This opinion will be unpublished and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

C4-00-1088

 

 

State of Minnesota,

Respondent,

 

vs.

 

Willie E. Holmes,

Appellant.

 

Filed March 27, 2001

Affirmed

Schumacher, Judge

 

Olmsted County District Court

File No. K1992455

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)

 

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

 

 

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellant Willie E. Holmes challenges his conviction for first-degree aggravated robbery and the revocation of his probation, arguing that (1) the evidence was insufficient to support the conviction; (2) prosecutorial misconduct entitles him to a new trial; (3) the trial court committed additional errors; and (4) the trial court abused its discretion in revoking his probation. We affirm.

FACTS

Cynthia Rosa lived in an apartment with Holmes and her four-year-old son, Damon. The relationship was rocky because of Holmes's drug use. Rosa chose to change the locks when Holmes took her VCR and exchanged it for drugs. The next day, Holmes came to Rosa's apartment seeking money. Holmes forcibly took two $50 bills and a blank check from Rosa's purse.

After Holmes left the apartment, Rosa called 911. Rosa told both the 911 dispatcher and the officer who first arrived on the scene that Holmes came into her apartment, pushed her down, took money out of her purse, and threatened her with a knife.

Prior to trial, Rosa wrote a letter denying some of her previous statements to the police. At trial, Rosa testified that Holmes took money from her purse prior to grabbing the knife in the kitchen. She also testified that after Holmes grabbed the knife, he threatened to hurt himself, not her, with the knife. Rosa was impeached with her earlier statements to the 911 dispatcher and with her interview with the police.

Holmes denied intentionally using force on Rosa. He also explained that he grabbed the knife after he took money from Rosa's purse, and that he only did this to invoke sympathy from Rosa.

A jury found Holmes guilty of first-degree aggravated robbery. Holmes received a stayed sentence of 78 months. Additionally, he was ordered to serve 12 months in jail and was given credit for time served. Holmes served the remaining time in jail and was released on electronic home monitoring in accordance with the probation agreement. Within a month, Holmes went to Minneapolis without permission, in violation of his electronic home monitoring. When Holmes returned and turned himself in, the police asked him to provide urine for a drug test. Holmes had two opportunities to provide a sample within a one and a half hour period, but both times he said that he was unable to urinate.

On June 12, 2000, a probation revocation hearing was held. The trial court found that Holmes could have provided a urine sample the second time he was asked and that Holmes's refusal constituted a violation of probation. At a later hearing, Holmes admitted that he left electronic home monitoring willingly. He justified leaving because he was frustrated with the probation restrictions and he was angry over the guilty verdict and Rosa's testimony. He also explained that his medication was discontinued upon leaving jail, he did not have insurance to cover it, and he could not make a livable wage. The trial court revoked probation, finding that Holmes was no longer amenable to probation because the events that Holmes claimed triggered his violation will always be present in his life.

D E C I S I O N

1. Holmes argues that the evidence was insufficient to sustain the jury's verdict. We disagree. 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 that 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 reviewing court will not disturb the verdict 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).

Here, Holmes's argument focuses solely on how Rosa's recantation and her trial testimony differed from her statements made immediately after the crime. Because the jury determines credibility, and because the verdict is consistent with the jury believing Rosa's prior statements and disbelieving her subsequent recantation, Holmes's argument is unconvincing. See State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) ("Deciding the credibility of witnesses is generally the exclusive province of the jury." (citations omitted)). The jury could reasonably conclude that Rosa's statements to the police immediately following the robbery were more credible than her later recantation.

Additionally, Holmes argues that there was no evidence that Rosa sustained "bodily harm" because the scrape she received during the robbery was insubstantial. But the jury found that Holmes used a weapon in commission of the robbery, and thus we do not need to decide whether a scrape is sufficient to constitute bodily harm. See Minn. Stat.  609.245, subd. 1 (1998) (stating that aggravated robbery requires use of dangerous weapon or infliction of bodily harm).

2. Holmes argues that two statements the prosecutor made during his cross-examination denied him his right to a fair trial. We disagree. Whether a court should grant a new trial because of prosecutorial misconduct is not governed by any fixed rule, but rests within the discretion of the trial court. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The appellate court should only reverse the district court if the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that a defendant's right to a fair trial was denied. State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996). Reviewing courts pay "special attention" to statements that may inflame or prejudice the jury when credibility is a central issue. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).

Holmes contends that the prosecutor's allegedly sarcastic response to a question answered by Holmes constituted prosecutorial misconduct. Holmes did not object to this statement and a review of the record shows that the prosecutor was referring to Holmes's answer as clearing up a misunderstanding by the prosecutor. The failure to object implies that Holmes found nothing improper with the statement at the time. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).

When assessing a claim of prosecutorial misconduct, the reviewing court must first examine the challenged conduct and determine whether the prosecutor committed misconduct. See State v. Bright, 471 N.W.2d 708, 711-12 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991). If the court so finds and the conduct is less serious, as it is here, the test is "whether the misconduct played a substantial part in influencing the jury to convict." State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (citation omitted).

Holmes also contests the following exchange during his cross-examination:

Prosecutor: I'm asking a question about your feelings and your perception of Ms. Rosa's feelings.

 

* * * *

 

Holmes: Can you describe positive feelings, please?

 

Prosecutor: No, I don't think I can. I think I've heard as much as I want. Thank you.

 

Holmes's attorney objected to this comment, stated the prosecutor's tone was sarcastic, and mentioned that the prosecutor made an odd expression towards the jury while making the comment. The trial court instructed the jury that counsel's comments are not evidence, and Holmes did not request a further curative instruction. Although the prosecutor offered to apologize to the jury, the trial court decided not to bring additional attention to the comment. The trial court found that the comment was not overly prejudicial or improper.

We find that one statement that was followed by a curative instruction and not overly prejudical did not deny Holmes his right to a fair trial. First, the statement was brief in the context of a two-day trial. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (stating that there is less likelihood of prejudice when improper comments are brief and isolated). Second, we assume that the jury followed the trial court's instruction and disregarded the prosecutor's statement and facial response. See, e.g., State v. Miller, 573 N.W.2d 661, 675-76 (Minn. 1998) (reviewing court assumes that jury followed district court's curative instructions). Moreover, Holmes did not request a different curative instruction. See State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999) (stating that failure to seek cautionary instruction generally waives issue on appeal), review denied (Minn. Aug. 25, 1999). We find that the trial court did not abuse its discretion in denying Holmes's motion for a new trial based on the improper comment by the prosecutor.

3. Holmes also asks us to review his other trial motions for error, but he presents no argument or case law explaining what error is presented in these decisions. We conclude the request for review is waived. See State v. Butcher, 563 N.W.2d 776, 780-81 (Minn. App. 1997) (finding that where appellant fails to make and develop argument other than general assertion of error, issue may be deemed waived), review denied (Minn. Aug. 5, 1997).

4. Holmes argues that the trial court abused its discretion by revoking his probation.

The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.

 

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted). To revoke probation, the district court must find clear and convincing evidence that a defendant violated the conditions of his probation. Minn. R. Crim. P. 27.04, subd. 2(1)(b); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). Before probation can be revoked, the district court must (1) specify the condition or conditions that were violated, (2) find that the violation was intentional and inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250.

Holmes argues that the trial court did not properly weigh the third Austin factor, whether the confinement outweighed the policies favoring probation. We disagree. "The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed." Id. Grounds for revocation include finding that, on the basis of the original offense and the intervening conduct, failing to revoke probation would denigrate the seriousness of the probation violation. Id. at 251.

Less judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history.

 

Minn. Sent. Guidelines III.B. The district court should exercise "great restraint * * * when considering increasing the severity of the sanction based upon non-criminal technical violations of probationary conditions." Id., cmt. III.B.01.

Here, the court did balance Holmes's ability to succeed on probation against the need for confinement. The trial court found that the reasons that caused Holmes to violate his probation will always be present. See Austin, 295 N.W.2d at 251 (stating that revoking probation may not be reflexive action and instead requires showing that offender "cannot be counted on to avoid antisocial activity" (quotation omitted)). We cannot say on the record before us that the trial court abused its broad discretion in revoking Holmes's probation.

Holmes argued in his pro se supplemental brief that his inability to take a urine test an hour and a half after the initial request should not be considered a denial. In essence, he argues that because the jail normally allows two hours for a probationer to submit a urine sample, this was an improper basis to revoke his probation. The trial court acted within its discretion in finding that the time spread was adequate. Cf. Moot, 398 N.W.2d at 23 (stating that in probation-violation proceeding trial court acts as fact-finder and weighs credibility of witnesses).

Affirmed.