This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-95-1978

State of Minnesota,

Respondent,

vs.

Brenda Loewen,

Appellant.

Filed June 4, 1996

Affirmed in part, Reversed in part, and Remanded

Lansing, Judge

Otter Tail County District Court

File No. K0941206

Hubert H. Humphrey III, Attorney General, James B. Early, Assistant Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent).

Waldemar B. Senyk, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for Respondent).

Mark D. Nyvold, Suite 654, 386 North Wabasha, St. Paul, MN 55102 (for Appellant).

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Stone, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

A jury convicted Brenda Loewen of stalking, in violation of Minn. Stat.  609.749. Loewen appeals her conviction, alleging the following district court errors: (I) admitting evidence that vouched for the victim's testimony, (II) misreading the jury instructions, (III) answering the jury's question absent Loewen and her counsel, and (IV) imposing an improper sentence and failing to determine Loewen's ability to pay. We reject the arguments on the merits of the conviction but remand for a finding on Loewen's ability to pay the fine and reimburse her attorneys' fees. Affirmed in part, reversed in part, and remanded.

I

Generally, evidence of a witness's credibility and good character may not be admitted unless the witness has been impeached. Minn. R. Evid. 608(a); State v. Fader, 358 N.W.2d 42, 47 (Minn. 1984). The evidence at issue was not admitted in response to impeachment, and Loewen did not raise an objection to improper rehabilitation or "vouching" in the district court. Failing to object to evidence at trial forfeits the issue on appeal. State v. Wellman, 341 N.W.2d 561, 564 (Minn. 1983); State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

Even if Loewen had properly preserved her objection to the testimony, the testimony did not attest to character or vouch for the victim's credibility. Unlike the witnesses in Maurer v. Department of Corrections, none of the witnesses in Loewen's trial testified that the victim "seemed sincere" or expressed an opinion on the victim's veracity. 32 F.3d 1286, 1289 (8th Cir. 1994). The reversible error in Maurer was asking four witnesses whether the date rape victim "seemed sincere" and emphasizing this testimony in final arguments in what the court characterized as a "close" case. Id. at 1290.

The state presented strong evidence of Loewen's stalking behavior. Loewen admitted sending letters and gifts, and repeatedly calling and visiting the victim. Other witnesses corroborated the frequency of her contacts with the victim. Some of the testimony at issue may have been hearsay, but the comments did not address the victim's truthfulness, and there is no reasonable possibility that it significantly affected the verdict. See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

II

The stalking statute requires intentional conduct that would cause a reasonable person under the circumstances and the victim to feel oppressed, persecuted, or intimidated. Minn. Stat.  609.749, subd. 1 (1994 & 1995 Supp.). In its oral instructions, however, the court stated the conduct must cause this reaction in a reasonable person or the victim. But the jury also received written instructions to use during deliberation. The written instructions correctly stated each element of the offense.

Loewen did not object to the district court's misstatement at trial. Failure to object constitutes a waiver unless the instructions are "misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence." State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). Both the state and the defense, in closing arguments, correctly stated the elements necessary for conviction. The defense even directed the jury to "page eleven" of the instructions, which listed each element of the offense. A reviewing court must assume "the jurors were intelligent and practical people." State v. Edwards, 269 Minn. 343, 350, 130 N.W.2d 623, 627 (1964). The court's oral use of "or" rather than "and" is not fundamental error requiring reversal when both attorneys used the correct elements in their closing arguments, and the jury had a correct written copy of the instructions.

III

During deliberation the jury asked for a definition of the words "stalked," "oppressed," "persecuted," and "intimidated." The court's written jury instructions had included these words in the second element of the offense as part of the definition for harassment. The court responded to the jury's question with written definitions from the dictionary. Neither attorney nor Loewen was present during the written exchange. The court had instructed both attorneys to remain and not leave the building without the court's permission, and the record does not resolve whether the court permitted Loewen and her counsel to leave the building.

A defendant "shall" be present "at every stage of the trial including the impaneling of the jury and the return of the verdict." Minn. R. Crim. P. 26.03, subd. 1(1). But even if a court wrongfully denies a defendant's right to be present, that defendant is not entitled to relief if the error was harmless beyond a reasonable doubt. State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1993). The written definitions appear neutral and of minor significance. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (holding that court's "neutral and nonsubstantive" answer, absent the defendant, was harmless error). Even accepting defense counsel's statement that he would have objected to any additional instructions, the answer could not have played a significant role in the verdict.

IV

Loewen challenges three aspects of the court's sentencing. First, she argues that the district court erred in staying the imprisonment but executing the $3,000 fine. We accept Loewen's assertion that a district court may not stay part of a felony sentence imprisonment and execute the balance. State v. Stacey, 359 N.W.2d 671, 673 (Minn. App. 1984). But no statute or case law prohibits executing a fine and staying imprisonment in a gross misdemeanor sentence. See Minn. Stat.  609.03 (1994) (providing that gross misdemeanor may be punished by imprisonment or fine or both). The district court's sentence was within its discretion.

Second, Loewen argues that the court failed to find that she had the ability to pay the $3,000 fine. This court has held that when a district court imposes a fine greater than the mandatory minimum fine, the court must make a finding on the defendant's ability to pay. Perkins v. State, 540 N.W.2d 908, 912 (Minn. App. 1995), review granted (Minn. Feb. 27, 1996); State v. Martinson, 460 N.W.2d 342, 344 (Minn. App. 1990), review denied (Minn. Oct. 25, 1990). Because the court made no finding, we remand for further proceedings.

Third, Loewen argues that the court erred in requiring her to reimburse her public defender's fees. The district court must "ascertain the amount of such costs to be charged to the defendant * * * ." Minn. Stat.  611.35, subd. 1 (1994 & 1995 Supp.). The court should determine the defendant's ability to pay. State v. Wolf, 413 N.W.2d 620, 623 (Minn. App. 1987). The court made no findings on either Loewen's ability to pay or the total amount she owed, and we remand for further proceedings on this issue as well.

Affirmed in part, reversed in part, and remanded.


Footnotes

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