This opinion will be unpublished and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
State of Minnesota,
George Elkington Gaiti,
Filed April 17, 2001
Hennepin County District Court
File No. 99053083
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jay Heffern, Minneapolis City Attorney, Scott Robert L. Christenson, Assistant Minneapolis City Attorney, Office of the City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent)
Keith Ellison, Hassan & Reed, 2311 Wayzata Blvd., Minneapolis, MN 55405 (for appellant)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Huspeni, Judge.*
TOUSSAINT, Chief Judge
This appeal is from a misdemeanor conviction for indecent exposure. Because we conclude that the prosecutor did not commit prejudicial misconduct and that the evidence is sufficient to support the conviction, we affirm.
Appellant George Gaiti was arrested on May 19, 1999, for indecent exposure in a hotel men’s room after he exposed himself to an undercover police officer the hotel had hired and posted there in response to previous complaints. Gaiti was a former business tenant of the hotel who had operated a retail store within the hotel building. Gaiti and his wife testified that Gaiti was arrested near the hotel escalator after they had visited the hotel’s business center. Gaiti denied that he had visited the men’s room that day. The state sought to present Spreigl evidence that Gaiti had been ticketed in the same men’s room in 1998 for indecent exposure. The trial court, however, ruled at the end of the state’s case that this evidence was inadmissible.
The jury found Gaiti guilty. The trial court stayed the sentence under Minn. Stat. § 609.135, while indicating the conviction could be vacated and the charge dismissed after one year. The trial court, however, issued an order directing that judgment be entered on the jury’s verdict.
D E C I S I O N
The special term panel has deferred to this panel the question whether this court has jurisdiction over the appeal, as well as the state’s request to expand the scope of review. See generally Minn. R. Crim. P. 28.02, subd. 2(1) (providing criminal defendant has right of appeal when sentence is imposed or its imposition stayed). The terms of Gaiti’s sentence are uncertain, but the state has dropped its challenge to the sentence. Therefore, we need not address the scope of review issue. This court has recently held that the trial court has no authority, as part of a stay of imposition, to defer or stay entry of judgment on the conviction. State v. Ohrt, 619 N.W.2d 790, 792 (Minn. App. 2000). Because the state does not challenge the disposition, and because the trial court issued an order directing that judgment be entered on the jury’s guilty verdict, we accept jurisdiction over the appeal.
Gaiti argues that the prosecutor committed prejudicial misconduct in the presentation of evidence and in closing argument. First, Gaiti contends that the prosecutor improperly elicited testimony about the 1998 Spreigl incident, which was ultimately ruled inadmissible. But the record shows that the prosecutor, while trying to show Gaiti was aware of the sexual misconduct occurring in the men’s room, was careful not to suggest Gaiti himself had committed such misconduct until defense counsel “opened the door” to that evidence.
It is critical to our analysis that Gaiti, as a former business tenant at the hotel, could have had an innocent source of knowledge concerning the men’s room misconduct. Thus, the prosecutor in questioning the hotel’s manager about Gaiti’s knowledge was not improperly inferring Gaiti had committed a prior offense there. It was defense counsel who insisted on pinning down the hotel manager on cross-examination, to the point of eliminating at least one innocent explanation for Gaiti’s knowledge - notification by the hotel to its tenants. The prosecutor at one point asked to approach the bench, attempting to cut short this line of questioning. Defense counsel, however, continued. We believe that defense counsel, in attempting to create the erroneous inference that Gaiti had no basis for knowing about the men’s room activities, “opened the door” to testimony about his 1998 offense. See generally State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997) (holding that the defense “opened the door” to character evidence). Although appellant claims the prosecutor had already elicited testimony about the 1998 offense, the record establishes that the prosecutor’s earlier question concerned the May 1999 charged offense.
Gaiti’s other claims of prosecutorial misconduct concern the closing argument. We agree with the state that three of these claims are without merit. First, the prosecutor in her closing did not make any reference to the 1998 Spreigl incident. Second, although the prosecutor referred to the web site listing the men’s room, testimony about the web site had been admitted. It was only the hard copy of the web page that the trial court excluded. Third, the prosecutor, while using the first-person pronoun at several points, did not express a personal opinion about Gaiti’s guilt or innocence or the credibility of any witness.
The state concedes that the prosecutor improperly asked the jury to “convey a message” that indecent exposure in a restroom was an offense serious enough to warrant prosecution. See generally State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993) (explaining that jury’s role is not to use the verdict to make public statement or “let the word go forth” but only to determine whether defendant has been proved guilty); State v. Thompson, 520 N.W.2d 468, 472 (Minn. App. 1994) (holding that prosecutor’s argument may have improperly implied jury could serve public safety by finding defendant guilty), review denied (Minn. Oct 27, 1994). The trial court properly sustained defense counsel’s objection to this statement. Defense counsel, however, did not ask the court for a curative instruction. See State v. Sewell, 595N.W.2d 207, 214 (Minn. App. 1999), (holding defendant has an affirmative duty to request cautionary instruction following improper argument), review denied (Minn. Aug. 25, 1999).
We conclude that, even assuming the jury considered the improper argument despite the objection to it being sustained, it did not likely play a substantial part in influencing the jury to convict. See id. (applying harmless error standard). First, defense counsel chose to respond to the improper argument at the beginning of his own summation. Second, an argument that the jury should “convey a message” only that a crime is serious enough to prosecute is not particularly inflammatory compared to the “public safety” arguments used in other cases. Finally, the state’s case was very strong.
Gaiti argues that the evidence is insufficient to prove that he “willfully and lewdly” exposed his private parts. In reviewing the sufficiency of the evidence, this court is limited to determining whether the evidence, when viewed in the light most favorable to the state, was sufficient to permit the jurors to find the defendant guilty beyond a reasonable doubt. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).
The undercover officer’s testimony was amply sufficient to prove that Gaiti “willfully and lewdly” exposed himself in a place “where others [were] present.” Minn. Stat. § 617.23, subd. 1(1) (2000). Gaiti cites no authority to support his argument that proof of willful exposure requires that sexually explicit language accompany the act.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.