This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-701

 

State of Minnesota,
Respondent,

vs.

Diane Marilyn Hoffman,
Appellant.

 

Filed January 23, 2001

Affirmed
Foley, Judge
*

 

Dakota County District Court

File No. K2991303

 

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

 

Ann C. O’Reilly, Assistant South St. Paul City Attorney, LeVander, Gillen & Miller, P.A., 633 South Concord Street, Suite 400, South St. Paul, MN  55075 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

Considered and decided by Crippen, Presiding Judge, Foley, Judge, and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges her conviction for gross misdemeanor violation of a harassment restraining order, arguing that the district court erred by failing to determine whether there was clear and convincing evidence of prior bad acts constituting relationship evidence, and failing to provide the jury with a limiting instruction regarding the proper use of that evidence.  Appellant also asserts she was denied a fair trial because the district court allowed the jury to ask the court a question that called for a legal conclusion and the prosecution commented on that question in its closing argument.  Finally, in appellant’s pro se supplemental brief, she argues the evidence was insufficient to sustain her conviction.  We affirm.

FACTS

            In March 1995, appellant Diane Marilyn Hoffman became a patient of Dr. Stephen Hjemboe, a clinical psychologist.  Hjemboe diagnosed Hoffman as suffering from major depression and borderline personality disorder.  As Hoffman’s treatment progressed, she developed what she termed "boundary issues" with Hjemboe and a personal interest in him.  Hoffman began collecting personal information about Hjemboe and his family.  She would frequently call his home, drive by his residence, park outside his home in order to "telepathically" communicate with him, and place calls to Hjemboe’s neighbor, Dr. Laurie Dunn, who lived in the same duplex in St. Paul.  Hoffman also obtained Hjemboe and Dunn’s personal mail.  Hjemboe attempted to address these issues in Hoffman’s therapy, but her behavior did not change.  As a result, Hjemboe terminated Hoffman’s treatment in May 1997.

            Because Hoffman’s behavior continued after treatment was terminated, Hjemboe obtained a harassment restraining order on June 4, 1997.  Shortly after the restraining order was issued, Hoffman violated the order by telephoning Hjemboe at his office and leaving a voice message.  Hoffman entered into a plea agreement, and the district court stated it would accept the agreement if there were no further allegations of contact between the time the guilty plea was entered and sentencing.  At Hoffman’s sentencing hearing, the state alleged that Hoffman had made phone calls and sent letters to Hjemboe’s family after her guilty plea had been entered.  The district court believed the allegations were serious, and sentenced Hoffman to 90 days in the Volunteers of America facility for women, staying “execution of 60 of those days to probation for a period of one year.”

            In December 1997, Dunn moved from the duplex in St. Paul.  In July 1998, Hjemboe obtained an amendment to his restraining order to include no third-party contact, no phone contact, no contact by mail, no contact with Hjemboe’s family, and no contact with his workplace.  The order also prevented Hoffman from coming within 500 feet of Dunn’s new residence.  Hjemboe moved from the St. Paul duplex in November 1998.

            On the morning of December 14, 1998, Dunn discovered that the tires on her car, which was parked on the street near her residence in South St. Paul, had been slashed.  At trial, Dunn testified that, while she was waiting for a tow truck, she saw Hoffman drive by her house.  Dunn called the police to report what she had seen.  In addition, Hjemboe spoke with his former landlord, who informed him that a woman, fitting Hoffman’s description and driving a motor vehicle similar to Hoffman’s, had stopped by Hjemboe’s former residence on December 14, 1998, and inquired about the rental unit’s availability. The landlord thought the inquiry was strange because the unit had yet to be put up for rent.

            On May 21, 1999, Hoffman was charged with misdemeanor and gross misdemeanor violations of Hjemboe’s harassment restraining order.  Following a jury trial in early December 1999, Hoffman was found guilty of a gross misdemeanor violation of the restraining order.  She was sentenced to one year in jail, with execution stayed, and placed on probation for two years.  Hoffman now appeals from this conviction.

D E C I S I O N

I.                   Relationship Evidence

            Hoffman argues that the district court erred by failing to make a determination of whether there was clear and convincing evidence that she committed alleged prior bad acts, which constituted relationship evidence.  Specifically, Hoffman contends that, before the jury was allowed to hear the evidence, the district court should have determined whether there was clear and convincing evidence that she (1) started two yard fires; (2) slashed Hjemboe’s tires on several occasions; (3) slashed a screen door; (4) stole Hjemboe’s and Dunn’s mail; and (5) wrote "deadbeat dad" on Hjemboe’s residence.  Hoffman asserts that she objected to this evidence by vaguely citing to five pages of the pretrial hearing transcript.

Prior bad acts can be admitted to illuminate the relationship between the defendant and the complainant and to place "the incident with which defendant was charged in proper context."  State v. Volstad, 287 N.W.2d 660, 662 (Minn. 1980).  Further, character evidence showing a strained relationship is relevant in establishing motive and intent.  State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).  Before admitting such evidence, the district court

must determine that there is clear and convincing evidence that the defendant committed the prior bad [acts] and that the probative value of the evidence outweighs any potential for unfair prejudice.

 

State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998).

At the beginning of trial, Hoffman asked the district court to exclude certain evidence constituting prior bad acts, but the court reserved the issue until after the state presented its case-in-chief.  Hoffman did not object to the evidence once the state introduced it at trial.  Absent specific and clear objections raised before the district court, an appellate court "will generally not consider issues of the admissibility of evidence raised for the first time on appeal."  State v. Tovar, 605 N.W. 2d 717, 726 (Minn. 2000) (citation omitted).  An exception to this rule exits if appellant can show that admission of the evidence was plain error.  Bauer, 598 N.W.2d at 363.  To establish plain error the appellant must show (1) there was error, (2) that it was plain, and (3) the error affected appellant's substantial rights.  Id.  Under a plain error analysis, Hoffman has a "heavy burden of showing that the error was prejudicial and affected the outcome of the case."  Id. at 364 (quotation omitted).

The record does not demonstrate that the district court determined that there was clear and convincing evidence that Hoffman committed the prior bad acts and that the probative value of the evidence outweighed any potential for unfair prejudice. Although the court erred in failing to make such a determination, Hoffman has failed to show that exclusion of the evidence would have resulted in a different ruling.

 The record demonstrates that Hoffman admitted in a letter written to Hjemboe that she collected information about him and his family, called Dunn’s residence on several occasions, and sat in her car outside his residence.  Hjemboe testified that his screen door was slashed on the same day treatment with Hoffman was terminated and that Hoffman seemed very angry about the termination when she left his office.  Hjemboe also testified that Hoffman had some of his personal mail, which she eventually returned to him.  Dunn testified that while living in St. Paul, two fires were set in her backyard, mail was stolen from her sometime during 1997, and another fire was set after she moved out in December 1997.  She further testified that Hjemboe’s tires had been slashed several times when he lived in St. Paul.  Finally, the record shows that Hjemboe received a harassment restraining order against Hoffman, which he amended several times because (1) the level of vandalism increased; (2) his family and friends were being harassed; and (3) he and Dunn moved from the duplex in St. Paul.

This evidence is relevant because it illuminated the relationship between Hoffman and Hjemboe and demonstrated Hoffman's motive and intent.  Further, the evidence clearly pointed to Hoffman's guilt of the prior bad acts.  See Volstad, 287 N.W.2d at 662 (concluding where district court failed to address issue of whether evidence of prior bad acts was clear and convincing, defendant not prejudiced if testimony clearly pointed to defendant's guilt of prior bad acts).  The district court should have determined that there was clear and convincing evidence that Hoffman committed the prior bad acts and that the probative value of the evidence outweighed any potential for unfair prejudice.  We conclude, however, that the district court's failure to make such a determination was not plain error.

II.  Jury Instructions

            Hoffman argues that the district court erred by failing to provide the jury with a limiting instruction regarding the proper use of the relationship evidence.  Generally, such instructions should be given before the admission of relationship evidence and at the end of trial, even if such an instruction is not requested.  Bauer, 598 N.W.2d at 365.  Failure to give the proper instruction where such instructions are not requested, however, is not grounds for reversal unless plain error is shown.  On review, there is no reversible error if the court’s jury instructions, when read as a whole, correctly state the law in language that can by understood by the jury.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).

Hoffman argues that the district court should have used the Spreigl limiting instruction outlined in CRIMJIG 3.16, which provides:

            The State introduced evidence in this case of an occurrence on _______ at _______. As I told you at the time that this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether defendant committed the crime(s) with which the defendant is charged in the (indictment) (complaint) I read to you. 

 

            Defendant is not being tried for and may not be convicted of any crime other than the crime charged in the (indictment) (complaint).  You are instructed specifically that you are not to convict defendant solely on the basis of any occurrence on _______ at _______. To do so might result in unjust, double punishment.

 

Bauer, 598 N.W.2d at 365 n.1.  But this instruction is merely a recommended limiting instruction.  State v. Frisinger, 484 N.W.2d 27, 30 (Minn. 1992).  In fact, the district court is given considerable latitude in selecting jury instruction language.  Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999).

            Here, the district court instructed the jury that

before [Hoffman] may be convicted of the offense charged you must find that she committed the specific offense.  You are not to convict [Hoffman] of any offense [she has] not been charged with.  The statutes of Minnesota provide that whoever violates a restraining order to cease the harassment of another person and knows of the order is guilty of a crime.

 

The court then outlined each element of the offense.  Additionally, in defense counsel’s closing argument, he stated

Hoffman is charged with driving down * * * [Hjemboe’s street].  * * *  As you heard the judge instruct you, you are not to consider whether she could possibly be guilty of any other crime other than what [she has] been charged with.

 

            Hoffman failed to object to the jury instructions, and her attorney adopted the court’s language during closing arguments.  See Cross, 577 N.W.2d at 726 (failure to object to instructions before given to jury generally constitutes waiver of right to appeal). Evaluating the jury instructions as a whole, it is evident that the jury was adequately informed that it could only convict Hoffman of the offense charged based on proof of the elements of the crime.  Thus, the district court’s jury instructions were not plain error.

III.  Questions from Jury

            Hoffman argues she was denied a fair trial because the district court failed to ensure that the jury considered only the act alleged in the complaint when determining whether she violated the harassment restraining order.  Specifically, Hoffman argues that the district court should not have allowed the jury to ask whether Hoffman legally violated the restraining order by driving by Hjemboe’s former residence because the question called for a legal conclusion.[1]  The district court told the jury, "I don’t know.  Don’t speculate on it.  Can’t answer that." 

No rule specifically prohibits or allows submission of jury questions.  In State v. Crawford, 96 Minn. 95, 104 N.W. 822 (1905), the Minnesota Supreme Court held that where no objection was made to the jury’s question and no motion was made to strike its answer, the district court’s decision to allow the question was not reversible error.  Id. at 100, 104 N.W. at 824.  In a more recent Minnesota case, State v. Costello, ___ N.W.2d ___ (Minn. App. Jan. 23, 2001), this court held that questions from juries do not per se violate “a defendant’s right to a fair trial by an impartial jury.”  This court added that the “process is within the sound discretion of the [district] court exercising its trial management authority” that will be reviewed on a case-by-case basis.  Id.

Here, the district court responded to the jury’s question only after an off-the-record discussion with both counsel.  Hoffman’s attorney neither objected to the question nor sought a curative instruction.  Therefore, the district court’s decision to allow the jury’s question did not violate Hoffman’s right to a fair trial and was not reversible error.

IV.  Prosecutor’s Closing Arguments

            Hoffman also contends that she did not receive a fair trial because the prosecutor answered the jury’s question in her closing argument by stating:

Now I’m not going to tell you whether or not [driving by Hjemboe’s former residence] is legal but I’ll tell you that that was in violation of the restraining order.

 

            A defendant has a duty to promptly object or seek curative instructions if a prosecutor makes an improper statement during closing argument.  State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  Generally, a defendant who fails to object or seek curative instructions is deemed to have waived the right to raise the issue on appeal.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997).  The failure to object implies that the defendant found nothing improper in the closing argument.  State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). 

Here, Hoffman did not object to the prosecutor’s comments made during closing argument nor did she seek a curative instruction from the district court.  Because Hoffman failed to do so, the issue has not been properly preserved, and Hoffman has forfeited the issue on appeal.

            Even if we chose to address the issue, however, we do not find the prosecutor’s comments unduly prejudicial.  A reviewing court may reverse a conviction even though a defendant did not raise the issue with the district court if the prosecutor’s comments were unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  A prosecutor may argue all reasonable inferences from evidence in the record but may not intentionally misstate the evidence or mislead the jury as to the inferences the misstatement may draw. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).

            Reviewing the prosecutor’s closing argument as a whole, the answer to the jury’s question comprised a minor portion of the entire argument.  The prosecutor clearly outlined the elements of the offense for the jury and told them that they needed to decide if Hoffman violated a term or condition of the restraining order by determining if Hoffman was "within 500 feet of [the St. Paul residence]."  Accordingly, the comments did not prevent Hoffman from receiving a fair trial and were not unduly prejudicial.  See Whittaker, 558 N.W.2d at 451 (reasoning any error was harmless where, upon review of prosecutor’s comments in context of entire closing argument, comments were not extensive and were not stressed to jury as basis for conviction).

V.  Sufficiency of Evidence

            In her pro se brief, Hoffman appears to be arguing the evidence was insufficient to support her conviction:  (1) she points to discrepancies between Dunn’s testimony and the police reports filed involving the slashed tires; (2) she asserts that prior bad acts testified to by Hjemboe sounded more like convictions than accusations; and (3) she identifies discrepancies in the testimony involving the fires at the duplex. 

            This court’s review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, supports the verdict. 

 

State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000) (citation omitted).  This court must assume "the jury believed the state’s witnesses and disbelieved any evidence to the contrary."  State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000) (quotation omitted), review denied (Minn.  Feb. 24, 2000).  "It is the jury’s prerogative to determine both the weight and the credibility of the evidence."  Id. (citation omitted).  The verdict will not be overturned if the factfinder could reasonably have found the defendant guilty of the charged offense, giving due regard to the presumption of innocence and to the prosecution’s burden of proof beyond a reasonable doubt.  State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).

            Because the evidence in the case was mostly testimonial, the outcome depended on who and what the jury believed.  See State v. DeWald, 463 N.W.2d 741, 749 (Minn. 1990) (recognizing that jury determines credibility and weight testimony should be given).  A review of Hoffman’s arguments and the record evidence demonstrate that any discrepancies in witness testimony were minor.  The jury was in the best position to evaluate any discrepancies in the testimony and to afford the proper weight to such evidence. Therefore, when viewed in the light most favorable to the conviction, there was sufficient evidence to support the conviction.

            Affirmed.



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

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

[1] The district court employed an unorthodox method of jury participation during trial when it informed the jury that "if [it had] a legitimate question," the court would "consider putting it to the witness."