This opinion will be unpublished and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

A03-169

 

In the Matter of the Welfare of:

R.M.R., a/k/a R.A.R.

 

Filed November 4, 2003

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. J1-02-068448

 

Leonardo Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

RANDALL, Judge

            Appellant challenges his delinquency adjudication for aiding and abetting first-degree aggravated robbery.  Appellant argues that (1) the evidence is insufficient to support the jury’s finding that he played a knowing role in the robbery; and (2) the prosecutor committed prosecutorial misconduct during her cross-examination and in her closing argument.  We affirm.

FACTS

            R.A.R (appellant) was charged with aiding and abetting first-degree aggravated robbery.  On December 20, 2002, appellant was designated as EJJ, and on February 7, 2003, the district court denied appellant’s motion to suppress identification evidence.  Subsequently, the case went to the jury. 

On November 8, 2002, P.D. left his house to buy a box of cigarettes at a liquor store on the corner of East 25th Street and 29th Avenue in Minneapolis.  After P.D. purchased cigarettes and started walking back toward his house, he was approached by a group of four or five individuals who asked him for cigarettes.  While the group continued to walk and talk to P.D., one of them hit him in the back of the head and knocked him to the ground.  One of the individuals also went through his pockets and took his money.[1]  P.D. testified that he was able to get a good look at the individual who hit him.  He stated that he identified appellant as the person who hit him by the writing on appellant’s shirt and appellant’s baggie pants.  P.D. testified that he also identified appellant by his height in relation to the other individuals in the group.  He stated that appellant “was probably almost the shortest because there was another short person among the group, but he was among the shortest ones [in] the group.”  A French interpreter was used intermittently at the beginning of P.D.’s testimony.  However, due to some difficulty with P.D.’s English-speaking ability, the interpreter translated the remainder of his testimony. 

P.D. flagged down Stephen Christianson (Christianson), who testified that he saw P.D., stopped his vehicle, and then followed approximately four individuals in his car.  He testified that he lost sight of the group for about a block.  Christianson also testified that the group of individuals split-up when they noticed he was chasing them.  At that point, Christianson returned to assist P.D. 

Lieutenant John Kelly (arresting officer) testified that he responded to the situation and stopped a group of four individuals walking East on the corner of 27th Street and 29th Avenue.  He arrested all four individuals and found no money on any of them.[2]  Corporal Goligowski testified that she also responded to the scene, picked up P.D., and drove P.D. to the scene of the arrests.  P.D. identified appellant as the person who hit him based on the writing on his sweatshirt, the design of his pants, and his height.  Corporal Goligowski also testified that there was only one other person in the group that was short like appellant.  Christianson also went to the scene of the arrests and identified the four individuals in custody as the four he had chased earlier that day.  

Appellant testified that at the time of the offense, he left school with some friends to play basketball at a nearby park on 25th Street and 28th Avenue in Minneapolis.  He testified that he and his friends left the park to use the phone at a friend’s house.  After deliberations, the jury found appellant guilty of aiding and abetting first-degree aggravated robbery.  This appeal followed.

D E C I S I O N

I.

 

            Appellant argues that the evidence is insufficient to support the jury’s finding that he played a knowing role in the robbery.         We disagree.  On appeal from a determination that each of the elements of a delinquency petition has been proved beyond a reasonable doubt, the court is “limited to ascertaining whether, given the facts and legitimate inferences, a fact-finder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  The evidence is viewed in the light most favorable to the state and there is an assumption that the jury believed the state’s witnesses and disbelieved contrary evidence.   State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). 

The jury found appellant guilty of aiding and abetting first-degree aggravated robbery.  A person, who inflicts bodily harm on another while committing a robbery, is guilty of aggravated robbery.  Ulvinen, 313 N.W.2d at 428; Minn. Stat. § 609.245, subd. 1 (2002).  To impose liability for aiding and abetting, the state must show that the defendant played a knowing role in the crime’s commission and did nothing to thwart the crime’s completion.  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  We agree that mere presence at the crime scene “does not alone prove that a person aided or abetted, because inaction, knowledge or passive acquiescence does not rise to the level of criminal culpability.”  Id. (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)).  While active participation in the offense’s overt act is not required, a person’s presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred.  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000).

A.  Fleeting look and misidentification

            First, appellant argues that P.D. had only a “fleeting look” at the persons who attacked him and at one point misidentified the individual who hit him as someone taller than appellant.   It is “well established that a conviction can rest upon the testimony of a single credible witness.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citations omitted).  This court assumes the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Identification testimony need not be positive or certain, “it is sufficient if a witness testifies it is his opinion, belief, or judgment that the defendant is the person he saw commit the crime.”  Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988) (citation omitted).  But eyewitness identification made upon “fleeting or limited observation” is “not reliable and in the absence of corroboration should not be the basis for conviction.”  State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979). 

Here, P.D. stated that he was able to get a good look at the individual who hit him while he was being hit.  P.D. was able to identify specific attributes of appellant’s clothing, which demonstrates that he had more than a fleeting look or observation at the person who hit him.  Alternatively, if P.D.’s identification is characterized as a fleeting look or observation, it is corroborated.  Christianson came upon P.D. at the same time P.D. was being attacked.  Christianson identified appellant and the other individuals who were arrested as the people he chased that day. 

Appellant also argues that P.D. misidentified him.  P.D. stated that the individual who hit him “was probably almost the shortest” of the individuals in the group.  This statement is not a misidentification.  Corporal Goligowski testified that there was only one other person in the group that was short like appellant.  This corroborates P.D.’s description.  P.D. may have had some difficulties in communicating his testimony at the beginning of the trial, but the record indicates that any difficulties were remedied when the interpreter translated P.D.’s testimony throughout the remainder of the trial.  It was the jury’s decision to determine P.D.’s credibility and testimony and give it an appropriate weight.  P.D.’s identification of appellant as the individual who hit him is not manifestly contrary to the evidence.   

            B.  Inconsistency in witness testimony

Appellant also argues that P.D.’s testimony is inconsistent with Christianson’s testimony.  Specifically, he points out that P.D. identified four or five assailants, while Christianson identified four.  Appellant also argues that Christianson’s testimony is inconsistent with the arresting officer’s testimony because Christianson testified that the individuals split-up, and the arresting officer testified that the individuals were together. 

As stated above, it is the jury’s responsibility to weigh conflicting testimony and determine witness credibility.  Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn. App. 1987), review denied (Minn. Dec. 13, 1987).  The jury’s verdict is not invalidated simply because the reported number of assailants was not exactly the same.  The jury could have believed P.D.’s testimony, Christianson’s testimony, or both, as long as they found them credible.  Further, Christianson’s testimony is not inconsistent with the arresting officer’s testimony.  Christianson lost sight of the group for about a block.  When he saw them again, the group split-up and ran in different directions.  At that point, Christianson left to assist P.D.  The arresting officer spotted the four individuals walking together.  It is reasonable to infer that the group split-up and then re-grouped in between the time Christianson left to assist P.D., and the arresting officer arrived at the scene. 

            C.  Proceeds from the robbery    

            Finally, appellant argues that the evidence is insufficient to convict him of aiding and abetting first-degree aggravated robbery because no proceeds from the robbery were found on him. 

Although both briefs state that no money was found on appellant or any of the individuals, appellant testified that $5 was found on him before he went “downtown.”  Appellant claimed that his father gave him the money.  The prosecution refers to this testimony in her closing argument.  Based on this testimony, a jury could infer that the $5 was part of the $16.00 taken in the course of the robbery. 

Regardless, even if no money was found on appellant that would not be a complete defense to the crime.  The presence or lack of money found on a suspect simply goes to the overall weight of the state’s case, and weight is in the eyes of the jury.  The jury could reasonably conclude that appellant committed the offense based on the identifications made by P.D. and Christianson.  Appellant admitted he was in the area where the crime took place, and the jury could choose to believe or not to believe his version of what happened.  See, e.g., State v. Parker, 282 Minn. 343, 356-57, 164 N.W.2d 633, 642 (1969) (defendant’s close association with other perpetrators, failure to disapprove or oppose crime, and fleeing with other defendants justified conclusion that defendant joined in the crime).  Viewed in the light most favorable to the conviction, the evidence is sufficient to support the jury’s finding that appellant aided or abetted an aggravated robbery. 

II.

Next, appellant argues that the prosecutor committed prejudicial misconduct during her cross-examination and in her closing argument.  Whether prosecutorial misconduct warrants a new trial is a matter within the district court’s discretion.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  An appellate court will reverse a conviction 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). 

            Defendants can waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  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).  The record does not show timely objections.  Thus, we review claimed error under a narrow standard.

                        A.  Prior inconsistent statements

Appellant argues that the prosecutor committed prosecutorial misconduct during cross-examination.  First, appellant claims that the prosecutor improperly implied that he was lying by cross-examining him about alleged inconsistent statements not admitted into evidence.  Respondent relies on State v. Stofflet, where the court addressed cross-examination of prior inconsistent statements not admitted into evidence.  281 N.W.2d 494, 497 (Minn. Search Term Begin      1979).  The error in Stofflet was held to be harmless.  In Stofflet, the prosecutor asked a key defense witness on cross-examination about an inconsistent statement he made to a deputy sheriff.  Id.  The state did not call the deputy to the stand and his summary of the witness’s statement was not offered into evidence.  IdThe court held that the prosecutor was justified in asking the defense witness about the prior inconsistent statements he made to the deputy, but the prosecutor erred by referring to the inconsistent statement in his closing statement.  Id.  However, based on the overwhelming evidence in that case, the court found that the error was not severe enough to warrant a new trial.  Id. at 497-98.  See alsoState v. Ostlund, 416 N.W.2d 755, 761 (Minn. App. 1987) review denied (Minn. Feb. 24, 1988) (cross-examination about prior inconsistent statement made to detective and contained in sworn complaint was proper, even though detective was not called as witness at trial).  

Here, like the prosecutor in Stofflet, the prosecutor asked appellant about his testimony because it was inconsistent with what he told the interviewing police officer.  On cross-examination, the prosecutor asked about appellant’s statement that he went to the park to play basketball.  The prosecutor asked, “[are] you sure? . . . [o]r are you just saying that now?”  According to the interviewing officer’s report, appellant did not mention that he went to the park to play basketball.[3]  On cross-examination, appellant stated that he told the officer that a person named Mike robbed the victim and that he had not witnessed it.  In response to this testimony, the prosecutor and appellant made the following exchange,

                        Q:        So now your blaming this on someone named

                                    Mike and you gave no other information to the officer

                                    other than his first name, is that right?

                        A:        I ain’t blaming it on nobody I’ just telling you what

I’ve been told.

                        Q:        But you did see what happened?

                        A:        No.

                        Q:        Mike did it because he told you he did it?

                        A:        Yes.

 

As in Stofflet, the prosecutor was entitled to ask appellant about any inconsistent statements.  Further, as in Stofflet, the fact that appellant’s prior inconsistent statements to the interviewing officer were not offered into evidence is of no consequence.  Unlike Stofflet, the prosecutor in this case did not refer to the inconsistent statements during closing argument.  The judge in this case instructed the jury to consider the prior inconsistent statements not offered into evidence.  This instruction, like the closing argument in Stofflet, refers to prior inconsistent statements not introduced into evidence.  Although erroneous, this instruction does not warrant a new trial.  The jury could consider the prosecutor’s attempt to impeach appellant’s testimony.  

The prosecutor’s question about appellant’s assertions that a person named Mike committed the robbery is not necessarily an attempt to prove that appellant is lying.  The prosecution is allowed to ask about a defense theory.  See State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (prosecutor is allowed to argue that there is no merit to defense when in view of the evidence or no merit to the defense).  Defense counsel did not object to any of these questions.  The prosecutor was permitted to ask appellant about his prior inconsistent statements.  The questions were not unduly prejudicial.

            B.   Prosecutor’s reference to truancy

Next, appellant argues that the prosecutor improperly implied that he was “truant” and did not go to a “normal school.”  Reviewing courts pay “special attention” to statements that may inflame or prejudice the jury where credibility is a central issue.  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).  The Supreme Court has held that improper character attacks against the defendant may constitute prosecutorial misconduct if the prosecutor’s references to the defendant’s character have the potential for planting in the juror’s minds a prejudicial belief in otherwise inadmissible evidence.  State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997).

            The prosecutor asked appellant in relevant part,

                        Q:        The name of the school was Minnesota

                                    Transitional School, isn’t it?

                        A:        Yeah, I guess.

                        Q:        What kind of school is that?

                        A:        A tentative school or just a regular school.

                        Q:        I couldn’t understand you, what?

                        A:        It’s an alternative school.

                        Q:        Now you’re stating that at 1:15 you were, you

                                    left school?

                        A:        No, at 12:00.  I don’t recall what time we got

                                    lunch, but our lunch don’t’ end until 12:52 or 53,

                                    something like that and we was at the park.

                        Q:        And you had to do what?

                        A:        And we was at the park.

                        Q:        And you left so you don’t go back until after

                                    lunch?

                        A:        No.

                        Q:        And why is that, Mr. Riley?

                        A:        We was leaving for the day.

                        Q:        You were leaving school for the day?

                        A:        Yeah.

Appellant misstates the impact of the prosecutor’s line of questioning.  The prosecutor asked appellant what time he left school that day and about the kind of school he attended.  At no point does the prosecutor suggest that appellant was a truant or refer to the school he attended as “abnormal.”  Again, defense counsel did not object to this line of questioning.  We find no error.  The challenged questions were isolated and not representative of the entire cross-examination.  See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice where prosecutor’s statements were isolated and not representative of the prosecutor’s argument as a whole).

                        C.  Closing argument

Appellant argues that the prosecutor committed misconduct during closing argument.  Closing arguments should not be calculated to inflame the passions of the jury or prejudice the jury against the defendant.  State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980) (citing State v. Perry, 274 Minn. 1, 142 N.W.2d 573 (1966)).  “A prosecutor’s closing argument should be based on the evidence presented at trial and inferences reasonably drawn from that evidence.”  State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).  The failure to object implies that the defendant found nothing improper in the closing argument.  State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).

            D.  Victim characterization

            First, appellant claims that the prosecutor made an improper appeal to the jury by characterizing P.D.’s emotions about the incident.  It is not improper for a prosecutor to talk about what a victim suffers if it does not take away from the jury’s role of finding whether the state met its burden of proof.  State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985).  Here, the prosecutor stated, “[i]t is a sad day, Members of the Jury, when a man cannot go for a walk at 1 O’clock in the afternoon without fear of being assaulted and robbed.”  The comment characterizes the impact the incident had and will have on P.D.  It was not prosecutorial misconduct.  See State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) (prosecutor’s attempt to present murder victim as thoughtful, friendly, hard working individual and mother of a four-year old child not likely to inflame to passion of jury).  The statement is not so prejudicial that it would improperly inflame the passion of the jury in their decision.  Again, defense counsel did not object to this portion of the closing argument, and the failure to object, can be construed on the side of a waiver of the objection.  See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).

                        E.  Conspiracy

            Next, appellant claims that the prosecutor misstated appellant’s defense theory by stating that appellant was arguing that a conspiracy existed between P.D., Christianson, and police officers.  The prosecutor may anticipate the closing argument of defense counsel.  Salitros, 499 N.W.2d at 818 (prosecutors free to make arguments that reasonably anticipate arguments defense counsel will assert in closing argument).  The prosecutor stated,

He [appellant] wants you to believe that there was some sort of a conspiracy going on between [P.D.], Mr. Christianson, and all these police officers.  Nothing could be further from the truth.  An eyewitness led the police to this defendant.  The victim [P.D.] confirmed the defendant was responsible.  Don’t be fooled by defendant’s smoke screen. 

 

The prosecutor anticipated that defense counsel would argue a conspiracy.  In light of the evidence, it is plausible that the defense would try to argue a conspiracy occurred between the witnesses in this case.  Regardless, defense counsel dispels any notion that appellant was arguing a conspiracy theory in his closing argument.  Defense counsel did not object to these statements during the prosecutor’s closing argument, but instead chose to address it during his closing argument.  See State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991) review denied (Minn. Jan. 17, 1992) (concluding that defense counsel’s decision to comment on the improper closing argument of prosecutor in his closing argument effectively waived opportunity for a mistrial).

                        F.  Message to appellant and community

            Finally, appellant claims that the prosecutor improperly encouraged the jury to convict him by urging the jury to send a message to appellant and the community.  A prosecutor may talk about accountability as long as it does not divert or distract the jury from their role as fact-finders.  Montjoy, 366 N.W.2d at 109.  A prosecutor may not distract the jury from its fact-finding role by “inflaming the jury’s passions and prejudices against the defendant.”  Porter, 526 N.W.2d at 363.  This court looks at a claim of prosecutorial misconduct in the context of the entire record.  Smith, 541 N.W.2d at 588. 

Here, the prosecutor stated the following:

Now members of the Jury, the defendant did not think he would get caught when he did this crime.  He thought nobody was around.  He had his friends with him and he knew he could outrun a middle-aged man, caught off guard, walking down the street.  But he did get caught and this is now your opportunity to let him know that he is guilty.  [P.D.] should be able to walk freely in his neighborhood without being harmed on a sunny fall afternoon.  Tell this to [appellant].

 

The prosecutor’s comments restated the evidence.  While the prosecutor conveyed this in a somewhat dramatic manner, this is not the type of egregious conduct that deprives a defendant of a fair trial.  See Ashby, 567 N.W.2d at 28 (finding no misconduct where “the prosecutor’s comments about gangs and fears of retaliation were not directed specifically at the jury, but rather were describing the circumstances of the case”).  Appellant failed to object to any of the comments he now claims were improper.  See Whittaker, 568 N.W.2d at 440 (Minn. 1997) (holding that defense counsel’s failure to object implies the comments were not prejudicial).

                        G.  Cumulative Effect

            Finally, appellant argues that the cumulative effect of the prosecutor’s closing argument deprived appellant of a fair trial.  As stated above, the court looks at the closing argument as a whole when considering claims of prosecutorial misconduct.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  Closing arguments should not be calculated to inflame the passions of the jury or prejudice the jury against the defendant.  Clark, 296 N.W.2d at 371 (Minn. 1980) (citing State v. Perry, 274 Minn. 1, 142 N.W.2d 573 (1966)).  Here, the prosecutor’s closing argument taken as a whole did not improperly inflame the passion of the jury and did not improperly prejudice the jury against appellant.

            Affirmed.



[1]  The money that was taken totaled approximately $16.00. 

[2]  On direct examination, defense counsel asked appellant about the $5 that was found on him after he was arrested.  Appellant stated that he received the money from his father.  It is unclear why the arresting officer, Corporal Goligowski, or the officers who seized appellant did not testify about this matter.

[3]  A tape of this interview was not transcribed or offered into evidence.  According to Respondent, appellant’s attorney and Respondent agreed to use a copy of the interviewing officer’s report of the interview for purposes of this appeal.  However, the report was also not admitted into evidence.