This opinion will be unpublished and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
CX-95-1631

State of Minnesota,
Respondent,

vs.

Steven Louis Proulx,
Appellant.

Filed July 2, 1996
Affirmed
Toussaint, Chief Judge

Carlton County District Court
File No. K3-94-948

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

Marvin Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.*

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

TOUSSAINT, Chief Judge

Steven Louis Proulx challenges his conviction for first-degree criminal damage to property, arguing (1) insufficient evidence to support his conviction, (2)  district court error in admitting evidence regarding "other bad acts," and (3) prosecutorial misconduct during closing argument. We affirm.

D E C I S I O N

I.

Proulx argues that the evidence was insufficient, as a matter of law, to sustain his conviction because the state failed to establish that the damages to Ruth Wise-Bahen's automobile exceeded $500, and that it was Proulx who, in fact, caused the damage. When considering a claim of insufficiency of the evidence, we are limited to an analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to sustain the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). An appellate court will review the record and legitimate inferences that can be drawn from the evidence and determine whether a jury could reasonably conclude the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The reviewing court may not retry the facts but must "assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." Id.

Minn. Stat. ' 609.595, subd. 1(3) (1994), provides that damage to property is a felony if "the damage reduces the value of the property by more than $500 measured by the cost of repair or replacement." Here, during the testimony of Wise-Bahen, the state introduced, over Proulx's objection on heresay grounds, two estimates obtained by Wise-Bahen from local body shops for the repair of her automobile. These estimates were for $1,231.49 and $1,063.45.

Proulx argues that no foundation was laid for the estimates. However, "[f]oundation for admissibility may at times be predicated on judicial notice of the nature of the business and the nature of the records as observed by the court." National Tea Co., v. Tyler Refrigeration Co., 339 N.W.2d 59, 61 (Minn. 1983). Here, the district court took judicial notice of the estimates, finding that they were of the type typically prepared, maintained, and furnished by body shops in the normal course of their business. See Minn. R. Evid. 803(6) (business records exception. Further, we note that the estimates were proffered during the testimony of Wise-Bahen and that it was proper for her, as the owner of the property, to testify to the value of her vehicle and the damage caused by appellant's acts. State v. Anderson, 405 N.W.2d 527, 530 (Minn. App. 1987), review denied (Minn. July 22, 1987). Accordingly, we cannot say that the district court abused its discretion in allowing the estimates to be admitted. National Tea 339 N.W.2d at 62.

Finally, Proulx argues that the state failed to prove beyond a reasonable doubt that he, in fact, caused the damage to Wise-Bahen's automobile. Here, both Wise-Bahen and her friend, Terri Jackson, testified that they observed appellant kicking the driver's side door of Wise-Bahen's car. Although Proulx presented an alibi defense, the jury was not required to believe it. Proulx contends that the testimony of Jackson and Wise-Bahen is not believable or credible because of the past history among the three individuals. Issues of credibility are for the jury to decide. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Based on the eyewitness testimony offered by the state, the jury could reasonably conclude beyond a reasonable doubt that it was Proulx who caused the damage to Wise-Bahen's car. We conclude that the evidence is sufficient to sustain Proulx's conviction.

II.

Proulx argues that the district court erred in allowing the admission of evidence that he was involved in a fight at Richard's bar and arrested for disorderly conduct. Rulings on evidentiary matters are within the sound discretion of the district court and will not be reversed absent an abuse of that discretion. State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990). Even if an evidentiary ruling is in error, "a reversal is warranted only when the error substantially influences the jury to convict." Id. (citing State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)).

Generally, evidence that an accused has committed another crime independent of that of which he is charged is inadmissible to prove guilt for the offense charged unless an exception to the general rule applies. State v. Titworth, 255 N.W.2d 241, 244 (Minn. 1977). Evidence connecting a defendant with other crimes is, as a rule, inadmissible because it tends to justify to the jury a finding of guilt regardless of present charges. State v. Saucedo, 294 Minn. 289, 292, 200 N.W.2d 37, 39 (1972). However, evidence of other crimes may be admissible if "used for some purpose other than to show that the person acted in conformity with his character." State v. Axford, 417 N.W.2d 88, 92 (Minn. 1987).

In State v. Frisinger, 484 N.W.2d 27 (Minn. 1992), the supreme court set forth the proper analysis to be used when dealing with evidence of other crimes. The district court is to look at the wording of Minn. R. Evid. 404(b) and the real purpose for which the evidence is being admitted. Id. at 32. "If the evidence is offered for a legitimate purpose, then the exclusion sanction of Rule 404(b) does not apply." Id. (citing Axford, 417 N.W.2d at 92). After the Rule 404(b) analysis, the district court then engages in the basic Rule 403 analysis "balancing the relevance of the evidence against the potential of the evidence for unfair prejudice." Id. Unfair prejudice refers not to the damage to the opponent's case that results from the legitimate probative force of the evidence, but rather to the unfair advantage resulting from the capacity of the evidence to persuade by illegitimate means. Id.

Here, the district court allowed evidence of Proulx's involvement in a fight at Richard's bar and arrest for disorderly conduct to be introduced for the foundational purpose of explaining how the police came on Proulx later in the evening, thus providing a complete picture of the events occurring that evening. This is not an improper purpose. Here, there was positive eyewitness testimony that Proulx committed the crime in question There was no objection during the testimony of the police officers. The prosecutor did not urge the jury to use the evidence for an improper purpose and did not mention the incident at Richard's bar in his closing argument. A review of the record reveals that even if the evidence were wrongfully admitted, it did not significantly affect the verdict. State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995); Frisinger, 484 N.W.2d at 31.

III.

Finally, Proulx argues that the prosecutor engaged in misconduct during his closing argument. Specifically, he takes exception to the following statement made by the prosecutor.

That other stuff is what I call a smoke screen. It's when the defense doesn't have a defense, you grab whatever you can and bring that out.

Proulx maintains that this statement improperly undercuts the legitimacy of his defense by appealing to generalities and potential jury biases.

Initially, we note that the issue of prosecutorial misconduct was not properly preserved for appeal because defense counsel failed to object to the allegedly improper comment at trial. It is the duty of counsel to object promptly and ask for a curative instruction when a prosecutor makes an improper statement during closing arguments. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Generally, by failing to object or to seek cautionary instructions, a defendant is deemed to have waived his right to raise the issue on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The failure to object implies that the defense found nothing improper in the argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). Here, defense counsel did not object to the allegedly improper comment made by the prosecutor, nor did counsel seek a curative instruction from the district court. Having failed to do so, Proulx has forfeited the issue on appeal.

A reviewing court may, however, reverse a conviction even when defendant failed to preserve the issue on appeal if the prosecution's comments are unduly prejudicial. Parker, 353 N.W.2d at 127-28. The question to be asked is whether the improper comment likely played a substantial part in influencing the jury to convict. State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). The supreme court has repeatedly held to be improper comments by prosecutors belittling a particular defense in the abstract by saying, for example, "[t]hat's the sort of defense that defendants raise when nothing else will work." State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993); see also State v. Bettin, 309 Minn. 578, 579, 244 N.W.2d 652, 654 (1976) (improper for prosecutor to argue that insanity defense was a "push button defense" used by defendants "when they `cannot think of anything.'") However, this court in State v. Wright, 371 N.W.2d 238, 240 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985), held that it was not improper for a prosecutor to argue that defense counsel put a "smoke screen" on the real events. The prosecutor's comment here is similar, and we cannot say that as a matter of law it was so unduly prejudicial as to deprive appellant of a fair trial.

IV.

In his pro se brief, Proulx argues he was denied effective assistance of counsel. Having reviewed his argument and the record, we conclude Proulx's claim is without merit.

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.