This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ricky Ray Maggette,
Filed December 24, 2007
Ramsey County District Court
File No. K2-06-1468
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John J. Choi, St. Paul City Attorney, Clifford R. Berg, Assistant City Attorney, 15 West Kellogg Boulevard, 500 City Hall, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Rachel F. Bond, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge.
On appeal from a conviction for misdemeanor obstructing legal process, appellant argues that (1) the district court committed plain error by failing to instruct the jury that if they found that appellant did not use force they had to find him not guilty because he was charged with a gross-misdemeanor offense, which requires the use of force; and (2) the prosecutor committed prejudicial misconduct in closing argument by vouching for the credibility of the state’s witnesses and arguing that appellant constructed the truth. We affirm.
D E C I S I O N
Appellant Ricky Ray Maggette argues that the district court erred in instructing the jury. An appellate court reviews jury instructions “for abuse of discretion and errors of law.” State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). District courts have considerable latitude in selecting the language of jury instructions, but may not materially misstate the law. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). Appellant did not object to the jury instructions before they were given. A defendant’s failure to object to jury instructions generally constitutes a waiver of the right to appeal. State v. Cross,577 N.W.2d 721, 726 (Minn. 1998). “Nevertheless, a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law.” Id.; see also Minn. R. Crim. P. 31.02.
Appellant argues that the instructions here permitted the jury to find him guilty of a misdemeanor-level offense, which was not charged. Appellant was charged with obstructing legal process accompanied by force after two police officers saw him urinating at a bus stop. Following a jury trial, the district court instructed the jury as follows:
[W]hoever intentionally physically obstructs, resists or interferes with a peace officer while the officer is engaged in the performance of official duties is guilty of a crime. The elements of the crime are, first: St. Paul Police Officers  were  engaged in the performance of official duties.
Second, [appellant] physically obstructed, resisted, or interfered with [the police officers] in the performance of official duties. . . .
Third, [appellant] acted with the intention of obstructing, hindering, or interfering with [the police officers].
Fourth, [appellant’s] act took place on April 13, 2006 in Ramsey County.
If you find [appellant] guilty, you have an additional issue to determine and it will be put in the form of a question on the verdict form. . . . The question is: Was [appellant’s] act accompanied by force or violence or a threat of force or violence? You will answer this question yes or no.
The district court’s instructions were nearly identical to CRIMJIG 24.26. See 10A Minnesota Practice, CRIMJIG 24.26 (2006). Thus, it is not clear or obvious that the district court’s instructions were improper.
Further, Minnesota law allows for a conviction of a lesser-included, uncharged offense. See Minn. Stat. § 609.04, subd. 1(4) (2004)(“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense” including “[a] crime necessarily proved if the crime charged were proved[.]”); see also, e.g., Lory, 559 N.W.2d at 428-29 (permitting a felony murder instruction when the defendant was charged with second-degree intentional murder because felony murder is a lesser-included offense of the charged crime). Appellant was charged with obstructing legal process with the use of force, under Minn. Stat. § 609.50, subd. 1 (2004), which provides that “[w]hoever intentionally does any of the following may be sentenced as provided in subdivision 2: . . . (2) obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties[.]” Subdivision 2(2) provides a greater penalty in situations when “the act was accompanied by force or violence or the threat thereof.” Minn. Stat. § 609.50, subd. 2(2) (2004). Thus, the statute under which appellant was charged inherently includes a misdemeanor-level offense because subdivision 2 provides a greater penalty if the act was accompanied by force. Therefore, because the district court’s instructions followed CRIMJIG 24.26 and Minn. Stat. § 609.50, and because the jury is allowed to convict on a lesser-included, uncharged offense, his argument that the district court erred in instructing the jury fails.
Appellant argues that he is entitled to a new trial based on alleged prosecutorial misconduct. This court will reverse a conviction as a result of prosecutorial misconduct if the prosecutor’s actions, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Appellant contends that the prosecutor committed misconduct in his closing argument. In assessing the seriousness of the misconduct involved in closing arguments, we evaluate “the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Because appellant did not object to the prosecutor’s closing argument, we review his claim using a plain-error analysis. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). If appellant proves that the alleged unobjected-to misconduct was an error that was plain, the burden then shifts to the state to prove that the plain error did not affect appellant’s substantial rights. Id. at 299-300.
Appellant argues that it was misconduct for the prosecutor to vouch for the truthfulness of the police officers and to argue that appellant was “constructing” the truth and that his testimony was unreliable. Prosecutorial misconduct occurs “when the [prosecutor] 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 (Minn. 1998) (quotation omitted); see also In re Welfare of D.D.R,713 N.W.2d 891, 900 (Minn. App. 2006) (“It is prosecutorial misconduct to bolster the credibility of the state’s witnesses with the prosecutor’s own opinion: an advocate ‘may not throw onto the scales of credibility the weight of his own personal opinion.’”); see, e.g., State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995) (holding that it was misconduct for the prosecutor to tell a jury that a witness’s credentials are “impeccable and unimpeached”). It is also improper for the prosecutor to express a personal opinion on the defendant’s credibility. Powers, 654 N.W.2d at 679. But it is not misconduct for the prosecutor to analyze the evidence and argue that particular witnesses were or were not credible. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003); see also State v. Googins,255 N.W.2d 805, 806 (Minn. 1977) (stating the prosecutor has a right to argue that the state’s witnesses were worthy of credibility).
Here, appellant testified that an officer approached him; he told the officer that he was urinating; the officer cursed at him, called him names, pushed him, grabbed his hand and tried to throw him to the ground; and then both officers grabbed him by the neck and pushed him to the ground. One officer testified that appellant’s left hand was in his pocket. The officer testified that he believed that appellant may have had a weapon and told appellant several times to show his hand, but appellant did not comply. As the officer approached, appellant pulled his hand out of his pocket and swung at the officer. The second officer approached and, according to the police testimony, the officers took appellant to the ground as he flailed and kicked at the officers.
During closing argument the prosecutor told the jury that the officers’ testimony was “remarkably consistent  in every facet.” The prosecutor argued:
It’s your job as jurors to determine who’s telling the truth here. . . . [Y]ou have the testimony of two police officers and you have the testimony of [appellant]. So what really happened at that point?
. . . .
You have two officers that came in and testified they didn’t see his hands. You have [appellant], who said it didn’t happen that way. And here’s the critical thing for you to remember as jurors: [appellant] admittedly has a fuzzy memory of many things that happened[.]
. . . .
When you, as a jury, go back and you have to weigh the credibility of witnesses, the truthfulness—not just the truthfulness, because we’re not talking about intentional lying here. We’re talking about how you decide to remember something in the wake of an event that made you very, very angry. In this case, the inconsistent statements made by [appellant] are clear that, for the most part, you cannot rely on the details. He said: I’m just telling how I remember.
. . . .
But, unfortunately, how he remembers it can’t be relied on to determine the exact truth.
. . . .
[The officers] not only [told] the truth, but they were incredibly accurate in how they remembered it[.]
The prosecutor did not commit misconduct; but, instead, he made permissible arguments about credibility and reasonable inferences based on the evidence. The prosecutor stated that the officers were “consistent” and “accurate” in how they remembered the incident and that appellant’s memory was “fuzzy” and his statements were “inconsistent.” The prosecutor did not express a personal opinion as to witness credibility or personally endorse the state’s witnesses; rather, the prosecutor compared the officers’ memories to appellant’s memory of the incident.
Additionally, the district court instructed the jury that “the arguments or other remarks of an attorney are not evidence,” and that the jury is the sole judge of whether a witness is to be believed and of the weight to be given a witness’s testimony. In determining witness believability, the district court instructed the jury to consider, among other things: ability and opportunity to know, remember, and relate the facts; frankness and sincerity; and reasonableness of the testimony. SeeState v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (observing that we assume that the jury follows a district court’s instructions); State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (ruling that jury instructions are relevant to the analysis of misconduct). Therefore, appellant has failed to show that the prosecutor committed misconduct. Without an error, we do not need to determine whether the error was plain or whether appellant’s substantial rights were affected.