This opinion will be unpublished and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
C3-95-2300

State of Minnesota,
Respondent,

vs.

Gayle Claude Johnson,
Appellant.

Filed July 30, 1996
Affirmed
Schultz, Judge
*

Sibley County District Court
File No. K59464

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; David E. Schauer, Sibley County Attorney, Christopher D. Karpan, Assistant County Attorney, 207 North Main, P.O. Box H, Winthrop, MN 55396 (for Respondent)

Phillip S. Resnick, Law Offices of Phillip S. Resnick, 701 Fourth Avenue South, Suite 1710, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

This appeal is from a judgment of conviction for tampering with a witness and terroristic threats. Minn. Stat. '' 609.498, subd. 1(a), 609.713, subd. 1 (1994). Appellant Gayle Johnson argues that the trial court erred in admitting certain evidence, that the prosecutor committed prejudicial misconduct, that the evidence is insufficient to support the conviction, and that estoppel bars the prosecution. We affirm.

FACTS

Appellant Gayle Johnson was charged with misdemeanor assault committed against Steve Ernst on September 16, 1994, and terroristic threats and tampering with a witness on September 24, 1994, committed against Chris Nelson. Nelson had given a statement to police about the alleged assault on Ernst, which occurred in the Giraffe Bar owned by Johnson.

The state charged that Johnson pulled Ernst off his bar stool, where he had fallen asleep with his head on the bar, and kicked him as he lay on the floor. Nelson, who was sitting at the bar, gave a statement to the police about the assault the following week. After he had given the statement, Nelson went to the Giraffe Bar, where his wife was dancing. Nelson testified that as he entered the bar, Johnson confronted him, telling him he was not welcome there and threatening to kill Nelson and his family.

The jury acquitted Johnson of misdemeanor assault, but found him guilty of terroristic threats and tampering with a witness.

D E C I S I O N

1. Johnson argues that his Fifth Amendment rights were violated by the state's recalling him as a witness for impeachment purposes, and by testimony that Johnson was reluctant to give a statement to police. Johnson concedes that defense counsel did not object at either time. Generally, a defendant who fails to object at trial to the admission of evidence waives the issue on appeal. State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993). Johnson argues, however, that the admission of this evidence was plain error. See Minn. R. Crim. P. 31.02 (plain error affecting substantial rights may be addressed for first time on appeal).

Johnson chose to testify at trial, thereby waiving his Fifth Amendment privilege. He cannot selectively invoke the privilege as to the cross-examination the court allowed on rebuttal. See, e.g., State v. Hennum, 441 N.W.2d 793, 800 (Minn. 1989) (finding no constitutional bar to witness's testimony about discussions with defendant, where defendant herself had testified at trial). Johnson had testified on direct examination that he had never been charged with or convicted of a criminal offense. The trial court did not abuse its discretion in allowing the state as rebuttal evidence to question Johnson about a gross misdemeanor conviction. State v. Patterson, 493 N.W.2d 577, 580 (Minn. App. 1992).

Johnson's argument that his Fifth Amendment right was violated by a reference to his reluctance to give a statement is also without merit. Johnson did not object to this testimony or seek a curative instruction, and therefore has waived the argument. State v. Clark, 296 N.W.2d 359, 367 n.4 (Minn. 1980). Moreover, there is no evidence that, when approached by the police chief about the Ernst incident, Johnson either was silent or invoked his right to silence. Johnson was only reluctant to give a statement before talking with the bar patrons. He later gave a written statement.

Johnson also argues that his right to a fair trial was violated by the admission of testimony "vouching" for the credibility of prosecution witnesses. It is generally objectionable for the state to elicit opinion evidence of the truthful character of the complainant. State v. Maurer, 491 N.W.2d 661, 662 (Minn. 1992). Here, defense counsel did not object, so we would look only to whether the testimony was plain error. We conclude, however, that any error was not prejudicial.

The first "vouching" testimony followed a vigorous cross-examination by defense counsel on the adequacy of the police investigation. In this cross-examination, defense counsel pointed out that police failed to talk with a number of witnesses. The "vouching" testimony, to the extent it was even elicited, was offered defensively, to counter defense assertions of improper investigation, not offensively, to attempt to take from the jury the issue of witness credibility. See generally State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (in most cases, witness credibility is peculiarly within competence of jury to decide, and expert opinion on it may unduly influence the jury).

In Maurer v. Department of Corrections, 32 F.3d 1286, 1290 (8th Cir. 1994), the Eighth Circuit Court of Appeals ordered a new trial because the evidence was extremely close; the "vouching" testimony was elicited repeatedly by the prosecutor, from four different witnesses; and the testimony was emphasized in closing argument. Here, the "vouching" testimony was not elicited by the prosecutor; was brief, coming from only one witness (as to the charges on which Johnson was convicted); and was not mentioned by the prosecutor in closing argument.

The jury heard Nelson's testimony, which was much longer and more detailed than his statement to police. The jury was unlikely to view the police officer's assessment of Nelson as "truthful" as anything more than an explanation of why he did no further investigation. There is no reasonable possibility that a reasonable jury might have reached a different result if the testimony had been excluded. State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).

Johnson also argues that hearsay and prior bad acts evidence were erroneously admitted. But the police chief's testimony that he had heard "a rumor" about the Nelson incident was not hearsay. Statements that are offered not to prove the truth of the matter asserted, but only to show notice to the witness, are not hearsay. Minn. R. Evid. 801(c) (definition of hearsay); Young v. Wlazik, 262 N.W.2d 300, 309 n.7 (Minn. 1977).

The prosecutor elicited several references to Johnson's fighting, use of profane language, and ordering a police officer out of his bar. But the only references to which Johnson objected, and which he can claim as error on appeal, occurred after the defense opened the door to such evidence. Johnson testified that he had never kicked anyone, described two instances in which people had started fights with him, and testified that his philosophy was that "I don't strike customers." One of Johnson's bartenders testified, concerning Nelson's allegations, that Johnson "would never do that" and that the charges were "ridiculous."

2. Johnson argues that the prosecutor committed prejudicial misconduct in closing argument. But he has taken the prosecutor's statements out of context. Read in context, the prosecutor's statements did not misstate the evidence or improperly express a personal opinion concerning the credibility of defense witnesses.

3. Johnson argues that the evidence is insufficient to support either his conviction for terroristic threats or his conviction for tampering with a witness.

In reviewing a claim of insufficiency of the evidence, this court must view the evidence in the light most favorable to the jury's verdict, assuming the jury believed the state's evidence and disbelieved evidence to the contrary. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). If a reasonable jury, considering the state's burden of proving the defendant guilty beyond a reasonable doubt, could have found him guilty, the conviction must be affirmed. Id.

Johnson did not request an instruction that a terroristic threat must be shown to be more than "transitory anger." Even if "transitory anger" were a defense to a terroristic threats charge, there is no evidence here to support such a defense. The defense's own witnesses testified that Johnson had warned his employees on the 24th about possible trouble involving Nelson, and Johnson testified that he intended to refuse Nelson service at the bar. Johnson was primed for a confrontation with Nelson, not moved by a sudden flash of anger when he uttered the threats.

Johnson also argues that the evidence of tampering with a witness is insufficient, but on the legal ground that Nelson was not, at the time he was threatened, "a person who is or may become a witness * * * ." Minn. Stat. ' 609.498, subd. 1(a) (1994). Johnson relies on a dissenting opinion in a case involving bribery of a witness. State v. Koon Meng Chan, 393 N.W.2d 228, 230-31 (Minn. App. 1986) (Leslie, J., dissenting).

In Chan, the dissent concluded that the defendant was not "about to become a witness," as required under the bribery statute, Minn. Stat. ' 609.42(4), subd. 1 (1984), when he solicited a bribe in exchange for giving helpful testimony to a person who had not yet filed a workers compensation claim, but had only seen an attorney about a possible claim. Id. (Leslie, J., dissenting). The analogous element in the tampering with a witness statute, however, is much broader, requiring only that the person "may become a witness." Minn. Stat. ' 609.498, subd. 1(a). We conclude that even the Chan dissent, which is not the authoritative opinion in that case, would find the evidence here sufficient under the broader language in Minn. Stat. ' 609.498, subd. 1(a).

4. Johnson's final argument is that this prosecution is barred because the police chief encouraged Johnson to apologize to Nelson to avoid another lawsuit. This court rejected a similar estoppel claim in State v. Jurgens, 424 N.W.2d 546, 551-52 (Minn. App. 1988), review denied (Minn. July 6, 1988). The chief of police had no authority to bind the state to a promise of nonprosecution. Moreover, his reference to avoiding another "lawsuit" could not reasonably be construed as a promise, even if it referred to a criminal rather than a civil case. There is no merit to the estoppel claim.

Affirmed.


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.