This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-965

 

State of Minnesota,

Respondent,

 

vs.

 

Raymond Allen Torgerson,

Appellant.

 

Filed May 2, 2006

Affirmed
Klaphake, Judge

 

Aitkin County District Court

File No. K7-04-447

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Thomas Murtha, Aitkin County Attorney, 217 Second Street N.W.2d, Aitkin, MN  56431 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following a jury trial, appellant Raymond Allen Torgerson was convicted of first-degree test refusal, first-degree driving under the influence, and driving after cancellation.  On appeal, he challenges the district court’s decision to admit a portion of the in-squad videotape of his roadside encounter with the state trooper who arrested him after he was found intoxicated in the back seat of his vehicle, which was located in a ditch along the highway.  Appellant insists that the videotape, which depicted his vulgar comments and behavior immediately prior to his arrest, contained material that was unfairly prejudicial and unnecessarily cumulative to the testimony given by the trooper and by a bystander who had stopped to assist appellant.  Because the district court did not abuse its discretion in admitting the videotape, we affirm.

D E C I S I O N

            Rulings regarding the admissibility of evidence are within the discretion of the district court and will not be reversed on appeal absent an abuse of that discretion.  State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997).  The duty of the reviewing court is to “look at the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to legal usage.”  State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quotation omitted).

            Appellant’s challenge to the admission of the videotape rests on Minn. R. Evid. 403, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

 

Rule 403 favors the admission of all relevant evidence unless its probative value is “substantially” outweighed by one of the listed dangers.  State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).

            Appellant insists that the videotape was not probative because the only question for the jury to decide was whether appellant was in physical control of the vehicle, and the videotape did not depict the vehicle in motion.  In Schulz, the defendant was charged with first-degree murder; he challenged the admissibility of his voicemail message stating, “Kill lived up to his name,” and a photograph of a tattoo on his stomach of the word “Kill.”  Id. at 477.  In assessing the probative value of the evidence, the supreme court noted that “[e]vidence is relevant and has probative value when it, in some degree, advances the inquiry.”  Id. at 478.  The supreme court determined that the recording of the defendant’s voice was probative because it constituted an implied admission of guilt.  Id.  Similarly, here appellant’s videotaped statements that he was trying to get back on the road, that he ended up in the ditch, and that he was the only one in the car, are highly probative of the material fact of whether appellant was driving.

            Appellant next asserts that even if the evidence was probative, its value was substantially outweighed by the danger of unfair prejudice.  “Unfair prejudice under rule 403 is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.”  Id.  The court in Schulz determined that the evidence in that case was admissible, even though it had a “devastating impact on the defendant’s case” because it was “highly incriminating.”  Id. at 479.  The court concluded that introduction of the evidence did not give one party an unfair advantage or constitute persuasion by illegitimate means, even though it may have aroused emotions not favorable to the defendant.  Id.

            Appellant generally claims that his intoxication and vulgar behavior were prejudicial, but he fails to explain how the jury could have been unduly influenced by any specific part of the video.  In Schulz, the word “Kill” tattooed on a murder defendant’s stomach was not unduly prejudicial; the videotape here is mild by comparison:  although appellant was extremely intoxicated, his behavior was not significantly different from that of any extremely intoxicated person.  While the jury might have been repulsed by appellant’s behavior, we cannot conclude that the jury was so influenced by that behavior that appellant did not receive a fair trial.

            Appellant also argues that the videotape was cumulative because it repeated testimony presented by the state’s witnesses or facts stipulated to by the parties.  In Schulz, the supreme court rejected the defendant’s claim that the evidence was unnecessarily cumulative when, “at the very worst, the evidence was only marginally repetitive and it was highly probative.”  Id. at 480.  The court noted that the “voicemail evidence [was] uniquely probative because . . . [o]nly in the voicemail message does the [defendant] himself imply that he actually killed [the victim].”  Id. at 479.  The court noted the special value of the evidence because it constituted an admission by the defendant in his own voice, and because it could assist the jury in forming an impression of the defendant’s state of mind and intent.  Id.

            Similarly, the videotape at issue here depicted appellant’s own voice and gestures.  The videotape not only corroborated the testimony of the state’s witnesses, but it added details and nuances not present in their testimony.  The videotape further provided evidence that was useful to the jury in its assessment of appellant’s memory and credibility.  Appellant specifically denied that he was driving the car and claimed that a friend, who disappeared after the car went into the ditch, was driving.  After viewing the videotape, the jury could determine whether appellant admitted to the trooper that he was driving, strongly implied that he was driving, or was merely covering up for a friend.  Thus, the evidence was not unnecessarily cumulative, but was “only marginally repetitive and . . . highly probative.”  Id. at 480.

            Finally, for the first time on appeal, appellant asserts that this case “involves the erroneous admission of a videotape taken at a roadside by a police officer . . . in the total absence of a Miranda warning” and that he is entitled to a new trial because the state cannot prove that this erroneous admission of evidence was harmless.  We agree with the state that the “evidentiary error claimed by appellant here has no constitutional basis.”  We further conclude that because no error was committed in admitting the videotape, the issue of harmless error need not be reached.  We therefore affirm appellant’s conviction.

            Affirmed.