may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Patrick Thomas McMahan,
Filed February 25, 1997
Crow Wing County District Court
File No. K1-95-1145
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
Appellant Patrick Thomas McMahan challenges his conviction for second-degree assault under Minn. Stat. § 609.222, subd. 1 (1994). Because there was no proof that the jury witnessed any improper or prejudicial conduct, the trial court did not abuse its discretion in denying appellant's motion for a mistrial, and we affirm.
Here, appellant moved for a mistrial at the conclusion of all of the evidence, contending that a police officer held the assault weapon, a baseball bat, in the hall outside the courtroom before the trial started and that there was "at least the high probability" that it was in the presence of the jury. No offer of proof was made and no testimony was taken regarding the incident or any resulting prejudice. The record contains only an allegation that a juror might have seen the officer holding the bat.
Where a party does not move the court to question the jurors, but instead moves for a mistrial, this court applies an abuse of discretion standard. See Parker, 412 N.W.2d at 421-22. Absent a factual record of the incident, and given the deference accorded the trial court as fact-finder and direct participant in the proceedings, the trial court's decision that no serious prejudice occurred must be affirmed.