This opinion will be unpublished and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

C5-01-2230

 

State of Minnesota,

Respondent,

 

vs.

 

Justin Neil Turner,

Appellant.

 

Filed October 15, 2002

Affirmed

Kalitowski, Judge

 

Kanabec County District Court

File No. K501210

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051-1351 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55417 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Justin Neil Turner challenges his conviction of terroristic threats, arguing that the district court (1) abused its discretion in excluding as hearsay the testimony of a defense witness; and (2) committed plain error in joining for trial offenses that occurred seven months apart.  Appellant also claims that cumulative errors denied him his right to a fair trial.  We affirm.

D E C I S I O N

I.

Appellate courts generally defer to the district court’s evidentiary rulings, which will not be overturned absent an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court erred in excluding defense evidence, the error is harmless only if this court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.

 

State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).

            Hearsay evidence is generally nonadmissible.  Minn. R. Evid. 802.  But where an out-of-court statement is offered to impeach a witness, rather than for the truth of the matter asserted, it is not within the hearsay rule.  State v. Carillo, 623 N.W.2d 922, 928 (Minn. App. 2001), review denied (Minn. June 19, 2001) (citation omitted).  If a hearsay objection is made, the proffering party may make an offer of proof to show the judge the substance of the evidence and the purpose for which it is offered.  Minn. R. Evid. 103(a)(2).  A ruling excluding evidence is not erroneous unless a substantial right of the party is affected and either an offer of proof is made or the substance of the evidence is clear from the “context within which questions were asked.”  Id.

            Here, appellant argues that the district court’s exclusion of his witness’s testimony as hearsay was error because the victim’s out-of-court statement was offered to show her bias, rather than for its truth.  The record indicates that upon respondent’s hearsay objection to the testimony, the judge called counsel to the bench and an off-the-record conversation was held, after which the court sustained respondent’s objection.  There is no record of appellant’s response to the hearsay objection or any indication that appellant made an offer of proof concerning the testimony.  Therefore we cannot say, based on this record, that the district court abused its discretion in excluding the testimony as hearsay.  Moreover, we reject appellant’s argument that it is clear from the context that the statement was offered for impeachment purposes, rather than for the truth of the matter asserted.  We conclude that the district court was within its discretion in excluding the defense witness’s testimony as hearsay.

II.

Pursuant to Minn. R. Crim. P. 17.03, subd. 3(1) (2000), “[O]n motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges” if certain factors are present.  Id. (emphasis added).  Generally, failure to object to the joining of charges at trial constitutes a waiver of that issue.  State v. Hudson, 281 N.W.2d 870, 873 (Minn. 1979) (citing State v. Moore, 274 N.W.2d 505, 506 (Minn. 1979), both holding that the failure to move for severance of charges waives the issue unless the defendant can show good cause for relief).

            Appellant was aware from the moment the complaint against him was filed that respondent intended to try him for all three offenses at once.  Had appellant made a motion for severance before trial, the district court would have been required to apply the standards of Minn. R. Crim. P. 17.03 to determine whether the August 2000 offense could properly be tried along with the March 2001 offenses.  But appellant made no motion to sever or any other objection to the joinder.  Rather, on appeal he contends the district court committed plain error in failing to sua sponte sever the offenses for trial.  We disagree.

There is nothing in the record indicating why appellant did not object to the joinder.  Thus, as the supreme court noted in Moore, it may have been “a deliberate decision by the defense counsel based on reasons of strategy.”  Moore, 274 N.W.2d at 507.  Thus, on this record we cannot say it was plain error for the district court not to sever the charges sua sponte.

III.

            Finally, appellant argues that because of cumulative errors he was denied his right to a fair trial.  We disagree.  First, as noted above, neither the hearsay exclusion nor the joinder of offenses was error.  Thus, appellant is left with his claim that the jury improperly received information from the lid of an evidence box that prejudiced the jury’s deliberations and, consequently, his trial.  First, appellant has not demonstrated that he was prejudiced by this mistake.  But even if there was prejudicial error, appellant waived this issue at trial.  Upon discovering the improper information, the court and both counsel discussed this matter and reached an agreement on how to proceed.  Because appellant never objected to how the court decided to proceed, this issue is not properly before us on appeal.

Affirmed.