This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Pine County District Court
File No. K699551
Michael A. Hatch, Minnesota Attorney General, John B. Galus, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
John K. Carlson, Pine County Attorney, Suite 8, 315 Sixth Street, Pine County Courthouse, Pine City, MN 55063 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
A jury found appellant Ronald Lee Otterson guilty of felon in possession of a firearm and fifth-degree possession of a controlled substance. On appeal Otterson alleges the following: (1) a jury instruction on permissible-inference constitutes reversible error; (2) he was entitled to a mistrial when the jury heard comments related to his prior convictions; (3) admission of evidence that his ex-girlfriend’s picture was used for target practice was impermissibly prejudicial; and (4) prosecutorial misconduct requires reversal. Because the district court did not commit reversible error and the prosecutor did not commit prejudicial misconduct, we affirm.
On the night of June 15, 1999, a Pine County deputy investigated a resident’s complaint of a prowler near her garage, who then crossed the street to a neighbor’s house. As the deputy was talking with the resident, a pickup truck approached at a high rate of speed and turned into the neighbor’s driveway. The deputy went to the neighbor’s house and spoke with four people, including appellant Ronald Lee Otterson. Otterson told the deputy that he was the owner of the pickup. The deputy suspected that Otterson was intoxicated and asked him to perform field-sobriety tests. Otterson consented to the deputy’s request to search the pickup. The deputy discovered a baggie of marijuana in the pickup. Otterson denied that the marijuana was his, but revealed that there was a shotgun behind the front seat of his pickup. Otterson said that the shotgun belonged to a friend. The deputy retrieved an unloaded shotgun with five shells wrapped around its stock from behind the seat of Otterson’s pickup.
Later that night, deputies searched Otterson’s residence pursuant to a warrant. They found a digital scale next to a box of plastic baggies. They also discovered rounds of ammunition similar to those fastened to the shotgun found in Otterson’s pickup. In Otterson’s backyard, the deputies found a target with a shot-up photograph of a woman on it, surrounded by spent shell casings. During questioning after the search, Otterson admitted that the marijuana from the pickup belonged to him and that he had placed it in the pickup. Otterson identified the woman in the photograph as an ex-girlfriend. Otterson was charged with felon in possession of a firearm and fifth-degree possession of a controlled substance.
At the close of Otterson’s jury trial, the district court gave a permissive-inference jury instruction on the marijuana charge. The jury returned guilty verdicts on both charges, and the district court imposed the mandatory minimum sentence of 60 months (5 years) for the felon-in-possession-of-a-firearm conviction.
1. Permissive-Inference Instruction
Otterson argues that the district court committed reversible error by instructing the jury on the permissive-inference of knowing possession of marijuana. Otterson argues that the permissive-inference instruction over-emphasized his control of the pickup where the marijuana and shotgun were found, which created an unbalanced charge to the jury. The district court exercises considerable latitude in selecting the language for jury instructions. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). This court will not reverse a district court’s decision unless the district court abused its discretion in the wording of the jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). The charge to the jury must be read as a whole, and if the charge correctly states the law in language that can be understood by the jury, there is no reversible error and we will not grant a new trial. Peou, 579 N.W.2d at 475.
Otterson argues that the district court violated the supreme court’s express disapproval of permissive-inference instructions stated in State v. Olson, 482 N.W.2d 212 (Minn. 1992), and State v. LaBatte, 482 N.W.2d 217 (Minn. 1992). The instruction given in Olson “permit[ted] the factfinder to infer knowing possession of the controlled substance by each person in close proximity to the controlled substance when the controlled substance was found.” 482 N.W.2d at 215 (citing Minn. Stat. § 152.028, subd. 1 (1990)). Olson held that the instruction was imbalanced because it “singled out and unfairly emphasized one factor, * * * thereby suggesting to the jury that in the court’s opinion that factor was of greater importance than other relevant factors,” and the court failed to expressly inform the jury that they were not required to draw the inference. 482 N.W.2d at 216. In addition, the Olson court was troubled by the prosecutor’s emphasis on the fact that the inference was a statutory inference. Id. The Olson court reversed and ordered a new trial because it was not convinced that Olson would have been convicted without the permissive-inference instruction. Id.
In LaBatte, a police officer spotted a plastic bag containing cocaine on the driver’s seat during a routine traffic stop. 482 N.W.2d at 217. When the officer asked the defendant-driver if the bag belonged to him, he responded that he was “in a big jam.” Id. at 218. The district court instructed the jury that it could “infer knowing possession of [the controlled substance found in the automobile] by the driver or person in control of the automobile when the [controlled substance] was in the automobile.” Id. Like Olson, the prosecutor in LaBatte emphasized that the inference was statutory. Id. The supreme court held that the instruction constituted error, but determined that the error was not prejudicial because the drugs were found on the driver’s seat and the defendant’s behavior at the scene was highly indicative of guilt. Id.
Unlike Olson and LaBatte, the permissive-inference instruction given here specifically cautioned the jury that it “should consider all the evidence presented,” and twice advised the jury that it was “not required” to draw an inference that Otterson possessed the marijuana. The instruction accurately stated the law in easy-to-understand terms. See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (observing if instruction correctly states the law and can be understood by jury when read as a whole, no reversible error exists). Moreover, the prosecutor here did not argue that the permissive inference was statutory. The jury instruction given in Otterson’s trial does not suffer from the deficiencies identified in Olson and LaBatte, and therefore does not constitute reversible error.
Even if the permissive-inference instruction was erroneous, the harmless-error analysis applies. Olson, 482 N.W.2d at 216; see State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989) (noting harmless-error analysis requires new trial if error is prejudicial, but not if error is harmless). Here, Otterson’s admission that the marijuana was his and that he had placed it in the pickup, was in evidence. Under these circumstances, any error in giving the instruction was harmless.
2. References to prior convictions
Prior to trial the district court excluded evidence of Otterson’s prior convictions. During trial, however, the arresting deputy played a portion of Otterson’s taped interrogation, but failed to turn off the tape until after the jury heard the deputy say to Otterson, “you got a prior.” Otterson objected and moved for a mistrial. See State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979) (observing the state has a duty to properly prepare its witnesses prior to trial to avoid the problem of improper testimony being blurted out). The district court denied Otterson’s motion for mistrial, reasoning that the jury only heard the term “prior,” which lay persons would not associate with a prior conviction of a criminal offense. Because of the problems with playing the tape, the
court had the remainder of Otterson’s interrogation read to the jury. While reading the transcript, the deputy inadvertently read Otterson’s statement, “Yeah, it’s like five more years.” Otterson objected and requested a specific cautionary instruction that the jury should not consider previous punishment. The district court refused, reasoning that the statement did not clearly indicate a prison term to the jurors, and that a specific cautionary instruction would only reveal that fact and focus the jury’s attention on Otterson’s previous imprisonment. Although the district court denied Otterson’s specific cautionary instruction, it instructed the jury to disregard the statement.
Otterson argues that the district court erred in denying his request for a mistrial. “The standard of review for denial of motion for a mistrial is abuse of discretion.” State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). Testimony that permits the jury to infer that the defendant has a prior record is generally inadmissible. State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974). Otterson correctly points out that even if a prosecutor unintentionally elicits such testimony, as here, this court may reverse if it believes that the testimony prejudiced the defendant’s case. Id. Here, however, the jury heard only the phrases “you got a prior,” and “[y]eah, it’s like five more years.” While the phrase “you got a prior,” may function as shorthand for prior conviction or prior offense within the criminal-law community, the meaning was not so apparent to the jury as to constitute prejudice. The meaning of “[y]eah, it’s like five more years,” moreover, is unintelligible when placed in context:
[Otterson] INAUDIBLE now I’m not and you know INAUDIBLE. I mean this…INAUDIBLE you know. I think it would.
[deputy] 45 years old?
[deputy] And this is like a big door just got slammed in your face.
[Otterson] Yeah, it’s like five more years INAUDIBLE.
(Emphasis added.) Jurors could not have reasonably understood this statement to refer to Otterson’s previous incarceration. Neither remark prejudiced the jury to the extent that a new trial is necessary, and the district court did not abuse its discretion by denying the motion for a mistrial.
Otterson alleges that the district court’s failure to give a requested cautionary instruction is reversible error. Whether remarks require a cautionary instruction is a matter left to the discretion of the district court. Muehlhauser v. Erickson, 621 N.W.2d 24, 30 (Minn. App. 2000). Although the district court did not give Otterson’s specific cautionary instruction, it did instruct the jury to ignore the “five more years” statement. At the end of the trial, the district court also reminded the jury to disregard any evidence it had been previously instructed to ignore. See State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998) (“Courts presume that juries follow the instructions they are given.”). The district court did not abuse its discretion by concluding that the specific instruction requested would cause the very prejudice the original exclusion was designed to avoid.
References to target photograph
Otterson argues that the district court erred by admitting evidence of the photograph of his ex-girlfriend being used as a target in his backyard. Otterson asserts this constituted evidence of prior bad acts that were more prejudicial than probative under Minn. R. Evid. 403. A district court may exclude relevant evidence if its prejudicial impact outweighs its probative value. Minn. R. Evid. 403. The district court has broad discretion in determining admissibility under Rule 403. See State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997) (noting rulings on evidentiary matters will not be disturbed on appeal absent clear abuse of discretion). Otterson claims that the evidence was unfairly prejudicial because it reveals a “depraved mind.” The evidence tended to show that Otterson, rather than someone else, was in possession of the firearm. The district court did not clearly abuse its discretion.
3. Prosecutorial misconduct
Otterson alleges that the prosecutor committed reversible misconduct during the state’s closing argument. When reviewing a claim of prosecutorial misconduct, we decide “whether the challenged conduct was: (1) in error; and (2) so prejudicial that itconstituted a denial of the defendant’s right to a fair trial.” Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999) (citations omitted). Whether to grant a new trial because of prosecutorial misconduct rests largely within the discretion of the district court. State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000); see State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (indicating district court is in best position to appraise effect of any misconduct).
Otterson asserts that the prosecutor disparaged his defense. At trial, Otterson’s witness, David Jabbe, testified that he was the actual owner of the shotgun found in Otterson’s pickup. The prosecutor stated that Jabbe’s testimony served only to confuse jurors by diverting their attention to ‘ownership’ as opposed to ‘possession,’ thereby blurring the distinction between the two:
And I submit the only reason [Jabbe’s ownership testimony is] brought up is to confuse the jury and I think confusing the jury is any [sic] way to try a case and I don’t agree with it but I just wanted to point out to you that it does happen, that it is a tactic that if facts, relevant facts are against you, divert the jury’s attention to irrelevant facts.
“The context of [a] comment is important in evaluating its propriety.” State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993); see State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (recognizing prosecutor’s closing argument must be “taken as a whole and no single phrase is to be taken out of context and used as a basis for reversal”), review denied (Minn. Mar. 18, 1988). In the context of the trial, the prosecutor’s statement properly called into question an anticipated defense argument. See State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994); State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (“We have made it clear that the prosecutor is free to specifically argue that there is no merit to a particular defense in view of the evidence or no merit to a particular argument, and prosecutors are of course free to make arguments that reasonably anticipate arguments defense counsel will make in closing argument.”) (citation omitted). The prosecutor’s argument did not constitute misconduct.
Otterson argues that the prosecutor further disparaged his defense by indicating that the element of possession created an opportunity for confusion:
So, Ladies and Gentlemen, what we’re left with is the first element on both charges and this is what I expect to be the key contention of the defense, I submit not because the evidence on this element is any less overwhelming but simply because the law presents an opportunity for confusion.
The prosecutor’s purpose was to clarify a confusing element of the two charges, which does not amount to misconduct. Even assuming misconduct, however, the district court instructed the jury to focus on the law as given by the court: “If an attorney’s argument contains any statement of the law that differs from the law I give you, disregard the statement.” See State v. Bright, 471 N.W.2d 708, 713 (Minn. App. 1991) (indicating impact of prosecutorial misconduct was lessened by the court’s instructions), review denied (Minn. Aug. 1, 1991). The prosecutor’s statements did not substantially influence the jury to convict Otterson.
Finally, in a footnote, Otterson asserts two other instances of prosecutorial misconduct. In his opening statement, the prosecutor told the jury that his “job is, with your help, to make sure people who commit crimes in this county are brought to justice.” Otterson objected and the district court sustained the objection, giving a cautionary instruction that it would “instruct the jury as to its role.” During its charge to the jury following closing arguments, the district court fully instructed the jury on its proper role. Any prejudicial effect of the prosecutor’s opening remarks was mitigated by the district court’s instructions. See Bright, 471 N.W.2d at 713. Also, Otterson complains that the prosecutor described the legal concept of reasonable doubt as a “fuzzy term, not clearly defined,” before reading the legal definition of reasonable doubt to the jury. Otterson concedes, however, that he failed to object to this statement and we need not consider it on appeal. See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (noting defendant who fails to object to prosecutor’s statements is deemed to have forfeited the right to have the issue considered on appeal). The district court did not abuse its discretion by denying the motion for a new trial for prosecutorial misconduct.
The deputy determined that Otterson was not intoxicated.
Otterson was also charged with violation of a restricted driver’s license, but this was not presented to the jury and is not a subject of this appeal.
The district court did not sentence Otterson for the fifth-degree controlled-substance conviction.
 Modeled after Minnesota’s criminal jury instructions, the district court’s instruction read:
In determining whether or not it has been proven beyond a reasonable doubt that the defendant was in knowing possession of marijuana, you should consider all the evidence presented.
The law allows but does not require you to find knowing possession from proof beyond a reasonable doubt that the defendant was the driver or in control of a passenger automobile and the marijuana was present in the automobile. If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed marijuana.
(Emphasis added.); see 10A Minnesota Practice, CRIMJIG 20.56 (1999).
Minnesota law allows the factfinder to draw an inference of drug possession from control of the automobile where the drugs are found:
The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile.
Minn. Stat. § 152.028, subd. 2 (1998).
Otterson theorizes that the juxtaposition of the firearm and marijuana instructions misled the jury into using the marijuana instruction in deliberations on the firearm charge. Otterson’s speculation fails to persuade, as the permissive-inference instruction on the marijuana possession was, by its own terms, limited to the marijuana charge.
 Even assuming jurors drew the inference that Otterson had a prior record or had been in prison, it is unlikely that this would have influenced the jury’s decision to find Otterson guilty, given the strong evidence presented by the state. See generally State v. DeVere, 261 N.W.2d 604, 605-06 (Minn. 1977) (finding no prejudice where inadvertent testimony from arresting officer revealed defendant was a prostitute, which jury reasonably could infer from other evidence presented); State v. Anderson, 391 N.W.2d 527, 532 (Minn. App. 1986) (declining to reverse conviction despite reference to defendant’s previous incarceration).
 Otterson asserts that the district court failed to make a required determination under Rule 403 that the probative value of the evidence outweighed its highly prejudicial nature. Contrary to Otterson’s assertion, Rule 403 imposes no requirement for a specific finding when such evidence is admitted rather than excluded. See generally Minn. R. Evid.403 1977 comm. cmt.