This opinion will be unpublished and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

C5-00-1438

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lowell Norbert Rolfzen,

Appellant.

 

 

Filed July 3, 2001

Affirmed; motion granted
Foley, Judge
*

 

Wright County District Court

File No. K6992847

 

 

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

 

Thomas N. Kelly, Wright County Attorney, 150 Government Center, 10 Northwest Second Street, Buffalo, MN 55313-1193 (for respondent)

 

Christine Funk, 106 South Main Street, Stillwater, MN 55082 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Foley, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            In November 1999, appellant Lowell Rolfzen was charged with two counts of first-degree criminal sexual conduct: one with a victim under the age of 13 and the other as a perpetrator in a position of authority.  A jury found appellant guilty of the charge of criminal sexual conduct as a perpetrator in a position of authority and the trial court sentenced him to 86 months in prison.  On appeal, appellant claims that reversible error occurred because (1) the state improperly addressed the victim during trial, (2) the trial court inappropriately instructed the jury on appellant’s failure to testify, and (3) a juror allegedly fell asleep during closing arguments and the trial court did not examine the juror.  We affirm the conviction.

            Appellant filed a motion to strike the appendix to the state’s brief and all references to it in the body of the brief, claiming that the affidavits in the appendix are not in the trial court record.  Appellant’s motion to strike is granted.

FACTS

 

            After the death of her father, S.B., her mother and two brothers moved to Buffalo, Minnesota, in July 1995.  Shortly thereafter, S.B.’s mother became reacquainted with appellant, who visited their home only a few times during the summer and fall of 1995.  S.B. testified that appellant began sexually abusing her in the summer of 1995, when she was 12 years old. 

By early 1996, appellant was dining with S.B. and her family once a week.  In May 1996, appellant broke his leg in an automobile accident and was unable to walk for months.  Consequently, S.B.’s mother drove S.B. to appellant’s home every Saturday to clean.  S.B. testified that the sexual abuse occurred almost weekly when she was left alone with appellant.  S.B.’s mother, however, testified that S.B. was left alone at appellant’s home on only two occasions.

            Appellant and S.B.’s mother married in July 1997 and he moved into S.B.’s home.  She testified that appellant would often wake her between 5:30 and 6:00 a.m. and sexually abuse her before her brothers and mother woke up.  There was conflicting testimony regarding the morning household routine after appellant moved in.  In September 1999, S.B. told a school social worker that appellant had been sexually abusing her since she was 12 years old, but that the abuse had recently stopped.

            After testimony was completed, the trial court stated on the record that counsel had discussed the jury instructions with the court in chambers and the court inquired as to whether counsel had further corrections.  Neither the state nor appellant’s counsel[1] had further changes.  When instructing the jury, the trial court included Minnesota Criminal Jury Instruction 3.17, which states that a defendant need not testify in his own defense and that no adverse inference should be drawn from his failure to testify.  See 10 Minnesota Practice, CRIMJIG 3.17 (1999).  The record does not indicate whether appellant asked the trial court to include this instruction.

            On May 3, 2000, the jury found appellant guilty on one of the two counts of criminal sexual conduct in the first degree.  Appellant moved for a new trial, contending that he was prejudiced by juror misconduct because a juror allegedly fell asleep during trial.  In June 2000, the trial court denied appellant’s motion.  Appellant was sentenced to serve 86 months in prison.  This appeal followed.

D E C I S I O N

I.

 

            Appellant seeks a new trial, arguing that the state committed reversible error in calling S.B. by her first name during direct examination after the trial court instructed counsel to address witnesses by their last names.  The trial court has sound discretion in deciding whether to grant or deny a new trial because of prosecutorial misconduct.  State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001).  On appeal, this court will reverse only if the misconduct, “viewed in light of the entire record, was so inexcusable, serious, and prejudicial that the defendant's right to a fair trial was denied.”  Id.

To succeed on a claim of prosecutorial misconduct, a defendant must show that misconduct occurred and that the misconduct was prejudicial.  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).  Generally, a defendant is considered to have waived the right to raise an issue regarding statements made by the prosecutor at trial if the defendant failed to object or seek a cautionary instruction.  State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996).  A defendant’s failure to object implies that the comments were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).

In this case, the prosecutor’s reference to S.B. by her first name was not prosecutorial misconduct.  Before trial, the prosecutor asked the trial court whether S.B. could be called by her first name.  The trial court instructed the parties to address S.B. by her last name, but commented that if the state could find authority to support its request, the court would reconsider.

Minn. R. Gen. Pract. 2.03(b) allows attorneys to refer to a child witness by the child’s first name.  In this case, S.B. was 17 when she testified at trial.  The prosecutor referred to S.B. by her first name numerous times during direct examination without objection from either appellant’s counsel or the trial court.  On cross-examination, appellant’s trial counsel also referred to S.B. by her first name.  His reference to S.B. by her first name and his failure to object imply that he did not find such reference prejudicial.  Even assuming misconduct occurred, nothing in the record suggests that addressing S.B. by her first name influenced the jury’s verdict.  See, e.g., State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000) (in cases involving less serious prosecutorial misconduct, misconduct is considered harmful if it likely played substantial part in influencing jury to convict).  Because we find no error in addressing S.B. by her first name, we find that the trial court did not abuse its discretion in denying appellant’s request for a new trial.

II.

Appellant argues that the trial court committed reversible error because he did not specifically request the jury instruction regarding a defendant’s right not to testify and because the court failed to ask appellant whether he understood its significance.  Generally, a trial court has discretion in determining the “propriety of a specific [jury] instruction.”  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  The trial court should not, however, give a jury instruction on a defendant’s right not to testify unless the defendant personally requests it.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  Additionally, the trial court or defense counsel should make a record regarding the defendant’s request.  Id

Although the record in this case indicates that appellant had no objections to the proposed jury instructions that counsel reviewed with the trial court, the record is silent as to whether appellant specifically requested or consented to the right-not-to-testify instruction.  The trial court thus erred by failing to obtain appellant’s explicit consent on the record.  See State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000) (finding trial court erred by providing right-not-to-testify instruction without defendant’s consent).

The fact that a record is silent as to a defendant’s jury instruction preference does not, however, constitute per se reversible error.  Id.  Instead, this court should conduct a harmless-error analysis to determine whether the defendant is entitled to a new trial.  See State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998) (finding trial court’s erroneous inclusion, without objection from defendant, of jury instruction containing provision of law never enacted was harmless error); State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (applying harmless-error analysis to trial court’s erroneous refusal to include requested jury instruction on accomplice testimony).

An “unobjected-to” error is plain error only if it seriously affects a defendant’s substantial rights and only if it likely played a substantial part in influencing the jury to convict.  See State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (applying plain error rule to prosecutorial misconduct in closing arguments).   We cannot say that, in this case, the instruction likely played a substantial part in the jury’s decision to convict.  Although the instruction may have unnecessarily emphasized appellant’s failure to testify in his own defense, it does not constitute reversible error.  Cf. Duncan, 608 N.W.2d at 558 (observing that, where witness credibility was central issue, unrequested jury instruction may have emphasized defendant’s failure to testify but did not constitute reversible error).  A review of the record indicates that the state presented ample evidence to support the jury’s verdict.  S.B.’s testimony was corroborated by the testimony of her friends in whom she confided and the school social worker.

While we admonish trial courts to obtain a defendant’s request for or consent to the right-not-to-testify jury instruction, we conclude in this case that appellant was not prejudiced by the inclusion of the instruction.  The trial court’s jury instruction error was, therefore, harmless.

III.

            Appellant argues that the trial court committed reversible error in denying him a new trial without first holding a Schwartz hearing to consider alleged jury misconduct.  A trial court may, at its discretion, authorize such a hearing.  Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  In evaluating the impact of a sleeping juror on a defendant’s right to a fair trial, the defendant “must show actual misconduct and that the misconduct resulted in prejudice.”  State v. Yant, 376 N.W.2d 487, 489 (Minn. App. 1985) (citing State v. Peterson, 262 N.W.2d 706, 707 (Minn. 1978); State v. Kyles, 257 N.W.2d 378, 381 (Minn. 1977)), review denied (Minn. Jan. 17, 1986). 

            A party must immediately inform the trial court of any allegations or suspicions of juror misconduct.  State v. Henderson, 355 N.W.2d 484, 485 (Minn. App. 1984) (citing Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (1977)).  “A party who learns of a misconduct of a juror during trial may not keep silent and then attempt to take advantage of it in the event of an adverse verdict.”  State v. Durfee, 322 N.W.2d 778, 786 (Minn. 1982) (citations omitted).

            In this case, one of appellant’s relatives informed appellant’s counsel after closing arguments that she had observed a juror sleeping during closing arguments.  Appellant’s counsel failed to promptly inform the trial court of the suspected juror misconduct.  The jury returned its verdict on May 3, 2000.  It was not until June 2000 that appellant brought a motion for a new trial claiming juror misconduct because of the allegedly sleeping juror.  Even then, appellant never specifically demanded that the trial court hold a Schwartz hearing, but instead moved for a new trial.  Nothing in the record indicates, nor has appellant shown, that a juror allegedly sleeping during closing arguments prejudiced him.  Finally, appellant waived the issue of alleged jury misconduct by waiting until after trial before claiming error.  See Yant, 376 N.W.2d at 491 (finding waiver of alleged jury misconduct by waiting for verdict before claiming error).  The trial court did not, therefore, abuse its discretion in denying appellant’s motion for a new trial on the basis of alleged juror misconduct.

IV.

            After appellant’s brief was filed, the state filed a motion with the trial court to supplement the trial record to include the content of a bench conference regarding addressing the victim by her first name.  The trial court denied the state’s motion and the content of the bench conference is not reflected in the trial transcript.  On appeal, the state provided in its appendix affidavits from the prosecuting attorney and appellant’s trial counsel, who is not the attorney representing him on appeal, pertaining to the bench conference and the trial court’s ruling on addressing the victim by her first name.  Appellant now moves to strike the state’s appendix and all references made to it, claiming that the appendix contains post-appeal affidavits that are not within the trial record and that the trial court has already denied the state’s motion to supplement the record with this information.  The state has not opposed the motion to strike on appeal.

            The record on appeal consists of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.  Minn. R. Crim. P. 28.02, subd. 8.  An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Because the affidavits contained in the state’s appendix are outside the record on appeal and the trial court denied the state’s motion to supplement the record, we grant appellant’s motion to strike.

            Affirmed; motion granted.



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

[1] Appellant’s attorney on appeal was not his trial counsel.