This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-2208

 

State of Minnesota,
Respondent,

vs.

Emelio Gonzalez Sanramon,
Appellant.

 

Filed December 3, 2002

Peterson, Judge

Affirmed

 

Becker County District Court

File No. KX01591

 

Mike Hatch, Attorney General, Jane E. Prine, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Joseph A. Evans, Becker County Attorney, P.O. Box 743, Detroit Lakes, MN  56502 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a second-degree-assault conviction, appellant Emelio Gonzalez Sanramon argues that the state failed to disprove his self-defense claim and that he is entitled to a new trial because the state engaged in prosecutorial misconduct.  We affirm.

FACTS

            Late in the evening on May 11, 2001, appellant went to a bar in Detroit Lakes.  An argument erupted between appellant and the victim.  The victim was at the bar with his girlfriend, and the victim was drunk.  Believing that he heard appellant call his girlfriend a derogatory name, the victim confronted appellant.  The two men pushed each other back and forth.  The bartender broke the two apart and told the victim that appellant had a cab coming.  A taxi arrived, and the bartender saw appellant leave.  Soon after, the bartender noticed that the victim was no longer inside the bar.

            The cab driver testified that after he entered the bar, he heard appellant tell the victim, “I’ll get you.” At that time, appellant was by the front door of the bar and the victim was seated at the bar.  The cab driver told appellant that he did not have “time to stand around waiting for you guys to argue.”  The cab driver testified that appellant kept yelling at the victim, “I’ll get you,” and “let’s go outside.”

            The victim followed appellant to the taxi, where appellant was already seated in the front passenger seat.  According to the cab driver, appellant rolled down the front window after getting into the cab.  The victim told appellant to never call his girlfriend names again.  The victim reached into the cab through the open window and pushed appellant down in the seat.  The victim felt the sensation of a bee sting in his right bicep.  Neither the victim nor the cab driver, who by that time was seated in the driver’s seat, saw appellant wield a knife.

            After the cab left, the victim went back inside the bar and realized that he had been stabbed.  The bartender gave the victim a rag and some ice for his wound.  The victim decided to go to the hospital to have a doctor examine his wound.  He and his girlfriend left in his car with the victim driving.

            A deputy sheriff saw the victim’s car cross the centerline three times and stopped the car.  The victim told the deputy that he had been stabbed by “Green Eyes,” who had left in a taxi.  The victim explained that he was on his way to the hospital and showed the deputy his wound.  After determining that the victim’s girlfriend could safely drive, the deputy followed the victim’s car to the hospital and photographed the victim’s wounds.  The deputy believed that he knew “Green Eyes” and relayed the information to dispatch.  Appellant was taken into custody.

            At trial, the victim’s girlfriend testified that the victim initiated the shoving match inside the bar after he misunderstood a derogatory comment that appellant made and mistakenly believed that appellant was talking about her.           

Appellant testified that the victim and two of his friends used racial epithets and told him that the bar was “only for whites.”  Appellant told them that he had a right to be there.  According to appellant, after the cab arrived, the three men followed him outside, slammed him into the door of the cab, grabbed him by the neck, and kicked his chest.  Appellant testified that he pulled out his knife because he was afraid and wanted to scare them off.  He also testified that he was not aware that he cut the victim, and if he did, it was in self-defense.  He denied that he said, “I’ll get you,” to the victim.

The record indicates that the victim is employed as a construction worker with responsibilities that require extensive physical labor, and he regards himself as being in good shape.  Appellant is permanently disabled by two gunshot wounds in his back.  He frequently experiences numbness in his arms and legs, takes pills for pain, and is unable to pull more than 15 pounds.

The jury found appellant guilty of second-degree assault, and he was sentenced to 60 months in prison as part of a plea agreement that involved other charges against him. 

D E C I S I O N

1.         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 the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We 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).

“A defendant has the burden of going forward with evidence to support a claim of self-defense.”  State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).  Once a self-defense claim is raised, the state has the burden of disproving at least one of the elements of self-defense beyond a reasonable doubt.  Id.

The elements of self-defense are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

 

Id. (citations omitted); see Minn. Stat. § 609.06, subd. 1(3) (2000) (defining authorized use of force).

The state argues that it disproved the first element of appellant’s self-defense claim beyond a reasonable doubt by demonstrating that although the victim initiated the original confrontation, that confrontation ended when the bartender separated appellant and the victim, and appellant later provoked the victim by threatening him and challenging him to go outside.  We agree.  The bartender separated appellant and the victim before the cab arrived.  The cab driver testified that he heard appellant tell the victim, “I’ll get you,” and “let’s go outside.”  The cab driver’s testimony disproves appellant’s claim that he was not aggressive and did not provoke the victim.

The state also argues that it rebutted the fourth element of appellant’s self-defense claim: the absence of a reasonable possibility of retreat to avoid danger.  We agree.  After getting into the cab, appellant rolled down the window.  The victim reached through the open window and pushed appellant.  To retreat from the danger the victim presented, appellant could have left the window rolled up.  Rolling down the window is also further evidence of aggression or provocation on the part of appellant.

Appellant’s testimony conflicted with the cab driver’s testimony.  But “it is the province of the jury to determine the credibility and weight to be given to the testimony of any individual witness.” State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994) (quotation and citation omitted).  The evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.

The state also argues that it disproved the second and third elements of appellant’s self-defense claim.  But because we have concluded that the state disproved the first and fourth elements, and the state only has the burden to disprove one of the elements, we will not address the state’s arguments regarding the second and third elements.

2.         Appellant argues that his conviction should be reversed because he was denied a fair trial by the prosecutor’s misconduct in (1) eliciting the facts underlying a prior conviction used to impeach appellant’s credibility and (2) appealing to the prejudices of the jury during final argument.  Appellant did not object at trial to either of the statements by the prosecutor that appellant now claims were misconduct.

When a defendant fails to object to a prosecutor’s statement, the defendant typically forfeits his right to have the issue considered on appeal.  If the prosecutor’s comments are sufficient to do so, we can reverse a conviction even when the defendant failed to object.  However, we may decline to consider an appellant’s prosecutorial misconduct claim when there is substantial evidence against him ensuring that the alleged misconduct was harmless beyond a reasonable doubt.

 

State v. McDonough, 631 N.W.2d 373, 389 (Minn. 2001) (citations omitted).

Appellant contends that it was misconduct when the prosecutor elicited the facts underlying a prior conviction used to impeach appellant’s credibility.  The following exchange occurred during the prosecutor’s cross-examination of appellant:

Q.        And you drank, you said, six to seven beers at the bar that night.

 

A.        In Tommy’s.

 

Q.        Now, in your doctor’s, your doctor says that he prescribed Tylenol Three for you.  Were you taking your Tylonol Three?

 

A.        Yeah.

 

Q.        Tylenol Three has codeine in it, doesn’t it?

 

A.        I don’t know.

 

Q.        But you were taking your Tylenol Three that night?

 

A.        But that day I didn’t take any pills.

 

Q.        How about Tylenol Three?

 

A.        I didn’t take any pills.

           

Q.        In your statement to Officer Skoog you mentioned that maybe you were a bit high on something.  What did you mean by that?

 

A.        I don’t do drugs so I don’t know.

 

Q.        You don’t do drugs?

 

A.        No.

 

Q.        Now, [appellant], you told us already that you’d been convicted of a felony before, is that correct?

 

A.        Yes.

 

Q.        And you were convicted of offering a forged check in October of 1995 in Washington County, weren’t you?

 

A.        Yeah.  Yes, we all make mistakes, we’re not perfect.

 

Q.        And that was a felony, wasn’t it?

 

A.        Yes.

 

Q.        And you made another mistake in Hennepin County in April of 1997 when you were convicted of controlled substance crime in the fifth degree?

 

A.        Yeah.

 

Q.        Controlled substance is a drug, isn’t it?

 

A.        They got me because I was selling; before I used to sell.

 

Q.        I see and what type of drug was it that you were selling in 1997 when you were convicted of that offense?

 

A.        Marijuana and cocaine.

 

Appellant contends that the prosecutor had no reason to elicit any underlying facts of the prior conviction and that he was unfairly prejudiced when the court failed to strike the underlying facts from the record.  Generally, “a prosecutor may not elicit evidence concerning the facts underlying a prior conviction used to impeach a defendant’s credibility.”  State v. Gardner, 328 N.W.2d 159, 161 (Minn. 1983).   

But because the jury was told that appellant had been convicted of a controlled-substance crime,[1] the jury knew that appellant had been involved with controlled substances in some way.  The only additional information the jury acquired from hearing the underlying facts of the controlled-substance conviction was that appellant’s involvement with controlled substances was as a seller.  It is not apparent how this additional information would affect the jury, which explains appellant’s failure to object.  Absent any apparent effect on the jury, and in light of the substantial evidence against appellant, we conclude that any alleged misconduct in eliciting facts underlying appellant’s controlled-substance conviction was harmless beyond a reasonable doubt, and we decline to consider appellant’s prosecutorial misconduct claim.

Appellant also argues that in his closing argument, the prosecutor made improper, inflammatory statements that scared the jury and diverted their focus from the issue of appellant’s guilt or innocence.  During closing argument, the prosecutor stated:

When you think about this case[,] think about a few things [that] we talked about * * * beforehand during jury selection.  All of you, I believe, have seen a fight before.  There were very few of you that had seen a fight where a weapon was involved.  What does that tell you? It tells you one thing.  That this sort of thing really doesn’t happen every day and all the time.  When you think about whether the response of [appellant] was appropriate under these circumstances, think about * * * kind of the larger question of what kind of world do we want and what kind of world do we want to live in and have our kids live in? Is it okay for people that are involved in oral arguments to have those arguments escalate into fist fights? Is it okay for people that are involved in the pushing and shoving match to escalate so that a weapon is used[,] be it a bat, beer bottle, a gun, a knife or something like [that] or something even worse? Do we want to live in a Dirty Harry mentality?  Self defense doesn’t mean that you extract revenge or that you can retaliate or that you can gratuitously inflict pain or bodily harm upon other people.  If we’re going to live in an orderly society[,] we’ve got to have other ways to solve our problems and we submit to you that using this knife under the circumstances it was used and the way it was used that night was wrong, it was unreasonable and it was excessive.  Tell [appellant] that you believe it was excessive.  Find him guilty.  Thank you.

 

It is improper for a prosecutor to suggest in a closing argument that the jury represents the people of the community and that its verdict would determine what kind of conduct would be tolerated on the streets.  State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983); see also State v. Washington, 521 N.W.2d 35, 39 n.3 (Minn. 1994) (stating with approval ABA standards governing conduct of prosecutors which provide that “[t]he prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law”).  However, because appellant did not object to the statement, and because there is substantial evidence that appellant assaulted the victim and that appellant did not act in self-defense, we conclude that the alleged misconduct was harmless beyond a reasonable doubt, and we decline to consider appellant’s prosecutorial misconduct claim.

3.         Appellant submitted a pro se supplemental brief in which he asks the court to

properly consider[] any and all other grounds of defense * * * relating to either the United States Constitution or the Minnesota State Constitution which may appear from any proceedings in the instant matter even though either not now known to appellant or raised at this time due to appellant’s lack of knowledge thereof.

 

Appellant lists several potential issues, but does not cite the record or any legal authority.  Assignments of error in a brief based on mere assertion and unsupported by argument or authority are waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).  Also, appellant did not raise these issues before the district court.  This court will not decide issues that were not raised before the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)

            Affirmed.



[1] Appellant does not challenge the admission of his prior felony convictions.