This opinion will be unpublished and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,
Travis Raymond Stillday,
Filed November 21, 2000
Hennepin County District Court
File No. 99068003
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Foley, Judge.
Appellant challenges his conviction of one count of second-degree felony murder. Because we find sufficient evidence, no prejudicial error, and no abuse of discretion in the district court’s refusal to give a voluntary intoxication instruction on the second-degree felony murder charge, we affirm.
In July 1999, a group of family and friends gathered in Loring Park in Minneapolis. Most of those present, including appellant Travis Raymond Stillday and several young teenagers, were drinking. Appellant agreed to give three teenagers a ride to a house where they were going to spend the night. Fourteen-year-old E.N. sat in the front passenger seat; her 15-year-old brother, A.N., sat in the back passenger seat; and 12-year-old R.A. sat behind appellant. When they arrived at the house, no one was home. Appellant continued to drink while he was driving, and E.N. and R.A. drank as well. About 11:00 p.m., they arrived at the home of R.A.’s cousin, Kasey Anderson, where a party was in progress. Everyone was drinking; the five adults present had consumed about 45 cans of beer. Appellant, A.N., E.N., and R.A. drank more beers and smoked marijuana in the car.
Around 1:00 a.m., appellant prepared to leave to take A.N. and E.N. to their home. R.A. wanted to go with them, but Anderson said no. An argument erupted when R.A.’s brother and two of her cousins tried to get R.A. out of the car by punching appellant several times through the open window. Her brother finally took R.A. out of appellant’s car; she got back in, and Anderson dragged her out by her hair. Appellant then drove down the block with E.N. in the front seat and A.N. in the back.
Appellant turned around in an alley and came back toward Anderson’s residence. As he approached, Yolanda Sanchez stepped off the sidewalk and into the street to flag down appellant. When he stopped, Sanchez yelled at E.N. and A.N. to get out of the car and threw a can of beer at the car’s windshield. As Sanchez stood in front of appellant’s car, he accelerated.
Sanchez was slammed onto the hood of appellant’s car as he drove off at high speed. Witnesses agreed that the top half of her body was on the hood and the bottom half of her body was dragging on the ground. Half way down the block, appellant slammed on the brakes. Sanchez was thrown in front of the car and the back of her head hit the pavement. Appellant backed up a short distance and then drove over Sanchez. He drove to the end of the block, let A.N. and E.N. out of the car, and said “I’m sorry.”
Sanchez was taken to the hospital where she died two days later of multiple injuries. Both her skull fracture from hitting the pavement and her pelvis fracture from being driven over were identified as life-threatening injuries.
Appellant was charged with one count of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998), and one count of second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1998). After trial, the jury returned a verdict finding appellant not guilty of second-degree intentional murder but guilty of second-degree felony murder. Appellant was sentenced to 120 months, a downward departure of 30 months.
I. Sufficiency of the Evidence
On a challenge to the sufficiency of the evidence, our review is limited to the facts in the record and whether legitimate inferences can be drawn from them so that a jury could reasonably conclude that the defendant was guilty. The court must view the evidence in the light most favorable to the prosecution and assume the jury believed the prosecution’s witnesses and disbelieved any contrary evidence. State v. Ashby, 567 N.W.2d 21, 27 (Minn.1997).
While a conviction based only on circumstantial evidence warrants stricter scrutiny, such evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt. The conviction may stand only where the circumstances form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt. This standard still requires that the court recognize that the jury is in the best position to evaluate the credibility of witnesses and the weight given to the testimony of those witnesses.
Id. (quotations and citations omitted).
Appellant argues the evidence was insufficient to support his conviction because the circumstantial evidence relating to the required intent was equally consistent with the incident having been entirely accidental. The underlying felony supporting the second-degree felony murder charge on which appellant was convicted was assault.
[A]n assault involving infliction of injury of some sort requires no abstract intent to do something further, only an intent to do the prohibited physical act of committing a battery.
State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981). Appellant inflicted actual injury upon Sanchez when he struck her with his car, slammed on his brakes causing her to be thrown from the hood of the car onto the ground, and then drove over her. Therefore, evidence of intent to commit a battery is sufficient to support the felony murder charge.
“Intent may be proved by circumstantial evidence including the defendant’s conduct and the character of the assault.” Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999) (citations omitted). Taken in the light most favorable to the verdict, appellant’s actions in striking the victim with his car and then driving over her support the jury conclusion that appellant intended ”the prohibited physical act[s] of committing a battery.” Lindahl, 309 N.W.2d at 767. Appellant’s challenge to the sufficiency of the evidence fails.
II. Closing Argument
Appellant did not move for a new trial. On appeal, he claims he is entitled to a new trial because the prosecutor engaged in misconduct during closing argument by referring to appellant’s failure to testify and by misleading the jury on the level of intent required to find him guilty of second-degree felony murder.
This court must decide whether the challenged conduct was:
(1) in error; and (2) so prejudicial that it constituted a denial of the defendant’s right to a fair trial. If the misconduct is unusually serious, it must be harmless beyond a reasonable doubt, to avoid reversal. When the misconduct is deemed less serious, an appellate court must look to whether it had a substantial influence upon the jury’s decision to convict the defendant.
Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999) (quotations and citations omitted), review denied (Minn. Mar. 28, 2000).
In addressing the jury, the prosecutor stated:
I want to preface this with saying that [appellant] does not have any burden of proof in this case with respect to these elements. The State has to prove proof beyond a reasonable doubt.
I also want to remind you that the statements of the attorneys are not evidence in the case. The opening statements weren’t evidence and our closing arguments aren’t evidence * * *.
In opening statement [appellant’s counsel] referred to various pieces of evidence which he predicted would come out in the case, including that [appellant] did not have a memory of what happened through much of this. That’s not evidence. You can’t consider it. The only thing you can consider is the testimony and the exhibits you heard in court. You can’t speculate about evidence that wasn’t introduced.
Appellant’s counsel objected to this as an indirect reference to appellant’s failure to testify and requested that the district court give another instruction emphasizing that appellant did not have to testify and that the prosecutor’s remarks were improper. The district court overruled the objection, finding the comment acceptable in part because appellant’s counsel had told the jury that appellant “had recall * * *.”
A “prosecutor ha[s] a right to point out that the record did not support defense counsel’s representations in opening statement * * *.” State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991). “The context of [a] comment is important in evaluating its propriety.” State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993).
In general, a prosecutor’s closing argument is to be taken as a whole and no single phrase is to be taken out of context and used as a basis for reversal.
State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (citation omitted), review denied (Minn. Mar. 18, 1988). Here, the prosecutor’s remark on evidence that appellant’s counsel promised, but did not produce, was proper, given the context of the argument. No prejudicial error occurred.
Level of Intent
Appellant also contends that the jury was misled on the level of intent required to find that appellant committed the underlying assault. Appellant raised no objection at trial. A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Only if the “prosecutor’s comments were unduly prejudicial” can they be a basis for reversal absent objection at trial. Sanderson, 601 N.W.2d at 225 (citation omitted). “The issue is whether any inappropriate comments played a substantial role in convincing the jury to convict the defendant.” Id. (citation omitted).
The felony murder charge required only that appellant had a general intent to hit the victim. See Lindahl, 309 N.W.2d at 767. In closing argument, the prosecutor stated:
[T]he State ha[d] to prove that [appellant] purposefully acted, that it wasn’t an accident. * * * Generally people intend the consequences of their actions. * * * I’d ask you to think about other circumstances. Think about intent when you deliberate and what does a person intend in different circumstances? You intend the consequences of your action. If I take a loaded semi-automatic pistol and I point it at somebody and I pull the trigger I intend to kill him. Two people standing by a cliff, one person pushes the other person off the cliff. What did that person intend?
Appellant claims that this argument ignored the possibility that pushing someone off a cliff could be an accident.
This portion of the state’s 25-page argument comprised only a few lines. The comment did not play a substantial role in convincing the jury to convict. Any possible error was not so serious or prejudicial as to warrant a reversal of appellant’s conviction.
III. Jury Instructions
The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). “The trial court need not give an instruction which is unwarranted by the facts or relevant law.” State v. Fortman, 474 N.W.2d 401, 403 (Minn. App. 1991) (citation omitted). Appellant challenges the district court’s refusal to give a voluntary intoxication instruction for the assault underlying the second-degree felony murder charge.
[V]oluntary intoxication is a defense to a criminal charge * * * only if a specific intent or purpose is an essential element of the crime charged and the trier of fact concluded that the defendant’s intoxication deprived him of the specific intent or purpose requisite to the alleged offense.
City of Minneapolis v. Altimus, 306 Minn. 462, 466, 238 N.W.2d 851, 854-55 (1976).
Minn. Stat. § 609.075 (1998) provides:
An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.
In Lindahl, the court addressed the voluntary intoxication defense within an assault context:
In determining whether the jury should be instructed on voluntary intoxication, the trial court must analyze whether the crime charged has a specific intent or purpose as an essential element. The crime is a general-intent crime if the only intent required is to do the act which is prohibited by the statute.
* * * *
[A]n assault involving infliction of injury of some sort requires no abstract intent to do something further, only an intent to do the prohibited physical act of committing a battery. In our case it was clear that the assault * * * took the form of actual infliction of bodily harm as opposed to the more abstract form of assault involving intent to create fear of harm. All that was required to prove this kind of assault was to show that the blows to complainant were not accidental but were intentionally inflicted.
Lindahl, 309 N.W.2d at 766-67. The form of assault here involved the actual infliction of bodily harm, not the “more abstract form of assault” involving intent to cause fear in another. The district court did not abuse its discretion in refusing to give a voluntary intoxication instruction on the second degree felony murder charge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Minn. Stat. § 609.02, subd. 10 (1998), defines “assault” as:
(1) An act done with intent to cause fear in another of immediate bodily harm or death; or
(2) The intentional infliction of or attempt to inflict bodily harm upon another.