This opinion will be unpublished and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
State of Minnesota,
Raymond Leon Semler,
Filed July 28, 1998
Crow Wing County District Court
File No. K1961530
Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney
General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Donald F. Ryan, Crow Wing County Attorney, Lower Level, County Service Building,
322 Laurel Street, Brainerd, MN 56401 (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 Kalitowski, Presiding Judge, Randall, Judge, and
U N P U B L I S H E D   O P I N I O N
Appellant Raymond Leon Semler argues that he is entitled to a new trial as a result
of the state's discovery violations and that the trial court abused its discretion by ordering
him to submit to polygraph examinations at his own expense as a condition of probation.
On July 25, 1996, M.N. was biking up a hill when she noticed a blue truck pass
her in the opposite direction. As M.N. started her descent, the truck began circling her
and then appeared to drive away. When M.N. reached the bottom of the hill, she
noticed a man standing in the middle of the road whom she later identified as the driver
of the truck. She tried to swerve around him, but he stepped in front of her and pulled
her off the bike. The man put his arm around her waist and grabbed her breast.
Seconds later, Michael Strey came riding along on a three-wheeler. When the
driver saw Strey, he released M.N. and walked away. M.N. immediately ran up to Strey
and told him that she needed help. Strey asked her if she knew the man who attacked
her, and she said she did not. Strey said he had known the man from church and
identified him as Semler.
When M.N. arrived at the police station, she reported the license plate number of
the truck, which was registered to Semler. The next day, M.N. identified Semler from
a photographic line-up. Crosby Police Department Investigator Richard Koop then faxed
this information to the Crow Wing County court administrator's office because the
county attorney's office did not have a fax machine. The county attorney's office never
received the fax, however, or any other information pertaining to the photographic line-up.
During opening statements at trial, defense counsel argued that M.N. never
identified Semler and was never asked to pick him out of a line-up. On direct
examination, M.N. made an in-court identification of Semler as her attacker. On cross-examination, defense counsel questioned M.N. about what occurred at the police station.
M.N. indicated that she was asked by Koop to identify her attacker from a photographic
line-up. Defense counsel then moved for a mistrial based on the state's failure to
disclose M.N.'s pretrial identification. The prosecution was also unaware that M.N. had
made a pretrial identification and agreed not use the line-up as evidence.
The trial court denied the motion for a mistrial, finding that the evidence of the
photograph line-up was not exculpatory, but rather inculpatory, and that there was
enough evidence, apart from the pretrial identification, to identify Semler as M.N.'s
attacker. Furthermore, the trial court gave a cautionary instruction that defense counsel
The jury convicted Semler of criminal sexual assault in the fourth degree and
kidnapping. The trial court stayed execution of Semler's prison sentence. As a condition
of his probation, the trial court ordered Semler to serve two consecutive one-year jail
terms and submit to periodic polygraph examinations at his own expense. Semler appeals
his conviction as well as his sentence.
D E C I S I O N
1. Sanctions imposed by the trial court for discovery violations are reviewed
under an abuse of discretion standard. State v. Lindsey, 284 N.W.2d 368, 373 (Minn.
1979). When exercising its discretion, the trial court should consider the following
factors: 1) the reason for the failure to disclose; 2) the extent to which the other party
was prejudiced; 3) whether it is feasible to remedy the prejudice by a continuance; and 4)
any other relevant factors. Id.
The trial court's finding that Semler was not entitled to a new trial was based
largely on the fact that the evidence was not exculpatory, but rather inculpatory. While
we are affirming the trial court's decision, we want to make it clear that this finding,
standing alone, does not decide the issue. Simply because the pretrial identification
would have hurt Semler's case and not the state's case is no reason to find that the error
was harmless. Minnesota Rules of Criminal Procedure do not limit discovery to
exculpatory information. Rather, discovery is required for all material within the
prosecutor's possession or control that relates to the case at hand. Minn. R. Crim. P.
9.01, subd. 1.
There is no dispute here that a discovery violation occurred. Ordinarily, a
defendant is entitled to a new trial if he was prejudiced by the state's failure to comply
with discovery rules. State v. Ramos, 492 N.W.2d 557, 560 (Minn. App. 1992), review
denied (Minn. Jan. 15, 1993). In certain circumstances, however, a new trial may be
granted without a showing of prejudice. State v. Kaiser, 486 N.W.2d 384, 386 (Minn.
1992). In Kaiser, the court clarified that, in the interest of enforcing open discovery
procedures, it has on occasion awarded a new trial even in cases where prejudice was not
shown. Id. Kaiser and its progeny, however, all have a common thread: the prosecutor
intentionally withheld evidence. Id. at 386-87 (granting new trial where prosecutor, after
discovering new details about attack from witness several days before trial, failed to
disclose this information to defense counsel, and told witness to "keep her mouth shut.")
In this case, the prosecutor's failure to disclose was unintentional and inadvertent.
The reason the pretrial identification was not disclosed to Semler is that the prosecuting
attorney was also unaware that an identification had occurred prior to trial. Koop faxed
the report regarding the photo identification to the court administrator's office because at
the time the county attorney's office did not have one. The prosecuting attorney,
however, never received the fax. The fact that the prosecuting attorney was unaware of
the pretrial identification weighs heavily in this court's decision not to find an abuse of
discretion by the trial court. Ramos, 492 N.W.2d at 560 (upholding trial court's
decision to deny new trial, deeming it "significant" that prosecutor was not aware of
The record also contains substantial evidence to support Semler's conviction:
the vehicle driven by M.N.'s attacker was registered to Semler; M.N. and Strey were
able to positively identify Semler in court; and Strey identified Semler as M.N.'s
attacker immediately after the incident occurred. Strey told the police that he and
Semler went to the same church and he had known him for approximately 10 years.
Finally, the trial court gave a cautionary instruction in an attempt to cure any
possible error resulting from M.N.'s testimony. See Lindsey, 284 N.W.2d at 375
(affirming conviction where trial court gave jury instructions that cured any possible
error arising from cross-examination). "A trial judge's * * * careful instructions may
be sufficient, in light of all the circumstances, to support a finding of no prejudice."
State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982). The trial court here advised the
jury to "disregard any testimony by [M.N.] suggesting that there was an attempt to
obtain a photographic identification of the defendant, Raymond Leon Semler."
2. Semler also argues that the trial court abused its discretion by ordering him
to submit to polygraph examinations at his own expense as a condition of probation.
Trial courts are afforded broad discretion in imposing a sentence; we cannot substitute
our judgment absent an abuse of discretion. State v. Friberg, 435 N.W.2d 509, 515
In executing a sentence, a trial court may place a defendant on probation and prescribe
terms that include intermediate sanctions. Minn. Stat. § 609.135, subd. 1 (1996).
Although ordering a defendant to submit to polygraph testing may not be specifically
spelled out in the statute, the wording of the statute indicates that the list of intermediate
sanctions is not exhaustive. Id. In fact, this court has approved polygraph testing as a
condition of probation. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994)
(permitting polygraph examinations during probation to assure avoidance of contact with
young persons), review denied (Minn. Apr. 21, 1994). In addition, a sentencing judge is
under no obligation to find the defendant has the ability to pay a fine before imposing a
sentence. Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997). Trial courts have the
power to impose a fine as part of a sentence and to impose conditions of probation,
including, but not limited to, restitution to the victim, surcharges, and the like. Minn.
Stat § 609.135, subds. 1, 1(a). The trial court, therefore, was within its discretion to
order Semler to submit to regular polygraph examinations at his own expense.