This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1572

State of Minnesota,

Respondent,

vs.

Jon Wayne Anderson,

Appellant.

Filed July 1, 1997

Affirmed

Peterson, Judge

Morrison County District Court

File No. K895566

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

Conrad Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN 56345 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

PETERSON, Judge

On appeal from convictions for third-degree and fourth-degree criminal sexual conduct, Jon Anderson argues his right to a fair trial was denied when a prosecution witness referred to his exercise of his right to remain silent. Anderson argues pro se that the chain of custody of some evidence was improper and that the prosecutor committed misconduct in her opening and closing statements. We affirm.

D E C I S I O N

1. Anderson argues his right to a fair trial was violated when a police officer testified that Anderson exercised his right to remain silent after receiving a Miranda[1] warning. The admission of evidence showing a defendant exercised his right to remain silent after receiving a Miranda warning violates the defendant's due process rights. Fletcher v. Weir,, 455 U.S. 603, 605-06, 102 S. Ct. 1309, 1311 (1982) (explaining Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245 (1976)).

But the admission of this evidence can constitute harmless error. State v. Dunkel, 466 N.W.2d 425, 428-29 (Minn. App. 1991). When an appellate court reviews

"a claimed violation of an accused's constitutional right [it] must independently evaluate the evidence to determine whether or not an average jury would have changed its verdict had the questioned statement been excluded."

Id. at 429 (quoting State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988)). To decide whether the admission of the evidence was harmless, the reviewing court must examine the entire record. Id.

The state argues that Anderson waived the right to raise this issue by failing to move for a mistrial. See State v. Fields, 529 N.W.2d 353, 356 (Minn. App. 1995) (defense failure to move for mistrial constituted waiver of right to new trial), review denied (Minn. Apr. 27, 1995). We need not determine whether Anderson waived his right to raise this issue because any error that occurred here was harmless.

The officer's reference to Anderson's silence was brief and innocuous, was not elicited by the prosecutor, and was never again referred to by the state. See Dunkel, 466 N.W.2d at 429 (when determining whether reference to defendant's silence was harmless, factors to consider include whether reference was brief and innocuous, elicited by state, and referred to again by state). Also, Anderson volunteered twice during his direct testimony that he refused to answer the officer's questions without a lawyer present. See State v. Clark, 296 N.W.2d 359, 366-67 (Minn. 1980) (reference to defendant's silence harmless if defendant later elicits similar testimony for some purpose other than to counteract damage done by initial admission of this testimony). Further, another officer's testimony showed that the victim and her boyfriend, who was with her immediately before the assault, gave consistent statements to the police immediately after the offense and before they had a chance to confer with each other. These prior consistent statements corroborated the victim's trial testimony, as did her boyfriend's trial testimony and the physical evidence. Given these facts, we cannot conclude that the jury would have changed its verdict if the officer's brief reference to Anderson's decision to remain silent had been excluded.

2. The state has moved to strike any reference in Anderson's pro se brief to police reports and written reports of witness statements to police because these documents are not part of the record. The record on appeal consists of the papers filed in the district court, the exhibits, and the transcript. Minn. R. Crim. P. 28.02, subd. 8. Documents that are not part of the record will not be considered on appeal. State v. Hanson, 366 N.W.2d 377, 379 (Minn. App. 1985). The police reports and witness statements were never made a part of the record. Therefore, we grant the state's motion to strike and will not consider these documents on appeal.

3. Anderson argues pro se that a chain of custody was not established for a condom found at the crime scene and for a sexual assault examination kit. We review the adequacy of foundation for the admission of evidence to determine whether an abuse of discretion has been shown. State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review denied (Minn. Nov. 25, 1992).

The purpose of the chain of custody requirement "is to ensure that the evidence has not been contaminated or altered." Id. "All possibility of alteration, substitution, or change of condition need not be eliminated in laying a chain of custody foundation." Id. at 664. Instead, the district court must view all the evidence regarding authentication in the light most favorable to the proponent of the evidence and, if the foundation evidence is sufficient to support a finding by a reasonable juror that the evidence in question is what its proponent claims, should admit the disputed evidence. State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982).

Witnesses testified that based on visual inspection of the condom and markings on its evidence bag, the condom offered into evidence by the state was the condom found at the crime scene. Testimony from a nurse and a police officer supported the state's claims that the nurse gave the sexual assault examination kit to the officer, although the officer did not sign a receipt for the kit, and that the kit offered into evidence by the state was the same kit. Given these facts, the district court did not abuse its discretion in determining that the foundation evidence was sufficient to show the condom and sexual assault examination kit were what the state claimed.

4. Anderson argues pro se that the prosecutor committed misconduct in her opening and closing arguments. The decision whether to reverse and grant a new trial on grounds of prosecutorial misconduct depends on whether the misconduct was harmless error. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).

Whether prosecutorial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

Id. at 127-18, 218 N.W.2d at 200.

In short,

[m]isconduct is deemed harmful if it played a significant or substantial role in persuading the jury to convict. The more serious the misconduct, the more likely the misconduct was harmful.

State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).

The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state's evidence and the weaknesses of any defense evidence.

Id.

After careful review of the record, we conclude that four of the remarks identified by Anderson arguably were unsupported by the record.[2] See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (prosecutor may argue all reasonable inferences from evidence in record but may not intentionally misstate evidence). But Anderson neither objected to these remarks nor asked for a curative instruction. See Brown, 348 N.W.2d at 747 (because cautionary instruction can ameliorate effect of improper argument, defendant's failure to object or to request curative instruction weighs heavily in this court's decision whether to reverse on grounds of prosecutorial misconduct). The district court nonetheless instructed the jury that the attorneys' statements were not evidence. Furthermore, the evidence against Anderson was strong given the consistent and corroborated testimony of the victim and her boyfriend. See id. (reviewing court considers strength of evidence against defendant in deciding whether to reverse on grounds of prosecutorial misconduct). Accordingly, any misconduct that occurred here did not influence the verdict and, therefore, was not prejudicial.

Affirmed.

[ ]1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

[ ]2These four statements concerned a police officer's testimony about how he realized that he had not questioned the victim about other sexual contact on the night of the assault; Anderson's testimony about his actions when he ejaculated; expert testimony about why none of the victim's DNA was found on the condom; and expert testimony about why none of the victim's DNA was found on a vaginal swab.