This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Val Bernard Stanger,




Filed January 21, 2003

Klaphake, Judge


Stearns County District Court

File No. K1011788



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


Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)


John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            Val Stanger appeals from his conviction for second-degree assault, claiming that the district court erred by granting the state’s motion to exclude the victim’s prior conviction for disorderly conduct as inadmissible character evidence under Minn. R. Evid. 404.  Appellant also alleges misconduct by the prosecutor during closing arguments when jurors were asked to put themselves in the victim’s shoes.  Although the evidence could have been admitted and the prosecutor did commit misconduct, because appellant’s conviction is supported by overwhelming evidence and any error was harmless, we affirm.


            1.         Evidentiary Ruling

            District courts are afforded broad discretion in evidentiary rulings and will be overturned only for an abuse of discretion.  State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999).  Even if the district court has erred in exercising its judgment and in excluding evidence, the error is harmless 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).

            Generally, evidence of prior bad acts or crimes is inadmissible to prove the character of a person, in order to show action in conformity with a character trait.  Minn. R. Evid. 404(b).  Such evidence may be admissible if relevant to some other purpose, such as proving intent.  Id.  Evidence of a “strained” relationship between assailant and victim is often allowed under this rule as relevant to establish motive and intent.  See State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).  Although most often this evidence is introduced to establish a defendant’s motive or intent, the rule itself extends to any person.  Minn. R. Evid. 404(b).  Where, as here, appellant and the victim had a long and tumultuous relationship, a description of that relationship could well have negated intent on appellant’s part, illuminating this incident as one more chapter in the parties’ ongoing brinkmanship. 

            Even if we are inclined to regard the district court’s ruling as error, however, we recognize that on the facts of this case, there is overwhelming evidence of assault, so as to render this error harmless.  Independent witnesses described the speed and direction of appellant’s car and the evasive maneuvers the victim had to undertake to escape from the path of the car.  The testimony of these independent witnesses was further buttressed by the physical findings of investigating officers, who noted that judging by the depth of the tire tracks and spray of gravel, appellant was moving at a high rate of speed.

            We therefore conclude that in light of the evidence presented, it was harmless error because even if the “damaging potential of the evidence [had been] fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  Post, 512 N.W.2d at 102 (footnote omitted). 

            2.         Prosecutorial Misconduct

            A new trial is warranted due to prosecutorial misconduct when, viewed in the light of the whole record, the misconduct is “inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.”  State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation omitted).  Where misconduct arises out of the closing arguments, this court considers the argument as a whole, rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (citation omitted). 

            Appellant argues that he was prejudiced by the following remarks made by the prosecutor during closing argument:

[L]ook to your own experience.  I mean, if you got a car revving up and coming after you and you are running and the car is going faster and faster and it gets to--right there, you look and it’s right there, I mean is that a reasonable feeling to have, I mean, have to be fearful?


            Generally, it is improper for the prosecution to “invite the jurors to put themselves in the shoes of the victim.”  State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1992).  The inquiry does not end, however, with a finding of impropriety.  This court will reverse for prosecutorial misconduct only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted).

            Here, the district court cautioned the jury to disregard the statements, which were only a brief part of the closing argument.  Although the prosecutor may have engaged in misconduct, we do not believe that appellant was denied his right to a fair trial or that the misconduct changed the likely outcome of the trial.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200-01 (1974).