This opinion will be unpublished and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

C5-00-712

 

State of Minnesota,

Respondent,

 

vs.

 

Ryan Mark Mussehl,

Appellant.

 

Filed March 27, 2001

Affirmed

Hanson, Judge

 

Ramsey County District Court

File No. K3 99 1605

 

 

 

Mike Hatch, Minnesota Attorney General, 525 Park Street, #500, St. Paul, Minnesota 55103;

 

Susan Gaertner, Darrell C. Hill, Ramsey County Attorney’s Office, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, Lawrence Hammerling, Jodie L. Carlson, State Public Defender’s Office, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.

 

U N P U B L I S H E D   O P I N I O N

HANSON, Judge

Appellant Ryan Mark Mussehl challenges his conviction of and sentence for first-degree assault and kidnapping.  Appellant argues that (1) the prosecutor committed prejudicial misconduct in closing argument in vouching for the truthfulness of the testimony of accomplices, and (2) the trial court erred in imposing consecutive sentences for first-degree assault and kidnapping.  We affirm.

FACTS

            On the night of June 5, 1999, appellant Ryan Mark Mussehl joined a group of youths who were drinking in an apartment on Payne Avenue in St. Paul.  Appellant and others left the apartment and continued to drink outside.  Later, they encountered the victim, Wayne Thole, stumbling and weaving as he walked down Payne Avenue, obviously intoxicated.  One member of the appellant’s group approached Thole, spoke to him for a moment, then punched him in the face.  Thole fell back and hit his head on a light pole.  The whole group left him on the ground and crossed the street.  When Thole got up from the ground, he crossed the street and began talking to the group of youths.  The group, including appellant, dragged Thole to the side of the building and began to beat him repeatedly and brutally.  Thole was seriously injured, resulting in permanent disability. 

            Appellant was charged with attempted murder in the second degree, aiding and abetting first-degree assault and kidnapping, in violation of Minn. Stat. §§ 609.05, 609.221, subd. 1, and 609.25, subds. 1(2) and 2(2) (1998).

            At trial, several of the youths testified against appellant, describing the level of his involvement in the group beating.  J.B. and E.T. testified that appellant participated in dragging Thole to the side of the apartment building, after the beating had begun and where it was continued.  S.T. testified that appellant punched Thole while others held him up.  At the conclusion of the state’s case, the district court granted appellant’s motion for judgment of acquittal on the charge of attempted murder in the second degree.  The jury then found appellant guilty of the two remaining counts, aiding and abetting assault in the first degree and kidnapping.  At sentencing, the district court imposed an executed sentence of 86 months (with 125 days custody credit) on the assault count and an executed consecutive term of 48 months on the kidnapping count.

            This appeal challenges the conviction on the grounds of prosecutorial misconduct and challenges the consecutive sentence for kidnapping.

D E C I S I O N

I.

 

            Appellant claims that he is entitled to a new trial because the prosecutor’s statements to the jury regarding the credibility of prosecution witnesses constituted prosecutorial misconduct. 

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.  The court’s determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial was denied.

 

State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).

            Appellant claims that the prosecutor committed misconduct when he stated during closing arguments that: (1) J.B. “told you the truth,” and (2) E.T. “told the truth before [she] ever came to court.”  Appellant claims that the error was prejudicial because (1) J.B. and E.T. were appellant’s accomplices who received deals from the state in exchange for their testimony, making them untrustworthy, and (2) their testimony exaggerated appellant’s involvement in the assault and kidnapping.

However, appellant failed to object at trial to the prosecutor's statements during closing arguments.

Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor's comments during closing argument if the defendant fails to object or seek cautionary instructions. 

 

State v. Bashire, 606 N.W.2d 449, 454 (Minn. App. 2000) (quotation omitted), review denied (Minn. Mar. 28, 2000).  Thus, appellant has waived his objection.

            Notwithstanding this waiver, we have the discretion to consider the conduct if

“(1) [there is] error; (2) that is plain; and (3) the error * * * affect[s] substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” 

Id.

            It is well-established that the prosecuting attorney may not express a personal opinion by endorsing the credibility of the witnesses.  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995); State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984); State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000), review denied (Minn. May 16, 2000).  However, “the prosecutor has a right to * * * vigorously argue that the state’s witnesses were worthy of credibility.”  State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). 

            Here, the prosecutor did not provide a personal endorsement, but only commented on witness credibility.  His statements were in response to appellant’s argument that E.T. and J.B. were “coached” and testified falsely because they received a deal from the state in exchange for their testimony.

            The prosecutor’s statements were virtually identical to those in Parker.  (“I think, they are telling the truth.”), as to which the court said:

Although we disapprove of closing arguments personally endorsing the credibility of the state’s witnesses and injecting personal opinion, we do not believe that the statements in the instant case reach the threshold of impropriety. 

 

353 N.W.2d at 128.

 

            Moreover, even if this had been prosecutorial misconduct, it would not necessarily require a new trial.  Porter, 526 N.W.2d at 365.  The evidence of appellant’s guilt was strong, the district court properly instructed the jury to base their verdict on the evidence and that counsel’s statements were not evidence, and appellant received a fair trial.  Any prosecutorial misconduct would be considered harmless and not grounds for reversal.

 

II.

Appellant claims that the district court erred in sentencing him to serve consecutively his 48-month sentence for kidnapping with his 86-month sentence for first-degree assault.  Specifically, appellant claims that a consecutive sentence is an upward departure from the sentencing guidelines and must be supported by aggravating factors.  See State v. Butterfield, 555 N.W.2d 526, 532 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). 

Appellant’s argument ignores changes in the sentencing guidelines.  Prior to 1996, the sentencing guidelines provided that consecutive sentences could be given for multiple current felonies only if the multiple current felony convictions were for crimes against different persons.  See Minn. Sent. Guidelines II.F. (1994).  The pre-1996 version of the sentencing guidelines also indicated that “use of consecutive sentences in any other case constitutes a departure from the guidelines and requires written reasons.”  Id

Effective August 1, 1996, the sentencing guidelines were amended as follows:

There are two situations in which consecutive sentences are presumptive; there are four situations in which consecutive sentences are permissive.  The use of consecutive sentences in any other case constitutes a departure from the guidelines and requires written reasons * * *.

 

* * * *

 

Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases:

 

* * * *

 

2.                  Multiple current felony convictions for crimes against persons may be sentenced consecutively to each other.

 

Minn. Sent. Guidelines II.F. (1998).  Simultaneously, the previous comment to the guidelines, explaining why permissive consecutive sentencing required that the crimes be to separate persons, was deleted in its entirety.  See Minn. Sent. Guidelines cmt. II.F.06 (1994). 

            Appellant relies on State v. Crocker, 409 N.W.2d 840 (Minn. 1987) and Butterfield, 555 N.W.2d at 526, to support his claim that the district court erred in imposing a consecutive sentence for his first-degree assault and kidnapping convictions.  However, these cases were decided before the 1996 amendments to the sentencing guidelines. 

Under the post-1996 sentencing guidelines, applicable to this case, consecutive sentences may be given without departure and require no stated reasons.  See Minn. Sent. Guidelines II.F. (1998) (stating that multiple current felony convictions for crimes against persons may be sentenced consecutively); Minn. Sent. Guidelines cmt. II.F.04 (“The commission’s policy on permissive consecutive sentencing outline the criteria that are necessary to permit consecutive sentencing without the requirement to cite reasons for departure”).  Accordingly, we find no error in the district court’s decision to impose a consecutive sentence for kidnapping.

Affirmed.