This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Joseph Cornelious Merritt,



Filed ­­­August 8, 2006


Dietzen, Judge


Stearns County District Court

File No. K7-04-384


Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Christa M. Van Gundy, Assistant Stearns County Attorney, 705 Courthouse Square, St. Cloud, MN 56303-4710 (for respondent)


Jennifer H. Chaplinski, Assistant State Public Defender, 212 Third Avenue North, Suite 545, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his convictions of first- and second-degree criminal sexual conduct, arguing that the district court abused its discretion in denying his motion for a mistrial.  In his pro se brief, appellant raises five other issues that he contends require reversal of his convictions or a new trial.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


            Appellant Joseph Merritt was married to Margaret Merritt, who has four children. At the time trial, three were adults, and one, K.G., was 15 years of age.  One of Margaret Merritt’s adult daughters has two children, L.R. and J.R.  Another daughter has a son, G.D.  Appellant, Margaret Merritt, K.G., L.R., and J.R. lived in the same household during the summer of 2003.

            In January 2004, Stearns County Deputy Sheriffs Craig Pogatshnik and Shirley Zwack responded to a complaint from Margaret Merritt that appellant had sexually assaulted K.G.  When the deputies arrived, they found K.G. lying on her bed, clutching a pillow, rocking back and forth, and crying.  K.G. told Deputy Pogatshnik in a tape-recorded interview that appellant had touched her on the breasts, vagina, and buttocks; that she told appellant to stop; and that she was afraid because appellant stated that he would hurt her if she told anyone.  K.G. also stated that appellant had been touching her since she was 12 years of age.

Deputy Pogatshnik conducted an investigation.  During his interview of Margaret Merritt, she confirmed that appellant had also abused three of her grandchildren, L.R., J.R., and G.D.  Appellant was charged with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct involving K.G. in violation of Minn. Stat. §§ 609.342, subd. 1(g), and 609.343, subd. 1(h)(iii) (2004).  Appellant was also charged with identical counts involving three of appellant’s step-grandchildren, J.R., L.R., and G.D.

Appellant moved to sever the charges of the complaint into four separate complaints, one for each of the alleged victims.  The district court granted appellant’s motion, stating in its order, “The Court wishes to avoid potential prejudicial error that may occur when a defendant is acquitted of some charges and found guilty of others, when the acquitted charges were also part of the overall evidence presented.”

Before trial, the state agreed that it would not introduce evidence regarding the alleged sexual misconduct by appellant of his step-grandchildren, but requested that the district court determine whether such evidence was admissible and reserved the right to recall the step-grandchildren if the district court determined that the evidence was admissible.  The state then instructed its witnesses to limit their testimony to what happened to K.G.

At trial, K.G. testified consistently with her interview with Deputy Zwack.  K.G. could not remember how many times appellant had touched her with his penis.  L.R., who was eight years old at the time of trial, testified that he saw appellant touch K.G., and put his “private” into K.G.’s butt and her vagina in K.G.’s room and the living room.  L.R. did not tell anyone because appellant said he would hurt her, her brother, and K.G. with his knife if she did.  J.R., who was seven years old at trial, testified that he saw appellant put his penis into K.G.’s vagina “the whole summer and everyday.”

During direct examination, Margaret Merritt testified: 

[Prosecutor] When you confronted him, what did you say?

[Margaret Merritt] I asked him why he hurt the kids, who gave him the right.

[Prosecutor] Were you specific by what you meant when you said hurt?

[Margaret Merritt] I just said, why did you hurt the kids? I was angry and mad.


No objection was made to the testimony.

Detective Winkels testified regarding the results of his investigation, which included his interview of K.G.  On cross-examination, appellant’s counsel directed Winkels to the transcript of his interview of L.R. and asked him if L.R. ever indicated that she saw appellant “put his private into [K.G.’s] butt on two occasions.”  Winkels replied, “I don’t see that.  I see where we are talking about, on page 12, how many times did it happen.  It was more than one.  I believe she is talking about herself.”  The district court then ordered a recess and cautioned appellant’s counsel to do a better job of framing the questions and to not “slip into” testimony regarding appellant’s alleged sexual misconduct with the step-grandchildren.  The district court stated, “[O]ne of the answers was, the child was talking about herself, which kind of slid by so I didn’t say anything.”   

Subsequently, appellant moved for a mistrial, arguing that Margaret Merritt’s statement “why did you hurt the kids?” was inadmissible and prejudicial, and that Winkels’s statement “I believe she was talking about herself” referred to the victim L.R. and, therefore, was also inadmissible and prejudicial.  The state opposed the motion, arguing that the evidence was harmless error and that the other evidence in support of a conviction was overwhelming.  Additionally, the state argued that the evidence in question was admissible under Minn. Stat. § 634.20 (2004).  The state offered to request that the district court give a curative instruction, but appellant disagreed. 

The district court denied appellant’s motion for mistrial, but expressed doubts over whether it was applying the proper test and invited appellate review.  The jury found appellant guilty of both counts.  This appeal follows.



Appellant contends that the district court abused its discretion in denying its motion for mistrial.  “We review a [district trial] court’s denial of a motion seeking a mistrial for an abuse of discretion.”  State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).  The district court is in the best position to determine whether prejudice has occurred warranting a mistrial.  State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001).

To determine whether the district court abused its discretion, we review the impact of the disputed evidence on a jury verdict to determine whether the evidence is of a “passing nature” or the evidence of guilt was “overwhelming” so that it is extremely unlikely “that the evidence in question played a significant role in persuading the jury to convict.”  State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (citing State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978)); see also State v. Farr, 357 N.W.2d 163, 166 (Minn. App. 1984) (holding that mistrial was not warranted when statement was passing in nature and the impact could have been missed by the jury).  The district court applied the “balancing test in State v. Farr and Haglund.”  Thus, we turn to a review of the disputed evidence.

Disputed Evidence

Appellant argues that he was prejudiced by Margaret Merritt’s statement “I just said, why did you hurt the kids?”  The district court concluded that Margaret Merritt’s statement was of a “passing nature”; it only briefly referred to “kids” in the plural and did not specify any other incident or allegation against appellant.  And the defense counsel made no objection to the statement.  The prosecutor offered to request a curative instruction, but appellant’s counsel refused this offer.  Thus, Margaret Merritt’s statement was of a “passing nature.”

Appellant also argues that he was prejudiced by Detective Winkels statement that “I believe she was talking about herself” when asked to refer to a portion of L.R.’s transcript.  The district court concluded that Winkels’ statement was also brief, equivocal, and of a “passing nature.”  The prosecutor offered to seek a curative instruction, but appellant’s counsel refused this offer.  We conclude that this statement was also made in passing, and is extremely unlikely to have affected the verdict. 

Respondent argues that the evidence against appellant was “overwhelming.”  We agree.  The state presented testimony from K.G., L.R., and J.R. that appellant sexually abused K.G. and threatened each of them to not tell anyone about it.  Testimony from Margaret Merritt and Winkels corroborated K.G.’s testimony.  And appellant presented no evidence or contrary witnesses.

Harmless Error

Appellant also argues that the proper standard of review is harmless error and that the district court, therefore, applied the wrong legal standard.  Harmless-error review considers the impact of the disputed evidence on the jury verdict.  Thus, in harmless-error review, we determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102  n.2 (Minn. 1994).  “A conviction can stand only if the error committed was harmless beyond a reasonable doubt.”  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  Harmless-error review looks to the basis on which the jury actually rested its verdict.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  The inquiry is “whether the jury’s verdict is ‘surely unattributable’ to the testimony.”  King, 622 N.W.2d at811 (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).  The harmless-error analysis is very similar to the second part of the test set forth in State v. Clark that reviews whether the district court abused its discretion in denying a motion for a new trial.  See Clark, 486 N.W.2d at 170.  That test is whether the evidence is “overwhelming” to the extent that it is extremely unlikely “that the evidence in question played a significant role in persuading the jury to convict.”  Id. (quotation omitted).

Here, the ruling on appellant’s motion for mistrial occurred during the state’s case-in-chief.  The district court properly considered whether the disputed evidence was passing in nature in denying the motion and, therefore, did not abuse its discretion in denying the motion during trial.  But the second prong of the Clarktest and harmless-error review analysis both apply to a different point in time, i.e., after the trial, when the basis of the jury verdict can be assessed.  Here, the state presented uncontroverted testimony from the children, Margaret Merritt, and police Detective Winkels that appellant abused K.G.  Based on our review of the record, the evidence against appellant was “overwhelming,” and the jury verdict was surely unattributable to the disputed testimony.  Consequently, the district court did not abuse its discretion in denying appellant’s motion for a new trial.


Respondent alternatively asserts that the disputed testimony was admissible as relationship evidence under Minn. Stat. § 634.20 (2004).  Minn. Stat. § 634.20 (2004) states:

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.


Here, the parties stipulated at the beginning of trial that the disputed evidence would not be presented.  It does appear that its admission was inadvertent.  Because the admission of the disputed evidence was harmless error, we do not reach the question of its admissibility under section 634.20.


In a pro se supplemental brief, appellant requests that this court conduct a de novo review of “the court’s records” and argues that (1) he was not allowed to call any witnesses for trial; (2) the district court failed to rule on appellant’s motion for a new trial; (3) he received ineffective assistance of legal counsel; (4) he was denied a fair trial; and (5) there were inconsistencies in the testimony of witnesses.

Respondent argues that in all but his second pro se issue, appellant has failed to set forth references to the transcript and provide caselaw to support his position.  Pro se litigants are generally held to the same standards as attorneys.  Liptak v. State, 340 N.W.2d 366, 367 (Minn. App. 1983).  If the brief contains no argument or citation to legal authority in support of the allegation raised, that allegation can be said to be waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).  If the brief fails to make, or develop, any argument at all, an issue also can be considered waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

Here, except as to the second pro se issue, appellant has assigned error based on mere assertions and not supported by any arguments or authorities.  Thus, those issues are deemed waived.  And the record reflects that the district court considered and denied appellant’s motion for a new trial at the sentencing hearing.   Therefore, appellant’s claim that the district court failed to rule on appellant’s motion for a new trial lacks merit.


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