This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-1682

 

State of Minnesota,

Respondent,

 

vs.

 

Brandon Daniel Gary,

Appellant.

 

Filed August 13, 2002

Affirmed

Kalitowski, Judge

 

Douglas County District Court

File No. K100533

 

Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

††††††††††† Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant Brandon Gary contends the evidence was insufficient to support his conviction of criminal vehicular homicide.† Appellant also argues the prosecutor committed prejudicial misconduct.† Finally, appellant claims the district court erred by denying his motion for a downward dispositional departure.† We affirm.

D E C I S I O N

 

I.

 

††††††††††† Appellant Brandon Gary claims the evidence was insufficient to support the juryís verdict, contending that his defense, that he was not driving at the time of the accident, was equally plausible.† We disagree.

††††††††††† Where a claim of insufficiency of the evidence is made, the reviewing courtís function is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.†

 

State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).† The evidence must be viewed in a light most favorable to the conviction and the reviewing court must assume that the jury believed the stateís witnesses and disbelieved any contradictory evidence.† Id.

††††††††††† Here, appellant made a statement to the police officer at the scene that he was driving.† He has subsequently denied that he was driving.† But, the jury is in the best position to determine whether appellantís confession is more credible than his testimony at trial.† And this court is to assume the jury believed the stateís witnesses and disbelieved contrary evidence.† Id.†††

In addition, the state provided circumstantial evidence indicating that appellant was driving:† (1) a witness testified that he saw appellant outside of the truck with the driverís side door open and the victim pinned between the passengerís seat and the dashboard; (2) appellant sustained substantially less physical injury than the victim, matching the amount of damage the truck sustained on the driverís side versus the passengerís side; and (3) a reconstruction of the accident supported the theory that anything and anyone in the truck would have shifted toward the driverís side, and not the passengerís side.† Based on appellantís admission and the circumstantial evidence we conclude the jury could reasonably find that appellant was the driver.

II.

Appellant argues he is entitled to a new trial because the prosecutor committed prejudicial misconduct by offering personal opinion during closing arguments, belittling appellantís defense theory, and including other issues to inflame the passions and prejudices of the jury.† We disagree.

The determination of whether a prosecutor committed misconduct and whether any misconduct was prejudicial generally lies within the district courtís discretion because the district court is in the best position to measure its effect.† State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).† Although a defendant who fails to object to the prosecutorís statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal, this court may still reverse if ďthe prosecutionís comments are unduly prejudicial.Ē† State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (citing State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980)).† The test is whether the inappropriate comments played a substantial role in convincing the jury to convict the defendant.† State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).†

Here, the challenged comments are a small part of the prosecutorís closing argument, which spans 35 transcript pages.† And appellant did not object to any of these comments or request a curative jury instruction during trial.Moreover, appellantís arguments precipitated some of the comments and appellant addressed the prosecutorís comments in his closing arguments.

We also note that a prosecutor is not prevented from discussing the credibility of witnesses, including the defendant.† State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).†

[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., ďThatís the sort of defense that defendants raise when nothing else will work.Ē† 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 ďcases of this sort.Ē

 

State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (citations omitted).† Here, the theme of the prosecutorís argument was the apparent unreasonableness of appellantís testimony when considered in light of all of the other evidence.† And although some of the statements were improper, they were made in a permissible context.†

But even if some of the prosecutorís statements were improper, the issue is whether appellant received a fair trial.† State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).† We conclude that appellant received a fair trial and any error based on the prosecutorís comments here is harmless in light of the overwhelming evidence of appellantís guilt as discussed above.† See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (concluding prosecutorial error was harmless given the strength of evidence against defendant).

III.

Appellant claims the district court erred by denying a motion for a downward dispositional departure contending his amenability to probation entitles him to a departure.† We disagree.

This court does not interfere with a district courtís broad sentencing discretion unless there has been a clear abuse of that discretion.† State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).† The sentences provided in the Sentencing Guidelines Grid are presumed appropriate for every case, and only in the ďrare caseĒ will this court reverse imposition of the presumptive sentence.† State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D.††

Appellant argues that he has no prior criminal history.† But a lack of criminal history is not a mitigating factor, since it is already considered in the Sentencing Guidelines Grid.† State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982).† Appellant also argues he is remorseful.† But the district court noted that appellant maintained he was not the driver throughout the trial, essentially denying responsibility for his actions.† We conclude that this is not the rare case to reverse the district court for exercising its discretion and deciding not to depart from the presumptive sentence.

††††††††††† Affirmed.