This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-243

 

State of Minnesota,
Respondent,

vs.

Nicholas Scott Lagos,
Appellant.

 

Filed October 26, 2004

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 03031015

 

 

Douglas A. Kelley, Steven E. Wolter; Douglas A. Kelley, P.A., 2530 Centre Village Offices, 431 South Seventh Street, Minneapolis, MN  55415 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of aiding and abetting criminal damage to property, arguing that the district court abused its discretion in admitting expert testimony from an auto mechanic and news footage of the incident, the district court’s oral instructions to the jury were erroneous, and the prosecutor committed prejudicial misconduct during closing argument.  We affirm.

FACTS

 

Appellant Nicholas Lagos and three friends were walking in the Dinkytown area of Minneapolis after the 2003 NCAA hockey tournament.  Crowds gathered in that area to celebrate the victory of the University of Minnesota men’s hockey team.  When Lagos and his friends arrived at the corner of 5th Street and 15th Avenue, they encountered a group of people shaking a 1997 Hyundai Accent and setting a dumpster on fire.  Lagos and his friends joined the group and began shaking the vehicle.  When the vehicle began rocking, Lagos and his friends stepped away; other members of the group flipped the vehicle on its side.  Eventually they overturned the vehicle completely.  Lagos and his friends then watched people throw lit cigarettes onto the vehicle until it caught fire. 

Lagos and his friends next walked to an area where people were standing on an overturned 1992 Honda Accord.  Lagos climbed on top of the vehicle for one to three minutes.  When Lagos got off the car, his friend, Mike Compton, picked up a hedge clipper that had fallen out of the vehicle’s trunk and gave the hedge clipper to Lagos, who tried to puncture the vehicle’s tire with it.  When he failed to do so, Lagos picked up a screwdriver, intending to use it to puncture the tire.  But before he made contact with the tire, Lagos became distracted and left the vehicle.  Shortly thereafter, someone set the Honda on fire by putting lit road flares inside it.  The group dispersed when the university police came through the area with tear gas. 

A student, who took roughly 25 to 30 digital photographs of the group damaging the Honda, sent one of the photos to the University of Minnesota Police Department (UMPD).  Another student videotaped revelers damaging vehicles in the area.  The video captured Lagos and his friends damaging the Hyundai. 

The UMPD posted on its website several photographs taken during these events.  A student, who had witnessed Lagos damaging a vehicle, contacted the UMPD after recognizing Lagos in one of the website photos.  The UMPD contacted Lagos, who admitted his involvement in damaging the two vehicles. 

Lagos was charged with two counts of first-degree criminal damage to property and one count of aiding and abetting first-degree criminal damage to property.  Minn. Stat. §§ 609.595, subd. 1(3), .05, subd. 1 (2002).  Following a jury trial, Lagos was acquitted of one count of first-degree criminal damage to property and convicted of the remaining charges.  This appeal followed. 

D E C I S I O N

            Failure to object to an error at trial ordinarily constitutes waiver of the defendant’s right to appeal.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  But we may consider the claim on appeal if the error was plain and if it affected the defendant’s substantial rights.  Id.; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (setting out three-prong test).  If this standard is met, “we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (alteration in text).

I.

            Lagos first challenges the district court’s decision to admit expert testimony by Daniel Burns, who assessed the value of the damage to the vehicles.  Burns was not cross-examined at trial, and his testimony is uncontroverted.  Lagos contends that Burns’s testimony was inadmissible because it lacked foundation and was prejudicial.  Because Lagos did not preserve an objection before the district court, we utilize a plain-error standard of review.  See Strommen, 648 N.W.2d at 686.

Expert testimony may be based on facts “made known to the expert at or before the hearing.”  Minn. R. Evid. 703(a).  Such facts need not be admissible as evidence if they are of the same type “reasonably relied upon” by other experts in that field.  Id.; State v. Stewart, 643 N.W.2d 281, 293-94 (Minn. 2002).  Whether particular facts supply sufficient foundation to determine value or, conversely, the amount of damage to a vehicle, depends on the nature of the property in question.  The value of real property may depend on several individualized factors unique to a particular property, whereas fungible commodities may be valued without any direct examination of the commodity.  Compare Housing & Redev. Auth. v. Phillips Petroleum Co., 294 Minn. 410, 415, 202 N.W.2d 214, 217-18 (1972) (real property), with Northland Ins. Co. v. Ace Doran Hauling & Rigging Co., 415 N.W.2d 33, 37 (Minn. App. 1987) (cotton).

Kadlec Motors, Inc. v. Knudson involved a challenge to an automobile dealer’s testimony as to the value of a used vehicle.  383 N.W.2d 342, 348 (Minn. App. 1986).  The dealer did not inspect the vehicle.  Id. at 349.  Rather, the dealer estimated the vehicle’s value based on his knowledge of the type of vehicle and its condition.  Id.  In holding that the district court did not abuse its discretion in admitting the expert’s opinion, we noted that if lack of information affected the dealer’s valuation, it bears on the weight to be given the dealer’s opinion, not the admissibility of the expert opinion.

During his testimony, Burns did not state whether he had inspected either of the damaged vehicles.  Based on his knowledge of the make and model of the vehicles, Burns considered the negative consequences, such as body damage and oil seepage, that result from turning these vehicles upside-down.  Burns then assessed the amount of damage to each vehicle based on more than twenty years’ experience as an automobile mechanic.  There is no indication in the record that Burns had insufficient information to offer this opinion or that he was not using information reasonably relied on by others in his field.  We, therefore, conclude that Burns’s expert opinion was supported by sufficient foundation.

Lagos also argues that Burns’s testimony should have been excluded because it was unduly prejudicial.  Testimony is prejudicial and inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.  Minn. R. Evid. 403; State v. Smith, 669 N.W.2d 19, 27 (Minn. 2003).  Unfair prejudice cannot be based on the legitimate probative force of evidence, but only on the capacity of evidence to persuade by illegitimate means.  State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985).  Here, Burns dispassionately assessed the damage to each vehicle without any reference to Lagos or his culpability.  Because there was no obvious risk of unfair prejudice, the record also fails to support this basis for Lagos’s claim that the district court committed plain error in admitting Burns’s testimony.

II.

 

Lagos also challenges the admission of videotape footage of the offenses, asserting that the footage is prejudicial and inadmissible.  Because Lagos objected before the district court, we review this evidentiary ruling to determine whether the district court abused its discretion.  See State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).

Again we consider whether the probative value of this evidence was outweighed by the potential for unfair prejudice.  See State v. Roman Nose, 667 N.W.2d 386, 400 (Minn. 2003). 

Photographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice.

 

State v. Lee, 645 N.W.2d 459, 467-68 (Minn. 2002)(quoting State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950)).

To corroborate the testimony of the Honda’s owner, the state introduced news footage from a local television station depicting firefighters extinguishing the flames from the Honda and the damaged condition of the vehicle.  Lagos does not dispute that the news footage accurately depicts the condition of the Honda.  In response to Lagos’s objection that the images on the news footage appealed to the jury’s passions and were more prejudicial than probative, the district court admitted the footage without the sound. 

Evidence that is helpful to the jury in determining the damage to the vehicles is not erroneously admitted solely because it graphically depicts the crime.  State v. Hummel, 483 N.W.2d 68, 74 (Minn. 1992).  Lagos fails to show that the footage misrespresents the events of the evening or the condition of the vehicle.  The district court took appropriate measures to eliminate any unduly prejudicial aspects of the footage by eliminating the accompanying sound.  Based on the record before us, we conclude that the district court did not abuse its discretion in admitting this evidence as proof of the Honda’s damage. 

III.

Lagos next argues that the district court erred by misstating a portion of the jury instructions.  District courts have “considerable latitude” in the selection of language for jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  But the district courts’ considerable latitude notwithstanding, a jury instruction is erroneous if it materially misstates the law.  State v. Kuhnau, 622 N.W.2d at 552, 556 (Minn. 2001).  Thus, in determining whether an instruction materially misstates the law, we review the jury instructions in their entirety to determine whether they fairly and adequately explained the law.  Id. at 555-56.

The standardized jury instruction for aiding and abetting the commission of a crime provides that a defendant is guilty of an offense committed by another “when the defendant has intentionally aided the other person in committing [the crime], or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit [the crime].”  10 Minnesota Practice, CRIMJIG 4.01 (4th ed. 1999) (emphasis added). 

During the oral charge to the jury, the district court read the following instructions:

The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it. . . .

 

The defendant is charged in Count II with aiding and abetting unknown individuals in committing the crime of damage to property as previously defined in Count I.  In order to find the defendant guilty, you must find that it has been proven beyond a reasonable doubt that he aided unknown individuals in committing the crime of damage to property or that he intentionally advised, hired, counseled, conspired with or otherwise procured unknown individuals to commit the crime of damage to property as previously defined in Count I. 

 

When counsel for Lagos pointed out to the district court that it had omitted the word “intentionally” from the jury instructions on the elements of aiding and abetting, the district court asked the parties if changing the written instructions to include the omitted term “without highlighting it” would be satisfactory.  Counsel for Lagos replied, “[T]hat’s fine.”  The district court then stated:

I will be inserting in the sentence that begins in order to find the defendant guilty, you must find that it has been proven beyond a reasonable doubt that he—and at that point I would be inserting the word ‘intentionally’ aided unknown individuals. . . . Counsel are you satisfied with that correction?

 

After which, counsel for Lagos replied, “I am, Judge.”  Because this exchange does not constitute an objection to the jury instructions, we apply a plain error standard of review.  See State v. Ihle, 640 N.W.2d 910, 916-17 (Minn. 2002).

            During the oral charge immediately prior to the instruction on the elements, the district court gave a correct statement of the law that included the intent required for criminal liability under the aiding and abetting statute.  The district court subsequently gave the jury written instructions reflecting a correct statement of the elements for aiding and abetting, thereby mitigating any confusion that may have resulted from the oral charge.  When viewed in their entirety, the jury instructions were not misleading or confusing.  They fairly and adequately explained the law pertaining to the charged offense.  And it is not reasonably likely that the jury erroneously applied the law.  Accordingly, there is no obvious mistake of law amounting to plain error.  See Ihle, 640 N.W.2d at 917.

Lagos next argues that the district court improperly instructed the jury on criminal liability under the aiding and abetting statute.  He contends that, in accordance with Minn. Stat. § 609.05, subd. 2, the jury must find that others’ criminal damage to property was reasonably foreseeable to him as a consequence of his actions.  Because Lagos did not request this instruction or make any other objection before the district court, we also review this matter for plain error.  See Ihle, 640 N.W.2d at 916-17.

Minnesota Statute § 609.05 provides in relevant part,

Subdivision 1.  A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

 

Subdivision 2.  A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.

 

According to the plain language of these provisions, when an actor aids the commission of a particular crime as established under subdivision 1, that actor may be criminally liable, under subdivision 2, for other reasonably foreseeable crimes committed in pursuit of the intended crime.  Thus, criminal liability under subdivision 2 requires the commission of the other crimes to have been reasonably foreseeable to the actor as a probable consequence of the actor’s aiding in the commission of a particular crime under subdivision 1.  State v. Pierson, 530 N.W.2d 784, 789 (Minn. 1995).

            Subdivision 2 is inapposite when a defendant is charged with aiding and abetting only one crime.  See, e.g., State v. Atkins, 543 N.W.2d 642, 646-47 (Minn. 1996) (finding that, based on defendant’s aiding the commission of robbery, defendant was properly charged with aiding and abetting the commission of a murder committed during the robbery).  Because Lagos was not charged with any other crimes resulting from the damage to property, instruction pursuant to Minn. Stat. § 609.05, subd. 2, was unwarranted.

IV.

Lagos asserts that his conviction was the product of prosecutorial misconduct, contending that the state prejudicially mischaracterized the post-game celebration as a “riot.”  Because Lagos failed to object at trial to the use of the term “riot,” we again apply a plain-error standard of review.  See State v. Johnson, 672 N.W.2d 235, 239-40 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004).

One form of prosecutorial misconduct is the mischaracterization of evidence.  See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citing in dicta 1 ABA Standards for Criminal Justice, The Prosecution Function 3-5.8(a) (2d ed. 1980)); State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979).  It is not misconduct, however, when a prosecutor argues reasonable inferences from evidence in the record.  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  Indeed, the prosecutor is not constrained to deliver a “colorless argument.”  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).

Here, Lagos testified that “a bunch of people were cheering, people were all around a car. . . . Some people [were] starting to get in fights. . . . People were yelling to hit the tire and pop the tire.”  Another witness testified that “there [were] probably a thousand people in that area, maybe more, and . . . people were partying in the streets, kind of egging on the police. . . .  People were standing on a car.  There was another mass crowd around the car, people cheering and there was also a fight breaking out near there.”

The term “riot,” defined as “(1) [a] wild or turbulent disturbance created by a large number of people . . . [or] (2) [a] violent disturbance of the public peace by three or more persons assembled for a common private purpose,” does not mischaracterize the events on the night of the offenses.  See American Heritage Dictionary 1064 (2d ed. 1982).  Rather, use of this term constitutes an apt and reasonable inference drawn from the evidence in the record.

Prosecutorial misconduct also occurs when the state appeals to passion or prejudice and distracts a jury from applying the standard of proof to the evidence presented.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  When such misconduct is alleged, the defendant cannot rely on a few isolated statements.  State v. Powers, 654 N.W.2d 667, 678-79 (Minn. 2003).  Rather, determining whether prosecutorial conduct of this kind occurred requires us to consider the prosecutor’s statements in the context of the parties’ arguments and the entire trial.  Id.  Acquittal on some charges tends to demonstrate that the jury conscientiously considered the evidence, rather than resorting to passion or prejudice.  State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).

The district court cautioned the jury against relying on the remarks of counsel as evidence.  Additionally, the district court instructed the jury that the verdict must not be the product of “sympathy, passion, prejudice, public opinion or public feeling.”  Furthermore, the jury acquitted Lagos on one count of first-degree criminal damage to property.  Thus, when the prosecutor’s arguments are viewed in this context, we conclude that the prosecutor did not appeal to passion or prejudice.  Lagos’s claim of plain error, therefore, fails.

            Affirmed.