This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ramsey County District Court
File No. K1022487
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Schumacher, Judge; and Klaphake, Judge.
Appellant John Vang argues that the reinstatement of four counts of second-degree assault after the district court granted his motion for a directed verdict on those counts constitutes double jeopardy requiring vacation of his convictions on those counts. Vang also argues that spoliation of evidence denied his right to a fair trial and that the district court abused its discretion in allowing the prosecutor to call a rebuttal witness. We affirm.
While investigating a reported “road-rage” incident involving a gun that occurred between occupants of a Blazer and a Honda, St. Paul police officers Sand and St. Sauver located the vehicles and stopped the Blazer. Police pursued the Honda, which did not stop until it eventually hit a telephone pole. The driver of the Blazer told the police that he saw the back-seat passenger in the Honda point a silver revolver at him.
The occupants of the Honda, driver Bee Vang, front-seat passenger Oue Yang, and back-seat passenger appellant, John Vang, were arrested and secured in different squad cars. Officer Sand searched the Honda. He did not find a gun but found, on the floor in the back-seat area, an antitheft device called “The Club” that was broken into two pieces. Sgt. Wright asked the occupants of the Honda to cooperate in locating the gun and reported that Yang told him that the “back passenger” had a gun and threw it out of the window as the police pursued them. Officer Sand testified that he did not see anyone throw anything out of the Honda during the pursuit, but in a subsequent search along the pursuit route, police found a loaded, silver .38-caliber revolver on the sidewalk. The Bureau of Criminal Apprehension found grass and dirt on the gun’s barrel but no identifiable fingerprints.
During a police interview, Vang claimed that the occupants of the Blazer had given occupants of the Honda “the finger,” yelled insults, and had thrown cans and cigarette butts at them. Vang said Yang used part of “The Club” to smash a window of the Blazer and that Vang pointed part of “The Club” at the Blazer, but that no one in the Honda had a gun.
Vang was charged with five counts of second-degree assault, one count each for the driver and the four passengers in the Blazer. Before trial, it was discovered that the police had thrown away “The Club” that was recovered from the Honda. The district court denied Vang’s motion to dismiss for spoliation of evidence but allowed Vang to purchase another “The Club” for use as a demonstrative exhibit at trial.
After the state presented its case at trial, Vang moved for a directed verdict on the four counts of assault against the Blazer’s passengers, arguing that the state presented no evidence that anyone other than the driver of the Blazer saw a gun and that there was no evidence that Vang had pointed a gun at any of the passengers. The district court granted the motion.
Vang testified on his own behalf that he was the back-seat passenger in the Honda and that he was “waving” at the Blazer. Vang testified that Yang broke “The Club” and gave the “silver part” to Vang. Vang denied that he had a gun or threw a gun from the car during the police pursuit. Vang claimed, for the first time at trial, that the Honda had been stopped and searched by a Washington County sheriff just before the road-rage incident occurred and that nothing was found during that search.
After a recess, the prosecutor asked the district court to reconsider dismissal of the counts involving the Blazer’s passengers and brought to the district court’s attention State v. Hough, 585 N.W.2d 393 (Minn. 1998), in which the supreme court held that a victim’s awareness of an assault is irrelevant because the relevant inquiry focuses on the intent of the defendant and whether he intended to cause fear in another of bodily harm or death. Id. at 396. Based on Hough, the district court reinstated the dismissed counts.
Over Vang’s objection, the state then called Yang as a rebuttal witness. Yang testified that the Honda had been searched earlier, but said the search was by a Lake Elmo police officer, not a Washington County sheriff, and that the Honda was already stopped when the Lake Elmo officer pulled up behind it. In response to a question posed by Vang’s counsel during cross-examination, Yang testified that no one in the Honda had a gun and no one threw a gun out of the window. The state then called Sgt. Wright, who impeached Yang’s testimony with Yang’s at-the-scene statement that Vang had a gun and threw it out of the window during the pursuit.
During deliberations, the jury asked to see “The Club,” and the district court granted the request. Vang was convicted of all five counts of assault. This appeal followed.
I. Double jeopardy
For the first time on appeal, Vang argues that his constitutional right to protection from double jeopardy was violated by the mid-trial reinstatement of the four assault charges involving the Blazer’s passengers after the district court had granted his motion to dismiss those counts. “This court generally will not review an issue, even a constitutional claim, if it was not raised in the trial court.” State v. Barnes, 618 N.W.2d 805, 811 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). But if the interests of justice warrant addressing the issue, an appellate court may do so. Id. We choose to address Vang’s argument despite his failure to raise it in district court.
The Double Jeopardy Clauses of the United States and Minnesota Constitutions protect a criminal defendant from a second prosecution for the same offense after an acquittal on the merits. See U.S. Const. amend. V (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”); Minn. Const. art. 1, § 7 (“No person shall be put twice in jeopardy of punishment for the same offense.”). An appellate court reviews the constitutional issue of double jeopardy de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999).
It is a fundamental rule of double-jeopardy jurisprudence that a verdict of acquittal cannot be reviewed without putting the defendant twice in jeopardy. Id. “Once a defendant has been acquitted, no matter how ‘egregiously erroneous’ the legal rulings leading to the judgment of acquittal might be, double jeopardy principles forbid successive trials for the same offense.” Id. (citing Sanabria v. United States, 437 U.S. 54, 65, 98 S. Ct. 2170 (1978)).
Jeopardy attaches in a jury trial when the jury is empanelled and sworn. State v. Large, 607 N.W.2d 774, 778 (Minn. 2000). Absent an interim order terminating the trial on the merits, jeopardy continues until there is a verdict. Id. In Minnesota, verdict completion is defined by Minn. Stat. § 631.17 (2000), which provides that if, after filing and reading the verdict, no disagreement is expressed by the jury, the verdict is complete. But a trial court’s actions amount to an acquittal on the merits when “the ruling of the judge, whatever its label, actually represents a resolution [in defendant’s favor], correct or not, of some or all of the factual elements of the offenses charged.” Large, 607 N.W.2d at 779 (quoting United States v. Scott, 437 U.S. 82, 97, 98 S. Ct. 2187 (1978)). The United States Supreme Court in Scott held that if a defendant successfully terminates proceedings after jeopardy has attached because he argues, and the trial court finds, that the government has failed to make a case against him, the trial court’s action amounts to an acquittal and cannot be appealed. Scott, 437 U.S. at 96-97, 98 S. Ct. at 2197. But if a defendant moves to terminate the prosecution based on grounds unrelated to factual guilt or innocence and persuades the trial court to dismiss on a basis that does not depend on factual guilt or innocence, jeopardy will not bar retrial. Id. at 98-99, 101, 98 S. Ct. at 2198, 2199.
Appellant argues that his motion, which at trial was labeled a motion for a “directed verdict,” is more correctly characterized as a motion for “judgment of acquittal,” under Minn. R. Crim. P. 26.03, subd. 17(1). Minn. R. Crim. P. 26.03, subd. 17(1) abolished “directed verdicts” in favor of “judgments of acquittal.” Appellant claims that the court’s dismissal of counts II-V was a resolution of the case in appellant’s favor. But the critical question is whether the district court “evaluated the [state]’s evidence and determined that it was legally insufficient to sustain a conviction” or whether appellant sought to terminate the prosecution solely on a legal claim unrelated to factual guilt or innocence. Scott, 437 U.S. at 97, 98 S. Ct. at 2197.
We conclude that in this case the motion was based solely on a legal claim that did not involve the resolution of any facts and was not an acquittal triggering double jeopardy. Here, there was no second prosecution. The jury was not aware of the dismissal or the reinstatement of the four counts during the trial. The district court’s decision to dismiss was based on an erroneous legal determination of the elements of the crime charged, not a determination based on the facts. See Scott, 437 U.S. at 97, 98 S. Ct. at 2197. The district court reinstated the four counts based on the legal conclusion that a victim’s awareness of an assault is irrelevant to a determination of guilt or innocence.
Because there was no second trial in this case and the district court’s reinstatement of the four counts was based on a legal principle, we conclude that Vang’s right to be protected from double jeopardy was not violated.
Vang testified that Yang used one end of “The Club” to break a window on the Blazer and gave the shiny end of “The Club” to him. Vang claimed that he was holding the shiny end of “The Club” when the driver of the Blazer saw what the driver thought was a gun. According to the prosecution, the police mistakenly threw away “The Club” because Vang was not charged with assault for using “The Club.” The trial court allowed Vang to buy a “The Club” that looked identical to the one that was recovered from the Honda to use for illustrative purposes during the trial.
Appellant argues that the state’s destruction of exculpatory evidence violated his right to due process and that, as a result, the charges against him should have been dismissed. The Due Process Clause of the Fourteenth Amendment requires the government to deliver exculpatory evidence into the hands of the accused to protect the innocent from erroneous conviction and to ensure the integrity of our criminal-justice system. State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992); see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) (stating that, in the interest of fairness, a criminal defendant has a constitutional right to obtain evidence material to guilt or relevant to the punishment imposed).
To succeed on a claim of a due-process violation due to the destruction of evidence, a criminal defendant must show “(1) that the evidence at issue was favorable to him; (2) that evidence was willfully or inadvertently suppressed by the state; and (3) that he was thereby prejudiced.” State v. Larivee, 656 N.W.2d 226, 230 (Minn. 2003). The supreme court recently stressed, however, that there is no denial of due process when the police fail to preserve potentially useful evidence, unless a criminal defendant demonstrates bad faith by the police. State v. Bailey, 677 N.W.2d 380, 393 (Minn. 2004). Moreover, the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2531 (1984). In this case, Vang’s due-process claim fails because he was able to obtain comparable evidence.
Vang claims that the prosecutor urged the jury to infer that he purchased a “The Club” that most resembled a gun and that the jury had only Vang’s word that the item purchased was similar to the one found in the car. But a fair reading of the transcript reveals that the prosecutor was allowing Vang the opportunity to point out any differences between the object used in court and the one that was lost. Vang testified that the only potential difference was the color of the piece that he did not claim to be holding. Because Vang was able to obtain comparable evidence to use at trial, his right to due process was not violated by the inadvertent destruction of the original “The Club.”
Vang objected when the state indicated that it would call Yang in rebuttal and claimed that the only reason for calling him was to introduce Yang’s otherwise inadmissible statement to Sgt. Wright that Vang had a gun and threw it out of the Honda during the police pursuit.
Under Rule 607, “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Minn. R. Evid. 607. “A prosecutor, however, may not misuse Rule 607 to expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness’ prior statement.” State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999).
In this case, the prosecution called Yang to rebut Vang’s testimony about the details of the alleged stop and search of the Honda that occurred prior to the road-rage incident and to rebut the details of what was done with “The Club” during the incident. The prosecutor did not ask Yang about his statement to Sgt. Wright. On cross-examination, Vang’s counsel specifically asked Yang if there had been a gun in the car and whether anybody had thrown a gun from the car. Yang answered that there had never been a gun in the car and that no one had thrown a gun from the car. On re-direct, the prosecutor asked Yang if he had told Sgt. Wright that the back-seat passenger had a gun and had thrown it from the car. Appellant objected but was overruled. Yang denied making the statement to Sgt. Wright. The prosecutor then called Sgt. Wright to establish that Yang had told him that Vang had a gun and had thrown the gun from the Honda as they turned a corner during the police pursuit.
The admission of evidence at trial is within the district court’s discretion and will not be reversed on appeal absent an abuse of that discretion. State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999). Because Yang’s testimony about the gun was not the prosecutor’s sole purpose in calling him to testify, we conclude that the district court did not abuse its discretion by allowing the state to call Yang as a rebuttal witness and to impeach his testimony with the testimony of Sgt. Wright.
 Vang does not argue that Hough does not control.
 The district court did not reinstate the dismissed counts based on any weighing of the evidence but rather on the purely legal conclusion that the victim’s awareness was not an element of the crimes charged. See Haugh, at 396.
 It appears that the color of the end of the replacement “The Club” was different from the color of the end of “The Club” that was used by Yang to break the Blazer’s window, but the end of “The Club” Vang claimed to have pointed at the Blazer was identical to the replacement “The Club.”