STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Stephen Clifford Bakken,
Filed September 24, 1996
Faribault County District Court
File No. K894317
Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Robert A. Stanich, Thomas Erik Bailey, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Joel R. Welder, Faribault County Attorney, 1120 Giant Drive, P.O. Box 5, Blue Earth, MN 56013 (for Respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
Bakken argues he was denied a fair trial by the prosecutor's improper expressions of personal belief concerning testimony, misstatements of the evidence, mischaracterization of the inferences to be drawn from the evidence, attacks on the character of defense witnesses, and inflammatory remarks. See State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994) (ordering a new trial only when prosecutorial misconduct denies the defendant a fair trial); State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quoting I ABA Standards for Criminal Justice, The Prosecution Function 3-5.8 (2d ed. 1979), which sets forth the prohibitions against expressions of personal opinion, misstatements of the evidence, and mischaracterization of the inferences to be drawn from the evidence); see also State v. Atkins, 543 N.W.2d 642, 649 (Minn. 1996) (acknowledging character attacks are improper during a prosecutor's closing argument); State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (stating prosecutors must avoid inflaming the passions and prejudices of the jury).
We generally review a trial court's decision regarding the propriety of a prosecutor's closing argument for an abuse of discretion. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). However, Bakken's trial counsel never objected to the prosecutor's many assertions that Bakken forged a recantation note and that Bakken and his wife had lied, despite their testimony to the contrary in several instances. Because these statements pervaded the prosecutor's entire closing argument, defense counsel received ample opportunity to raise an objection and prevent further use of objectionable tactics. By failing either to object or to request curative instructions from the trial court, Bakken waived his right to complain on appeal. See Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (stating appellate courts generally should review only those issues presented to, and considered by, the trial court); see also Stewart, 514 N.W.2d at 564 (noting the lack of an objection or request for curative instructions weighs against reversal in a claim involving prosecutorial misconduct during closing arguments); cf. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (considering impact of prosecutorial misconduct despite defense counsel's failure to object thereto).
Furthermore, the trial court cautioned the jury that attorneys' statements are not evidence and that jurors must rely solely on their recollection of the evidence to the extent of any conflict between the two. See Ture, 353 N.W.2d at 517 (considering the use of a similar instruction and deciding that a prosecutor's improper statement of personal opinion did not mandate reversal). Under these circumstances, we will not review the effect, if any, of the prosecutor's alleged misconduct.
In addition, the prosecutor did not mischaracterize the inferences to be drawn from the evidence or attempt to inflame the passions and prejudices of the jury. Other witnesses' testimony contradicted several of Bakken's statements. If jurors believed them instead of Bakken and discounted his testimony, they would have to conclude that Bakken was lying. Although stating that the defense witnesses lied and that Bakken forged the recantation letter may embody an improper expression of a personal opinion, these assertions did not invite the jury to draw unreasonable inferences. See State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (concluding a prosecutor's statement that the defendant actually lied in his testimony bordered on impropriety, but clearly did not mandate reversal); State v. Wahlberg, 296 N.W.2d 408, 419-20 (Minn. 1980) (noting that counsel have the right to present all legitimate arguments and proper inferences to be drawn from the evidence).
After a careful review of the record, we conclude the prosecutor's closing argument did not threaten the jury's capacity for independent judgment. See, e.g., Porter, 526 N.W.2d at 363-64 (reviewing a claim that statements about the jury's conscience and gullibility inflamed the passions and prejudices of the jury and finding they were a "blatant attempt to impinge on juror independence"); State v. Walsh, 495 N.W.2d 602, 606 (Minn. 1993) (finding the prosecutor's statement that "[i]f [the defendant] couldn't penetrate her with his penis, then he was, by God, going to do it with a butcher knife *" was unduly inflammatory and only marginally supported by the evidence). The prosecutor's statements did not rise to this level of rhetoric and tended only to suggest legitimate inferences to be drawn from the evidence. Under these circumstances, we conclude that Bakken received a fair trial.
Trial courts enjoy broad discretion in determining the propriety and amount of restitution. State v. Anderson, 507 N.W.2d 245, 246 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993). However, a restitution order must have a factual basis in the record. See State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) (examining the record for evidence to support the restitution order). Bakken argues the trial court abused its discretion by awarding restitution for: (1) day care costs, which the record does not establish resulted from the offense; (2) lost wages of the complainant's mother in an unreasonable amount; and (3) transportation costs for 126 miles related to a civil hearing, even though the trial court stated it did not consider expenses associated with that hearing. We disagree for several reasons.
First, Bakken failed to raise the issues of day care costs and lost wages either in his response to the county attorney's request for restitution or at the restitution hearing. Therefore, we need not consider those issues on appeal. See Thayer, 322 N.W.2d at 604 (stating appellate courts generally should review only those issues presented to, and considered by, the trial court); Anderson, 507 N.W.2d at 247 (holding the defendant's failure to object to restitution constituted a waiver of the argument that it would violate the terms of his plea agreement).
Second, the trial court did not abuse its discretion in ordering repayment of lost wages because the complainant's mother is, for the purpose of restitution, considered a victim of Bakken's crime. See Minn. Stat. §(1994) (defining a victim as a person "who incurs loss or harm as a result of a crime"); State v. O'Brien, 459 N.W.2d 131, 132, 135 (Minn. App. 1990) (finding parents, whose daughter married the defendant in reliance on his perjured statement that his first marriage ended in an annulment, were victims under the restitution statute because "they incurred an economic harm as a result of appellant's perjury"). In addition, the mother incurred the expenses for the benefit of the 12-year-old complainant, who required transportation to meetings, counseling sessions, and trial. Moreover, while counties may reimburse witnesses for certain costs incurred when testifying, this practice does not preclude a restitution order for similar expenses in the absence of a showing that the complainant's mother actually received remuneration. See Minn. Stat. §(1994) (permitting witnesses in criminal cases to receive fees for travel and attendance pursuant to Minn. Stat. § 357.22, plus expenses for meals, lost wages, and child care not exceeding $60 per day); see also Minn. Stat. § 357.22 (1994) (allowing $20 per day plus travel costs at 28 cents per mile).
And third, the record supports the trial court's calculation of the appropriate mileage amount and shows: (1) the county attorney originally requested restitution for a total of 1,260 miles of travel; (2) 126 of these miles related to a civil hearing; and (3) the trial court awarded restitution for expenses associated with only 1,134 of the requested miles. Under these circumstances, we will not reverse the trial court's restitution order.