This opinion will be unpublished and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


State of Minnesota,


Israel Lenow,

Filed December 14, 1999
Forsberg, Judge[*]

Ramsey County District Court
File No. K4-97-3102

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

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Michael F. Cromett, Assistant State Public Defender, 2499 Rice Street, Suite 260, Roseville, MN 55113-3724 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Forsberg, Judge, and Mulally, Judge.[**]

U N P U B L I S H E D   O P I N I O N


Appellant challenges his kidnapping and false imprisonment convictions and sentences. He asserts (a) the evidence was insufficient to support his kidnapping conviction; (b) the district court erred in refusing his request for a lesser-included offense instruction; and (c) the district court erred in ordering him to provide a blood sample for DNA testing. Appellant also argues that he was deprived of his rights to due process and a fair trial by the cumulative effect of (a) the district court permitting the state to add a witness on the first day of trial; (b) the district court denying a motion for mistrial after an investigating officer testified that he contacted appellant's probation officer; and (c) the prosecutor committing misconduct. We affirm.


Appellant Israel Lenow was charged with kidnapping and attempted kidnapping. After a jury trial, he was convicted of the kidnapping of 14-year-old J.S. and the false imprisonment of 18-year-old C.S. The district court sentenced him to consecutive terms of 78 months for the kidnapping conviction and 24 months for the false imprisonment conviction. The district court stayed imposition of the false imprisonment sentence and ordered Lenow to serve five years of probation. The district court also ordered him to provide a blood sample for DNA testing as a condition of probation.


I. Sufficiency of the Evidence

Lenow asserts that the evidence is insufficient to support a conclusion that he intended to terrorize J.S. or intended to commit a felony by sexually assaulting her. See Minn. Stat. § 609.25, subd. 1(2), (3) (1998) (stating person guilty of kidnapping if person confines or removes another person from one place to another without consent and with the intended purpose of committing felony or terrorizing victim).

When the sufficiency of the evidence is challenged on appeal, the appellate court determines only whether the evidence is sufficient to support the verdict when considered in the light most favorable to the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court may not disturb a verdict if the jury could reasonably have found the defendant guilty after giving "due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted).

Intent is generally proved through circumstantial evidence, including inferences drawn "from the defendant's words and actions in light of the totality of the circumstances." State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citations omitted). "[T]he jury may infer that a person intends the natural and probable consequences of his actions." Id. (citation omitted).

Lenow made threatening statements to both C.S. and J.S., including asking them if they were willing to die for each other. Further, Lenow physically assaulted J.S., pushing her up against a car, biting her ear, dragging her, throwing her into a fence, and striking her. He also dragged her toward a house and attempted to get her inside. When J.S. escaped, Lenow chased her into the street and caught her again, letting her go only after a passerby yelled at him. Lenow's actions, at a minimum, support a conclusion that Lenow intended to terrorize J.S. and could also support the conclusion that he intended to commit a felony by sexually assaulting J.S. Thus, there is sufficient evidence in the record to support the jury's verdict.

II. Lesser-Included Offense Instruction

Lenow next asserts that the district court erred by not instructing the jury on the lesser-included offense of false imprisonment when it instructed the jury on the kidnapping charge related to his actions against J.S.

The district court has the discretion to determine what, if any, lesser included-offense instruction to submit to the jury, "but where the evidence warrants an instruction, the trial court must give it." Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citation omitted). A district court's failure to give an appropriate instruction on a lesser-included offense is grounds for reversal only if the failure prejudiced the defendant. Id. In determining whether the district court should have instructed the jury on a lesser-included offense, the reviewing court considers whether (a) the offense in question is an included offense and (b) "'a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime.'" State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999) (quoting State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997)).

False imprisonment is a lesser-included offense of kidnapping. State v. Keenan, 289 Minn. 313, 317, 184 N.W.2d 410, 412 (1971). False imprisonment requires proof only that the defendant intended to confine the victim, while kidnapping requires proof that the defendant confined the victim for the purpose of committing an additional act. See Minn. Stat. § 609.25, subd. 1 (1998) (providing elements of kidnapping); Minn. Stat. § 609.255, subd. 2 (1998) (providing elements of false imprisonment).

On the evidence submitted to it, there was no rational basis for the jury to have concluded that Lenow merely confined or restrained J.S. In light of the evidence in this case, the district court did not abuse its discretion by rejecting a request for an instruction on false imprisonment in regard to Lenow's acts committed against J.S.

III. DNA Sample

Lenow also challenges the district court's order directing him to provide a sample of his blood for DNA analysis as a condition of probation.

Minn. Stat. § 609.3461, subd. 1 (1998), states that the court shall order a person to provide a DNA sample if that person is charged with one of the offenses enumerated in the statute and is convicted of one of those offenses or any offense stemming from the same circumstances. Lenow was not charged with, or convicted of, any of the offenses enumerated in Minn. Stat. § 609.3461, subd. 1.

The legislature amended Minn. Stat. § 609.3461 (1998) in 1999 to state that a person convicted of kidnapping must provide a sample for DNA testing upon conviction and to state that a person convicted of kidnapping, who has not previously provided a DNA specimen, must provide one before completing a term of imprisonment. 1999 Minn. Laws ch. 216, art. 3, §§ 7, 8. These amendments are effective July 1, 2000, and are applicable "to offenders sentenced or released on or after that date." 1999 Minn. Laws ch. 216, § 11.

Lenow was sentenced to 78 months imprisonment on August 28, 1998, and will not be released until after the July 1, 2000, effective date of the amendments. The record reflects that a blood sample has already been drawn from Lenow for DNA analysis. We recognize that this sample could potentially be used in a subsequent criminal prosecution against Lenow before July 1, 2000. See Minn. Stat. § 299C.155, subd. 4 (1998) (stating DNA data shall be made available to prosecutor "in any subsequent criminal prosecution of the subject"). Therefore, we affirm the order but clarify that Lenow's DNA sample may not be used in a criminal prosecution against him before July 1, 2000.

IV. Cumulative Errors

Lenow next asserts that he was deprived of his rights to due process and a fair trial by a combination of errors, including (a) the district court granting the prosecution permission to add a witness to its witness list on the first day of trial; (b) the district court's refusal to grant a mistrial after a police officer gave testimony implying that Lenow was on probation; and (c) the prosecutor's misconduct.

A. Disclosure of Witness

Whether to impose sanctions for a discovery violation is within the district court's discretion, and the district court's decision will not be reversed on appeal absent a clear abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). In exercising its discretion, the district court should consider: (a) why the information was not disclosed; (b) the prejudice to the opposing party; (c) the possibility of resolving that prejudice through a continuance; and (d) any additional relevant factors. Id.

The prosecution failed to list J.S.'s mother, R.S., on its witness list. Before jury selection on the first day of trial, the state informed the defense that it wished to add R.S. to its witness list. Lenow, who was acting pro se at the time of the request, did not object. After he was reinstated as counsel, Lenow's counsel objected to R.S.'s testimony. The district court concluded that Lenow was not prejudiced by R.S.'s testimony and stated that even if there was prejudice, the court was willing to remedy the prejudice by permitting the defense to recall R.S. at a later time if necessary.

R.S. did not witness the crime, and she testified only that she did not give Lenow permission to restrain her daughter. At no point has Lenow asserted that he had R.S.'s permission to restrain J.S., and there is no evidence that giving Lenow earlier notice of the state's intent to call R.S. would have assisted Lenow's defense in any way. Further, Lenow failed to exercise the option to recall R.S. later in the trial, thereby demonstrating that he was not prejudiced by the prosecution's late notification.

Because Lenow has not demonstrated that his defense was prejudiced by the prosecution's late notification of its intent to call R.S., the district court did not abuse its discretion by permitting the state to call R.S.

B. Informing Jury of Criminal Record

When reviewing a denial of a motion for a mistrial, an appellate court determines only whether the district court abused its discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998).

Evidence that a defendant has committed other unrelated crimes or misconduct is generally inadmissible if introduced to demonstrate the defendant's character and his conformance with that character. State v. Patterson, 577 N.W.2d 494, 499 (Minn. 1998). Even if the district court admits evidence that may be unfairly prejudicial, the admission "is harmless if the evidence of guilt is overwhelming and it is 'extremely unlikely that the evidence prompted the jury to convict where it otherwise would not have.'" State v. Jobe, 486 N.W.2d 407, 418 (Minn. 1992) (quoting State v. Hjerstrom, 287 N.W.2d 625, 628 (Minn. 1979)).

Although the testimony about a defendant's prior unrelated crimes is generally inadmissible, the officer here did not testify about specific crimes committed by Lenow but mentioned that he had talked with a probation officer looking for Lenow. Further, the testimony was harmless because the evidence of Lenow's guilt is overwhelming and because it is very unlikely that the challenged evidence caused the jury to convict Lenow when they would not otherwise have convicted him.

C. Prosecutorial Misconduct

Determining whether the prosecutor committed misconduct and whether such misconduct was prejudicial is a discretionary decision for the district court. State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999). An appellate court will order a new trial because of prosecutorial misconduct only when, in light of the whole record, the misconduct "appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial was denied." State v. Warren, 592 N.W.2d 440, 451 (Minn. 1999) (quoting State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citations omitted)).

Lenow alleges that the prosecutor committed serious misconduct in her closing argument. Lenow points to the prosecutor's statement that there was no question about who committed the crime and asserts that the prosecutor's implication that the evidence of identity was uncontroverted suggested that Lenow had some burden of proof. Lenow also maintains that the prosecutor's comments about a bed set up in the basement of the building where Lenow lived were "based only on speculation and conjecture."

The prosecutor here committed misconduct by implying that the identity of the victims' assailant was uncontroverted. See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (holding prosecutors are prohibited from commenting on defendant's failure to contradict witness testimony). We conclude, however, that the prosecutor's statement about identity were harmless beyond a reasonable doubt. See State v. Buggs, 581 N.W.2d 329, 339-40 (Minn. 1998) (recognizing defendant not entitled to new trial for prosecutorial misconduct if misconduct harmless beyond reasonable doubt). The state's evidence of Lenow's guilt was overwhelming and included consistent testimony from both victims and an eyewitness. See State v. Thompson, 578 N.W.2d 734, 743 (Minn. 1998) (stating where unreasonable to assume jury could have returned verdict other than guilty, error was harmless).

The prosecutor's comments about the bed in the basement stemmed from an investigating officer's testimony about the bed. Although the prosecutor drew conclusions and made inferences from this testimony, the prosecutor "is not required to make a colorless argument" and may present "'all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.'" State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998) (quoting State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996)). Thus, these comments were not misconduct.

Because (a) the district court did not abuse its discretion by permitting the prosecution to add a witness to its list on the first day of trial; (b) the district court did not abuse its discretion by refusing to grant a mistrial after a police officer mentioned Lenow's probation officer; and (c) one of the prosecutor's statements to which Lenow objects was harmless and the other challenged statements were not misconduct, Lenow's assertion that cumulative errors deprived him of due process and a fair trial is without merit.


[*] 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.