This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed August 16, 2005
Itasca County District Court
File No. KX-03-674
Mike Hatch, Attorney General, John B. Gallus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
that the district court abused its discretion by excluding defense witnesses’
testimony regarding the complainant’s character for untruthfulness. “Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear
abuse of discretion. On appeal, the
appellant has the burden of establishing that the [district] court abused its
discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
Appellant sought to introduce testimony from the complainant’s brother and mother of specific instances in which the complainant would say things that were not true or embellish the truth. Appellant argued that the testimony was relevant to rebut testimony presented by the state to enhance the complainant’s credibility and to support the defense’s theory that the complainant was not telling the truth.
The offer of proof showed that the witnesses would both testify to specific acts exemplifying complainant’s untruthfulness. Appellant argued that the testimony of these witnesses was admissible under Minn. R. Evid. 404, which states in pertinent part:
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
. . . .
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
The district court
concluded that the testimony was inadmissible and clarified that appellant was not
seeking to admit the evidence under Minn. R. Evid. 608.
To be admissible under rule 404,
however, evidence must be relevant, more probative than prejudicial, and
similar in kind to the conduct at issue.
Moreover, even if the
evidence was erroneously excluded, because there is no reasonable possibility
the jury’s verdict would have been different if the evidence was admitted, any
error was harmless beyond a reasonable doubt. State v.
Post, 512 N.W.2d 99, 102 (
2. Prosecutorial Misconduct
that he was denied a fair trial because the prosecutor engaged in misconduct by
personal opinion in closing arguments. Whether a
final argument is improper is normally a matter within the discretion of the district
court. State v. Ture, 353 N.W.2d 502, 516 (
During closing arguments, the prosecutor stated: “I think she was a very credible witness.” After defense objection and subsequent withdrawal, the prosecutor fumbled over language, apologized, and informed the jury that it should determine the credibility of the complainant’s testimony and that its determination should be based upon all the instructions given by the judge.
It is improper for a
prosecutor to “personally [endorse] the credibility of the state’s witnesses”
or to inject personal opinion. State v. Parker, 353 N.W.2d 122, 128 (
3. Admonishment of Defense Counsel
Finally, appellant argues that the district court abused its discretion by directly admonishing defense counsel at three points during trial: (1) after counsel left a three-ring binder on counsel table that was plainly labeled “False Allegations or Accusations of Child Sexual Abuse”; (2) during closing arguments, defense counsel pointed to the complainant’s father who had not been previously identified during the trial; and (3) after the complainant’s brother had an emotional breakdown during his testimony.
Appellant did not
object or make a record of the court’s comments. Generally, a defendant is deemed to have
forfeited his right to have an error reviewed on appeal if he fails to object
to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (
Review of the record reveals that the district court properly admonished defense counsel for his misconduct. We therefore conclude that the district court did not err in its comments to defense counsel.