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,
Gary Elson McFatridge,
Filed August 10, 1999
Carlton County District Court
File No. K5971050
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Marvin Ketola, Carlton County Attorney, Box 300, Carlton, MN 55718 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant Gary Elson McFatridge challenges his convictions of fourth-degree criminal sexual conduct and obstructing legal process, claiming that the district court erred in denying his motion for a mistrial. We affirm.
In October 1997, the state filed a complaint against McFatridge, alleging two counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(b), (c) (1996); one count of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(c) (1996) (force); and one count of obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(2) (1996). McFatridge pleaded not guilty to all counts.
A jury trial began in February 1998. During group voir dire, and in response to a question from McFatridge's trial counsel, a prospective juror stated:
Gary--I didn't know his first name, but him and his brother and his cousin were into a fight with my son a few years ago and he beat him up, and I think I would be impartial [sic] to this case.
The district court immediately excused the prospective juror for cause and drew another individual's name for the panel. Defense counsel continued his examination of the other prospective jurors.
During a recess, McFatridge complained that the prospective juror's statement affected other panel members and requested a new panel. His counsel moved for a mistrial, but the court denied the motion, stating that it would "give a cautionary or curative instruction in that regard."
The jury found McFatridge guilty of fourth-degree criminal sexual conduct (age), guilty of misdemeanor obstructing legal process, and not guilty of fourth-degree criminal sexual conduct (force). McFatridge moved for a new trial or, in the alternative, to vacate his conviction of fourth-degree criminal sexual conduct. The court denied his motion, and this appeal follows.
When reviewing a district court's denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); see also State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (stating that district court is in best position to determine necessity of mistrial).
McFatridge claims the district court abused its discretion in denying his motion for a mistrial because the statement of the prospective juror during voir dire allegedly deprived him of his right to a fair trial. A jury's exposure to potentially prejudicial material raises constitutional questions "because it deprives a defendant of the right to an impartial jury and the right to confront and cross-examine the source of the material." State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982) (citing Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 470 (1966) (citing U.S. Const. amend. VI)). McFatridge asserts that the prospective juror's statement was presumptively prejudicial, citing State v. Fields, 529 N.W.2d 353, 357 (Minn. App. 1995) (stating that any private communication or contact with juror during trial is presumptively prejudicial), review denied (Minn. Apr. 27, 1995).
But any presumption is rebuttable by the record on appeal. Id. And "if it can be shown beyond a reasonable doubt that the improper influence did not contribute to the verdict," then any error is harmless. State v. Halvorson, 506 N.W.2d 331, 336 (Minn. App. 1993) (citation omitted). To determine whether a potentially prejudicial statement contributed to a jury's verdict, a reviewing court makes "an independent evaluation of the verdict," considering (1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to the influence; (3) the weight of evidence properly before the jury; and (4) the likelihood that curative measures were effective in reducing the prejudice. Cox, 322 N.W.2d at 559.
1. Nature and Source of Prejudicial Matter
During group voir dire, McFatridge's trial counsel asked those prospective jurors who knew McFatridge whether they could remain fair and impartial. One of the prospective jurors responded to the question by stating that McFatridge had beaten up his son a few years earlier. The district court immediately excused the prospective juror and called a replacement. Defense counsel resumed his examination of the other prospective jurors.
The statement here did not come from a person in authority nor involve an opinion on the ultimate question of guilt or innocence, unlike the prejudicial matter in Cox. See 322 N.W.2d at 558-59 (analyzing statement heard by several jurors and made by sheriff, acting as officer of court, that prosecution had proven its case); see also Halvorson, 506 N.W.2d at 336 (reviewing victim's outburst from gallery that defendant was liar and had hurt her). The prospective juror's statement was not sworn testimony and concerned a separate incident; therefore, any prejudice to McFatridge was minimal.
2. Number of Jurors Exposed to Prejudice
Eleven of the twelve jurors who sat on the jury were present during the statement of the prospective juror. But the number of jurors exposed to the prejudicial matter is not determinative. See Cox, 322 N.W.2d at 559 n.2 (noting that court's decision did "not turn on whether 7, 9, or 11 jurors heard the remark"). But see Parker, 385 U.S. at 366, 87 S. Ct. at 471 ("[P]etitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.") (citation omitted).
3. Weight of Evidence Properly Before Jury
The jury found McFatridge guilty of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(b) (1996) (providing that one who engages in sexual contact with another person is guilty of fourth-degree criminal sexual conduct if complainant is at least 13 but less than 16 years of age and actor is more than 48 months older than complainant), and misdemeanor obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(2) (1996) (providing that one who intentionally obstructs, resists, or interferes with peace officer while officer is engaged in performance of official duties is guilty of obstructing legal process).
At trial, the victim, J.T., described the incident involving McFatridge. J.T. was 15 years old at the time of the incident; McFatridge was 29 years old. She testified that McFatridge put his arm around her shoulder, touching her breast, and said that he wanted to have sexual intercourse with her. See Minn. Stat. § 609.341, subd. 11(a) (1996) (defining sexual contact as intentional touching by actor of complainant's intimate parts with sexual or aggressive intent), subd. 5 (1996) (defining intimate parts to include person's breast). J.T. also testified that McFatridge grabbed her and tried to pull her toward him. She testified that she broke free by grabbing a clothesline pole and that, as she ran away, McFatridge shouted his telephone number, saying, "Call me. I know you want it."
Before trial, D.M., J.T.'s cousin, positively identified McFatridge as the person he saw grab J.T. At trial, D.M. testified that he saw someone grab J.T. by her shirt and pull her. He also testified that J.T. grabbed a clothesline pole and ran away and that he heard someone yelling numbers. Although D.M. did not verify at trial that McFatridge was the person he saw grab J.T., he did state that the person he saw was wearing a white shirt and that McFatridge was wearing a white shirt later that evening. In addition, D.M. testified that McFatridge looked like the person he saw grab J.T., and he acknowledged his prior identification of McFatridge.
Furthermore, there was testimony that McFatridge resisted arrest, and McFatridge does not deny that he did so. Based on a review of the record on appeal, there was strong evidence to support McFatridge's convictions of fourth-degree criminal sexual conduct and misdemeanor obstructing legal process.
4. Effect of Curative Measures in Reducing Prejudice
During a recess, the district court stated that it would give a curative instruction to the jury. The court said nothing regarding the timing of that instruction, and at no point did McFatridge request that such an instruction be given. After the state rested, the court iterated its willingness to give a curative instruction to the jury. McFatridge declined the court's offer, stating that such an instruction should have been given at the end of voir dire. But at the end of voir dire, before dismissing the jury for the day, the court asked counsel if there was "anything else." McFatridge's trial counsel stated that he had nothing to add.
The state therefore argues that McFatridge waived his right to a curative instruction, citing State v. Yant, 376 N.W.2d 487, 491 (Minn. App. 1985) (stating that by waiting for verdict and creating apparent "no-lose situation," defendant waived claim of alleged jury misconduct) (citation omitted), review denied (Minn. Jan. 17, 1986). In any event, the court, in giving the jury its final instructions, instructed the jurors to "disregard anything [they] may have heard or seen elsewhere about the case."
It is significant that the jury found McFatridge not guilty of one count of fourth-degree criminal sexual conduct and, on a special-verdict form, found that he did not use force or violence in obstructing legal process. See Minn. Stat. §§ 609.345, subd. 1(c) (1996) (requiring that actor use force or coercion to accomplish sexual contact), 609.50, subd. 2(2) (1996) (providing increased penalty for obstructing legal process if act accompanied by force or violence). This suggests that the jury was not affected by the prospective juror's statement regarding McFatridge's alleged prior act of violence.
Because the statement of a prospective juror during voir dire did not contribute to the jury's verdict, any error in denying McFatridge's motion for a mistrial is harmless. See Minn. R. Crim. P. 31.01 (providing that harmless error is not ground for reversal).
 One of these counts was later amended to allege a count of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(b) (1996) (age).
 The court had previously dismissed the remaining count of second-degree criminal sexual conduct.