This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Christopher Michael Benton,



Filed September 27, 2005


Parker, Judge*



Redwood County District Court

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 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N




On 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.



            Appellant Christopher Benton was charged with one count of child endangerment, Minn. Stat. § 609.378, subd. 1(b)(1) (2002), two counts of gross misdemeanor domestic assault, Minn. Stat. § 609.2242, subd. 2 (2002), and one count of engaging in a pattern of harassing conduct, Minn. Stat. § 609.749, subd. 5 (2002).  One count of domestic assault arose out of an incident on December 16, 2003.  The remaining count of domestic assault and the count for child endangerment arose out of an incident on March 17, 2004.

The victim of the harassment and domestic assault, S.T., had been romantically involved with Benton since 2000.  When the charges proceeded to a jury trial, S.T. was called by both parties to testify.  The jury acquitted Benton of the domestic assault on December 16 and convicted Benton on the remaining counts.  This appeal followed.




Benton 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 (Minn. 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. 2004).


            Challenging 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. 7 (2002).

            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 evidence.


            Challenging 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, subd. 7a.

            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.


Benton 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 statements.

If 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 statements.

            In the absence of a proper objection at trial, we review the admission of evidence at trial for plain error.[1]  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. 2000). 

In 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 denied (Minn. 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)).

In 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. 

Taken 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.


Benton 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).


One 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. 2002).

Prosecutorial 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).

Here, 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. id.

Because 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 relief.


            Benton’s 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.

            Benton’s 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. at 1126.

            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 prejudiced Benton’s rights at trial.  We conclude there is no plain error.


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In his appellate brief, Benton asserts that the admission of the November 19 and March 17 statements should be reviewed for a clear abuse of discretion.  The state contends that, because Benton did not acknowledge that review was for plain error, appeal on this issue is waived.  In support of this proposition, the state relies on Rainer v. State and related precedents.  566 N.W.2d 692, 696 (Minn. 1997).  These cases supply the rule that issues not raised in an appellate brief are waived.  See generally State v. Powers, 654 N.W.2d 667, 676 (Minn. 2003).  But this rule does not support the state’s contention that, when a party misstates the applicable standard of review, appeal of the issue is waived.  Benton briefed an argument with respect to prior inconsistent statements, and therefore, we may consider this issue on appeal.