This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-95-2671

State of Minnesota,

Respondent,

vs.

William Joseph Eggert,

Appellant.

Filed November 5, 1996

Affirmed

Randall, Judge

Blue Earth County District Court

File No. K5-95-1026

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant).

Hubert H. Humphrey III, Attorney General, Ross E. Arneson, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent).

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge[*].

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

RANDALL, Judge

Appellant argues that the trial court committed reversible error when it allowed the state to attack his credibility through extrinsic evidence of a specific instance of conduct, and that the prosecutor engaged in misconduct during final argument. We affirm.

FACTS

Following a jury trial in Blue Earth County District Court, appellant William Joseph Eggert was convicted of one count of felony harassment and stalking in violation of Minn. Stat. § 609.749, subd. 4 (1994), one felony count of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1994), one count of gross misdemeanor harassment and stalking in violation of Minn. Stat. § 609.749, subd. 2(4) (1994), and open bottle in violation of Minn. Stat. § 169.122, subd. 2 (1994). The trial court sentenced appellant to terms of 25 months for each of the felony harassment/stalking and terroristic threats convictions, one year for the gross misdemeanor harassment/stalking conviction, and 90 days for the open bottle conviction, all to run concurrently. Appellant was also ordered to pay a $3,000 fine, plus applicable surcharges.

D E C I S I O N

Appellant argues the trial court erred in allowing the state to prove through extrinsic evidence a specific instance of conduct to attack his credibility in violation of Minnesota Rule of Evidence 608(b).

During cross-examination of appellant, the prosecutor asked appellant if he ever recalled "making a statement to the effect that [he was] smarter than the people in the justice system including prosecutors and the police." At first, appellant denied making the statement, but then stated, "No. That's hearsay." The allegation of hearsay was a reference to appellant's probation officer.

In rebuttal, the prosecution called appellant's probation officer. The prosecutor asked the probation officer if he ever had a discussion with appellant in which appellant talked about his intelligence. Defense counsel objected on the ground of relevancy and the trial court overruled the objection. The prosecutor then asked the following question:

Q. Did [appellant] make any comment to you about outsmarting the court system?

DEFENSE COUNSEL: Your Honor, I would just ask the record to reflect our continuing objection to this line of questioning.

THE COURT: Overruled.

THE WITNESS: On a regular basis.

Q. Okay. Tell the jury what he told you in that regard.

A. He often would tell me his intelligence was such that he thought that he could snow or manipulate the court system, his attorneys, the county attorney, probation officers.

Appellant argues the state is bound by the answer it received on cross-examination and was not allowed to prove a specific instance of conduct by extrinsic evidence to rebut the answer it received.

In general, a defendant, as a witness, is subject to impeachment. State v. Gress, 250 Minn. 337, 343, 85 N.W.2d 616, 621 (1957). It was not improper for the prosecution to question appellant during cross-examination about whether he made the alleged comment regarding his intelligence and desire to outsmart those in the criminal justice system. See State v. Jahnke, 353 N.W.2d 606, 608 (Minn. App. 1984) (inquiry into whether defendant had lied to police); Minn. R. Evid. 608(b).

But, Rule 608(b) of the Minnesota Rules of Evidence provides:

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility * * * may not be proved by extrinsic evidence.

The committee comment to the rule states further:

It is permissible to impeach a witness on cross-examination by prior misconduct if the prior misconduct is probative of untruthfulness. However, because this is deemed an inquiry into a collateral matter the cross-examiner may not disprove an answer by extrinsic evidence.

Minn. R. Evid. 608(b) comm. cmt. (citations omitted). Thus, because cross-examination as it relates to specific instances of conduct is considered inquiry into collateral matters, "the cross-examiner may not disprove the answer by extrinsic evidence; he must take the witness' answer." State v. Forbord, 398 N.W.2d 618, 621 (Minn. App. 1986) (citing State v. Clark, 296 N.W.2d 359, 368 (Minn. 1980)).

Here, the trial court erred in allowing the state to prove, by extrinsic evidence, a specific instance of conduct affecting appellant's credibility in violation of Minn. R. Evid. 608(b). The prosecutor asked appellant during cross-examination if he ever made a statement to the effect that he could outsmart the individuals in the criminal justice system, including prosecutors and judges. Appellant denied making such a statement. The state was bound by the answer it received. See Clark, 296 N.W.2d at 368 (holding that the state is bound by the answers it receives while inquiring into specific instances of conduct regarding collateral matters and may not disprove those answers by extrinsic evidence).

This evidence was erroneously admitted. Now we must decide whether the error deprived appellant of a fair trial to the point where a new trial is mandated. When considering whether admission of evidence regarding collateral matters is so prejudicial as to deprive a defendant of a fair trial, to deny relief a reviewing court "must hold that the guilt of defendant was conclusively proven." Id.

Here, six people, including a police officer, testified to being threatened by appellant or overhearing him make threats. Marjorie Johnson testified that appellant, in a threatening voice, told her that her time was up and that he could take her, Andrew Johnson, and Emily Johnson for everything they have. Andrew testified that appellant called their residence several times on June 29, 1995, and at one point threatened to come over and "kick f---ing head." Officer Schnorenberg testified to finding the Johnsons "very afraid, very scared," and to hearing appellant screaming over the telephone, "I know where you live." At trial, appellant admitted that, after drinking, he called the Johnson residence several times on June 29, 1995, because he was frustrated.

In addition, the jury heard appellant admit to pleading guilty to statutory rape, assault in the second degree, theft by check, and to the fact that he served just under a year in prison. With regard to the second-degree assault conviction, appellant admitted to pointing a gun at the assault victim's head. The jury also heard appellant admit to lying to Officer Schnorenberg after Schnorenberg pulled him over. Although the credibility of witnesses was an issue in this trial, as it is in all trials, we cannot say, on this record, that the erroneously admitted evidence substantially influenced the jury's perception of appellant's character. Id. We conclude the error does not amount to reversible error.

II.

Next, appellant claims that the prosecutor engaged in serious misconduct during closing argument. Appellant argues that it was improper for the prosecutor to express his personal opinion by repeatedly using the terminology, "I think so." Appellant also argues that the prosecutor's comments were improper because they expressed the prosecutor's legal conclusions about terms of art.

Respondent concedes that it was improper for the prosecutor to use "I think so" in his closing argument. See State v. Prettyman, 293 Minn. 493, 495, 198 N.W.2d 156, 158 (1972) (finding it impermissible for prosecutor to use the terms "I think," "I think you'll find," etc., during final argument). However, as the supreme court stated in Prettyman,

Although always wrong, such comments are not always prejudicial. The strength of the evidence against defendant and the otherwise balanced argument addressed to the jury's acknowledged role in judging the evidence may be considered in determining whether such comments infected the verdict.

Id., 198 N.W.2d at 158.

It is the duty of defense 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 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 trial court. Having failed to object, appellant 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. Id. 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). In Minnesota it is firmly established that

where the prosecutor has expressed a personal opinion of the accused's guilt or the veracity of witnesses * * * such statements were harmless where the trial judge cautioned the jury that it should consider only the evidence and that counsel's final argument statements were not evidence, where the evidence of guilt was adequate, and where the prosecutor's argument was otherwise proper.

State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984) (citations omitted).

Here, the comments made by the prosecutor, while improper, were mitigated by the comments of counsel and the instructions given by the trial court. Both attorneys made clear that it was up to the jury to decide issues of credibility, and that it was up to the state to prove its case beyond a reasonable doubt. Similarly, the trial court instructed the jury that they were to only consider the evidence presented, that they were the sole judges in determining questions of fact, and that it was their duty to determine if the state had proven its case beyond a reasonable doubt. It is difficult to say that the improper comments made by the prosecutor substantially influenced the jury to convict appellant. Here the jury found appellant not guilty of two counts of harassment. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (holding that acquittal on some counts, coupled with convictions on others, indicates that members of the jury were not unduly inflamed by the prosecutor's improper comments).

Appellant relies on the case of State v. DeWald, 463 N.W.2d 741 (Minn. 1990), for the proposition that a prosecutor may not express legal conclusions about terms of art. Appellant's argument misstates the holding of DeWald. There, the issue was whether a witness may express an "ultimate conclusion" that embraces legal conclusions or terms of art. Id. at 744. Here, the prosecutor's comments are not testimony. A prosecutor, along with defense counsel, is allowed to argue whether the legal elements of a charged crime have been proven.

Affirmed.

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