This opinion will be unpublished and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
Mark Edwin Albertson,
Filed February 28, 2006
Clay County District Court
File No. K7-03-1758
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Lisa Borgen, Clay County Attorney, Courthouse,
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of and sentence for first-degree criminal sexual conduct, appellant argues (1) that the district court violated his First Amendment right to free exercise of religion by requiring him to conceal his Bible during trial; (2) that the district court erroneously admitted relationship evidence and evidence of appellant’s prior conviction of possession of methamphetamine, and that the prosecutor committed misconduct by eliciting evidence of appellant’s post-arrest silence, commenting on appellant’s presence during trial, and asking “were they lying” questions—that the cumulative effect of the district court’s errors and the prosecutor’s misconduct was not harmless beyond a reasonable doubt and requires reversal of his conviction; and (3) that his sentence must be reduced because the district court lacked authority to submit to the jury the question of aggravating factors justifying the upward departure. We affirm.
In 2001, appellant Mark Edwin Albertson began a sexual relationship with his 13-year-old niece, T.A. On September 24, 2003, a complaint was filed charging appellant with three counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(b), (g), (h)(iii) (2002). The jury heard testimony that over the course of two years appellant had intercourse with T.A. approximately 100-150 times, attempted to have anal sex with T.A. once, provided T.A. with “crank” between 30-40 times, and induced T.A. to perform fellatio on appellant approximately 40-50 times. Several of T.A.’s friends testified that T.A. had told them about the sexual abuse. Appellant testified that, while he spent time with T.A. because he felt sorry for her, he never had sexual relations with her. T.A.’s mother and grandmother testified that T.A. was a “liar” and that appellant had done nothing wrong. The jury found appellant guilty.
Prior to trial, the state moved to present to the jury by way of special interrogatories the question of aggravating factors supporting an upward durational sentencing departure in the event of conviction. Following the guilty verdicts, the district court instructed the jury to consider aggravating factors relevant to sentencing. The state proceeded to argue that two aggravating factors existed: (1) that appellant induced T.A. to engage in sexual penetration by giving her alcohol, tobacco, and gifts to gain her trust and favor; and, (2) that appellant induced T.A. to engage in sexual penetration by giving her marijuana and methamphetamine to gain her trust and favor. The jury found unanimously that both aggravating factors existed beyond a reasonable doubt. The district court sentenced appellant to 288 months in prison, a double durational departure from the 144-month presumptive sentence. This appeal follows.
D E C I S I O N
I. First Amendment right to free exercise of religion
Appellant argues that his conviction must be reversed because the district court required him to conceal his Bible during trial. Whether the district court violated appellant’s constitutional right to free exercise of religion is a question of law, which this court reviews de novo. See State v. Schwartz, 598 N.W.2d 7, 9 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).
This court decided a similar issue
in State v. Tate, 682 N.W.2d 169 (Minn. App. 2004), review denied
Here, before appellant’s trial began, the district court inquired into the purpose of a Bible sitting beyond appellant’s reach on the corner of counsel table and asked if defense counsel planned to use it during trial. Defense counsel stated that he did not know that the Bible was there, that it belonged to appellant, and that he had not planned on using it. The district court instructed appellant to put the Bible on his lap or under his chair, but because it had nothing to do with the trial, it could not stay on the table. Like Tate, appellant has not shown actual prejudice that would warrant a new trial merely because the district court, after inquiry, instructed appellant to conceal his Bible.
Appellant also argues that the district court infringed on his religious practice and that it must be shown that the Bible’s presence threatened public safety, peace, or order. But the district court is charged with restricting disruptive conduct at trial, including the regulation of religious displays. A compelling interest of conducting a trial in a secular, impartial, orderly manner justified the district court’s order. Because the district court inquired into the purpose of the Bible, had a compelling interest in conducting an orderly, impartial trial, and allowed appellant to hold the Bible in his lap, the district court did not err in ordering appellant to conceal his Bible.
II. Cumulative effect of alleged trial errors
Appellant argues that errors were committed during
his trial that in isolation might not warrant a new trial, but the cumulative
effect of those errors prejudiced appellant and his conviction must be
reversed. When an
error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of errors may compel reversal.
A. Evidentiary Rulings
“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 (
1. Relationship Evidence
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.
Appellant argues that even though
evidence of his past sexual conduct with T.A.
and his providing T.A. methamphetamine outside of
First, even if the district court
had balanced the probative value of the evidence against its prejudicial effect,
the evidence would have been admissible because it assisted in putting the
relationship in context. Second, appellant was not prejudiced by the jury hearing that
appellant had sex with T.A. and had provided her with methamphetamine outside
Moreover, it is unlikely that the relationship
evidence significantly affected the verdict. The district court instructed the
jury three times on how to use the evidence: before T.A. testified, before a videotaped interview of
T.A. was played, and in its final instructions.
Any prejudicial effect was mitigated by the district court’s
instructions to the jury.
2. Appellant’s Prior Conviction
argues that the district court abused its discretion in admitting evidence of
appellant’s prior conviction for impeachment purposes. This court reviews a district court’s ruling
on impeachment of a witness by prior conviction under an abuse-of-discretion
standard. State v. Ihnot, 575 N.W.2d 581, 584 (
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by . . . imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect[.]
Here, the district court ruled that it would allow the prior-conviction evidence in the event that appellant testified. The district court determined that the offense was not the same as the alleged offenses, that it was for impeachment only, and that the probative value outweighed the prejudicial effect. Despite the district court’s error in failing to make a record of the complete Jones-factor analysis, a review of those factors as applied to the record shows that the error was harmless.
appellant’s argument that his prior conviction has no impeachment value because
his drug-possession conviction has little to do with truthfulness, a prior
conviction does not need to be one of dishonesty because it allows the jury to
see a defendant as a whole person, especially if the prior conviction was
recent. State v. Brouillette, 286 N.W.2d 702, 707 (
Third, the district court considers the similarity of the past crime and the charged crime: the greater the similarity, the greater the reason for not admitting the evidence. See Jones, 271 N.W.2d at 538. Appellant argues that there is similarity because he is accused of providing T.A. with methamphetamine. But the analysis compares the past crime and the charged crime, and appellant was not charged with a drug offense. The district court properly assessed the dissimilarity of the two offenses.
Finally, the district court considers the
importance of the defendant’s testimony and the centrality of credibility. If credibility is a central issue in
the case, the fourth and fifth Jones factors weigh in favor of admission of the prior conviction. State v. Smith, 669 N.W.2d 19, 29 (
B. Prosecutorial Misconduct
Prosecutorial misconduct warrants
reversal “only when the misconduct, considered in the context of the trial as a
whole, was so serious and prejudicial that the defendant’s constitutional right
to a fair trial was impaired.” State
v. Johnson, 616 N.W.2d 720, 727-28 (
1. Post-Arrest Silence
Appellant argues that the prosecutor
committed prejudicial misconduct when she elicited evidence of appellant’s
post-arrest silence. The United
States Supreme Court has held that the prosecution cannot use a defendant’s
post-Miranda silence for impeachment purposes. Doyle v.
Here, the prosecutor questioned an
investigator regarding his attempt to talk to appellant at the
2. Appellant’s Presence during Trial
relies on State v. Buggs, 581 N.W.2d
Here, on cross-examination the
prosecutor commented on the fact that appellant listened to all of the
witnesses testify. But the prosecutor’s comments did not amount to prejudicial
misconduct. The comments occurred during
cross-examination and not during closing argument; therefore, appellant could
have been rehabilitated by his attorney on re-direct. Appellant also failed to object to
the comments at trial. Failure to object implies that the misconduct is
not prejudicial and “weighs heavily against granting any remedy.” State
v. Ives, 568 N.W.2d 710, 713 (
3. “Were They Lying” Questions
“were they lying” questions are improper.
State v. Pilot, 595 N.W.2d
511, 518 (
Recently, the supreme court addressed “were they lying” questions in State
v. Morton, 701 N.W.2d 225 (
Here, when questioned regarding his drug use, appellant responded that he had “done meth” with his friend, R.D., although R.D. had previously denied this. The prosecutor asked appellant, “Okay, so [R.D.] was lying, we knew he was lying anyway during his testimony, but he lied about that as well too, right?” The prosecutor also asked appellant “were they lying” questions regarding an incident when police were called to T.A.’s home after appellant showed up and threatened T.A. and her boyfriend. The prosecutor asked appellant if T.A.’s mother and the police officer would be lying if their testimony regarding the incident differed from appellant’s recollection. Because appellant did not object at trial, we apply the plain-error test. See Griller, 583 N.W.2d at 740. Similar to the circumstances in Morton, appellant did not hold the credibility of R.D., T.A.’s mother, or the police officer in central focus, and he did not insinuate that these witnesses deliberately falsified their testimony or statements. Thus, while it was plain error for the prosecutor to ask “were they lying” questions, appellant’s substantial rights were not affected because it is highly unlikely that the jury would have found appellant not guilty if the prosecutor had not asked these questions.
C. Cumulative Effect
While the district court erred in not explicitly weighing the probative value of the relationship evidence against its prejudicial effect and failed to conduct a complete Jones analysis on the admission of evidence of appellant’s prior conviction, the errors did not affect appellant’s right to a fair trial. Likewise, while the prosecutor’s “were they lying” questions were not proper, there is not a reasonable possibility that the prosecutor’s conduct affected appellant’s substantial rights. The cumulative effect of the errors is insufficient to warrant reversal of appellant’s conviction.
argues that the procedure the district court used to comply with Blakely v. Washington, 542
Here, the special interrogatories were presented in a separate proceeding occurring after the jury returned its guilty verdict. The interrogatories were submitted without additional evidence and were based on jury instructions agreed on by counsel. The district court instructed the jury that the state had the burden of proving beyond a reasonable doubt that aggravating factors existed and that the jury had to find the aggravating factors unanimously. As in Schmitz and Robinson, the district court instructed the jury that if it unanimously found the existence of aggravating factors, the district court could increase appellant’s sentence. If not, appellant would receive the presumptive sentence. Appellant’s argument that the special interrogatory on the verdict form likely shifted the jury’s focus away from the elements of the offense is without merit because the special interrogatories were not submitted to the jury until after it returned a guilty verdict and the jury was instructed that the special interrogatories related to sentencing only.
The district court was guided by the constitutional mandates of Blakely. Because there is no rule or statute prohibiting the procedure, submitting special interrogatories to the jury for a determination on aggravating factors relevant to sentencing vindicated appellant’s right to a jury finding beyond a reasonable doubt. Thus, the district court did not exceed its authority in submitting the special interrogatories to the same jury that determined appellant’s guilt, after the jury had rendered its verdict on the guilt/innocence part of the trial.
IV. Appellant’s pro se brief
pro se brief challenges alleged inconsistencies in the trial testimony. The jury already resolved any