This opinion will be unpublished and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

A03-260

 

 

State of Minnesota,

Respondent,

 

vs.

 

Bryant Garth,

Appellant.

 

 

Filed April 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Stearns County District Court

File No. K9022259

 

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303-4773 (for respondent)

 

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

 

 

Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Bryant Garth challenges his conviction of first-degree criminal sexual conduct in violation of Minn. Stat.  609.342, subd. 1(f)(i) (2000). He argues the evidence is insufficient as a matter of law to sustain his conviction. He also argues he is entitled to a new trial because the trial court precluded him from introducing testimony to show lack of bias of a defense witness, and because the prosecutor committed misconduct during his closing argument. We affirm.

FACTS

On the evening of April 26, 2002, the victim in this case, L.D., attended a party at C.T.'s apartment in St. Cloud, Minnesota with a female friend, K.K., and L.D.'s boyfriend, J.L. At the time of the party, L.D. was 16 years old. Garth, a friend of C.T., also attended the party. At the time, he was 27 years old.

It is uncontested that in the early morning hours of April 27, Garth had sexual intercourse with L.D. in the bathroom of C.T.'s apartment and that Marvin Banks and M.K. were also present in the bathroom at the time. But Garth and L.D. testified to very different sequences of events beginning shortly before L.D. entered the bathroom until she departed for the hospital.

L.D. testified that the events occurred as follows. L.D. heard M.K. talking on the telephone about "dancing" at Bel Claire Acres trailer park and that "she thought she had somebody new to dance with her." M.K. later told L.D. they could each make a $1,000 if they "danced" at the trailer park. L.D. stated she was not interested. M.K. then asked L.D. to go into the bathroom and talk further. L.D. agreed, expecting "to just kind of girl talk." But M.K. kept talking about the $1,000 the two girls could make. Again, L.D. said she was not interested. During the conversation, L.D. was sitting on the toilet, but M.K. pulled L.D. off the toilet and started removing all of L.D.'s clothing. She tried to resist, but M.K. was still able to remove all of her clothes.

L.D. further testified that M.K. called for Garth and Banks to come in. L.D. tried to keep the door shut with her leg but to no avail. When Garth came in, his pants were unbuttoned and his belt was off. Garth picked L.D. up off the floor and put her hands on the toilet so that she was facing the wall behind the toilet. L.D. tried to call for help, but M.K. covered her mouth. Garth sexually penetrated L.D. from behind while M.K. was holding L.D.'s feet. After Garth had ejaculated, Banks grabbed L.D. by her arms and she hit her head and her back on the bathtub. L.D. did not remember anything after Banks grabbed her until she "[woke] up with her legs over [M.K.'s] shoulders." Garth and Banks were still in the bathroom when she woke up, but left shortly thereafter. L.D. left the bathroom and went into a living room closet where she used a telephone to call her boyfriend and K.K. At approximately 8 a.m., her boyfriend took her to the hospital.

Garth testified the events of that morning occurred quite differently. As the party wound down, he was sitting in the living room when he noticed L.D. and M.K. kissing and rubbing each other. Garth attempted to "join in," but M.K. pushed his hand away and then led L.D. into the bathroom. After the two girls went into the bathroom, Garth tried to open the bathroom door, but "somebody shut it." He was very curious as to what was happening in the bathroom and attempted to open the door again, but again somebody shut it. Garth returned to the living room intending to go to sleep, but Banks, who had left to speak with his girlfriend, returned to the party and Garth immediately told him that M.K. and L.D. "are getting' down in the bathroom." Banks then attempted to get into the bathroom and "the door just opened." The two men then walked into the bathroom and found the two girls on the floor naked.

Garth further testified that at first the girls were kissing and rubbing each other, but then M.K. began performing oral sex on L.D. Garth noticed L.D.'s head was going into the toilet, so he shut the lid and sat down. L.D. turned on her side and began performing oral sex on Garth while M.K. continued to perform oral sex on her. The oral sex lasted a short time before L.D. asked him, "[W]ould you bang me?" M.K. moved over to where Banks was sitting and began having sex with him, and Garth began having sexual intercourse with L.D. Thereafter, Garth and Banks left the bathroom.

M.K. and Banks corroborated most of Garth's testimony, although M.K. disagreed that there was physical contact between her and L.D. on the living room couch. Prior to Garth's trial, Banks was acquitted of first-degree criminal sexual conduct for his role in the events that occurred in the bathroom. Charges against M.K. are still pending.

D E C I S I O N

1. Garth argues the evidence is insufficient to support his conviction. In considering a sufficiency of the evidence challenge, the reviewing court will "take the evidence in the light most favorable to the state and assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002). Appellate review is "limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom." State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted).

Here, Garth was charged with a violation of Minn. Stat. 609.342, Subd. 1(f)(i), which defines first-degree criminal sexual contact to include sexual penetration of another person where:

(f) the actor is aided or abetted by one or more accomplices within the meaning of section 609.05, and either of the following circumstances exists:

 

(i) an accomplice uses force or coercion to cause the complainant to submit . . . .

 

Minn. Stat.  609.342, subd. 1(f). Section 609.05 defines an accomplice as a person who "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat.  609.05, subd. 1 (2000).

L.D. testified Garth penetrated her without her consent. She also testified M.K. assisted Garth by holding her ankles and covering her mouth when she attempted to call for help. Although Garth presented contradictory testimony, balancing conflicting testimony is a matter for the jury. See Pippitt, 645 N.W.2d at 92 (stating "it is the function of the jury to evaluate the credibility of the witnesses"). Based on the testimony of L.D. alone, the jury was presented with sufficient evidence to find Garth guilty of first-degree criminal sexual conduct. See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (stating "conviction can rest upon the testimony of a single credible witness").

2. Garth also argues the trial court committed reversible err when it excluded any reference to Banks' acquittal of the charges against him arising out of these events. "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). The appellant bears the burden of establishing the trial court abused its discretion. Id.

Garth argues that under Minn. R. Evid. 616, evidence of Banks' acquittal should have been admitted. Rule 616 provides: "For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible." Minn. R. Evid. 616 Here, Garth sought to bolster the credibility of Banks' testimony and not attack it. Thus, rule 616 does not apply.

Garth points to numerous cases for the proposition that evidence of bias is always relevant and concludes: "Because it is relevant, it is admissible." It is true that evidence must be relevant to be admissible. Minn. R. Evid. 402. But it does not follow that all relevant evidence is admissible. See, e.g., Minn. R. Evid. 403 (stating relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.").

Although admitting evidence of Banks's acquittal to show lack of bias was within the trial court's discretion, Garth has not demonstrated that the trial court abused its discretion by excluding it. See Amos, 658 N.W.2d at 203 (appellant bears burden of proving abuse of discretion). We conclude the trial court did not abuse its discretion, in excluding the proffered evidence.

3. Garth also argues he is entitled to a new trial because the prosecutor committed misconduct during his closing argument. When reviewing a claim of misconduct in closing arguments, appellate courts must look at the whole argument in context, not just selective phrases or remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Prosecutorial misconduct must be prejudicial before this court will reverse a conviction. State v. Thompson, 520 N.W.2d 468, 471 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). The level of the misconduct determines what standard is used to determine whether the misconduct was prejudicial. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

If the misconduct was serious, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. For less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.

 

Id. (quotation omitted).

Garth argues the prosecutor committed misconduct by stating his personal opinion of witnesses' credibility, disparaging the defense, and making statements not supported by the evidence. A prosecutor's closing argument "need not be 'colorless,' [but] it must be based on the evidence produced at trial, or the reasonable inferences from that evidence." State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (citation omitted). A prosecutor is "free to specifically argue that there is no merit to a particular defense in view of the evidence or no merit to a particular argument." State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). But prosecutors may not belittle a defense in the abstract or suggest a defendant raised a particular defense because it was the only defense that "might work." State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994). And the prosecutor "may indeed point to circumstances which cast doubt on a witness' veracity or which corroborates his or her testimony, but he may not throw onto the scales of credibility the weight of his own personal opinion." State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).

During closing argument, the prosecutor pointed to circumstances that cast doubt on Garth, M.K., and Bank's testimony and pointed out circumstances that corroborated L.D.'s testimony; that is not misconduct. It was improper, however for the prosecutor to argue: "I think this story sounded rehearsed," and "it sounded like something he saw in a movie to me." Furthermore, the prosecutor misstated the evidence when he stated Garth had a role in getting L.D. drunk, and misstated who had sex with whom.

Garth argues the prosecutor's closing argument inflamed the passions and prejudices of the jury by painting him "as an immoral, unlikable, sexually promiscuous person." In a closing argument, the prosecutor must "avoid inflaming the jury's passions and prejudices against the defendant." Porter, 526 N.W.2d at 363.

After reviewing the prosecutor's closing argument in its entirety, we conclude that while improprieties do exist, they are not serious and did not play a substantial part in influencing the jury to convict. See Powers, 654 N.W.2d at 678.

Affirmed.