This opinion will be unpublished and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

A04-1105

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Borash,

Appellant.

 

Filed August 16, 2005

Affirmed
Klaphake, Judge

 

Itasca County District Court

File No. KX-03-674

 

Mike Hatch, Attorney General, John B. Gallus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street NE, Grand Rapids, MN  55744 (for respondent)

 

Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN  55102 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Jeffrey Borash challenges his conviction of two counts of attempted first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g), (h)(iii) (2000), and two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(g), (h)(iii) (2000).  Appellant argues that the district court abused its discretion by excluding evidence and exhibiting irritation with defense counsel.  Appellant also claims that he was denied a fair trial because of prosecutorial misconduct.  Because the district court did not abuse its discretion by excluding evidence or by admonishing defense counsel for misconduct, and because the prosecutor did not engage in misconduct, we affirm.

D E C I S I O N

            1.         Evidence

Appellant argues that the district court abused its discretion by excluding defense witnesses’ testimony regarding the complainant’s character for untruthfulness.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). 

Appellant sought to introduce testimony from the complainant’s brother and mother of specific instances in which the complainant would say things that were not true or embellish the truth.  Appellant argued that the testimony was relevant to rebut testimony presented by the state to enhance the complainant’s credibility and to support the defense’s theory that the complainant was not telling the truth. 

The offer of proof showed that the witnesses would both testify to specific acts exemplifying complainant’s untruthfulness.  Appellant argued that the testimony of these witnesses was admissible under Minn. R. Evid. 404, which states in pertinent part: 

(a) Character evidence generally.   Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

 

. . . .

 

            (2) Character of victim.  Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

 

The district court concluded that the testimony was inadmissible and clarified that appellant was not seeking to admit the evidence under Minn. R. Evid. 608.  Minn. R. Evid. 608(a) provides that the credibility of a witness may be impeached by testimony in the form of “opinion or reputation” of the person’s character for untruthfulness.  Appellant specifically responded that rule 404(a)(2), not rule 608, was the rule under which the testimony was admissible. 

            To be admissible under rule 404, however, evidence must be relevant, more probative than prejudicial, and similar in kind to the conduct at issue.  Williams v. City of Kansas City, Mo., 223 F.3d 749, 755 (8th Cir. 2000) (citation omitted).  Because a complainant’s propensity for truthfulness is not similar in kind to a pertinent trait of first-degree criminal sexual conduct, it is not admissible under rule 404.  For this purpose, the testimony was not admissible under rule 404, and the district court properly precluded the witnesses from testifying.  See State v. Sandberg, 406 N.W.2d 506, 510 (Minn. 1987). 

Moreover, even if the evidence was erroneously excluded, because there is no reasonable possibility the jury’s verdict would have been different if the evidence was admitted, any error was harmless beyond a reasonable doubt.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

2.         Prosecutorial Misconduct

Appellant argues that he was denied a fair trial because the prosecutor engaged in misconduct by expressing her personal opinion in closing arguments.  Whether a final argument is improper is normally a matter within the discretion of the district court.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  The district court’s determination will not be reversed unless, in light of the whole record, the prosecutorial misconduct is so serious and prejudicial that the defendant’s right to a fair trial has been denied.  State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987). There are two distinct standards for prosecutorial misconduct:  (1) serious misconduct, which will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error”; and (2) less serious misconduct, which will be found prejudicial only when “the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Roman Nose, 667 N.W.2d 386, 401 (Minn. 2003) (citations omitted). 

During closing arguments, the prosecutor stated:  “I think she was a very credible witness.”  After defense objection and subsequent withdrawal, the prosecutor fumbled over language, apologized, and informed the jury that it should determine the credibility of the complainant’s testimony and that its determination should be based upon all the instructions given by the judge.

It is improper for a prosecutor to “personally [endorse] the credibility of the state’s witnesses” or to inject personal opinion.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).  The allegedly improper statements, however, must “reach the threshold of impropriety” to warrant reversal of a conviction.  Id.  Here, while the statements are impermissible personal opinions of credibility, the district court properly instructed the jury to disregard statements made by the attorneys about witness credibility and to rely on their own recollection.  See State v. Wilbur, 445 N.W.2d 582, 584 (Minn. App. 1989) (finding prosecutor improperly gave personal suggestions of victim’s credibility during closing argument, but judge instructed jury to disregard statements and defendant was not prejudiced), review denied (Minn. Oct. 19, 1989).  Although objectionable, after reviewing the entire closing argument and the district court’s jury instructions as a whole, we do not conclude that the isolated statements likely played a “substantial part” in appellant’s conviction and, therefore, they are harmless error.  See id.  Accordingly, the prosecutor did not engage in prosecutorial misconduct and appellant received a fair trial.

            3.         Admonishment of Defense Counsel

Finally, appellant argues that the district court abused its discretion by directly admonishing defense counsel at three points during trial:  (1) after counsel left a three-ring binder on counsel table that was plainly labeled “False Allegations or Accusations of Child Sexual Abuse”; (2) during closing arguments, defense counsel pointed to the complainant’s father who had not been previously identified during the trial; and (3) after the complainant’s brother had an emotional breakdown during his testimony.

Appellant did not object or make a record of the court’s comments.  Generally, a defendant is deemed to have forfeited his right to have an error reviewed on appeal if he fails to object to the error at trial.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  But this court has discretion to review a previously unraised issue if it is plain error.  Id.; see also Minn. R. Crim. P. 31.02.    The elements of plain error are (1) that there has been error; (2) that this error is plain; and (3) that the error affected substantial rights of the appellant.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Review of the record reveals that the district court properly admonished defense counsel for his misconduct.  We therefore conclude that the district court did not err in its comments to defense counsel.

Affirmed.