This opinion will be unpublished and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

C3-97-1247

State of Minnesota,

Respondent,

vs.

Arthur James St. Clair,

Appellant.

Filed June 16, 1998

Affirmed

Lansing, Judge

Clay County District Court

File No. K597100

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Todd S. Webb, Clay County Attorney, Clay County Courthouse, P. O. Box 280, Moorhead, MN 56561-0280 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Schultz, Judge.*

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

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

LANSING, Judge

In an appeal from a conviction for witness tampering, Arthur St. Clair contends that comments in the prosecution's closing argument constituted prejudicial misconduct that requires a new trial. We conclude that the prosecutor's statements were reasonable inferences drawn from the evidence and did not constitute misconduct. We affirm.

FACTS

A jury convicted Arthur St. Clair of one count of first degree witness tampering for forcefully preventing or dissuading Ruby Morrison from testifying at trial in violation of Minn. Stat. § 609.498, subd. 1(a) (1996). The trial, in which Morrison would have been the complaining witness, was a domestic assault prosecution.

Morrison did not respond to the subpoena for the trial on the witness tampering charge. The prosecution's case consisted of a tape recording of Morrison's 911 call, photographs of her injuries, and testimony by the responding police officer, who described Morrison's condition, recounted her statements, and testified to other circumstantial evidence. The tape recording of the 911 call was fairly lengthy and in it Morrison identified St. Clair as the person who had struck her, indicating that he repeatedly kicked her in the head with his boot.

The police officer who responded to the call found Morrison crying, very upset, and badly bruised. Morrison told the officer that St. Clair beat her by repeatedly kicking her in the head when she said "no" to his request that she leave town rather than testify against him on the domestic assault charge. The pretrial hearing on the assault charge was scheduled for the day following the incident.

Morrison's failure to appear at the witness tampering trial was a significant issue from opening statement through closing arguments in the trial. In his closing argument, the prosecutor referred to Morrison's absence and suggested that the defense would argue that her absence indicated untruthfulness in her claims. The prosecutor then said:

But it's the prosecution's position that her absence is indicative of the beating, the control, the abuse of force. Is she scared? If she's scared, is it unreasonable for her to run to get away from the defendant?

The prosecutor then referred to the statement of a police detective which had been disclosed to the defense and submitted by the defense at trial that Morrison told the detective she had had no contact with St. Clair since the date of his arrest for tampering. And he added:

The fact that she has had and indicated no contact with the defendant since the date of his arrest is indicative of the fact that she doesn't want to be around the defendant.

The defense objected to the statement and, following the jury's return of the guilty verdict, St. Clair moved for a new trial on grounds of prosecutorial misconduct. The district court denied the motion. St. Clair appeals, pointing to the two statements by the prosecutor as prejudicial misconduct.

D E C I S I O N

The standard of review in an appeal for prosecutorial misconduct is well-established. A defendant is entitled to a new trial if the court determines both that the challenged actions were improper and that the improprieties deprived defendant of a fair trial. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994). The determination of whether a prosecutor acted improperly is normally left to the sound discretion of the district court. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984); see also State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (whether new trial should be granted not governed by fixed set of rules but committed to sound discretion of district court, which is in best position to appraise the effect of misconduct).

A prosecutor may argue all reasonable inferences from the evidence but may not intentionally misstate the evidence or mislead the jury as to the inferences they may draw. See I American Bar Association Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.8(a) (3d ed. 1993); Wahlberg, 296 N.W.2d at 419 (counsel may present all legitimate arguments on the evidence, analyze and explain the evidence, and present inferences properly drawn from evidence).

St. Clair alleges that the district court erred in not granting a new trial because the prosecutor's comments improperly suggested that he was responsible for Morrison's failure to appear at the witness tampering trial. St. Clair argues that although there was evidence he asked Morrison not to testify on the original domestic assault, there was no evidence he had any contact with her after the incident for which he was being tried. Essentially, St. Clair argues that the prosecutor's statements exceeded proper argument on inferences that could be drawn from the evidence and presented speculation that deprived him of a fair trial.

We are not persuaded that the prosecutor's statements were improper. Morrison's failure to appear for the trial was a central focus of the proceeding and gave rise to a series of statements, questions, and rulings. Morrison's failure to appear was raised in direct and cross-examination before the jury. In his opening statement defense counsel referred to the question of whether Morrison would appear and indicated his strong belief that she would appear and testify truthfully, implying that would confirm defendant's account that he had not forcefully attempted to prevent her from testifying.

In the closing statement, the defense repeatedly referred to Morrison's failure to appear as indicative that she does not want to tell the truth, that "maybe she's telling you again that she was lying." Although the defense's comments were made after the prosecution's statements, it demonstrated the consistent theory throughout the trial that if Morrison failed to appear, it meant that she had lied about her accusations that St. Clair threatened and beat her for not agreeing to leave the state.

The defense and the prosecution offered conflicting accounts of Morrison's motivation for failing to appear. Both accounts of Morrison's probable motivation are conjectural, because motivation is rarely proved by direct evidence and circumstantial evidence is generally subject to some level of conjecture. But the fact that Morrison did not appear was inescapably before the jury, and in light of the events preceding trial and the development of the evidence and testimony during trial, it was not misconduct for the

prosecution to make the two closing-argument statements relating to a possible reason for Morrison's failure to respond to the subpoena.

Affirmed.