This opinion will be unpublished and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
C6-99-1005

Earl Grant Mitchell, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 28, 1999
Affirmed
Halbrooks, Judge

Olmsted County District Court
File No. K4-97-0677

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

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

Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, 151 SE 4th Street, Rochester, MN 55904 (for respondent)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Earl Grant Mitchell appeals from the postconviction courtís denial of his petition for postconviction relief. Mitchell contends that he is entitled to a new trial based on alleged incidents of prosecutorial misconduct during closing arguments at his trial for robbery. We affirm the postconviction court.

FACTS

Mitchell was convicted by a jury of aggravated robbery as a result of an incident that occurred on January 24, 1997. Mitchell was charged with stealing approximately $15 from Jeramy Routh. Routh lived in an apartment building across the alley from the building in which Mitchell lived.

Mitchell came to Routhís apartment building on January 24, 1997, looking for one of Routhís roommates. Routh was at home, watching a movie with a nine-year-old child. When Routh told Mitchell that his roommate was not home, Mitchell asked if he could come up and talk to Routh. Mitchell stated that he had been in an argument with his wife and that his brother in Chicago had just been shot. Routh testified that Mitchell appeared intoxicated and agitated. Routh initially declined to invite Mitchell into his apartment, but Mitchell persisted and Routh ultimately agreed.

When he reached the apartment, Mitchell "started going off" about his wife and brother. Routh testified that Mitchell said, "If anybody tried to f--k with him [Mitchell] he wouldnít take it; he would not think twice about shooting them * * * ." This statement made Routh nervous, and he asked Mitchell whether he had a gun on him. Routh testified that Mitchell said he had a gun.

Routh described Mitchell as agitated, fidgety, impatient, and angry. According to Routh, Mitchellís mood changed several times while they were together. At some point during their conversation, Mitchell asked Routh if he could borrow some money for liquor. Routh initially said that he was not able to help him. Mitchell then became angry and said, "Donít f--k with me. Donít make me do anything I donít want to do. Just let me borrow some money from you." While saying this, Mitchell allegedly pushed back his coat and reached behind him. Routh interpreted this as another indication that Mitchell had a gun. Routh testified that he felt threatened by Mitchellís words and actions.

Routh gave Mitchell a few dollars from his wallet. Mitchell asked Routh for more money and said, "Donít make me do anything I donít have to do. I want ó I need the money." Routh went to his checkbook and gave Mitchell $2 of the $12 in cash he had in the checkbook. Mitchell, having seen the $10 bill in Routhís checkbook, told Routh to "give" him the $10, too. Routh testified that Mitchell then asked if he had any more money. Routh indicated that he might have some change in his bedroom. Routh retrieved approximately $2 more in change from his bedroom.

After Routh gave Mitchell the change, they went back into the living room of the apartment. Mitchell thanked Routh for "borrowing" him the money, and said that he owed Routh a favor. After shaking hands with Routh, Mitchell left. Routh testified he waited about ten minutes and then took the nine-year-old to a friendís house. Routh reported the incident to the police the following day, after talking to his apartment manager.

Following an investigation, Mitchell was charged with second-degree aggravated robbery in violation of Minn. Stat. ß 609.245, subd. 2 (1996), and the case was tried to a jury. After several hours of deliberation, the jury asked to re-hear Routhís testimony regarding Mitchellís possession of a gun. The court responded by reading relevant segments of Routhís testimony from direct and cross-examination. Roughly one hour later, the jury returned a guilty verdict.

On October 24, 1997, Mitchell was sentenced to 21 months in prison. The prison sentence was stayed and Mitchell was placed on probation for 15 years. Mitchell was accused of violating the terms of his probation on three separate occasions, and his probation was ultimately revoked.

On April 2, 1999, Mitchell filed a petition for postconviction relief, alleging prosecutorial misconduct. Mitchell alleged that the prosecutor improperly referred to evidence outside the record during closing arguments, improperly argued that someone high on crack cocaine would commit a robbery, and improperly belittled his defense. The postconviction court denied the petition and this appeal followed.

D E C I S I O N

Review of a postconviction courtís order "is limited to an examination of whether there is sufficient evidence in the record to sustain the postconviction courtís findings." Rairdon v. State, 557 N.W.2d 318, 321-22 (Minn. 1996). This court will not disturb the postconviction courtís decision absent an abuse of discretion. Id. A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).

In this case, Mitchellís trial counsel failed to object to any of the allegedly improper arguments at the time they were made. He also failed to request a cautionary instruction. Ordinarily a defendant waives his right to challenge a prosecutorís comments made during closing argument unless the defendant raises an objection or seeks a cautionary instruction. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). But an appellate court may reverse a conviction, notwithstanding the defendantís failure to object, "if the prosecutorís comments were unduly prejudicial." State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). A defendantís failure to object to the prosecutorís arguments, however, creates a presumption that the arguments were not prejudicial. Id.

A prosecutorís closing argument should be based on the evidence introduced at trial and any reasonable inferences that can be drawn from that evidence. State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990). Mitchell has alleged that three specific arguments advanced by the prosecutor during his closing argument were improper and amount to misconduct requiring a new trial. On review, this court must examine the entire closing argument in order to avoid taking the challenged statements out of context or giving them undue prominence. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

Even if an argument is in some respects out-of-bounds, it is normally regarded as harmless error unless the misconduct played a substantial part in influencing the jury to convict the defendant.

Id. (citation omitted). In this case, the postconviction court concluded that the arguments made by the prosecutor "were not so unduly prejudicial as to require a new trial." We agree.

The first argument that Mitchell contends amounts to misconduct involves the prosecutorís reference to the consistency of Routhís version of the facts in two statements given to the police and in his testimony at trial. The prosecutor argued in his closing that Routh provided the same story "in every statement heís ever given."

Our review of the record reveals that the prosecutor did not introduce any evidence regarding the initial statement Routh made to the police. But to the extent that the prosecutorís reference in closing argument to one of a series of consistent statements about which no evidence was introduced was misconduct, it was harmless error. There is no indication that the statement the prosecutor failed to enter into evidence was inconsistent with the evidence regarding Routhís other statements. It is highly unlikely that the prosecutorís indirect reference to the initial statement played a substantial role in influencing the jury to convict. See State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (stating in cases involving less serious prosecutorial misconduct the test for examining allegedly improper arguments is whether the misconduct "played a substantial part in influencing the jury to convict"). The postconviction court did not abuse its discretion in finding that this argument was harmless error.

The second portion of the prosecutorís closing that Mitchell contends was misconduct involved the prosecutorís discussion of the anticipated argument that Mitchell would not rob someone who could easily identify him. The prosecutor stated:

But if youíre intoxicated and youíre high on crack cocaine ó which the defendant says he wasnít, by the way, no way ó I submit to you someone will do bizarre things. And they will rob someone that they know.

There is evidence in the record to support the postconviction courtís finding that this argument was not improper. Mitchell admitted in his statement to the police and at trial that he had used crack cocaine. Although he denied using crack cocaine on January 24, 1997, he admitted he had used it a few days before the incident. Additionally, Routh testified that Mitchell was intoxicated and appeared fidgety, nervous, anxious, and impatient at the time of the incident. A prosecutor is permitted to connect various pieces of evidence to create a reasonable inference even if that evidence does not precisely support the connection. State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998). The postconviction court implicitly concluded that, given this evidence, the inference made by the prosecutor was not improper.

Even if this argument was improper, it is unlikely that it significantly influenced the jury in this case. There was evidence before the jury that Mitchell had used crack cocaine in the days before the incident. Furthermore, the prosecutor specifically indicated that Mitchell denied using crack cocaine on the day of the incident. The postconviction courtís conclusion that the argument was not improper or unduly prejudicial was not an abuse of discretion.

The third allegation of misconduct is that the prosecutor belittled Mitchellís defense by arguing that his "only defense" was that Routh freely loaned him the money. The postconviction courtís determination that this argument did not belittle Mitchellís defense was not an abuse of discretion.

A prosecutorís closing argument may not belittle a particular defense in the abstract. State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (citations omitted). The court in State v. Williams, 525 N.W.2d 538 (Minn. 1994), held that it was misconduct for the prosecutor to argue that the particular defense raised by the defendant was the only defense that "might work." Id. at 549. The prosecutor in this case, however, did not indicate that the defense asserted by Mitchell was the only defense that "might work." Rather, he pointed out and commented on the only defense that Mitchell actually raised. In other words, the prosecutorís comments in this case did not denigrate Mitchellís chosen defense in general. The prosecutor identified the particular defense asserted by Mitchell, i.e., that Mitchell "borrowed" the money, and argued that it had no merit. This type of argument is not improper. See Ashby, 567 N.W.2d at 28 (holding the prosecutor is "free to argue that there is no merit to a particular defense").

We hold that the postconviction court did not abuse its discretion in denying Mitchellís petition for postconviction relief.

Affirmed.