testified that a fall from a dresser could not generate the force of impact necessary to cause the length and severity of C.J.X.'s skull fracture.  In addition, photographs of the scene and the injuries and fingertip bruises under C.J.X.'s left scapula are consistent with the rational inference that C.J.X. was shaken and that the left side of his head impacted something.

            In support of her theory that C.J.X.'s injuries resulted from an accidental fall from a dresser, Vang presented the testimony of her husband, her husband's two teenaged cousins, her brother and sister–in-law, her sister, and C.J.X.'s maternal grandparents.  Each witness testified that Vang was a good mother, who loved her children equally and never yelled at or struck any of the children.  While Vang's husband testified that C.J.X. bruised easily, the state's medical evidence did not show a coagulation problem.  One of Vang's medical experts opined that C.J.X.'s injury was perfectly consistent with a fall from the dresser onto the bed frame because he concluded that the head of a 30-pound child could move fast enough with rotational forces to cause a serious skull fracture.  Vang's other medical expert testified that C.J.X.'s injury was consistent with a jump from the dresser and contact with the bed because linear skull fractures are not associated with abuse or probative of the mechanism of injury.  Vang also testified on her own behalf and denied shaking C.J.X. or hitting him against anything. 

            On rebuttal, the state presented expert testimony that Vang's expert pathologist's calculations and conclusions were based on an erroneous interpretation of C.J.X.'s skull thickness from the CAT scan.  Another state's expert agreed that serious injury and death can occur from short falls under specific unusual circumstances, but testified that no such circumstances existed in this case; the extreme severity of C.J.X.'s skull fracture, brain injury, and retinal hemorrhaging are not seen in household falls.

            Viewing the evidence in the light most favorable to the verdict, the state's medical experts' testimony provides support for the theory that C.J.X.'s injuries were caused by a combination of shaking the child and severe impact rather than by a three-to-five-foot fall from a dresser.  It is not the function of the reviewing court to substitute its judgment for that of a jury when the verdict is based on the weight of conflicting evidence.  Ostlund, 416 N.W.2d at 761.  It is within the province of the jury to determine the credibility and weight given to witness testimony.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The evidence is sufficient to sustain the jury's verdict.

4.         Vang argues that her 72-month sentence should be reduced to serve the interests of justice because the evidence raises doubt as to her culpability and her current conviction and sentence subjects her to probable deportation.  The trial court denied the state's motion for upward durational departure and Vang's motion for downward departure from the sentencing guidelines.  The trial court reduced Vang's sentence from the presumptive 86-month sentence to 72 months.  The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Relying on State v. Gilbert, Vang contends this court must reduce the sentence in the interests of justice because there is insufficient evidence to support the jury's verdict and Vang's guilt is still in doubt.  See Gilbert, 448 N.W.2d 875, 876 (Minn. 1989) (reducing sentence in the interest of justice because the court believed it was a close question whether Gilbert intended to kill or maim the victim).  At sentencing, the trial court commented that Vang had the full opportunity to present evidence and received a fair trial and that the evidence supported the jury's verdict.  On this record, we conclude the trial court did not abuse its discretion.

5.         The state filed a motion to strike portions of Vang's brief and appendix for referencing non-record materials.  Vang's brief references newspaper articles addressing a St. Paul Hmong woman's murder of her six children.  Relying on Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., Vang contends this court may consider the newspaper articles as publicly available articles. 535 N.W.2d 337 (Minn. 1995).  In that case, the supreme court explained that a reviewing court may consider cases, statutes, rules, and publicly available articles that were not presented to the trial court.  Id. at 340 n.3 (citing Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 376-77 (Minn. App. 1992) (holding law review articles were properly cited for first time on appeal), review denied (Minn. Mar. 26, 1992)).  We do not read Fairview Hospital as including as publicly available legal resources newspaper articles such as those at issue here.

Vang's brief also references the United State's government's commencement of deportation proceedings against her and Thailand's refusal to recognize Vang as a Thai citizen because she was born in a refugee camp.  While Vang's attorney argued that the trial court should consider immigration consequences in sentencing Vang, our review of the district court file indicates that no evidence was presented to the trial court regarding the initiation of any deportation proceedings by the United States government.  The motion to strike these materials and statements is granted.

Affirmed and motion granted.