This opinion will be unpublished and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
State of Minnesota,
Christopher Michael Dennis,
Aitkin County District Court
File No. K900537
Mike Hatch, Attorney General, Kelly O’Niell Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103;
Bradley C Rhodes, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street NW, Aitkin, MN 56431 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
Appellant seeks review of his conviction for first-degree assault, arguing inter alia that the eyewitness testimony was of dubious credibility and thus did not support the jury’s finding of first-degree assault beyond a reasonable doubt and that both the court and the prosecution committed misconduct. We affirm.
On Sunday morning, August 13, 2000, law enforcement officers were called to the trailer home of Roberta Manning at the Castaways Resort on Mille Lacs Lake in Aitkin County Minnesota. Craig Dennis was dead in a bedroom. Manning shared the trailer with Mark Dennis, the brother of both the decedent and appellant Christopher Dennis. The decedent and Christopher Dennis had arrived at the trailer on Friday afternoon, August 11. The three Dennis brothers and Manning were present at the trailer for a period of time on Friday and from approximately 10:00 a.m. Saturday until after Aitkin County law enforcement personnel arrived on Sunday, August 13, 2000.
Fighting at the Manning trailer started on Friday. Witnesses testified that there had been arguing Friday evening that included foul language, screaming, hollering, and threatening. On Saturday, August 12, the three brothers were drinking together during the day. Saturday evening included drinking, except for Mark, eating appetizers at a local restaurant, and consuming a bottle of gin.
There were multiple disputes among the three brothers and all had some part in the fighting. There was evidence that Mark suspected the decedent of having a relationship with his girlfriend, Roberta Manning. According to witnesses who were at a trailer about 150 feet away, the fighting continued at the Manning trailer after 9:00 p.m. on Saturday evening. These witnesses were at a picnic table 150 to 250 feet from the Manning trailer and heard screaming and yelling. They testified that it was possible to see into the trailer because lights were on inside and the curtains were open. At one point, two of the witnesses ran towards the Manning trailer because they feared a man was hitting a woman. From a distance of approximately ten feet, they were able to see into the trailer through a window and determined that the altercation was actually between two men. They observed one male sitting in a chair while the other male was hitting and kicking the seated male. Both witnesses positively identified the assailant as appellant Christopher Dennis and stated that they saw Christopher Dennis kick the victim in the head. One witness also stated he saw Christopher Dennis kick the victim while the victim was kneeling on the floor. Another witness stated that the assailant inflicted blows in a windmill style and that the victim did not attempt to fight back. Having determined that the victim was male, they returned to their own picnic area. The witnesses also stated that after the altercation, the victim, Craig Dennis, walked to the back of the trailer.
At approximately 11:00 a.m. on Sunday morning, August 13, Roberta Manning commented that it was unusual for Craig Dennis to remain in bed. Christopher Dennis went to check on Craig Dennis, found him dead, and informed the others. Christopher Dennis left the trailer to find the park owner and request a 911 call. The Aitkin County deputies and medics arrived. After talking with the neighbors and surveying the scene, the deputies arrested both Mark Dennis and Christopher Dennis and took them to the Aitkin County jail.
Christopher Dennis was charged with two counts of murder in the second degree, one count of assault in the first degree, and one count of manslaughter in the first degree. One evidentiary issue involved a witness who claimed he knew karate. That witness observed that by the manner Christopher Dennis fought, he could tell Christopher probably knew karate. Appellant’s attorney objected to this testimony, his objection was sustained, and the jury was told to disregard the witness’s statement. Appellant’s attorney subsequently asked that witness about his experience in martial arts, and the prosecutor made a brief comment on the subject in his closing argument. At the conclusion of a jury trial, Christopher Dennis was found guilty of assault in the first degree and not guilty of the murder and manslaughter charges. He was sentenced to 98 months in prison and appeals both the conviction and the sentence.
Christopher Dennis contends that there is insufficient evidence to support beyond a reasonable doubt the jury’s finding that he inflicted great bodily harm on Craig Dennis. In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton,432 N.W.2d 754, 756 (Minn. 1988). The credibility of individual witnesses and the weight to be given each witness’s testimony are issues for the jury to decide. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995); State v. Bliss,457 N.W.2d 385, 390 (Minn. 1990).
Christopher Dennis was found guilty of assault in the first degree. Assault in the first degree is defined as inflicting great bodily harm. Minn. Stat. § 609.221, subd. 1 (2000). Great bodily harm is defined as bodily injury that either (a) creates a high probability of death, or (b) causes serious permanent disfigurement, or (c) causes a permanent or protracted loss or impairment of any function of any body part or organ. Minn. Stat. § 609.02, subd. 8 (2000). Here the victim died as a result of a broken rib piercing his spleen and causing him to bleed to death.
This court has previously found that a single eyewitness to a crime is sufficient to find a defendant guilty of the alleged crime. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976); State v. Hill, 285 Minn. 518, 519, 172 N.W.2d 406, 407 (1969). Weighing the credibility of the witness is the function of the jury. State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002). “Even inconsistencies in the state’s case will not require a reversal of the jury verdict.” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (citation omitted).
In the instant case there was evidence that Mark Dennis was bruised and that Christopher Dennis was not. Christopher Dennis claims that Mark Dennis beat the decedent. He points to Mark Dennis’s bruised condition and his conflict with the decedent over his suspicion that the decedent was fooling around with Mark Dennis’s girlfriend, Roberta Manning. A key part of Christopher Dennis’s defense was that his lack of bruises was inconsistent with the severe beating Craig Dennis suffered. Christopher Dennis also claims that he did not have bruises on his hands consistent with the blows that would cause the severe injuries suffered by Craig Dennis. There was an effort by the prosecution to show appellant’s alleged fighting skills. However, the court ruled inadmissible evidence regarding the defendant’s martial arts skills and training and the opinion of a witness regarding appellant’s ability to inflict harm without bruising his hands. The court allowed evidence that Christopher Dennis hit his brother with open and closed fists and that Craig Dennis did not fight back. The evidence in the record supports the jury’s finding that Christopher Dennis was guilty of first degree assault.
In addition, appellant points to specific discrepancies among the testimonies of the three witnesses from the other trailer, their distance from the site, and the difficulty of seeing the details of the attack through the trailer’s window. While the three witnesses may have varied in some of the details of their descriptions of the events on the evening of August 12, 2000, these witnesses agreed on one key fact – the person they saw inflicting a beating on the victim was Christopher Dennis. All three witnesses stated that the lights were on inside the Manning trailer, and it was therefore possible to see Christopher Dennis “throwing punches.” One witness stated during the trial, “You could see clear as you’re sitting right here.” The jury also saw a video of the crime scene and pictures taken both from outside the Manning trailer looking in and inside the Manning trailer looking out.
Christopher Dennis contends the witnesses were confused as to the events of the evening of August 12. While there does seem to be some confusion, it does not appear that the jury found it affected the identification of Christopher Dennis as the assailant. When there are inconsistencies in the testimony of trial witnesses,
a jury, as sole judge of credibility, is free to accept part and reject part of a witness’ [sic] testimony * * * even if the jurors believe that a witness has knowingly and willfully testified falsely as to a material fact, * * * they may believe or disbelieve his testimony as to other facts as they deem worthy or unworthy of belief.
State v. Poganski,257 N.W.2d 578, 581 (Minn. 1977). In this case, it appears the jury believed these witnesses when they identified Christopher Dennis as the assailant. Appellant rightfully contends that this court may under certain circumstances examine the credibility of trial witnesses. If the evidence presented by the witnesses is of dubious credibility, this court can reverse the conviction. State v. Langteau, 268 N.W.2d 76 (Minn. 1978) (ordering a new trial when, among other things, witness testimony was inconsistent with the commission of the crime); State v. Gluff, 285 Minn. 148, 172 N.W.2d 63 (1969) (ordering a new trial when, among other things, the witness had an inadequate opportunity for observing the perpetrator). In the present case, the three witnesses who identified appellant as the assailant had the opportunity to see the Dennis brothers earlier in the weekend. The witnesses were able to tell the difference between the brothers’ physical characteristics. Mark Dennis was shorter and heavier with longer hair; appellant Christopher Dennis was taller and leaner with shorter hair. The jury has the right to accept the identification of the assailant by the witnesses while rejecting or disbelieving other parts of their testimony. State v. Vorhees, 596 N.W.2d 241, 252 (Minn. 1999). In this case the jury accepted the identification of Christopher Dennis as the assailant.
This court can also overturn a conviction in the interests of justice if the court entertains “grave doubt as to a defendant’s guilt.” State v. Johnson, 277 Minn. 368, 375, 152 N.W.2d 529, 533 (1967) (citations omitted). In this case, three witnesses identified Christopher Dennis as the assailant. The jury had the opportunity to listen to the witnesses’ testimony and could reasonably base their verdict on the testimony they heard. As a result, we do not entertain grave doubt as to the defendant’s guilt, and we will not disturb the jury’s verdict.
Christopher Dennis next argues that the prosecutor committed misconduct in his closing argument by referring to Christopher Dennis’s knowledge of how to use his feet during a fight. When the district court overrules a defendant’s objection to the prosecutor’s closing arguments and accordingly denies the defendant’s motion for a new trial, this court may reverse but only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citation omitted). The test for determining whether prosecutorial misconduct was harmless depends partly on the type of misconduct. In cases involving “unusually serious prosecutorial misconduct,” this court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). In cases “involving less serious prosecutorial misconduct,” the test is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 128, 218 N.W.2d at 200. “The court’s determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citations omitted).
A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. The reviewing court, however, may reverse despite the defendant’s failure to preserve the issue if the court deems the error sufficient to do so. Id.
In this case, the prosecutor in his closing argument referred to a witness’s testimony about the witness’s personal knowledge of martial arts. One witness had stated during his testimony that based on his knowledge of martial arts and from what he saw of the beating, it appeared that Christopher Dennis was able to use his feet to deliver blows to the victim’s head or to deliver repeated blows to a victim without doing significant damage to his hands if the victim was not defending himself. During trial, appellant’s counsel objected to this testimony, and the objection was sustained. But during cross-examination of this witness, appellant’s counsel asked this witness about his knowledge and experience in the martial arts. In his closing argument to the jury, the prosecutor stated that the witness in question
told you that he had been in a fight or two in his life and that he had a brown belt in tae kwon do. He told you that he felt the [appellant] knew how to use his feet * * * .
In light of defense counsel’s own reference to the witness’s knowledge of martial arts, the very brief allusion to this subject in the closing argument, the lack of any objection during the prosecutor’s closing remarks, and the jury’s ability to sort the evidence, even if it was misconduct it was harmless and we will not disturb the jury’s verdict.
Christopher Dennis contends that the removal of a juror without his presence was a denial of his constitutional right to be present at all stages of the trial. Minnesota law requires that
[t]he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of the sentence * * * .”
Minn. R. Crim. P. 26.03, subd. 1(1). In this case, a juror came into the courtroom during the lunch hour and saw appellant in restraints. The judge spoke to her without appellant present but in the presence of both the prosecutor and defense counsel. As a result, the juror was dismissed from the jury and replaced by one of the alternate jurors. This occurred before she was able to speak to the other jurors. Neither the prosecutor nor the defense counsel objected to the removal of the juror.
There are two issues here: (1) was the removal of the juror without the presence of appellant a denial of his constitutional rights, and (2) if it was a denial of his constitutional rights, was he prejudiced by the action. By failing to object to the dismissal of the juror, appellant has forfeited his right to have this issue heard on appeal. State v. Cermak, 350 N.W.2d 328, 333 (Minn. 1984) (forfeiting right to appeal of alleged errors by not objecting during trial). If the removal of the juror in the absence of appellant was “plain error,” appellant is entitled to review despite the failure to object. Minn. R. Crim. P. 31.02 (plain errors affecting substantial rights may be reviewed on appeal even though not brought to the attention of the trial court).
The United States Supreme Court has established a three-part test for plain error. Johnson v. United States, 520 U.S. 465, 467, 117 S. Ct. 1544, 1549 (1977). This court has followed that test, establishing that appellant has the burden of showing (1) there was error, (2) the error is plain, and (3) the error affects his substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). It is clear that the dismissal of the juror and empanelling of another juror outside the presence of the defendant is an error unless he waived his right to be present personally and on the record. This did not occur. Minn. R. Crim. P. 26.03, subd. 1(1). Appellant asserts the error affects his substantial rights because he was unable to express his opinion about the alternate juror and whether she was a favorable juror for his case. In this case, the alternate juror heard all of the testimony and appellant had the opportunity to challenge the alternate juror’s qualifications during the jury selection process. Although not a practice we encourage, due to the presence of the appellant’s attorney, the lack of any objection, and the opportunity to voir dire the replacement juror, we decline to find that the district court’s error in dismissing a juror and empanelling the replacement is cause for reversal. It is harmless error in this case; it did not affect appellant’s substantive rights.
Christopher Dennis also argues other issues in a pro se brief, including objections to the judge’s comments to the jury regarding the number of defense witnesses and requiring the jury to continue their deliberations when they were initially deadlocked at 11-1. Christopher Dennis also argues that the prosecutor committed misconduct by describing for the jury the elements of assault. We conclude these issues are not meritorious, and therefore we will not disturb the jury’s verdict based on these issues.