may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brian Luke Broulik,
Filed March 30, 1999
Rice County District Court
File No. K4-97-607
Jeffrey Thompson, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Huspeni, Judge,[*] and Holtan, Judge.[**]
Appellant challenges his conviction of criminal sexual conduct in the second degree. Because we do not find reversible error either in the court's admission of Spreigl evidence or in the court's failure to promptly comply with a jury request to rehear testimony, we affirm.
During its deliberations, the jury requested to rehear testimony. Because it was late in the evening, the court told the jury it would allow them to rehear the testimony the next day. But when the jury reconvened the next morning, the court was involved in an unrelated hearing. The court instructed the jury to continue deliberating, explaining that the jury would be able to rehear the testimony within a short time. However, after more than an hour and without the rehearing, the jury returned a verdict against appellant.
Evidence of a prior crime committed by a defendant is inadmissible to show the defendant's character in order to prove the defendant acted in conformity therewith. Minn. R. Evid. 404(b); State v. Doughman, 384 N.W.2d 450, 453 (Minn. 1986). In State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965), the Minnesota Supreme Court warned against the natural and inevitable tendency of a tribunal to allow other-crimes evidence to bear too strongly on a present charge. But such evidence may be admitted for other purposes, such as establishing motive, intent, or the existence of a common plan or scheme. Minn. R. Evid. 404(b); State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977).
Yet appellant's argument does not rest on the admissibility of the Spreigl evidence, but on the procedure employed by the trial court in admitting the evidence. Unable to attack the admission itself, appellant attacks the procedure employed to admit the evidence.
Appellant argues that the trial court refused to give appropriate cautionary instructions to the jury as to the inferential value of appellant's prior conviction. At trial, prior to the admission of appellant's previous crime and again prior to the jury's deliberations, the court cautioned the jury based on standard jury instructions. 10 Minnesota Practice, CRIMJIG 2.01 and 3.16 (1990). Both jury instructions warn against convicting a defendant for the present crime based on prior-crime evidence. "The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown." State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989); see also State v. Peou, 579 N.W.2d 471, 476 (Minn. 1998) (noting the "significant discretion" afforded the trial court in crafting jury instructions).
Appellant's request essentially duplicated the instructions given by the district court. The supreme court has explained that if the "substance of a particular instruction is already contained in a court's instructions to the jury, the court is not required to give the requested instruction." State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (citing State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977)). This court has explained that juries should normally not be instructed as to the possible inferences to be drawn from the evidence. State v. Elvin, 481 N.W.2d 571, 575 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). Moreover, the comment to CRIMJIG 3.16 explains that the jury instructions "should not discuss possible inferences which may be drawn from particular evidence," which should be left to the "arguments of the attorneys," thus justifying the general language of the guide.
Appellant requested a modification of CRIMJIG 2.01 and 3.16 so as to emphasize that other-crime evidence may not be considered to determine character. In his brief, appellant argues that now is the time to "erase the danger" created by the admissibility of other-crime evidence. There is no guarantee that a jury will not employ other crimes-evidence for a prohibited purpose no matter what the scope, breadth, or scale of the instructions.
The supreme court has recognized that when the defense relies on an alibi, the state is justified in fortifying its case with evidence of prior crimes that are both similar and related in nature to demonstrate a common plan or scheme. See Minn. R. Evid. 404(b); see, e.g., State v. Billstrom, 276 Minn. 174, 177-78, 149 N.W.2d 281, 284 (1967). Furthermore, the supreme court recently affirmed the adequacy of CRIMJIG 2.01 and 3.16. State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998) (explaining that 2.01 and 3.16 lessen "the probability of undue weight being given by the jury to the evidence"). The supreme court has not required that such evidence be admitted with cautioning or inferential instructions, as appellant argues, apart from the language outlined in both CRIMJIG 2.01 and 3.16.
The trial court did not commit reversible error. The supreme court has recently reiterated that when the court correctly states the law in language that a jury can understand, there is no reversible error. Peou, 579 N.W.2d at 475 (citing State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962)). Appellant fails to demonstrate error under present law, and his request for a modification is not within the province of this court.
First, we recognize that appellant failed to object to the manner in which the trial court failed to provide for the rehearing of the evidence. Generally, a defendant's failure to object to the trial court's response to a jury request ordinarily operates as a waiver of the right to raise the issue on appeal. See, e.g., State v. Lane, 582 N.W.2d 256, 258 (Minn. 1998). But "`this court will consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial.'" Id. (quoting Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996)); cf. State v. McMorris, 373 N.W.2d 593, 595 (Minn. 1985) (requiring "good reason" to overlook defendant's failure to object).
Appellant explains that the trial court's failure to reply promptly to the jury's request eviscerated his constitutional "right to present a defense." The claim lacks a "good reason" to overlook the failure to object, and we conclude that no plain error occurred.
Minn. R. Crim. P. 26.03, subd. 19(2), provides for jury requests to review evidence and outlines a formal process for the trial court and affords the district court discretion in responding to the request. The leading Minnesota cases dealing with jury requests to review evidence are McMorris, 373 N.W.2d at 595-96 (reversing award of new trial by court of appeals; dealing with issues of failure to object and of whether error in denying or granting jury request is prejudicial); State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983) (analyzing in detail what is scope of trial court's considerable discretion in handling such requests and also analyzing issue of when error is prejudicial); and State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980) (a rare "close case" where trial court's refusal to reread testimony was so prejudicial and plainly erroneous that defendant's failure to object did not prevent the supreme court from awarding the defendant a new trial). The present case clearly does not rise to the error in Spaulding. We find no prejudicial conduct on the part of the trial court.
While four of the five witnesses that the jury wished to rehear had offered alibi testimony generally favorable to appellant, the record is completely silent on why the jury wished to hear this testimony again. Any discussion as to the purpose of the jury's request would be speculative.
The absence of a record supporting appellant, when combined with a not-unreasonable delay on the part of the district court in dealing with the jury's request, leads to the conclusion that no error occurred, plain or otherwise.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.