This opinion will be unpublished and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
Don Yoo Dong Kim,
Filed July 3, 2007
Hennepin County District Court
File No. 01046050
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Don Yoo Dong Kim guilty of fifth-degree criminal sexual conduct for nonconsensual sexual contact with OOE. In this appeal from conviction, Kim argues that the admission of a posed photograph of OOE in her work area and the prosecutor’s improper cross-examination of two character witnesses denied him a fair trial. Because the unobjected-to admission of the photograph was not error, and the prosecutor’s cross-examination did not pose hypothetical questions that improperly assumed Kim’s guilt, we affirm.
F A C T S
Yoo Dong Kim and OOE were both at work in the
OOE testified that she had seen Kim sitting at his computer when she pushed her cleaning cart down the hallway to the interior bathroom. She said that she placed her cleaning cart directly in front of the doorway to the bathroom and propped the door half open with a wooden doorstop. She was cleaning the mirror when she heard someone in the doorway. She turned around and saw Kim standing a short distance away from her. She asked him if he wanted to use the bathroom. He said, “No,” but continued to talk to her, moved into the bathroom, and said, “I want to touch you.” He then put his right hand on OOE’s left breast. OOE pushed him away with her hands and said, “What’s going on,” and Kim left. OOE stayed in the bathroom for a few seconds and, after making sure that Kim was not in the hallway, she grabbed her things and went to another floor of the government center. After completing her cleaning assignments on the other floors, OOE reported the incident to her supervisor and told him that she did not want to go back to the nineteenth floor. Her supervisor notified security.
Kim testified that he had walked down to the interior bathroom about 6:30, had not seen a cleaning cart in the hallway, and did not know that someone was in the bathroom until he opened the closed door. He said that both he and OOE were surprised, and she asked him if he wanted to use the bathroom. He said, “Oh, I’m sorry, I didn’t realize,” and left the bathroom. A short time later he went home.
Kim presented two character witnesses who each acknowledged that Kim had talked about the incident. During the cross-examination of one of the witnesses, Kim’s attorney objected after the prosecutor asked several questions that were prefaced by the phrase, “did he tell you.” At a conference outside the jury’s presence, the district court cautioned the prosecutor to frame his questions carefully but declined to strike the previous answers because the defense attorney had not objected to the questions.
The state admitted several photographs as exhibits. One of the photographs, taken several days after the incident, showed OOE positioned in the bathroom in the same way she had described where she was standing on the night of the incident—with her back to the door and her left side visible through the partially propped-open door. Defense counsel initially objected to the admission of the photograph for lack of foundation, but after a brief voir dire of OOE, he withdrew his objection.
The jury returned a verdict of guilty on the fifth-degree criminal-sexual-conduct charge. Kim appeals his conviction arguing that he was unfairly prejudiced by the admission of the posed photograph and that the state’s cross-examination of his character witness constituted prosecutorial misconduct that undermined the presumption of innocence.
D E C I S I O N
The starting point for our analysis of Kim’s asserted evidentiary error is his failure to object to this alleged error at trial. Although before trial defense counsel objected to the accuracy of the photograph and the foundation for its admission, he withdrew that objection at trial after he was permitted to voir dire OOE on the origins of the photograph. Defense counsel also interposed a hearsay objection to a question of whether the police detective had asked OOE to stand in a specific place. But he did not raise at trial the hearsay objection that he now asserts on appeal, and specifically stated that he did not object to the admission of the photograph.
In general, the failure to object to
the admission of evidence constitutes a waiver of the issue on appeal. State
v. Vick, 632 N.W.2d 676, 684 (
Kim argues that the admission and use
of the photograph was error. The
decision to admit a photograph, as with all evidence, is committed to the broad
discretion of the district court. State v. Dame, 670 N.W.2d 261, 264 (
On appeal Kim does not contest the
accuracy of the photograph but argues that the photographic depiction of OOE in
the physical surroundings of the actual incident amounted to hearsay. He contends that the photograph was
improperly introduced, in effect, as a prior consistent statement of OOE’s
report to law enforcement. And, as an
extension of this argument, that it did not qualify as a hearsay exception
because OOE’s credibility had not yet been challenged on cross-examination. See
State v. Fields, 679 N.W.2d 341,
The photograph was used as an
illustrative exhibit that depicted a correct likeness of the bathroom where
both Kim and OOE agree that the encounter took place. OOE provided testimony identifying each aspect
of the photographic image. The picture
portrays the physical surroundings that OOE described in her testimony and
functioned as an illustrative aid to her oral description.
second alleged ground for a new trial is that the prosecutor’s improper
cross-examination of his two character witnesses amounted to misconduct. The overarching problem presented by
prosecutorial misconduct is that it may deny the defendant’s right to a fair
trial. Ramey, 721 N.W.2d at 300. We
will reverse a conviction if prosecutorial error, “considered in light of the
whole trial, impaired the defendant’s right to a fair trial.” State
v. Swanson, 707 N.W.2d 645, 658 (
Kim argues that the state’s cross-examination of his character witnesses was improper because the prosecutor asked questions that implied Kim had committed the crime as charged. The question that prompted Kim’s objection and that he primarily relies on for this appeal is: “Did he tell you how he missed the cleaning cart?” The prosecutor also asked, “Did he tell you anything about a cart being in front of that bathroom?” and “And did he tell you whether or not there was a cleaning cart in the hallway?” Kim argues that these questions violated his right to be presumed innocent.
As a basis for his argument Kim cites three federal cases: United States v. Guzman, 167 F.3d 1350, 1352 (11th Cir. 1999); United States v. Mason, 993 F.2d 406, 408 (4th Cir. 1993); United States v. Barta, 888 F.2d 1220, 1224-25 (8th Cir. 1989). These cases generally stand for the proposition that it is improper for the prosecutor to ask the witness hypothetical questions that assume the defendant’s guilt. The prosecutor’s questions were not hypothetical, therefore this rationale does not apply.
of the cited cases, Barta, indicates
that asking character witnesses if they “possessed familiarity with the facts
underlying the present charges” is improper because this type of question presumes
the defendant’s guilt. 888 F.3d at
1225. Although this question is more
comparable to the questions that Kim challenges in this appeal, any argument by
analogy is overcome by the factual circumstances. In
Barta, the prosecutor was
cross-examining witnesses who were testifying to the defendant’s “community
reputation for truth and veracity.”
In addition, both witnesses testified that Kim had discussed the case with them, thus they were properly treated not only as character witnesses but also as fact witnesses. Because the witnesses acted as fact witnesses, the prosecutor could ask them about Kim’s statements relating to the cart to try to establish the cart’s actual location. The witnesses both answered in the negative to the questions of whether Kim had told them specific details about the case.
The prosecutor’s questions about Kim’s statements to the witnesses were narrow and specific. The questions did not pose hypothetical situations that presupposed Kim’s guilt. Rather, the questions pertained to relevant instances of Kim’s conduct at the time of the incident, i.e., what he did and what he heard and observed. In addition to eliciting factual information, this line of questioning could arguably provide the jury a basis to assess whether the witnesses’ lack of knowledge about the case might have an impact on the witnesses’ opinion testimony that Kim would not have committed the charged act. The prosecutor’s questions were proper to test the witnesses’ knowledge of Kim and the credibility of their assertions about his character. See id. (stating that inquiry is allowed to test witnesses’ knowledge and credibility).
We conclude that Kim has failed to show that any prosecutorial misconduct occurred in the cross-examination of his character witnesses because they were also fact witnesses, the questions were not hypothetical, and the questions did not presume that Kim was guilty of the charged crime.