This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Gary Robert Ostermann,



Filed January 13, 2004


Hudson, Judge


Hennepin County District Court

File No. 02041171


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant argues that he should receive a new trial because the prosecutor committed misconduct by shifting the burden of proof in her opening statement, cross-examination, and closing argument.  Because appellant waived his right to challenge the prosecutor’s comments during the opening statement, the prosecutor did not commit misconduct, and any errors at trial were cured by the trial court’s instructions, we affirm.


Appellant Gary Ostermann drove commercial trucks and leased a semi-truck from Transport Designs in 1998.  He refinanced the lease through U.S. Leasing.  Under the terms of the new lease, Ostermann was required to pay $1,142.51 per month for 36 months, with an option to buy at the end of the lease.

During the term of his lease, Ostermann experienced serious financial troubles, often missing payments, and later declaring bankruptcy.  He approached U.S. Leasing about reaffirming his debt, and in October 2001, Ostermann and U.S. Leasing entered into a reaffirmation agreement.

Ostermann continued to have financial problems, and in February 2002, he stopped making the lease payments.  In March 2002, his insurance on the truck and his commercial driver’s license were cancelled.  On March 19, 2002, U.S. Leasing mailed Ostermann a demand letter, requiring him to either pay the total amount due or to return the truck to the company’s yard by April 2, 2002.  Ostermann called U.S. Leasing on the same day the letter was sent, and the contents of the demand letter were conveyed to him over the phone.  Ostermann testified that he told U.S. Leasing that he would “get [his] stuff out of the truck and we will take care of it.”

On April 3, 2002, U.S. Leasing reported the truck stolen.  Ostermann contends he made an attempt to return the truck at the end of April 2002.  Ostermann contends that he was afraid to drive the truck to U.S. Leasing’s yard in Rogers because he no longer had insurance or a commercial driver’s license.  Instead, Ostermann drove and parked the truck at a truck stop in Lakeville.  Ostermann contends that he later mailed a letter and the key to the truck to U.S. Leasing.  U.S. Leasing contends they never received the letter or the key.

In May 2002, Ostermann was arrested and charged with theft.  A jury convicted Ostermann of theft of a motor vehicle.  Ostermann’s motion for a new trial was denied, and he was sentenced to 15 months in prison.  Ostermann’s sentence was stayed and he was placed on probation for 10 years.  This appeal follows.


Ostermann argues that he should receive a new trial because the prosecutor committed misconduct by shifting the burden of proof to the defense in her opening statement, cross-examination, and closing argument.  Further, Ostermann contends that if the misconduct was harmless, his conviction should still be reversed in the interests of justice because the misconduct was serious and persistent. 

            The decision regarding whether, due to prosecutorial misconduct, a new trial should be granted, “rests within the discretion of the district court.”  State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001).  This court will not disturb a trial court’s conclusion that no misconduct occurred “unless the misconduct, viewed in light of the entire record, was so inexcusable, serious, and prejudicial that the defendant's right to a fair trial was denied.”  IdAppellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  There are two distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).  “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.”  Id. 

A.        Opening Statement

In her opening statement, the prosecutor stated:

[The] letter on March 19th accelerated that and that will be explained in the testimony today.  And that the defendant acted with intent, again, to wrongfully deny US Leasing and Sales, the lessor, of possession of their property and, again, the best support for that is they don’t have this truck and we don’t know where this truck is.


Defense counsel’s objection was sustained.  The prosecutor continued and stated, “There will be other theories of this case that will be presented through the defense and I ask you to pay careful attention to that testimony and that evidence.”  Defense counsel objected again and moved for a mistrial.  The trial court offered to grant a mistrial, but noted that Ostermann could waive the mistrial.  The trial court recessed for the day and the next day Ostermann expressly waived his right to a mistrial on the record.  Therefore, we conclude Ostermann waived his right to challenge the prosecutor’s remarks during her opening statements on appeal.  See State v. Simon, 275 N.W.2d 51, 52 (Minn. 1979) (finding that a defendant who waives a trial court’s offer of a mistrial cannot complain on appeal regarding the error). 

In addition to waiving the right to a mistrial and his right to challenge the prosecutor’s opening statement, any error made in the opening statement was cured by the corrective instructions the trial court gave to the jury.  See State v. Race, 383 N.W.2d 656, 664 (Minn. 1986) (stating “[p]rosecutorial error is curable by corrective instructions”).  Here, the trial court gave additional instructions to the jury on the presumption of innocence, and noted that “[t]he defendant does not have to prove his innocence . . . [and] has no obligation to ever present any evidence whatsoever.”

B.        Cross-examination

During Ostermann’s testimony he claimed the truck was inoperable and that he had to pay for many repairs to the truck.  During his cross-examination, the following exchange occurred:

Prosecutor:    Do you have any documentation evidencing any repairs you had done to the vehicle?


Ostermann:    I have boxes of them at home.  I have two years worth of repairs and income tax forms and fuel receipts.  If you want it, I can bring it in.


Prosecutor:    Did you provide those documents to your attorney?


Defense counsel objected to the last question and the trial court sustained the objection on the grounds that the prosecutor was infringing on matters protected by the attorney-client privilege.  It appears from a review of the record as a whole that the prosecutor was not asking the question to shift the burden of proof, but rather to ensure that Ostermann had not committed another discovery violation.[1]  Indeed, any prejudice from this question was cured when the trial court gave the jury a corrective instruction, stating “[y]ou are not to speculate as to possible answers to questions which I did not require to be answered.  In particular, no one ever has to talk about what they said to their lawyer.  That is attorney/client privilege and that is always confidential.”  Furthermore, in denying Ostermann’s new trial motion, the trial court noted that the objection to the cross-examination question was marginal, but that it had sustained the objection because it was “particularly vigilant” after the opening statement problem.

            Thus, there was no misconduct during the prosecutor’s cross-examination of Ostermann, and any misconduct that may have occurred was cured by the trial court’s corrective instruction.  Race, 383 N.W.2d at 664.

C.        Closing Argument

            In her closing argument, the prosecutor stated, “[w]ith respect to the comments that [defense counsel] made about the defendant leaving the truck at a truck stop in Lakeville, there is absolutely no evidence other than the defendant’s statement that that ever happened.”  Defense counsel’s objection was sustained.  The prosecutor later stated,

If you look at the statements made by the defendant and the actions that he took after he received the demand letter, you will conclude that the requisite intent in this statute has been met and satisfied beyond a reasonable doubt and the defense will be unable to refute that. 


Defense counsel did not object to this statement.

            Although it is a close call, the prosecutor’s first statement appears to be a comment on the lack of evidence to support Ostermann’s claim, which does not shift the burden of proof to Ostermann.  Race, 383 N.W.2d at 664 (a statement by the prosecutor on the lack of evidence regarding the defense’s theory does not shift the burden of proof).  The second statement was an attempt to argue that Ostermann’s testimony did not create reasonable doubt, which is not improper.  State v. Dodis, 314 N.W.2d 233, 237 (Minn. 1982) (“It is for the jury to determine whether the defendant has submitted sufficient evidence to create a reasonable doubt of defendant’s guilt.”).  In any event, defense counsel did not object to the prosecutor’s second statement, and therefore Ostermann forfeited “the right to have the issue considered on appeal.”  Powers, 654 N.W.2d at 678. 

            In addition, defense counsel told the jury that Ostermann “need not prove anything” and the trial court gave instructions to the jury that the state bore the burden of proof.  The jury had repeatedly been informed about proof beyond a reasonable doubt and the presumption of innocence, and were given the instructions to read themselves.  Furthermore, in denying Ostermann’s new trial motion, the trial court noted that it was “hypervigilant in this trial after the opening statement problem and sustained every marginal objection that [defense counsel] made.” 

D.        Interest of Justice

Finally, Ostermann argues that even if any errors were harmless, his conviction should be reversed in the interest of justice under State v. Van Wagner, 504 N.W.2d 746 (Minn. 1993).  In Van Wagner the prosecutor’s misconduct was flagrant and intentional.  Id. at 750.  In contrast, the prosecutor’s misconduct in this case, while troubling, does not appear to be flagrant or intentional.  The prosecutor’s misconduct was not so “inexcusable, serious, and prejudicial” to the point where Ostermann was denied a fair trial.  Henderson, 620 N.W.2d at 702.  The trial court gave the jury corrective instructions and also instructed the jury that the state bore the burden of proof.  Any errors during trial were cured by the trial court’s instructions.  Race, 383 N.W.2d at 664.  Furthermore, given the strength of the state’s evidence, any prosecutorial error did not play a substantial role in the jury’s decision to convict Ostermann.



[1] Ostermann had previously failed to provide the prosecutor with some check receipts that he intended to introduce at trial.