This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Christopher Michael Benton,
Filed September 27, 2005
File No. K6-04-157
Mike Hatch, Attorney General,
Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota
Street, St. Paul, MN 55101; and
Michelle Dietrich, Redwood County
Attorney, Redwood County Courthouse, Box 130, Redwood Falls, MN 56283 (for respondent)
John M. Stuart, State Public
Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414
Considered and decided by Hudson, Presiding
Judge; and Parker,
U N P U B L I S H E D O P I N I O N
appeal from his convictions of domestic assault, child endangerment, and
engaging in a pattern of harassing conduct, appellant argues that (1) the
evidence is not sufficient to support the convictions; (2) the district court
abused discretion by allowing the prior inconsistent statements of the victim;
and (3) the state committed prosecutorial misconduct in its closing
arguments. We affirm.
first raises a series of arguments challenging the sufficiency of the evidence
for his convictions. On review for
sufficiency of the evidence, the inquiry is whether the evidence, and
reasonable inferences from that evidence, will support the jury’s determination
of guilt. Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004).
We view the record in the light most favorable to the verdict, and we
assume that the jury believed the state’s witnesses and disregarded any
contrary evidence. State v. Taylor, 650 N.W.2d 190, 206
2002). We will affirm the conviction if
the jury, acting with due regard for the presumption of innocence, could
reasonably determine that the defendant is guilty beyond a reasonable
doubt. Bernhardt, 684 N.W.2d at 476.
When a conviction is based on
circumstantial evidence, appellate review for the sufficiency of the evidence
warrants particular scrutiny. State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004). Circumstantial evidence is not based on direct
observation of the crime, but it supports the inference that the crime took
place. See State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003). We defer to the determinations of a jury on
circumstantial evidence, State v. Wallace,
558 N.W.2d 469, 472 (Minn. 1997), and accord it the same weight as other
evidence, Bolstad, 686 N.W.2d at 539. A conviction is supported by circumstantial
evidence when, under the totality of the circumstances, the evidence excludes all
reasonable inferences except the guilt of the defendant. State
v. Olhausen, 681 N.W.2d 21, 26 (Minn.
his conviction of domestic assault for the March 17 incident, Benton claims that the state did not present
sufficient evidence of bodily harm. The
offense makes it a crime for a person to “intentionally inflict[ ] or attempt[
] to inflict bodily harm” on a household member. Minn. Stat. § 609.2242, subd. 1(2)
(2002). Bodily harm is defined by
statute as “physical pain or injury, illness, or any impairment of physical
condition.” Minn. Stat. § 609.02, subd.
Even in the absence of a manifest
injury, bodily harm may occur in the course of any assault that causes physical
pain to the victim. See State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773
(1967) (holding that bodily harm was established where a defendant shoved
victim in and out of vehicle). Pain and
bruising from an assault supplies sufficient evidence to establish bodily
harm. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985).
When all reasonable inferences are
taken in favor of the state, the record indicates that S.T. called the police,
sounding fearful, on March 17. According
to an officer who later arrived on the scene, S.T. told him that Benton beat her. Photographs from the incident further
indicate that S.T. was bruised and bloodied.
Even though S.T. and Benton later
testified to the contrary, the only rational conclusion from the circumstantial
evidence is that Benton
assaulted S.T. and caused bodily harm.
We conclude that the element of bodily harm is established by sufficient
his conviction of engaging in a pattern of harassing conduct, Benton asserts that the state did not present
sufficient evidence of a pattern. A
pattern of harassing conduct is defined as “two or more acts within a five-year
period that violate or attempt to violate” several enumerated statutes,
including the domestic assault and fifth-degree assault statutes. Minn. Stat. § 609.749, subd. 5(b)
(2002). The state must prove all
elements of each predicate offense beyond a reasonable doubt, State v. Schmitz, 559 N.W.2d 701, 705
(Minn. App. 1997), review denied
(Minn. Apr. 15, 1997), but proof of a prior conviction is sufficient to establish
a predicate offense, State v. Richardson,
633 N.W.2d 879, 887 (Minn. App. 2001).
Here, the state presented evidence
that Benton was
convicted of a domestic assault in November 2003. The jury also convicted Benton of domestic
assault for the March 17 incident.
Because these events establish that Benton had two or more domestic assault
convictions within a five year period, the jury had sufficient evidence to find
a pattern of harassing conduct.
Benton last challenges
his conviction of child endangerment, contending that the state did not present
sufficient evidence of a likelihood of substantial harm to the child. The statute makes it a crime for a parent to
“intentionally or recklessly caus[e] or permit[ ] a child to be placed in
a situation likely to substantially harm the child’s physical, mental, or
emotional health.” Minn. Stat. §
609.378, subd. 1(b)(1) (2002).
Minnesota caselaw has yet to precisely
define the element of substantial harm for this offense. See
10 Minnesota Practice, CRIMJIG 13.92 (1999) (providing alternate definitions
for substantial harm). The standard jury
instruction suggests that substantial harm to a child’s physical health may be
evaluated, in accordance with the statutory definition of substantial bodily
harm, as a “bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or impairment
of the function of any bodily member or organ, or which causes a fracture of
any bodily member.” Minn. Stat. § 609.02,
Three of our prior decisions provide
additional direction on the meaning of substantial harm in the context of child
endangerment. State v. Hatfield involved a child who lived near a methamphetamine
lab and was in close proximity to dangerous chemicals. Stating that “the mere potential for
substantial harm to children is sufficient to constitute child endangerment,” we
concluded there was sufficient evidence to establish a likelihood of
substantial harm. 627 N.W.2d 715, 720
(Minn. App. 2001), aff’d on other grounds,
639 N.W.2d 372 (Minn. 2002). State v. Cyrette held that a likelihood
of substantial harm was presented when the defendant left a two-year-old and an
eight-year-old unsupervised at home for two hours. 636 N.W.2d 343, 348 (Minn. App. 2001). Without considering any factual scenario, State v. Tice reconsidered the language
of Hatfield, holding that “mere
potential” was not meant to describe “the degree of potential for harm that
would satisfy the statute.” 686 N.W.2d
351, 354 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004).
When police responded to the March
17 incident, S.T. was holding Benton’s infant daughter. According to an officer on the scene, S.T.
said she was holding the infant during the assault. Photographs from the incident show
substantial amounts of blood on the infant’s hair, head, and clothing. The only rational inference from this
evidence is that the infant was in the area of the assault and could have been
severely injured. Compared to the
chemical storage in Hatfield, it is
arguable that an infant faces a greater threat from a nearby violent
assault. When we take all reasonable
inferences in favor of the state, the record supplies sufficient evidence to
support a likelihood of substantial harm to the child.
next argues that the district court improperly permitted the state to elicit
S.T.’s prior inconsistent statements.
These statements were made on November 19, 2003, December 16, 2003, and
March 17, 2004. Benton properly objected
to the December 16 statement but not to the November 19 and March 17
a party properly objects to evidence at trial, we review the evidentiary ruling
for a clear abuse of discretion. State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004). The objecting party has the burden to
establish that an error resulted in prejudice.
If there is a reasonable possibility that an error in admitting evidence
significantly affected the verdict, then reversal is permitted. See State
v. Post, 512 N.W.2d 99, 102 n.2 (Minn.
1994). Even if the district court
received the December 16 statement in error, Benton was acquitted of the December 16
incident and suffered no prejudice. Thus,
we may confine our remaining analysis to the November 19 and March 17
In the absence of a proper objection
at trial, we review the admission of evidence at trial for plain error. State
v. Jones, 678 N.W.2d 1, 17 (Minn.
2004). Plain error occurs when an
obvious error affects the defendant’s substantial rights and thus violates due
process. State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998); see also United States v. Olano, 507 U.S.
725, 734, 113 S. Ct. 1770, 1777 (1993). Reversal for plain error is required only
where the error “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation
and citation omitted).
A party may impeach a witness
through the use of prior inconsistent statements. When a prior inconsistent statement is used
for this purpose, it may only be used to challenge the credibility of the
witness and cannot be used as substantive evidence. State
v. Jackson, 655 N.W.2d 828, 836 (Minn. App. 2003), review denied (Minn.
Apr. 15, 2003.) The state argues that,
because S.T.’s prior inconsistent statements are otherwise admissible as
substantive evidence under the residual hearsay exception, Benton suffered no prejudice at trial.
A statement is hearsay if it is made
outside of court and is offered for the truth of what it asserts. Minn.
R. Evid. 801(c). Hearsay is not
admissible as evidence, Minn. R. Evid. 802, unless it qualifies for a hearsay
exception, Minn. R. Evid. 803, 804. The
residual hearsay exception allows
[a] statement not
specifically covered by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the statement is
more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the general
purposes of these rules and the interests of justice will best be served by the
admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance of trial
or hearing to provide the adverse party with a fair opportunity to prepare to meet
it, the proponent’s intention to offer the statement and the particulars of it
. . . .
Minn. R. Evid.
803(24). When applying the residual
exception, our principal inquiry is whether the statement is as trustworthy and
reliable as statements received under other hearsay exceptions. State
v. Martin, 614 N.W.2d 214, 225 (Minn.
State v. Plantin, we considered the
applicability of the residual exception to a statement by a domestic assault
victim to police. 682 N.W.2d 653, 658 (Minn. App. 2004), review
Apr. 19, 2005). Adapting a four-part test
developed by the Minnesota Supreme Court for evaluating hearsay by accomplices,
we examined (1) whether the victim of domestic assault testifies and admits
making the statement; (2) whether the parties dispute the content of the
statement; (3) whether the statement is against the relationship interests of
the victim; and (4) whether the statement is consistent with other evidence
presented by the state. Id. at 659 (citing State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985)).
her November 19 and March 17 statements to police, S.T. alleged that Benton had
struck her or beaten her. The March 17
statement is substantially corroborated by a 911 recording and by photographs
of S.T.’s injuries. In her testimony at
trial, however, S.T. recanted her statements.
S.T. then admitted it was “possible” that she made the November 19
statement and conceded that she made the March 17 statement. The parties did not otherwise dispute the fact
that these statements were made. S.T.
also testified that she did not want Benton to be convicted.
together, these facts indicate that S.T.’s prior statements are sufficiently
trustworthy and reliable to qualify for the residual hearsay exception. Because the statements are otherwise
admissible, we conclude that at trial, the substantial rights of Benton were
not affected. Thus, the district court
did not commit plain error in admitting the statements.
claims that the state engaged in prosecutorial misconduct. Prosecutorial misconduct occurs when the
state appeals to passion or prejudice and distracts a jury from determining whether
the evidence provides proof beyond a reasonable doubt. State
v. Ashby, 567 N.W.2d 21, 27 (Minn.
1997). Misconduct cannot be based on a
few isolated statements but must be considered in the context of the entire closing
argument. State v. Powers, 654 N.W.2d 667, 678-79 (Minn. 2003).
Acquittal on some charges demonstrates 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).
of Benton’s claims of misconduct arises out of a
question, posed by the prosecutor during the examination of S.T., which
referred to the possibility that Benton
would be jailed for his offenses. Benton argues that this
question was not based on character evidence and improperly disparaged his
character. Because Benton objected to this question before the
district court, our standard of review depends on the seriousness of the
misconduct, if any. Unusually serious
misconduct requires reversal unless it was harmless beyond a reasonable
doubt. Less serious misconduct requires
reversal only when it substantially influenced the verdict. State
v. Steward, 645 N.W.2d 115, 121 (Minn.
misconduct may include improper references to the character of a
defendant. State v. Harris, 521 N.W.2d 348, 353-54 (Minn. 1994).
Thus, the state cannot refer to a defendant’s involvement with the
criminal justice system unless this information is otherwise admissible as
evidence. State v. Atkins, 543 N.W.2d 642, 649 (Minn. 1996).
When a defendant at trial directly or indirectly discloses involvement
in the criminal justice system, however, the state may inquire about that
involvement. State v. Rachuy, 349 N.W.2d 824, 826-27 (Minn. 1984).
defense counsel had an entire colloquy with S.T. that reviewed Benton’s prior arrest and detention in
jail. Shortly afterwards, the state
posed a single question to S.T.: “[A]re
you testifying today because you don’t want to see Mr. Benton going to
jail?” Because it does not refer to
prior misconduct, this question does not necessarily call Benton’s character into question. Benton’s
interaction with the criminal justice system had previously been raised, at
some length, by defense counsel. Thus,
the state could properly proceed with this question. Cf.
defense counsel had previously raised the issue of jail at greater length, the
isolated comment of the state here had a minimal impact. Assuming that the state committed misconduct,
it did not substantially influence the verdict and supplies no basis for
remaining claims of misconduct are based on comments by the state in its
opening statement and closing arguments.
Because Benton failed to object to these comments, we also apply plain
error analysis here. See State
v. Johnson, 672 N.W.2d 235, 239-40 (Minn.
App. 2003), review denied (Minn.
Mar. 16, 2004).
The first claim is based on
comments, both in opening statement and closing argument, in which the
prosecutor raised a theme of “protection and punishment.” Although the state may discuss
accountability, it cannot unduly stress the need for retribution and distract
the jury from a determination of proof beyond a reasonable doubt. State
v. Montjoy, 366 N.W.2d 103, 109 (Minn.
1985). It is also improper to argue that
the jury should put itself in the place of the victim, State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995), or that
punishment is necessary to protect the society as a whole, State v. Lewis, 547 N.W.2d 360, 364 (Minn. 1996). But a brief reference to these themes will
not constitute plain error. Id.;
Thaggard, 527 N.W.2d at 812-13.
Here the state made brief references,
not emphasized elsewhere, to “protection and punishment” in its opening
statement and in its closing argument.
Because this theme echoes a general argument for accountability, it is
not necessarily misconduct. See Montjoy, 366 N.W.2d at 109. Even if we assume that misconduct occurred,
the jury acquitted Benton
on one count of domestic assault, indicating that it conscientiously evaluated
the evidence rather than succumbing to improper argument. See
DeWald, 463 N.W.2d at 745. We
conclude, therefore, that Benton
did not suffer substantial prejudice and that the state’s arguments were not
plain error. See Lewis, 547 N.W.2d at 364.
remaining claim is based on the prosecutor’s argument that, as the last witness
at trial, Benton
had the opportunity to fabricate testimony against the state’s case. The Minnesota Supreme Court, in State v. Buggs, disapproved of this line
of argument. 581 N.W.2d 329 (Minn. 1998). Although the court determined that the error
was harmless, it warned of “constitutional issues” when “there are no facts in
evidence to support an inference of fabrication.” Id. at
341. The U.S. Supreme Court, however,
took a different view in Portuondo v.
Agard. 529 U.S. 61, 120 S. Ct.
1119 (2000). The Court reasoned that the
Fifth Amendment privilege against self-incrimination was no longer at issue
once a defendant testified. Thus, when a
defendant waited until the end of trial to testify, the prosecution could
challenge his credibility by arguing that the defendant had an opportunity to
fabricate testimony in rebuttal. 529 U.S. at 71, 120 S. Ct.
Although the state raised this
issue, it was a single sentence in the context of an extensive closing
argument. On review for plain error, we
have no indication that the error was obvious or that it substantially
rights at trial. We conclude there is no