This opinion will be unpublished and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
Hennepin County District Court
File No. 00028940
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Larry Smith, MCF - Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a second-degree assault conviction and sentence, appellant Larry Smith argues that the trial court abused its discretion in declining to instruct the jury on the lesser-included charge of fifth-degree assault. Smith argues that there was a rational basis for the jury to conclude that he punched the victim but did not aid his accomplice in the more serious assault. Smith also argues that the prosecutor committed prejudicial misconduct in closing argument by injecting her personal opinion regarding Smith’s credibility, disparaging Smith’s defense, and suggesting that the defense had a burden of proof. Finally, Smith argues that the trial court erroneously believed it had no discretion to impose a fine below the “mandatory minimum.” We affirm.
Smith, accomplice John Turnage, and the victim were employed as car detailers at an auto garage. The victim left a wash stall, where he was working on a car, for a short time while he assisted a coworker. While the victim was assisting the coworker, Smith moved the car the victim had been working on out of the wash stall. The victim became angry and approached Smith, swearing about the car having been moved. When the victim was about six feet away from Smith, Smith approached him “with fire in his eyes.” Using both of his hands, the victim pushed Smith away. Smith approached the victim again, and a struggle ensued.
Smith got the victim into a headlock. While Smith held the victim in the headlock, Turnage approached and began hitting the victim on his back and the back of his head. The victim testified that he heard Smith say to Turnage, “Get my knife out of my sock.” Gary Patch, a coworker who witnessed the assault, testified that Smith told Turnage to “get my” knife, but Patch recalled that Smith used a slang word for knife. Turnage left for a few seconds and returned with a tool used to remove stickers from cars. The tool is about 12 inches long, looks like a screwdriver, and has a razor blade attached at one end.
Smith held the victim and encouraged Turnage to “get him” as Turnage swung the razor tool at the victim. Turnage cut the victim’s arm with the razor and tried to stab the victim in the head and other places, but at some point, the razor blade had broken off of the tool. After his arm was cut, the victim got away from Smith and attempted to leave the area. As the victim attempted to leave, Turnage picked up a vacuum hose with a metal end and began hitting the victim with it on his back and the back of his head.
About a half minute later, the victim got away and went into the office of an adjoining business. Smith and Turnage followed the victim, and Turnage continued hitting him in the back of the head with the vacuum hose. The owner of the adjoining business, Robert Letendre, told Smith and Turnage to leave. They left, and Letendre called 911. Fearing a further assault by Smith and Turnage, the victim also left Letendre’s office. As the victim ran across a parking lot, Smith, who had picked up a long stick, ran after the victim and threw rocks at him.
The victim sustained a large cut on his arm and several smaller abrasions on his abdomen, back, and head. The cut on the arm partially lacerated a tendon and caused nerve damage. The injury required surgery.
Smith testified that he did not move the vehicle the victim had been working on until after the victim failed to respond when Smith asked if the victim was done washing it. After Smith moved the vehicle, the victim advanced toward him cursing loudly. Smith was scared, so he stepped back from the victim. The victim shoved Smith, came toward him, and they “locked up.” They were shoving, punching, and wrestling with each other. The victim had his arms wrapped around Smith’s waist, so Smith grabbed the victim’s head to avoid being slammed into the ground. Smith and the victim fell into the open door of a vehicle and Smith ended up pinned on the floor, unable to see what was going on behind the victim.
The fight broke up, and Smith started walking towards Letendre’s office. The victim, followed by Turnage, ran by Smith. Smith left Letendre’s office at Letendre’s request. Smith, Turnage, and the victim stepped out of the building into a parking lot at the same time. The victim went into a paint shop, and Smith followed him, fearing that the victim might be going to get a weapon. The victim left the shop and ran across the highway in front of the shop, continuing to yell threats at Smith as he ran.
Smith denied telling Turnage to “get him” or “get a knife.” Smith denied seeing Turnage assault the victim with the razor and the vacuum hose. Smith denied chasing the victim towards Letendre’s office, hitting the victim outside of Letendre’s office, holding a stick, and throwing rocks at the victim.
D E C I S I O N
1. Smith argues that the trial court erred in declining to instruct the jury on the lesser-included offense of fifth-degree assault. The decision whether to instruct the jury on lesser-included offenses is within the trial court’s discretion, but where the evidence warrants an instruction, the trial court must give it. State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999) (quotation omitted). This court uses a two-part test to determine whether the trial court should have instructed the jury on a lesser-included offense:
(1) whether the offense in question is an included offense; and (2) whether a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime.
Id. (quotation omitted).
It is undisputed that fifth-degree assault is a lesser-included offense of second-degree assault. See Minn. Stat. § 609.04 (1998) (defining lesser-included offense). The issue, thus, is whether a rational basis existed for the jury to acquit Smith of second-degree assault and convict him of fifth-degree assault. Smith was convicted of violating Minn. Stat. § 609.222(1) (1998), which provides that a person who assaults another with a dangerous weapon commits second-degree assault. See also Minn. Stat. § 609.05, subd. 1 (1998) (liability for crimes of another). Minn. Stat. § 609.224, subd. 1 (1998), states that whoever “commits an act with intent to cause fear in another of immediate bodily harm or death” or “intentionally inflicts or attempts to inflict bodily harm upon another” is guilty of fifth-degree assault. See also Minn. Stat. § 609.02, subd. 10 (1998) (definition of assault).
When the only real issue for the jury to decide is whether the defendant is guilty as charged or not guilty at all, no rational basis exists for instructing the jury on a lesser-included offense. State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983); see also LaMere v. State, 278 N.W.2d 552, 557-58 (Minn. 1979) (although simple assault was necessarily a lesser-included offense of assault with a dangerous weapon, trial court did not err in declining to instruct jury on lesser offense when the issue was whether the defendant was acting in self-defense when he pointed a gun at the victim’s head).
Smith argues that if the jury believed part of his testimony and part of the state’s evidence, a rational basis existed for the jury to convict him of fifth-degree assault and acquit him of second-degree assault. See State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (“A jury, as the sole judge of credibility, is free to accept part and reject part of a witness’ testimony.”); see also United States v. Felix, 996 F.2d 203, 207 (8th Cir. 1993) (“The jury is free to believe or to reject any witness’s testimony in its entirety. The jury is free also to accept one or more witnesses’ testimony only in part and thereby to create its own version of the facts.”).
Smith argues that the jury could have believed his testimony that he did not ask for Turnage’s aid but still found that he committed fifth-degree assault by wrestling with and punching the victim. Smith cites the discrepancy in the testimony regarding whether he used the term knife or a slang term when asking for Turnage’s aid as supporting his position, but that minor discrepancy is insufficient to create a rational basis for the jury to have convicted Smith of fifth-degree assault. Even if the jury disbelieved that Smith asked for Turnage’s aid, Smith would have been guilty of second-degree assault if the jury believed that Smith intentionally held the victim in a headlock while Turnage assaulted him with a razor. See Minn. Stat. § 609.05 (liability for another’s crimes). If the jury disbelieved both the evidence that Smith asked for Turnage’s aid and the evidence that Smith intentionally held the victim in a headlock during the assault with the razor, no rational basis exists to find that Smith acted with the requisite intent to commit assault. See Minn. Stat. §§ 609.224, subd. 1 (element of assault is that defendant acted with intent to cause fear in another of immediate bodily harm or intentionally inflicted or attempted to inflict bodily harm), 609.02, subd. 10 (definition of assault). Smith’s testimony was that he acted to defend himself against an assault by the victim. Other co-workers who witnessed the assault saw only a mutual struggle between Smith and the victim. Considering the evidence in its entirety, particularly in light of the seriousness of the victim’s injury, only two rational possibilities exist. Either Smith intentionally participated in the assault that resulted in the injury to the victim’s arm or Smith acted to defend himself and was not guilty of committing any assault.
Smith also argues that a rational basis existed for convicting him of fifth-degree assault if the jury found that the razor was not a dangerous weapon.
“Dangerous weapon” means any * * * device or instrumentality that, in the manner it is used * * * is calculated or likely to produce death or great bodily harm * * *.
Minn. Stat. § 609.02, subd. 6 (1998).
“Great bodily harm” means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.
Id., subd. 8 (1998).
Turnage cut the victim in the arm with a razor, lacerating a nerve and partially lacerating a tendon. The injury required surgery. The victim had an area of decreased sensation in his arm from nerve damage. At trial, the victim testified that he still had a scar on his arm and continued to experience shooting pains from his arm into his hand just about every day. In addition to cutting the victim’s arm, Turnage attempted to stab him in the head and other areas with the razor. Given the way Turnage used the razor and the nature of the injury to the victim’s arm, a rational basis does not exist for finding that the razor was not a dangerous weapon. See State v. Moss, 269 N.W.2d 732, 736 (Minn. 1978) (intent to use scissors as a weapon “if their use became necessary” was sufficient to sustain conviction for aggravated robbery, robbery committed while armed with a dangerous weapon); State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (evidence sufficient to support conviction for assault with a dangerous weapon when defendant brandished a buck knife with a six-inch blade at the victim).
The trial court did not err in declining to instruct the jury on fifth-degree assault.
2. Smith argues that he is entitled to a new trial because the prosecutor committed misconduct during closing argument. Whether a new trial should be granted because of prosecutorial misconduct is not governed by any fixed rules but rests within the discretion of the trial court, which is in the best position to appraise the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The trial court’s determination should be reversed only where the misconduct, viewed in light of the whole record, appears to be inexcusable and so prejudicial that the defendant was denied the right to a fair trial. Id.
This court applies a harmless error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).
[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
Smith objects to the following statements by the prosecutor as improper expressions of her personal opinion regarding the truthfulness of Smith’s testimony:
I submit to you that after hearing [Smith] Friday afternoon, it is fair to say that the oath this man took to tell the truth has absolutely no meaning for him.
* * * *
* * * Letendre told you in person and you heard him on the 911 tape as he’s talking on the phone, he’s watching it, he’s telling the 911 operator now they’re throwing rocks at him so he’s describing it as he sees it and he also told you on the witness stand, yet [Smith] gets up and blatantly lies to you and tells you that’s also false.
* * * *
* * * What certainly does not raise reasonable doubt is [Smith] taking the stand and taking an oath to tell you the truth and then proceeding to tell you one lie after another and asking you to accept the testimony that was totally incredible and outrageous in light of what all those other witnesses who have no reason to lie told you. That is not reasonable doubt.
* * * *
* * * [Smith] was not truthful with you and he was not truthful with you because he knows he’s guilty.
Smith also objects to the prosecutor describing his denial that he hit Smith outside of Letendre’s office as “[a]nother lie before you.”
“As every prosecutor should know, it is improper to express a personal opinion about the credibility of a witness.” State v. Buggs, 581 N.W.2d 329, 343 (Minn. 1998).
The personal opinion rule is designed to prevent an attorney, whether a prosecutor or a defense attorney, from becoming an unsworn witness and otherwise personally attaching himself or herself to the cause which he or she represents. * * *The standard is not designed to prevent the prosecutor from arguing that particular witnesses were or were not credible.
State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991). “The context of [a] comment is important in evaluating its propriety.” State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993).
The theme of the prosecutor’s argument was the apparent unreasonableness of Smith’s testimony when considered in light of that of all of the other witnesses. All of the statements characterizing Smith’s testimony as lies and untruthful were made in the context of comparing Smith’s testimony to that of other witnesses and explaining why the jury should believe the other witnesses. Although the prosecutor used strong language, the statements were made in an appropriate context, and, thus, at most constituted minor misconduct. See State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (prosecutor argued that although defendant claimed that the victim lied in her testimony, in truth it was defendant who lied in his testimony; after noting that prosecutors tread on dangerous grounds when they resort to epithets to drive home the falsity of defense evidence, the supreme court concluded that the statement, at worst, was a statement on the borderline between proper and improper comment); State v. Johnson, 359 N.W.2d 698, 702 (Minn. App. 1984) (prosecutor stated that defendant got alibi witnesses “to get up and tell you what was obviously a total lie, total fabrications,” that “[e]verything connected with the defendant is a lie,” and that jury would have to “believe the lies that he’s told” to find defendant not guilty; this court concluded that, at worst, the statements were borderline between proper and improper comment).
Smith next contends that the prosecutor improperly made statements disparaging his defense that he was not aiding and abetting Turnage and suggesting that Smith had the burden of proving that he did not aid and abet Turnage. The prosecutor stated:
[Smith] is trying to distance himself from John Turnage as much as possible because he is charged with aiding and abetting John Turnage in this assault. So he just totally denies any knowledge or any participation in the assault, * * * that’s going to get him off here.
* * * *
So start to finish, over and over and over again, [Smith] has told you things that you know for a fact are not true. Why is he doing that? Because he knows he’s guilty and he’s trying to take himself out of the situation with John Turnage.
The supreme court has explained:
[T]he 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. But in a number of cases we have cautioned prosecutors against generally belittling a particular defense in the abstract, as by saying, e.g., “That’s the sort of defense that defendants raise when nothing else will work.” It is clearly improper for a prosecutor to suggest that the arguments of defense counsel are part of some sort of syndrome of standard arguments that one finds defense counsel making in “cases of this sort.”
State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (citations omitted).
In this case, the prosecutor’s statements that Smith was trying to distance himself from Turnage accurately characterized Smith’s testimony. The context of the statements was that Smith’s defense lacked merit when considered in light of the rest of the evidence in the case. The statements place no burden of proof on Smith, and the trial court properly instructed the jury on the burden of proof. The prosecutor’s statements about Smith trying to distance himself from Turnage were not improper.
To the extent that any of the prosecutor’s statements were improper, the misconduct was minor. There is no reasonable likelihood that any misconduct, even considering its cumulative effect, played a substantial part in influencing the jury to convict Smith.
3. Smith argues that the trial court erred in imposing a $4,200 fine against him.
[W]hen a court sentences a person convicted of violating section * * * 609.222, it must impose a fine of not less than 30 percent of the maximum fine authorized by law nor more than the maximum fine authorized by law.
Minn. Stat. § 609.101, subd. 2 (1998). But
[i]f the defendant qualifies for the services of a public defender or the court finds on the record that the convicted person is indigent or that immediate payment of the fine would create undue hardship for the convicted person or that person’s immediate family, the court may reduce the amount of the minimum fine to not less than $50.
Id., subd. 5 (1998).
The trial court imposed a $4,200 fine against Smith, 30% of the $14,000 maximum fine for second-degree assault. Smith argues that the trial court should have reduced the statutory fine because he has health problems, arthritis and limited mobility in his ankles, and because he helps support several children. Smith argues that because the trial court referred to the $4,200 fine as a “mandatory minimum,” the trial court must not have understood that it had discretion to reduce the statutory fine below that amount. Although referring to the statutory fine of 30% of the maximum fine as a “mandatory minimum” fine is a misnomer, it is not reversible error per se. See State v. Rewitzer, 617 N.W.2d 407, 411-12 (Minn. 2000) (addressing constitutionality of statutory fines for controlled-substance crimes).
At the sentencing hearing, Smith did not request that the trial court impose a reduced fine against him. Nothing in the record indicates that the trial court misunderstood its authority to reduce the statutory fine. We, therefore, decline to remand for resentencing.
Smith submitted a pro se supplemental brief consisting of a single paragraph listing numerous constitutional issues that he requests this court to consider. Assignment of error in a brief based on “mere assertion” and unsupported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). No prejudicial error is obvious on mere inspection.