This opinion will be unpublished and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

C2-01-1777

 

State of Minnesota,

Respondent,

 

vs.

 

Lawrence Charles Anderson,

Appellant.

 

Filed January 17, 2003

Affirmed as modified

Willis, Judge

 

Mille Lacs County District Court

File No. KX01141

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Janelle Kendall, Mille Lacs County Attorney, 635 Second Street Southeast, Milaca, MN  56353 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant seeks review of his convictions of one count of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct, arguing that alleged prosecutorial misconduct and errors by the district court denied him a fair trial and that the district court erred by sentencing him to a ten-year conditional-release term for his conviction of first-degree criminal sexual conduct.  We affirm as modified.

FACTS

            Appellant Lawrence Charles Anderson met A.B. in 1995 and occasionally stayed in her home.  In 1996, A.B. became the primary caregiver of C.B., her infant granddaughter.  C.B. eventually grew to call Anderson “Grandpa.”

            In November 1999, when C.B. was just less than three years old, A.B. noticed redness around C.B.’s vagina.  A.B. asked C.B. if the area was sore, and the child responded, “[T]hat’s where my grandpa Larry made circles inside my tw-t and hurt me there.”  A.B. testified at trial that C.B. described to her how Anderson placed the child on a chair and sexually abused her.

            A.B. informed her daughter J.M., who is C.B.’s aunt, of the allegations because Anderson had developed a friendly relationship with J.M. and her children.  A.B. took C.B. to the Midwest Children’s Resource Center, where the child was examined by a nurse practitioner.  Although the examination revealed no physical evidence of abuse, C.B. repeated to the nurse practitioner the allegation that Anderson abused her.  C.B. was also interviewed by personnel of the Mille Lacs County Sheriff’s Department; during that interview C.B. again repeated the allegations, and demonstrated them with an anatomically correct doll, to a sheriff’s office investigator and to a social worker.

            J.M. and her husband discussed the allegations with Anderson, who denied that anything inappropriate had occurred.  They also spoke with their ten-year-old daughter, A.H., who denied that Anderson had touched her inappropriately.  Later, A.H. told a family friend, who was a psychologist, that Anderson had inappropriately touched her both over and under her clothing.  The psychologist reported the allegations to Mille Lacs County child-protection services.  In January 2000, a Mille Lacs County sheriff’s department investigator interviewed A.H., who told him that Anderson had touched her breast and buttock areas. 

            Anderson was charged with first- and second-degree criminal sexual conduct involving C.B. and with second-degree criminal sexual conduct involving A.H.  By agreement of Anderson and the state, the cases were joined for trial.

            At trial, C.B., who was then four years old, was unable to testify to any incidents involving Anderson, but her daycare provider, the nurse practitioner, the sheriff’s department investigator, and A.B. all testified about the child’s out-of-court allegations involving Anderson.  In addition, C.B.’s videotaped statement to the sheriff’s department investigator was played for the jury.  A.H. testified that Anderson inappropriately touched her both above and under her clothing, and a videotape of her statements to law-enforcement personnel was played for the jury.  Anderson testified on his own behalf and denied the allegations.

            The jury returned guilty verdicts on all three counts.  The district court sentenced Anderson to 158 months’ incarceration and ten years’ conditional release on the conviction of first-degree criminal sexual conduct involving C.B. and to 51 months’ incarceration and five years’ conditional release on the conviction of second-degree sexual conduct involving A.H.  No sentence was imposed on the lesser-included offense of second-degree criminal sexual conduct involving C.B.  The sentences were ordered to be served concurrently, and this appeal follows.

D E C I S I O N

I.

            Anderson argues that the prosecutor committed misconduct by (1) eliciting inadmissible testimony, (2) eliciting vouching testimony, and (3) misstating the state’s burden of proof to the jury.  Whether a new trial should be granted because of prosecutorial misconduct is within the discretion of the district court, which is in the best position to appraise its effect.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).  An appellate court will reverse a conviction, or reverse the district court’s denial of a motion for a new trial, on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.”  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (citation omitted).  In cases involving less-serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict.  State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

            A defendant usually waives his right to raise the issue of prosecutorial misconduct on appeal when he fails to object or to seek a curative instruction at trial.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001).  Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” prosecutorial misconduct.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

Allegedly Improper Questioning

            The district court ruled during trial that the state could not present evidence that a restraining order was issued in December 1999 prohibiting Anderson from contacting A.B. or C.B.  Although Anderson did not object to the questioning at trial, he argues on appeal that the prosecutor committed misconduct by asking A.B. about threats that Anderson made to her.  The threats were part of the basis for the  restraining order.

            We are not convinced that the evidence of threats violates a ruling that no evidence could be presented that a restraining order was issued, based, in part, on those threats.  But even if the prosecutor committed misconduct by asking A.B. about Anderson’s threats, this is not an extreme case involving unduly prejudicial misconduct, and because Anderson failed to object to the questions or to seek a curative instruction, he waived his right to raise this issue on appeal.  See id.

            Vouching Testimony

            Anderson also argues that the prosecutor committed misconduct by eliciting vouching testimony from A.B. regarding C.B.’s veracity.  During her examination of A.B., the prosecutor asked if C.B. ever lied.  A.B. responded that C.B. did lie on occasion but not about important things.  Anderson objected to the question at that point.  The district court’s ruling on the objection was made off the record during a sidebar conference, but it appears from the transcript of subsequent questioning that the objection was sustained.

            It is improper to elicit testimony from a witness vouching for the credibility of another witness.  See Van Buren v. State, 556 N.W.2d 548, 552 (Minn. 1996).  But a defendant is not entitled to a new trial where it can be said with certainty that the misconduct was harmless beyond a reasonable doubt.  State v. Hunt, 615 N.W.2d 294, 301-02 (Minn. 2000); see also Van Buren, 556 N.W.2d at 551.

            There was significant evidence presented against Anderson at trial: A.H. testified about Anderson’s abuse, videotaped statements of A.H. and C.B. were played for the jury, a police investigator testified about C.B.’s allegations, and the nurse practitioner testified about her interview with C.B.  Although the prosecutor improperly elicited vouching testimony from A.B. regarding C.B.’s veracity, we conclude that the misconduct was harmless.  See State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (finding that witness’s vouching testimony was “little more than corroborative” and therefore not prejudicial where significant evidence was presented against defendant). 

            Anderson also claims that J.M. gave improper vouching testimony when she said that she knew that A.B. was telling the truth about C.B.’s allegations of sexual abuse  against Anderson when A.B. reported those allegations to J.M.  The testimony was objected to, stricken from the record, and the jury was instructed to disregard it.  Because jurors are presumed to follow the trial court’s instructions, the stricken testimony did not substantially affect the jury’s verdict and was not unduly prejudicial.  See State v. Forcier, 420 N.W.2d 884, 885 (Minn. 1988) (holding that error created by police officer’s testimony regarding credibility of defendant was cured by district court order striking testimony and directing jury to disregard it).

            Finally, Anderson also characterizes as vouching testimony the statement by A.B. that C.B. “knows right from wrong.”  But A.B. did not vouch for C.B.’s truthfulness; she merely said that the child understood the difference between right and wrong.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (stating that vouching testimony exists when witness testifies about another witness’s truthfulness or asserts that he believed one witness over another).

            Closing Arguments

            Anderson alleges that the prosecutor committed misconduct during closing arguments by stating, “[D]id he do it?  Yes or no?” and “[W]hat you have to decide here is did he do this, yes or no.”  Anderson claims that these statements misled the jury regarding the state’s burden of proving beyond a reasonable doubt that Anderson committed the alleged crimes. 

            A prosecutor’s misstatement of the burden of proof does not require reversal if the verdict rendered was surely unattributable to the misconduct.  Hunt, 615 N.W.2d at 302.  Here, as in Hunt, the district court instructed the jury on the burden of proof and to disregard any statements of the law by the attorneys that were contrary to the court’s own instructions.  Id.  Because the court properly instructed the jury regarding the burden of proof, and because of the strength of the evidence against Anderson, the verdict rendered is not attributable to any misstatement of the state’s burden of proof by the prosecutor.  See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998) (stating that jurors are presumed to follow the district court’s instructions).

II.

            Jury Instructions

            Anderson claims that the district court committed plain error requiring a new trial by failing to instruct the jury to consider the charges of criminal sexual conduct separately.  We review a district court’s jury instructions “for abuse of discretion and errors of law.”  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  We will not find an abuse of discretion when the jury instructions fairly and adequately state the applicable law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  Jury instructions must be viewed in their entirety.  Id.

            The supreme court has stated that “for trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately.”  State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000) (footnote omitted).  But Anderson waived any challenge to the jury instructions by not objecting to them at trial, unless the failure to give the instruction constituted plain error.  See State v. Baird, 654 N.W.2d 105, 109 (Minn. 2002); Minn. R. Crim. P. 26.03, subd. 18(3) (requiring assignment of error regarding jury instructions to be made before the jury retires).

            Anderson alleges that the district court’s failure to specifically instruct the jury to consider each charge separately constituted plain error.  Plain error exists if there is (1) error, (2) that is plain, and (3) the error affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).  If all three conditions are met, this court may exercise its discretion to review an error that was not preserved if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Johnson, 520 U.S. at 467, 117 S. Ct. at 1549 (alteration in original) (quotation omitted).

            The district court erred by failing to give the Kates instruction, and the error is plain.  But the appellant also must show that the error affected his substantial rights.  Griller, 583 N.W.2d at 741.  Anderson argues that because he was convicted of all three charges, the district-court’s failure to give the instruction affected his substantial rights.  We disagree.  In instructing the jury, the district court read each charge separately and identified the victim and date of the alleged incident associated with each charge.  Furthermore, there were separate verdict forms for each of the three charges, and, as evidenced by the signed and dated verdict forms, on May 16, 2001, the jury found Anderson guilty of the charge involving A.H., and on May 17, 2001, the jury found him guilty of the charges involving C.B.  See State v. Dick, 638 N.W.2d 486, 491 (Minn. App. 2002) (holding that if jury clearly understood that charges were to be considered separately, failure to give Kates instruction is harmless erorr), review denied (Minn. Apr. 16, 2002).  Because the district court’s jury instructions essentially complied with Kates, the procedure separated the charges for the jury, and there was substantial evidence from which the jury could find Anderson guilty of all three charges, we conclude that the error did not seriously affect the fairness or integrity of the trial and is, therefore, not a ground for a new trial.  See Griller, 583 N.W.2d at 742 (holding that while there was plain error a new trial was not necessary because fairness and integrity of judicial proceedings were not adversely affected).

            Striking Juror for Cause

            Anderson also argues that the district court erred by granting the state’s motion to strike a juror for cause, thereby effectively giving the state an extra peremptory strike.  The district court is in the best position to determine whether a juror can be impartial because the court heard his testimony on voir dire and observed his demeanor.  State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990).  The district court’s resolution of the question of a prospective juror’s impartiality is entitled to special deference because it involves a credibility determination.  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).    Here, the state moved to strike a juror for cause because (1) in addition to prosecuting Anderson, the Mille Lacs County Attorney’s Office intended to charge the juror with a probation violation, (2) the juror had been convicted of domestic abuse, and (3) the juror believed that he had been wrongly convicted of a crime by the Mille Lacs County Attorney’s Office.  The district court granted the state’s motion.

            The Minnesota Rules of Criminal Procedure provide that the following is a basis for striking a juror for cause:

The existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.

 

Minn. R. Crim. P. 26.02, subd. 5(1).  Because here the juror’s bias against the county attorney’s office supported the district court’s conclusion that the juror could not be impartial, the court did not abuse its discretion by granting the state’s motion to strike him for cause.

            Evidentiary Ruling

            Anderson alleges that the district court “erred” by admitting evidence that Anderson ordered a book about female survivors of rape, arguing that the evidence was not relevant and was unfairly prejudicial.  The state claims that evidence that Anderson ordered the book was relevant to Anderson’s credibility, because Anderson ordered the book using an assumed name, and state of mind, because he ordered it only days after learning that C.B. had reported her allegations of sexual abuse.

            Appellate courts defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Anderson has the burden of proving both that the district court abused its discretion by admitting the evidence and that Anderson was prejudiced as a result.  See State v. Greenleaf, 591 N.W.2d 488, 504 (Minn. 1999).  Reversal is warranted only when improperly admitted evidence substantially influences the jury’s decision.  See State v. Blasus, 445 N.W.2d 535, 540 (Minn. 1989) (stating that test for whether admission of unfairly prejudicial evidence was harmless is whether there is any reasonable doubt that result would have been different if evidence had been excluded).

            Relevant evidence, defined as evidence

having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,

 

is generally admissible at trial.  Minn. R. Evid. 401; see also Minn. R. Evid. 402.  “If the offered evidence permits an inference to be drawn that will justify a desired finding of fact, it is relevant.”  Boland v. Morrill, 270 Minn. 86, 98, 132 N.W.2d 711, 719 (1965).  But otherwise admissible evidence may be excluded when the danger of unfair prejudice substantially outweighs its probative value.  Minn. R. Evid. 403.

            The district court evaluated the evidence and determined that its probative value would outweigh any unfairly prejudicial effect only if Anderson testified at trial, so that he would have the opportunity to explain why he ordered the book.  When Anderson notified the district court that he would testify, the court ruled that the evidence would be admitted.  The district court’s determination that the probative value of this evidence outweighed any unfairly prejudicial effect was not an abuse of discretion.  See State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998) (finding court did not abuse discretion by admitting evidence when its probative value outweighed its unduly prejudicial effect).

III.

            Anderson contends that the cumulative effect of prosecutorial misconduct and errors by the district court denied him a fair trial, citing State v. Erickson, 597 N.W.2d 897, 904 (Minn. 1999) (holding that cumulative effect of multiple errors, none of which alone warrant a new trial, should be assessed in order to ensure that appellant received a fair trial), State v. Ware, 498 N.W.2d 454, 459 (Minn. 1993) (holding that “synergy” of errors warranted a new trial), and State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  Here, there was neither prosecutorial misconduct nor errors by the district court that warrant relief either individually or cumulatively.  Anderson’s argument, therefore, fails.

IV.

            Anderson and the state agree that the district court erred by imposing a ten-year conditional-release term as part of Anderson’s sentence for his convictions of first-degree criminal sexual conduct.  When a defendant is convicted of first- through fourth-degree criminal sexual conduct, the district court is required to impose, as part of the defendant’s sentence, a five-year conditional-release term.  Minn. Stat. § 609.109, subd. 7(a) (2000).  But if, under the statute in the form in which it appeared at the time of sentencing, a conviction was a “second or subsequent” conviction, the mandatory conditional-release term was ten years.  Id.  It appears that the district court determined that because the jury found Anderson guilty of two criminal-sexual-conduct offenses, a ten-year conditional-release term on the second of the two convictions was mandated.  But “second or subsequent” means that prior to the commission of the current offense the defendant has been adjudicated guilty of a specified similar offense.  Minn. Stat. § 609.02, subd. 11 (2000).  It is uncontested that prior to Anderson’s commission of the offenses here, he had not been adjudicated guilty of a specified similar offense.  Accordingly, we modify Anderson’s conditional-release term to five years for the conviction of first-degree criminal sexual conduct.

V.

            Anderson raises additional issues in his pro se brief, including other instances of alleged prosecutorial misconduct, alleged improper exclusion of evidence, and ineffective assistance of counsel.  After careful consideration of these issues, we find Anderson’s arguments to be without merit.

            Affirmed as modified.