This opinion will be unpublished and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
State of Minnesota,
Nicholas Scott Lagos,
Hennepin County District Court
File No. 03031015
Douglas A. Kelley, Steven E. Wolter; Douglas A. Kelley, P.A., 2530 Centre Village Offices, 431 South Seventh Street, Minneapolis, MN 55415 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Wright, Judge.
Failure to object to an error at trial ordinarily constitutes waiver of the defendant’s right to appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). But we may consider the claim on appeal if the error was plain and if it affected the defendant’s substantial rights. Id.; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (setting out three-prong test). If this standard is met, “we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (alteration in text).
Lagos first challenges the district court’s decision to admit expert testimony by Daniel Burns, who assessed the value of the damage to the vehicles. Burns was not cross-examined at trial, and his testimony is uncontroverted. Lagos contends that Burns’s testimony was inadmissible because it lacked foundation and was prejudicial. Because Lagos did not preserve an objection before the district court, we utilize a plain-error standard of review. See Strommen, 648 N.W.2d at 686.
Expert testimony may be based on facts “made known to the expert at or before the hearing.” Minn. R. Evid. 703(a). Such facts need not be admissible as evidence if they are of the same type “reasonably relied upon” by other experts in that field. Id.; State v. Stewart, 643 N.W.2d 281, 293-94 (Minn. 2002). Whether particular facts supply sufficient foundation to determine value or, conversely, the amount of damage to a vehicle, depends on the nature of the property in question. The value of real property may depend on several individualized factors unique to a particular property, whereas fungible commodities may be valued without any direct examination of the commodity. Compare Housing & Redev. Auth. v. Phillips Petroleum Co., 294 Minn. 410, 415, 202 N.W.2d 214, 217-18 (1972) (real property), with Northland Ins. Co. v. Ace Doran Hauling & Rigging Co., 415 N.W.2d 33, 37 (Minn. App. 1987) (cotton).
Kadlec Motors, Inc. v. Knudson involved a challenge to an automobile dealer’s testimony as to the value of a used vehicle. 383 N.W.2d 342, 348 (Minn. App. 1986). The dealer did not inspect the vehicle. Id. at 349. Rather, the dealer estimated the vehicle’s value based on his knowledge of the type of vehicle and its condition. Id. In holding that the district court did not abuse its discretion in admitting the expert’s opinion, we noted that if lack of information affected the dealer’s valuation, it bears on the weight to be given the dealer’s opinion, not the admissibility of the expert opinion.
During his testimony, Burns did not state whether he had inspected either of the damaged vehicles. Based on his knowledge of the make and model of the vehicles, Burns considered the negative consequences, such as body damage and oil seepage, that result from turning these vehicles upside-down. Burns then assessed the amount of damage to each vehicle based on more than twenty years’ experience as an automobile mechanic. There is no indication in the record that Burns had insufficient information to offer this opinion or that he was not using information reasonably relied on by others in his field. We, therefore, conclude that Burns’s expert opinion was supported by sufficient foundation.
Lagos also argues that Burns’s testimony should have been excluded because it was unduly prejudicial. Testimony is prejudicial and inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403; State v. Smith, 669 N.W.2d 19, 27 (Minn. 2003). Unfair prejudice cannot be based on the legitimate probative force of evidence, but only on the capacity of evidence to persuade by illegitimate means. State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985). Here, Burns dispassionately assessed the damage to each vehicle without any reference to Lagos or his culpability. Because there was no obvious risk of unfair prejudice, the record also fails to support this basis for Lagos’s claim that the district court committed plain error in admitting Burns’s testimony.
The standardized jury instruction for aiding and abetting the commission of a crime provides that a defendant is guilty of an offense committed by another “when the defendant has intentionally aided the other person in committing [the crime], or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit [the crime].” 10 Minnesota Practice, CRIMJIG 4.01 (4th ed. 1999) (emphasis added).
During the oral charge to the jury, the district court read the following instructions:
The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it. . . .
The defendant is charged in Count II with aiding and abetting unknown individuals in committing the crime of damage to property as previously defined in Count I. In order to find the defendant guilty, you must find that it has been proven beyond a reasonable doubt that he aided unknown individuals in committing the crime of damage to property or that he intentionally advised, hired, counseled, conspired with or otherwise procured unknown individuals to commit the crime of damage to property as previously defined in Count I.
When counsel for Lagos pointed out to the district court that it had omitted the word “intentionally” from the jury instructions on the elements of aiding and abetting, the district court asked the parties if changing the written instructions to include the omitted term “without highlighting it” would be satisfactory. Counsel for Lagos replied, “[T]hat’s fine.” The district court then stated:
I will be inserting in the sentence that begins in order to find the defendant guilty, you must find that it has been proven beyond a reasonable doubt that he—and at that point I would be inserting the word ‘intentionally’ aided unknown individuals. . . . Counsel are you satisfied with that correction?
Lagos asserts that his conviction was the product of prosecutorial misconduct, contending that the state prejudicially mischaracterized the post-game celebration as a “riot.” Because Lagos failed to object at trial to the use of the term “riot,” we again apply a plain-error standard of review. See State v. Johnson, 672 N.W.2d 235, 239-40 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004).
One form of prosecutorial misconduct is the mischaracterization of evidence. See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citing in dicta 1 ABA Standards for Criminal Justice, The Prosecution Function 3-5.8(a) (2d ed. 1980)); State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979). It is not misconduct, however, when a prosecutor argues reasonable inferences from evidence in the record. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). Indeed, the prosecutor is not constrained to deliver a “colorless argument.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).
Prosecutorial misconduct also occurs when the state appeals to passion or prejudice and distracts a jury from applying the standard of proof to the evidence presented. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). When such misconduct is alleged, the defendant cannot rely on a few isolated statements. State v. Powers, 654 N.W.2d 667, 678-79 (Minn. 2003). Rather, determining whether prosecutorial conduct of this kind occurred requires us to consider the prosecutor’s statements in the context of the parties’ arguments and the entire trial. Id. Acquittal on some charges tends to demonstrate that the jury conscientiously considered the evidence, rather than resorting to passion or prejudice. State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).