This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Mitchell Randall Tykwinski,
Lyon County District Court
File No. K2-05-567
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.
Appellant challenges his convictions of offering a forged check and possessing a stolen check, arguing that the district court committed plain error by admitting testimony that referred to appellant’s other bad acts in violation of Minn. R. Evid. 404(b). We affirm.
Respondent State of Minnesota charged appellant Mitchell Tykwinski with check forgery, a violation of Minn. Stat. § 609.631, subd. 2(1) (2004); offering a forged check, a violation of Minn. Stat. § 609.631, subd. 3 (2004); possessing a stolen or counterfeit check, a violation of Minn. Stat. § 609.528, subd. 2 (2004); and theft, a violation of Minn. Stat. § 609.52, subd. 2(1) (2004).
During the jury trial, the victim testified that someone broke into her vehicle on the evening of June 21, 2005, or on the following morning and stole a checkbook for her son’s checking account over which she held power of attorney. The victim also testified that two checks were written against that account—check number 1165 to Freedom gas station for $20 and check number 1168 to County Market for $35. The victim testified that the handwriting on the checks was neither hers nor her son’s.
During the investigation of this matter, Officer Joseph Krogman reviewed the June 22 surveillance videos from Freedom gas station and County Market. Officer Krogman testified that Freedom gas station’s surveillance video shows Tykwinski, whom Officer Krogman recognized from “prior contacts,” bringing a beverage to the check-out counter, producing either a check or cash, and receiving change in return. Officer Krogman testified that County Market’s surveillance video shows Tykwinski passing the forged check. Officer Krogman also received a printout from County Market, which shows that Tykwinski used a check in the amount of $35 to purchase three bags of chips and received approximately $27 in return. Officer Krogman testified that, because the surveillance videos do not show Tykwinski writing the checks, it appears that the checks were written before Tykwinski presented them for payment.
Officer Terrance Flynn arrested Tykwinski on July 1, 2005. Another officer interrogated Tykwinski regarding the forged checks, and Tykwinski told that officer that “he had nothing to do with it, and didn’t want to talk anymore about it.” Officer Krogman testified that Tykwinski contradicted this statement during the omnibus hearing when he admitted that he had passed the checks but claimed that he had received the checks from his sister, Sonja Tykwinski, to repay a debt.
Sonja Tykwinski testified at trial that she was not indebted to her brother and that she did not give him the forged checks. Sonja Tykwinski also testified that on June 22, she found three checks from the stolen checkbook in her apartment. When she found the checks, Sonja Tykwinski was no longer living in her apartment, but she continued to lease it. She testified that she had given Tykwinski permission to reside in the apartment on the condition that he remain sober. But she revoked her permission shortly thereafter when she smelled alcohol on Tykwinski’s breath. Sonja Tykwinski testified that she believed that Tykwinski continued to reside in the apartment without her permission. Because she often left her apartment door unlocked, her brother could enter her apartment without a key.
When she went to the apartment on June 22, Sonja Tykwinski found a check lying on the floor behind the toilet and two checks floating inside of the toilet. Sonja Tykwinski testified that she did not recognize the names or the address on these checks. Sonja Tykwinski returned to her residence and called the police to report that she had found the checks. She also reported that she had found an abandoned bicycle outside of her residence a few days earlier. When Officer Jared Lange responded to the call, Sonja Tykwinski gave him the bicycle and the three checks that were subsequently determined to be from the same checkbook as the two checks that Tykwinski used at the gas station and the grocery store.
At trial, Sonja Tykwinski identified the handwriting on the three checks that she found as Tykwinski’s. To establish her familiarity with Tykwinski’s handwriting, she testified that she had seen it recently on a letter Tykwinski had written to her while he was in jail. Out of the presence of the jury, Tykwinski objected to Sonja Tykwinski’s reference to his incarceration. The district court agreed that the testimony was prejudicial and offered to give a curative instruction. Tykwinski’s counsel responded, “We will think about that, Your Honor.” But he never accepted the district court’s offer to give the instruction.
Tykwinski was acquitted of check forgery and theft. But the jury found Tykwinski guilty of offering a forged check and possessing a stolen check. This appeal followed.
D E C I S I O N
Tykwinski argues that the district court committed reversible error by admitting testimony regarding other bad acts in violation of Minn. R. Evid. 404(b). Evidentiary rulings rest within the district court’s sound discretion and will not be disturbed on appeal absent a clear abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). The party challenging the district court’s evidentiary rulings on appeal has the burden of showing both that the district court abused its discretion and that the party was thereby prejudiced. Id.
Rule 404(b) prohibits the admission of “[e]vidence of another crime, wrong, or act[] . . . to prove the character of a person in order to show action in conformity therewith.” Tykwinski challenges the district court’s admission of the following: (1) Officer Flynn’s testimony regarding recent bicycle thefts in the city; (2) Officer Lange’s testimony that Sonja Tykwinski “believed that . . . Tykwinski . . . had possibly stolen the bicycle and left it on her front yard”; (3) Officer Krogman’s testimony that he recognized Tykwinski on the surveillance tapes from “prior contacts”; (4) Sonja Tykwinski’s testimony that she “smell[ed] liquor on [Tykwinski’s] breath”; and (5) Sonja Tykwinski’s testimony that Tykwinski “wrote [her] a letter when he was in jail.” But contrary to Tykwinski’s assertion, none of this testimony refers to other bad acts that would invoke the exclusionary rule in Minn. R. Evid. 404(b).
Moreover, because Tykwinski did not make a timely objection to any of this testimony, he waived the right to challenge its admission on appeal. See State v. Bauer, 598 N.W.2d 352, 359, 363 (Minn. 1999) (noting that defendant failed to make timely objection when he did not object after disputed statement or at any time during witness’s testimony); see also Minn. R. Evid. 103(a)(1) (stating that error in admitting evidence may not be predicated on ruling that admits evidence unless party’s substantial rights are affected and a timely objection was made). To overcome such a waiver, an appellant must show that the district court committed plain error in admitting this testimony. Minn. R. Crim. P. 31.02 (stating that appellate court may consider plain errors that affect substantial rights even if those errors were not raised before district court); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (same). The plain-error standard requires an appellant to show that (1) the district court committed an error, (2) the error was plain, and (3) the error affected the appellant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). An error affects substantial rights if the error was “prejudicial and affected the outcome of the case.” State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002) (stating that an error is prejudicial if there is a “reasonable likelihood” that the error “had a significant effect on the verdict of the jury”).
Tykwinski fails to establish plain error as to the district court’s admission of Officer Flynn’s testimony regarding recent bicycle thefts in the city. Contrary to Tykwinski’s assertion, Officer Flynn testified that “there had been a large number of bicycle thefts in the city,” but he did not attribute those thefts to Tykwinski. Because this testimony does not refer to a bad act committed by Tykwinski, it was not inadmissible under rule 404(b). Tykwinski has not satisfied his burden of showing that the district court committed an error by admitting this testimony. Accordingly, Tykwinski has not satisfied the first element of the plain-error standard.
Officer Lange’s testimony that Sonja Tykwinski “believed that . . . Tykwinski . . . had possibly stolen the bicycle and left it on her front yard” also does not refer to a bad act committed by Tykwinski. It merely refers to the suspicions of a complainant that Tykwinski may have committed this act. This sort of testimony does not fall within the ambit of rule 404(b), which prohibits the admission of evidence of actual crimes, wrongs, or bad acts. Rather, the evidence refers to Sonja Tykwinski’s distrust of her brother and indeed sheds light on the potential bias of a key prosecution witness. Thus, Tykwinski is not entitled to relief on this ground.
Tykwinski also challenges Officer Krogman’s testimony that he recognized Tykwinski on the surveillance tapes from “prior contacts.” This testimony also does not refer to another crime, wrong, or bad act. The record is silent as to the reasons for the “prior contacts,” which may have been entirely innocent or otherwise neutral. As such, this evidence is not inadmissible under rule 404(b).
Tykwinski’s evidentiary challenge to Sonja Tykwinski’s testimony that she “smell[ed] liquor on [Tykwinski’s] breath” also fails. This testimony does not refer to a bad act, as there is nothing in the record establishing that the odor of liquor emanating from Tykwinski, an adult, was wrong per se. See Ture, 681 N.W.2d 9, 16 (Minn. 2004) (noting that an act does not fall within rule 404(b) unless there is something “per se” wrong with the act). Therefore, Tykwinski has failed to satisfy the plain-error standard with regard to this unobjected-to testimony.
Tykwinski also challenges the admission of Sonja Tykwinski’s testimony that Tykwinski “wrote [her] a letter when he was in jail.” Although this testimony does not refer to another crime, wrong, or bad act, as those terms are contemplated in Minn. R. Evid. 404(b), this testimony refers to facts that are unduly prejudicial in violation of Minn. R. Evid. 403. See State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (considering prejudicial effect of testimony regarding appellant’s custody status, but not applying rule 404(b) analysis). Tykwinski objected to this testimony, but his objection was untimely because he did not object during Sonja Tykwinski’s testimony. See Bauer, 598 N.W.2d at 359, 363 (noting that defendant failed to make timely objection when he did not object after disputed statement or at any time during witness’s testimony); State v. Peterson, 533 N.W.2d 87, 91 (Minn. App. 1995) (noting that defendant did not timely object to use of photos at trial when he failed to object during witnesses’ testimony). Thus, the plain-error standard is applicable to this evidentiary ruling. See Minn. R. Evid. 103(a)(1) (stating that error in admitting evidence may not be predicated on ruling that admits evidence unless party’s substantial rights are affected and timely objection was made).
Here, “the question before us is not whether the [district] court erred in admitting the testimony, because the [district] court was not given the opportunity to make that decision.” State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). Rather, the question is whether the district court’s failure to strike the testimony sua sponte or to provide a curative instruction sua sponte constituted plain error. Id. Generally, a district court’s decision not to give a curative instruction sua sponte is not reversible error. Id. at 687. In the absence of a request, a district court may be hesitant to give a curative instruction sua sponte because the instruction may direct more attention to potentially prejudicial issues. State v. Vance, 714 N.W.2d 428, 443 (Minn. 2006). For similar reasons, a defendant may choose to forego a curative instruction. Id. (holding that district court did not err when it did not give a curative instruction sua sponte with respect to threat evidence admitted at trial).
The district court offered to give the jury a curative instruction regarding the testimony in question, but Tykwinski did not accept this offer. Tykwinski may have chosen not to accept this offer for strategic reasons, particularly since Tykwinski did not object during the testimony or in the presence of the jury. On this record, we conclude that the district court did not err when it did not give a curative instruction sua sponte.
But even if the decision to refrain from instructing the jury sua sponte were error, the plain-error standard would not be met because Tykwinski’s substantial rights were not affected. See Ihle, 640 N.W.2d at 916 (articulating plain-error standard). The absence of a curative instruction did not affect the outcome of the case. There is ample evidence in the record supporting the guilty verdicts, including (1) Sonja Tykwinski’s testimony that the handwriting on the checks she found in the apartment matched Tykwinski’s handwriting; (2) the evidence that Tykwinski cashed two checks that followed in sequence the checks found in the apartment; and (3) the evidence that Tykwinski initially denied any involvement in cashing the checks but later admitted cashing them while implausibly claiming that he received the checks from his sister, who reported the additional stolen checks to the police. Moreover, that the jury returned a not-guilty verdict on two of the four charges is one indication that the jury carefully considered and weighed the evidence as it pertained to the elements of each of the charged offenses.
In sum, Tykwinski has not demonstrated that any of the challenged evidentiary rulings constitutes plain error.
 Minnesota courts require that the prior act be a “bad” act. State v. McLeod, 705 N.W.2d 776, 787-88 (Minn. 2005).
 Even if we concluded that this testimony improperly refers to a prior bad act committed by Tykwinski, there is no basis to conclude that it affected his substantial rights because any prejudice that resulted from the testimony was mitigated by Officer Krogman’s testimony that there was no proof to support Sonja Tykwinski’s belief.
 Tykwinski does not argue that the cumulative effect of the errors he alleged warrants a reversal of his conviction. We nevertheless considered the cumulative impact of the testimony that Tykwinski had possibly stolen the bicycle, assuming for the purpose of the cumulative-effect analysis that such testimony was improper, and the inadmissible testimony that Tykwinski was in jail. “Cumulative error exists when the cumulative effect of the errors and indiscretions, none of which alone might have been enough to tip the scales, operates to the defendant’s prejudice.” State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (quotation omitted). When the evidence against a defendant is very strong and the errors did not affect the jurors’ deliberations or their assumptions about the defendant’s innocence or guilt, the cumulative effect of the errors does not prejudice the defendant. State v. Erickson, 610 N.W.2d 335, 340-41 (Minn. 2000).
As addressed above, the evidence against Tykwinski was strong. And, in light of the jury’s not-guilty verdict on two of the counts, Tykwinski has not shown that cumulatively this evidence affected the jurors’ deliberations or their assumptions about Tykwinski’s guilt or innocence. We, therefore, conclude that the cumulative effect of this testimony also does not warrant a reversal of Tykwinski’s conviction.