This opinion will be unpublished and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
Yakub Ibrahim Ali,
Filed February 7, 2006
Steele County District Court
File No. K003747
Ruth, Steele County Attorney, 303 South Cedar,
Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of first-degree criminal sexual conduct and second-degree assault, appellant argues that (1) the district court erred in admitting evidence of appellant’s past bad acts as evidence of the relationship between appellant and the victim; and (2) the prosecutor committed misconduct in closing argument. We affirm.
On June 18, 2003, the victim, S.K., called police and reported that appellant Yakub Ali had assaulted her and was driving around with a loaded gun in S.K.’s gray Toyota. S.K. testified that beginning in the evening of June 17, she and appellant were at their townhouse drinking with friends. Around 1:00 a.m. on June 18, S.K. and appellant gave appellant’s friend a ride home. When they returned home, S.K.’s friend went upstairs with appellant for two to three hours. S.K. became upset and feared going upstairs to find out what appellant and the friend were doing, so she left the townhouse and went to appellant’s parents’ house to sleep. Appellant’s mother was awake when S.K. arrived, and she woke appellant’s father and sister. S.K. explained to them that there was a woman at her house who would not leave, and she did not know what to do. Appellant’s parents and sister went with S.K. back to the townhouse, and after they spoke with appellant for about five minutes, appellant told the friend that she needed to leave. The friend and appellant’s family then left.
S.K. testified that appellant was angry at her for bringing his parents to the townhouse and embarrassing him. Appellant pushed S.K., twisted her hand, and pushed her over the couch onto the floor. Appellant dragged S.K. upstairs and then threw her down the stairs. Appellant hit S.K. with a closet rod and then grabbed a knife from the kitchen and stood over her threatening to stab her. Then he dragged her upstairs, threw her on a bed, pointed a pistol at her head and her stomach, and told her that he was going to kill her. Eventually, appellant put the pistol in a case and fell asleep, holding S.K. tightly. Appellant awoke and had sex with S.K.. She told him “no” and tried unsuccessfully to stop him. Afterwards, S.K. went into the bathroom and then went to wake her son to take him out of the house. They walked to a store a block away from the townhouse, and she called her mother. Her mother came and picked them up and brought them to S.K.’s sister’s apartment.
Following an investigation, appellant was charged with one count each of first- and third-degree criminal sexual conduct and one count of second-degree assault. A jury found appellant guilty as charged. The district court dismissed the third-degree criminal-sexual-conduct conviction as a conviction for a lesser included offense and imposed concurrent sentences for the two remaining convictions.
Appellant argues that he is entitled to a new trial because the district court erred in admitting the testimony of C.K., S.K.’s sister, about an incident that she witnessed a week before the charged incident.
rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the trial
court abused its discretion and that the appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. “Similar conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection under section 518B.01; violation of a harassment restraining order under section 609.748; or violation of section 609.749 or 609.79, subdivision 1. “Domestic abuse” and “family or household members” have the meanings given under section 518B.01, subdivision 2.
§ 518B.01, subd. 2(a)(1) (2002), includes physical harm, bodily injury, and assault, “if committed against a . . . household member by a . . . household member.” The meaning of “family or household members” under section 518B.01, subd. 2(b)(4), includes “persons who are presently residing together or who have resided together in the past.” The Minnesota Supreme Court has “expressly adopt[ed] Minn. Stat. § 634.20 as a rule of evidence for the admission of evidence of similar conduct by the accused against the alleged victim of domestic abuse.” State v. McCoy, 682 N.W.2d 153, 161 (
Appellant argues that C.K.’s testimony about the incident she witnessed a week before the charged incident should not have been admitted because the testimony is not evidence of similar prior conduct and the probative value of the evidence does not outweigh the danger of unfair prejudice.
C.K. testified that around June 11, 2003, she spent the night at S.K.’s townhouse. In the morning, appellant, who was in a bad mood, or “cranky,” told S.K. to make him some tea and get him his pants, which S.K. did. Appellant then told S.K. to get him the remote, and when S.K. refused, appellant got a belt and began hitting S.K. C.K. told appellant to stop, and he did, but then he began hitting S.K. again. Appellant also banged S.K.’s head into the wall three times.
The charges for the current offense
alleged that appellant hit S.K. with a closet rod and pointed a knife and a gun
at her. Appellant contends that C.K.’s
testimony is not evidence of similar conduct because “[h]itting with a belt and
threatening to kill a person with a loaded gun are not similar conduct.” But hitting with a belt and hitting with a
closet rod are very similar conduct.
Furthermore, Minn. Stat. § 634.20 explicitly states that “similar
conduct” includes domestic abuse as defined under section 518B.01, subdivision
2, and under section 518B.01, subdivision 2(a)(1), “domestic abuse” includes
physical harm, bodily injury, and assault.
Hitting a person with a belt and threatening to kill a person with a loaded gun are both
Appellant argues that C.K.’s testimony “served only to convince the jury that [appellant] was predisposed to assault his partner” and that “virtually nothing could be more unfairly prejudicial than for the jury to hear that [appellant] had a physical confrontation with [S.K.] barely a week before the offense for which this jury had been empanelled.” But appellant does not specifically explain why the testimony was unfairly prejudicial. The obvious explanation, which is implied by appellant’s argument, is that because the testimony described a previous incident when appellant assaulted S.K., it suggested to the jury that appellant had a propensity to assault S.K., which could lead the jury to convict appellant of the charged offenses based on this propensity, rather than on all the evidence presented at trial.
The possibility that C.K.’s similar-conduct testimony could have this effect on the jury is a legitimate concern. But the possibility that the similar-conduct testimony could suggest that appellant had a propensity to assault and lead the jury to convict appellant based on this propensity, rather than on the evidence, cannot, by itself, be a danger of unfair prejudice under Minn. Stat. § 634.20 because this possibility regularly exists when evidence of conduct similar to the charged offense is presented. If this possibility were sufficient to establish unfair prejudice, evidence of similar conduct would rarely be admissible under Minn. Stat. § 634.20 even though the obvious intent of the statute is to make evidence of similar conduct admissible. As the supreme ocurt explained in McCoy, domestic abuse is unique with respect to the possibility that similar-conduct evidence could cause a jury to convict a defendant based on the defendant’s propensity.
[O]ur precedent indicates that we have treated evidence that illuminates the history of the relationship between an accused and a victim differently than other, “collateral” Spreigl evidence. We believe this different treatment is appropriate in the context of the accused and the alleged victim of domestic abuse. Domestic abuse is unique in that it typically occurs in the privacy of the home, it frequently involves a pattern of activity that may escalate over time, and it is often underreported. Domestic abusers often exert control over their victims, which undermines the ability of the criminal justice system to prosecute cases effectively.
McCoy, 682 N.W.2d at 161 (citation omitted).
The district court did not abuse its discretion in admitting C.K.’s testimony about the earlier incident.
2) Prosecutorial Misconduct
Appellant argues that he should be granted a new trial because the prosecuting attorney committed misconduct during closing argument by repeatedly telling the jury what witnesses and what evidence the state believed, by misstating the evidence, by denigrating appellant’s defense and accusing appellant and his witnesses of lying, and by encouraging the jury to consider Spreigl/relationship evidence for improper purposes.
Appellant did not object to any of the statements that he now claims were misconduct.
Failure to object ordinarily forfeits a criminal defendant’s right to review, although a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial. That is, the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object—and thereby present the trial court with an opportunity to avoid prejudice—should not forfeit his right to a remedy.
N.W.2d 318, 323 (
[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
583 N.W.2d 736, 740 (
Appellant contends that because the following statements that the prosecutor made during closing argument include the phrase, “the state believes,” the statements were impermissible vouching:
My argument will be to you the reasons that the State believes you should believe [S.K.], based on all the other evidence that you’ve heard in this case. . . .
. . . .
. . . But the State believes that you should believe her and not because—because of that conviction she’s necessarily a shining role model or she’s never made a mistake in her life because clearly she has, and the State isn’t going to explain or condone anything that she’s done. . . .
Also, regarding this conviction, please remember that [S.K.] has already been held responsible for it. She pleaded guilty. You have to decide of what importance that conviction is. The State believes [S.K.’s prior felony conviction] is a very limited value in helping you decide whether [S.K.] is credible or not. . . .
. . . .
. . . The State believes it’s quite a stretch to try to conclude that [S.K.] came in here and lied. And, in fact, in contrast to [S.K.], the only person that we know for certain who’s lying in this case on June 18, 2003, is [appellant]. . . .
. . . .
The State has argued a number of reasons why we believe that [S.K.] is credible, and both sides will agree that her testimony is at the heart of this case. . . .
. . . .
You’ve heard evidence that [appellant] committed second degree assault and criminal sexual conduct, and that evidence, the State believes, proves these offenses beyond a reasonable doubt.
occurs ‘when the government implies a guarantee of a witness’s truthfulness,
refers to facts outside the record, or expresses a personal opinion as to a
witness’s credibility.’” State v. Patterson, 577 N.W.2d 494, 497
Merely using the word “believes,” which suggests that the statement is a matter of opinion, does not make the statements that appellant cites expressions of personal opinion as to witness credibility. Except for the statement that appellant is the only person who is lying, the statements indicate what the state believes the evidence shows, point to the evidence that provides the basis for the state’s belief, and ask the jury to consider this evidence. Allowing the statements was not plain error. And even if admitting the statement that appellant is lying was plain error, appellant has not explained how that error affected substantial rights and deprived him of a fair trial.
Citing State v. McNeil, 658 N.W.2d 228, 235 (
[S.K.] actually had a lot . . . of motivation not to want to testify at all. . . .
[S.K.] also knew that when she came to court she was going to have to testify in detail about . . . [appellant] having sex with her against her will. That’s a hard thing for anyone to do to come in and talk about an incident like that. It’s especially hard to talk about in a room full of people that are basically strangers to her. It wasn’t easy to listen to. Despite these factors, she did come in here and testify, and she told you the truth,
Appellant also cites the statement “She had more reason not to come and testify than anything, but she did come and she told you the truth.”
These statements were made during argument about the general topic of witness credibility; the prosecution pointed out that [S.K.] had nothing to gain by testifying – it was not a civil case and she was not a party. When viewed in context, the prosecutor was addressing circumstances that the jury could properly consider.
Appellant argues that the prosecutor committed misconduct by mischaracterizing evidence during closing argument. Appellant contends that the prosecutor argued against a theory posed by appellant that the gun in the car that appellant was driving belonged to [S.K.]. The prosecutor stated:
Whether it’s a language barrier, whether she misspoke, we don’t know, but the evidence in this case certainly supports the conclusion that she did not drive that Camry this morning—or that morning because there is no explanation, out of any evidence, of how that Camry got back in the defendant’s possession, and he’s the only one who was ever seen driving it. And when he was arrested, he had been seen walking directly towards it.
Appellant contends that this
statement mischaracterized the evidence in three ways. First, appellant contends that he was not
walking directly toward the car. An officer
testified that he saw appellant walking in the “general direction” of the
car. A prosecutor may argue all
reasonable inferences from evidence in the record but may not intentionally
misstate evidence. State v. Salitros, 499 N.W.2d 815, 817 (
Second, appellant argues that there was evidence presented that he was not the only person seen driving the Camry. Appellant cites C.K.’s testimony that she saw her sister drive the Camry to her apartment. But C.K. later corrected her testimony and stated that her sister arrived in her mother’s car. The prosecutor’s statement that appellant was the only one seen driving the car is not inconsistent with this testimony.
Third, appellant argues that there was an explanation of how the Camry got back in his possession; in her statement to police on the day of the alleged incident, [S.K.] said that she drove away with her son in the Camry following the assault, and appellant said in his statement to police that [S.K.] took the car, but she brought it back later in the morning and then left with her mother and sister. As with appellant’s first argument, appellant has not explained how the second and third claimed mischaracterizations of evidence about events that occurred after [S.K.] left the townhouse affect any substantial right. Therefore, even if the evidence was mischaracterized, he has failed to show that he is entitled to relief based on the mischaracterizations.
Appellant argues that the prosecutor committed misconduct when he denigrated the defense by accusing all the defense witnesses of lying. But the statements that appellant cites indicate only that the prosecutor accused appellant of lying. In a statement about other defense witnesses, the prosecutor said, “[T]he state isn’t going to get up here and say that they were lying and they’re trying to get [S.K.]. I don’t think that’s the case. But it’s hard, especially for a mother, to not want to do whatever she can to help out her son.” Appellant contends that this statement implies that other defense witnesses were lying. But as this court stated in State v. Tennin, 437 N.W.2d 82, 88 (Minn. App. 1989), review denied (Minn. Apr. 24, 1989), this statement “is not that different from the court’s own proper instruction to consider the witness’s motive for testifying and interest in the outcome of the case.”
With respect to appellant lying, the prosecutor stated: “[Appellant] told Officer Mundale an absolutely blatant outright lie”; “If he could sit there and lie that easily about [S.K.] striking him, he could certainly lie about the rest of them”; “[Appellant] lied, and he did it very easily”; “[T]he only person that we know for certain who’s lying in this case . . . is [appellant]”; and “The importance of lying—of [appellant’s] lying about how he sustained this injury [to the bridge of his nose] really can’t be stressed enough.”
prosecutor must avoid inflaming the jury’s passions and prejudices against the
defendant. State v. MacLennan, 702 N.W.2d 219, 235 (
During a taped interview, in response to Officer Mundale’s question whether he had a gun, appellant said that he did not. Mundale stated that the gun was in the car that appellant was driving, and appellant said that he was not driving the car, he was outside it. When Mundale pointed out that he had just seen appellant driving the car that afternoon, appellant replied that he remembered that he was driving the car. Later in the interview, Mundale asked how appellant’s nose got cut and swollen, and appellant answered that [S.K.] had hit him with a cup of tea, which caused him to black out. Two officers testified that when they first saw appellant, he had no facial injuries. One of those officers testified that while transporting appellant to jail, he slammed his face into the steel and plastic partition of the squad car.
The prosecutor’s statements about appellant lying reflect reasonable inferences drawn from this evidence. And appellant again failed to show how the statements to which he failed to object affected a substantial right. See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (holding that relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” misconduct); see also State v. Wilbur, 445 N.W.2d 582, 584 (Minn. App. 1989) (finding prosecutor improperly gave personal suggestions of credibility during closing argument, but judge instructed jury to disregard statements and defendant was not prejudiced), review denied (Minn. Oct. 19, 1989).
Finally, appellant argues
that the cumulative effect of the prosecutor’s closing argument deprived
appellant of a fair trial. The court
looks at the closing argument as a whole when considering claims of
prosecutorial misconduct. State v. Walsh, 495 N.W.2d 602, 607 (
 Appellant omitted from the quotation in his brief the statement, “Also, regarding this conviction, please remember that S.K. has already been held responsible for it. She pleaded guilty. You have to decide of what importance that conviction is.”