This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-1920

State of Minnesota,
Respondent,

vs.

Anthony Maynard Nelson,
Appellant.

Filed November 2, 1999
Affirmed
Davies, Judge

Ramsey County District Court
File No. K99827

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

This appeal is from a judgment of conviction for first-degree assault. See Minn. Stat. ß  609.221, subd. 1 (Supp. 1997). We conclude that any error in excluding evidence of the victimís civil lawsuit against a third party was harmless and the trial court did not abuse its discretion by admitting character evidence and by failing to instruct the jury on defense of dwelling. We therefore affirm.

FACTS

Appellant Anthony Maynard Nelson was convicted of first-degree assault for stabbing Lorenzo Madrid at La Oportunidad, a halfway house in St. Paul. La Oportunidad is a duplex and, in July 1997, two residents, Madrid and Bennie Chapman, lived upstairs. Two other residents and appellant, who was the resident manager at the time, lived downstairs. La Oportunidad served as a program for persons on probation for various offenses. Participation in the program required observing a curfew and several additional rules, including no alcohol on the premises. As the resident manager, appellant was responsible for enforcing the house rules.

On the evening of July 18, 1997, Madrid and Chapman, the upstairs residents, got into a physical conflict after drinking at a neighboring house. The conflict was resolved, but appellant then demanded that Madrid return his key to La Oportunidad.

From this point on, accounts of the evening differ. Madrid claimed that: appellant grabbed him from behind and threw him through the door of the lower-level apartment of La Oportunidad, closed and locked the door, and proceeded to push Madrid, who responded by hitting appellant; as the two continued to fight, Madrid felt a pain in his lower abdomen; feeling lightheaded, Madrid unlocked the door, stumbled down the porch steps, and blacked out. The evidence is clear that he awoke in the recovery room of Regions Hospital with three stab wounds.

Appellant testified differently, claiming that: about a half hour after the initial conflict between Madrid and Chapman, he was on the porch with Chapman when several people from the residence where Chapman had been drinking approached the pair; appellant thought the group was after Chapman so he went inside La Oportunidad, grabbed a knife from the kitchen, and hid it in his pants; when he came back on the porch someone hit him; he began to return to the house and Madrid hit him; as appellant entered the house, Madrid forced his way in, locked the door, and started hitting appellant again; Madrid next got possession of appellantís knife, but appellant knocked it out of Madridís hand; appellant retrieved the knife after it fell to the floor and told Madrid to leave; Madrid tried to grab the knife from appellant, but appellant stabbed Madrid; Madrid then unlocked the door and went outside; after Madrid left, appellant washed the blood from his hands and threw the knife out the back door.

The four eyewitnesses agree that, as appellant was standing on the front porch, he was hit by either Madrid or someone from the neighboring residence. But the eyewitnesses disagree as to other events surrounding the assault. Accounts as to how Madrid entered the lower level of La Oportunidad have him either falling in, entering while he was wrestling with appellant, walking in an open door, or walking in after appellant opened the door for him. Once Madrid was inside, the door was closed so none of these witnesses saw what transpired inside the residence. The next thing the witnesses saw was Madrid stumble out after he had been stabbed.

D E C I S I O N

Evidentiary rulings are at the discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). A defendant claiming that the trial court erred in admitting evidence has the burden of proving both error and resulting prejudice. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). Reversal is warranted only when trial court error substantially influences the juryís decision. Id.

I.

Appellant claims the trial court abused its discretion and committed prejudicial error by denying him the opportunity to cross-examine Madrid about his pending civil lawsuit against La Oportunidad. In a criminal trial, defense counsel may generally "cross-examine a prosecuting witness to show the pendency of a civil action for damages by the witness against the accused." State v. Goar, 311 Minn. 560, 561, 249 N.W.2d 894, 895 (1977). The theory behind this rule is that "such a suit indicates possible bias on the witnessí part and is relevant to the witnessí state of mind when testifying." Id.

In the instant case, defense counsel sought to elicit evidence of Madridís suit for damages against La Oportunidad. The prosecutorís motion to limit such an inquiry was granted because the trial court found that the criminal prosecution was not relevant to the issues in the third-party civil suit. The trial court erred in this determination because a conviction of appellant would label appellant as a dangerous person and provide a better opportunity to prove that La Oportunidad was negligent in hiring and retaining Madrid. For this reason, the trial court committed error by not allowing appellant to cross-examine Madrid about his civil suit against La Oportunidad.

This error was harmless, however, in light of the other evidence reflecting on Madridís credibility and in light of all the other evidence of appellantís guilt. State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (harmless error test is whether there is reasonable doubt that result would have been different if evidence had not been admitted).

II.

Appellant argues that the trial court abused its discretion by improperly admitting character evidence. Generally, the prosecution may not attempt to establish the bad character of a defendant unless the defendant has put character at issue by offering evidence of good character. State v. McCorvey, 262 Minn. 361, 364, 114 N.W.2d 703, 705 (1962). Such evidence "is inadmissible to prove the character of a defendant in order to show that the defendant acted in conformity with that character in committing the offense with which he or she is charged." State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998). See also Minn. R. Evid. 404(b).

What appellant contends was improperly admitted as character evidence was evidence that appellant: (1) regularly consumed alcohol at the halfway house in violation of the rules; (2) used crack cocaine at the halfway house; (3) kept several knives at the halfway house; (4) threatened to use a knife to keep residents in line; (5) swung a stick at a resident; (6) was controlling; and (7) was paranoid.

Character evidence may be admitted when the defendant "opens the door." See State v. Gardner, 328 N.W.2d 159, 161 (Minn. 1983) (defense counsel opened door to evidence concerning defendantís character during cross-examination); State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997) (when defense counsel specifically asks whether criminal act is out of character for accused, defense counsel opens door to introduction of character evidence). When an issue is raised in defendantís opening statement the prosecution may properly respond. State v. Blair, 402 N.W.2d 154, 157 (Minn. App. 1987) (finding admission of defendantís unemployment proper when issue was raised in defenseís opening remarks).

In this case, defense counsel stated in opening remarks:

Youíre going to hear testimony thatís going to establish that this is not a house of angels. Youíre going to hear testimony that [appellant] has convictions, he has felony convictions. Youíre going to hear testimony that Mr. Madrid has felony convictions. Youíre going to hear testimony that other witnesses have felony convictions. Youíre going to hear testimony about whatís referred to as control, house rules. This is a transitional housing situation. House rule[s] focus on order, discipline, non-consumption of alcohol. Youíre going to hear testimony about how those house rules were walked upon and thrown out the door. Youíre going to hear testimony about people involved in this melee consuming alcoholic beverages * * *. You are going to hear testimony that [appellant] acted as the house leader. And he got into confrontation[s] with individuals about enforcing those rules, drawing a line, saying this is how you behave, this is how you conduct yourself.

(Emphasis added.) Defense counsel also discussed the La Oportunidad rules and the confrontations appellant had with other residents regarding these rules.

Appellant, thus, brought up his own violations of the rules and his controlling personality in his opening statement. Appellant opened the door. It was not error for the court to admit prosecution evidence addressing character.

Appellant also submitted a pro se brief in this case. In his pro se brief, appellant challenges the trial courtís evidentiary ruling regarding the exclusion of certain character evidence. All of these evidentiary rulings fall within the discretion of the trial court, which did not abuse its discretion. See State v. Griller, 583 N.W.2d 736, 742-43 (Minn. 1998) (district court has great latitude in making evidentiary rulings and will not be reversed absent abuse of discretion).

III.

Appellant also contends that, although he did not request jury instructions on defense of dwelling, the trial court committed plain error by failing to instruct the jury on this defense sua sponte. Decisions on jury instructions lie 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).

By failing to object to the trial courtís jury instructions, a defendant generally waives any challenge to the instructions. See State v. Fox, 340 N.W.2d 332, 334-35 (Minn. 1983) (failing to properly object to omission of statutory element of offense in jury instruction forfeits challenge on appeal). But, even if there was no objection to the jury instructions, an appellate court can reverse if the instruction given is plain error affecting substantial rights. Griller, 583 N.W.2d at 740. An instruction is plain error and prejudicial "if there is a Ďreasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.í" Id. (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

Here, the instruction on self-defense was followed by an instruction on appellantís duty to retreat. Appellant contends the trial court erred when it included the duty-to-retreat instruction. His argument is based on State v. Carothers, 594 N.W.2d 897 (Minn. 1999) (holding duty to retreat does not attach to defense-of-dwelling claim). But the record shows that the jury was instructed that it should acquit appellant if it believed that he reasonably and in good faith considered himself in danger from Madridís actions. The duty to retreat was not a significant issue in this case. The prosecutor did not argue that under the facts appellant had a duty to retreat. Given the evidence, the duty-to-retreat instruction had no impact on the juryís decision. Therefore, giving the duty-to-retreat instruction was not prejudicial.

Affirmed.