This opinion will be unpublished and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
Mark A. Cox,
Filed July 17, 2007
Hennepin County District Court
File No. 05018105
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman,
John M. Stuart, State Public
Defender, G. Tony Atwal, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s aggravated durational departure from the presumptive sentence, arguing that it was improper for the court to use a jury to determine whether aggravating factors existed to justify an upward departure and that this also violated the prohibition against ex post facto laws. He also alleges that evidence of the victim’s miscarriage was unduly prejudicial, that the prosecutor committed misconduct by vouching for the victim’s credibility during the closing arguments, and that the instructions given to the jury on the aggravating factors were inapposite and confusing when juxtaposed with instructions given for the crime itself. Because the evidence was relevant to establish an element of the crime and was not unduly prejudicial, because the prosecutor referred to the witness testimony and did not express a personal opinion as to credibility, and because Cox misconstrues the overall clarity of the jury instructions by taking a single statement out of context, we affirm.
A.R. was taken to the hospital, where an ultrasound was performed. No fetal motion or heartbeat could be identified, and two days after the assault, A.R. was admitted to the hospital after a miscarriage.
Cox was arrested and charged with one count of first-degree assault and one count of second-degree assault. At trial in October of 2005, A.R. testified consistently with her statements to the police that Cox had threatened to kill her baby, kicked her in the stomach, and repeatedly hit her with a snow shovel. She stated that she had a bruised face, cuts, swelling on her arms, a bruised stomach, and that shortly after the attack, she had a miscarriage.
A.R.’s mother also witnessed part of the attack and testified that she heard her daughter scream and that she saw Cox hit A.R. with a snow shovel, even though she did not report this to the police.
The jury returned a verdict of guilty of the second-degree-assault charge. The district court also presented the same jury with a special-verdict form to determine whether aggravating factors could be applied to Cox’s crime. The jury found two aggravating factors: (1) the assault occurred within A.R.’s zone of privacy, and (2) a child was present during the assault.
At sentencing, the district court assigned one criminal-history point for each of the jury’s sentencing findings and imposed a 33-month executed term, an upward departure from the 21-month guideline sentence. This appeal followed.
D E C I S I O N
Ex Post Facto Violation
Cox asserts that applying
the revised version of Minn. Stat. § 244.10, subd. 5 (Supp. 2005),
violated his rights under the
“To fall within the ex post facto prohibition, a law must be . . . 
retrospective—that is, it must apply to events occurring before its enactment—and
 it must disadvantage the offender affected by it.” Lynce v.
In Hankerson v. State, the Minnesota Supreme Court addressed the same argument Cox makes, first determining that the 2005 amendments are retrospective, but noting that they are not
prohibited as ex post facto laws because they do not work to [a defendant’s] disadvantage. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law. The 2005 sentencing amendments inure to [a defendant’s] advantage because they afford [him] a new sentencing hearing where the quantum of the proof will be higher. They vindicate, not violate, [a defendant’s] constitutional rights.
723 N.W.2d 232,
Although Cox argues that, unlike the defendant in Hankerson, his charged offense date was post-Blakely, and that on March 16, 2005, the date of the offense, no legal authority existed to put him on notice of an enhanced penalty,the jury determination posed no more onerous a sentence than authorized previously when the statute allowed for a judicial finding of aggravating sentencing factors. Therefore, we hold that there was no violation of the prohibition against ex post facto laws.
also argues that, absent constitutionally sound authority to hold a unitary
trial on guilt and sentencing, the district court lacked the authority to hold
any form of a trial respecting sentencing.
Cox filed his brief before the Minnesota Supreme Court’s decision in State v. Chauvin, a case addressing the
issue of judicial authority and sentencing juries in the aftermath of Blakely but prior to legislative
changes. 723 N.W.2d 20, 20 (
The Chauvin court held that the district court not only possessed the
inherent judicial authority to impanel a sentencing jury to make findings
regarding the aggravating factor of victim vulnerability, id., but also exercised that authority properly in that the
district court’s actions were consistent with subsequent legislative enactments
such as Minn. Stat. § 244.10 (2004 & Supp. 2005) (authorizing use of
sentencing juries for resentencing hearings), id. at 29. In State
v. Kendell, the supreme court applied the Chauvin holding to a case in which the district court, based on
special interrogatories submitted to the jury, imposed a departure under the
dangerous-offender statute. 723 N.W.2d
597, 610 (
In his reply brief, Cox argues that Chauvin does not apply here because that case was decided on a narrow set of facts and is relevant only to pre-Blakely offenses. We reject Cox’s contention and hold that Chauvin acknowledges the court’s inherent authority to employ a jury for sentencing-factor determinations, and we note that such authority was particularly applicable during the interim between the Blakely decision and the enactment of legislation to address the issue of sentencing departures.
Sentencing Enhancement Factors
At the trial, the district court presented as aggravating factors three inquiries to the jury:
(1) Was the assault committed within the victim’s zone of privacy?
(2) Was the assault committed with particular cruelty?
(3) Was there a child (infant) present in the immediate area?
The jury found, through answers to special interrogatories, that Cox committed his crimes within A.R.’s zone of privacy and in the presence of a child. The jury declined to find that Cox’s crimes were committed with particular cruelty.
Cox argues that aggravating factors for sentencing departures are substantive in nature and can be created only by the legislature. Since there is no statute authorizing departure based on the presence-of-a-child factor, he argues that the court violated the separation-of-powers doctrine by submitting it to the jury.
Cox’s argument fails for several
reasons. First, in United States v. Booker, the Supreme Court specified that
sentencing factors are not elements of the underlying criminal offense and that
the Blakely analysis was concerned
with “only the required procedures for finding the facts that determine the
maximum permissible punishment,” thereby rejecting the government’s argument
that requiring sentencing factors to be found by a jury would constitute an
impermissible usurpation of legislative authority under the separation-of-powers
Next, the Minnesota
Sentencing Guidelines provide a “nonexclusive list of factors which may be used
as reasons for departure” from the presumptive sentence.
Finally, caselaw establishes that the presence of a child during the commission of an offense is considered a substantial and compelling basis for departure. See State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (holding that “committing the offense in front of the children was a particularly outrageous act and that while the children maybe were not technically victims of the crime, they were victims in another sense,” and that therefore an upward departure was justified). Here, A.R.’s one-year-old son witnessed his father severely beating his mother with his hands, fists, and a shovel, while screaming out threats and obscenities. Cox argues that substantial and compelling circumstances would require a finding that the child incurred psychological harm. But the nature of the assault, occurring as it did between his mother and father, as well as the proximity of the boy, and the fact that it took place in A.R.’s zone of privacy justifies an upward departure.
next argues that the district court permitted irrelevant and overly prejudicial
argument and testimony on the loss of the victim’s fetus. On appeal, the appellant bears the burden of
establishing an abuse of discretion as well as prejudice. State
v. Amos, 658 N.W.2d 201, 203 (
Cox objected to A.R.’s testimony that he had threatened to kill her unborn baby, kicked her in the abdomen, and that she suffered a miscarriage immediately following the attack. Cox also moved for a mistrial, but the district court denied his motion, concluding that evidence of the victim’s miscarriage was relevant to establishing whether the shovel used in the attack was a dangerous weapon. Cox now argues that the evidence was irrelevant and too prejudicial in relation to its probative value. We disagree.
Relevant evidence is
evidence that makes the “existence of any fact that is of consequence to the
determination of the action more probable or less probable . . . .” Minn. R. Evid. 401. Relevant evidence is inadmissible when its
probative value is outweighed by the danger of unfair prejudice or confusion of
Although the record indicates that the parties believed that causation could not be established because of a lack of medically certain evidence that the attack directly caused the miscarriage, the miscarriage was relevant to establish the extent of the attack. Cox told A.R. that he wanted to kill her baby and directed his blows towards her abdomen, which supports the determination that a shovel, when used in this context, is a dangerous weapon. Although there was no proof to a reasonable medical certainty that the miscarriage directly resulted from the assault, the nature and direction of the blows, as well as the proximity in time of the miscarriage, supports a permissible and reasonable inference that A.R. lost the baby as the result of the attack. The evidence was relevant to an element of the charged crime, which requires the use of dangerous weapon, and its probative value in showing the severity of the crime was not substantially outweighed by its potential for unfair prejudice.
Cox alleges that statements
made by the prosecutor were unfairly prejudicial, that the prosecutor violated
the “personal opinion” prohibition, and that justice requires reversal of his conviction. During closing argument, the prosecutor stated
that “[A.R.] has been consistent throughout the whole ordeal. She has been truthful. She is believable and she is a credible
witness.” Cox failed to object to the
argument, and, generally, where a defendant fails to object to closing remarks,
the issue is waived. State v. Gunn, 299 N.W.2d 137, 138 (
However, when the defendant has failed to
object to alleged prosecutorial misconduct, we review the
claim for plain error. State v. Ramey, 721 N.W.2d 294, 299 (
that the prosecutor’s remarks amounted to an improper comment on A.R.’s credibility
and character. We disagree. Misconduct 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 (
argues that the jury instructions were confusing and that the district court
erroneously instructed the jury to determine the enhancement factors before
determining guilt. Cox did not object to
the instructions at trial, but argues that his objection to the unitary trial as
a whole suffices to preserve the alleged error on review. Alternatively, he asks that this court find
that the district court plainly erred by giving the inapposite and confusing
instructions. Since an objection to the
unitary trial was too general to constitute a specific objection against jury
instructions, we review the instructions for plain error. Jury instructions will be affirmed as long
as, when read as a whole, they do not mislead or confuse the jury on a
fundamental point of law. State v. Gutierrez, 667 N.W.2d 426, 434
Cox takes the instructions out of context, arguing that the district court first instructed the jury that “[t]he order in which the instructions are given is of no significance” but then later instructed the jury that they should decide the sentencing factors only if it first reached a guilty verdict on the assault charge.
However, the court specifically divided the instructions into two parts, informing the jury about the general guidelines that should be used in determining guilt for the charged crime before instructing the jury about the sentencing factors. The court specified that the sentencing enhancement factors were an “additional task” and that the jury would be given a special-verdict form only if the jury “find[s] Mr. Cox guilty of the underlying charge. If you find Mr. Cox not guilty, then you should leave the special verdict form blank and simply return it along with the other verdict forms.” Since Cox takes the “order is not significant” statement out of context and misconstrues the jury instructions given by the court, he fails to show that the instructions were unduly misleading, and we do not find error in the jury charge.