This opinion will be unpublished and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

A04-1625

 

State of Minnesota,
Respondent,

vs.

Daniel Wayne Bredeson,
Appellant.

 

Filed August 30, 2005

Affirmed

Minge, Judge

 

Chippewa County District Court

File No. K2-03-354

 

 

Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Dwayne Knutsen, Chippewa County Attorney, P.O. Box 591, Montevideo, MN 56265 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges his conviction of first-degree criminal sexual conduct on the basis of evidence presented and not allowed to be presented at trial.  Because appellant did not argue to the district court that certain testimony was inadmissible opinion evidence, because any error by the district court in failing to allow impeachment of a witness with a prior conviction was harmless, and because any error caused by the doctor’s statement about the occurrence of sexual assault was harmless, we affirm.    

FACTS

Appellant was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(c) (2002) and Minn. Stat. § 609.342, subd. 1(e)(i) (2002) for sexually assaulting B.K.J., his former fiancée. 

Appellant and B.K.J. had known each other for seven years since 1996.  On May 23, 2003, B.K.J. went to a bar in Montevideo with some friends.  Subsequently, appellant arrived at the bar.  Eventually, appellant asked B.K.J. if she wanted to go to his house to talk.  She went with him and was allegedly raped at the house. 

            At a jury trial, appellant and B.K.J. testified to different versions of the events at appellant’s house.  According to B.K.J., after they talked about past romantic relationships, appellant put his hands around her neck and began to choke her until she felt herself “almost passing out.”  B.K.J. testified that appellant ordered and pushed her up the stairs, told her to take her clothes off, and forced her to have sexual intercourse over her protests.  B.K.J. further testified that she immediately sought to leave, appellant asked if she was going to tell anybody, she said she would not, and she then walked to a nearby motel and telephoned her daughter for a ride. 

            Appellant testified that while talking about past relationships, B.K.J. became frantic when he mentioned a particular ex-girlfriend.  Thinking she might hurt herself, he tried to restrain her and grabbed her around the neck with his arm.  After she calmed down, appellant said that he jokingly asked if she wanted to have sex and was surprised when she agreed.  Appellant testified that B.K.J. voluntarily went upstairs; when he arrived at his room, B.K.J. was naked in his bed; they had consensual sexual intercourse; afterwards they dressed, sat in the living room and talked; and eventually B.K.J. left, saying she wanted to go back to the bar for last call.  

            S.T., B.K.J.’s 19-year-old daughter, testified that early in the morning of May 24, 2003, B.K.J. called her from a motel, said she had been raped by appellant, and asked for a ride.  S.T. drove to the motel, picked up B.K.J., drove her to the hospital emergency room, and drove her home from the hospital.  During cross-examination, appellant asked S.T. if she had any prior convictions that “go to your truth or honesty.”  The prosecutor objected.  Appellant stated that he wished to introduce evidence that S.T. had been convicted of issuing “bad checks.”  The district court judge informed the attorneys that S.T. had previously appeared before him on charges of shoplifting and insufficient funds, and that he did not consider these misdemeanors to be crimes of moral turpitude or honesty.  The district court sustained the objection and instructed the jury to disregard the question and any response that S.T. might have given.

            Dr. Patrick Hannah, B.K.J.’s emergency room doctor, testified that B.K.J. tearfully informed him she had been raped by appellant.  Dr. Hannah performed a physical and sexual assault examination of B.K.J.  He noted that she had abrasions on her neck and upper chest area, consistent with being choked, and she had red marks on her forearms, consistent with being forcibly grabbed. 

            During the trial Dr. Hannah was asked by the state,

                        Q:        As far as your objective findings, and maybe if you

could just summarize, were there any other objective findings

that you have noted in your report?

 

                        A:        The—as part of the exam the rape kit was completed.

The sexual assault evidence kit was completed. My

impression was sexual assault—.

 

Appellant immediately objected, and the court sustained the objection.  The district court determined Dr. Hannah was permitted to testify about his objective findings and what he saw, but could not provide an opinion as to whether there had been a rape.  Nothing further was said to the jury when the direct examination resumed.  Appellant did not raise concerns or further objections about Dr. Hannah’s testimony.  Although the district court offered to give the jury a cautionary instruction to disregard the doctor’s statement, no request was made to do so. 

During the trial, appellant called several witnesses to testify to his honesty and truthfulness and B.K.J.’s bad reputation.  At a pre-trial conference, appellant expressed his intention to present evidence regarding the parties’ credibility, consisting of witness testimony about propensity for truthfulness and general character traits.  Appellant acknowledged that the witnesses would testify about his and B.K.J.’s reputation for truthfulness in the community and, as the court determined, not give specific instances.  The district court judge stated in the pre-trial hearing, “[a] witness may testify about the defendant’s good character in the form of an opinion and may discuss his reputation.  Specific instances are not allowed. That is what the law is, and that’s what we’re going to follow.” 

            When appellant called witnesses to offer testimony regarding his and B.K.J.’s honesty and truthfulness, the state objected to certain testimony on the basis that it referred to specific incidents.  After one witness testified that appellant was honest, the witness was asked about B.K.J.  The witness stated that B.K.J. had helped clean and paint in a couple of rental houses.  Appellant’s counsel then asked about B.K.J.’s reputation in the community for honesty and the following exchange occurred:  

A.        Well—as far as, you know, paying back loans I don’t know that, but she worked for me a couple of times and—that’s about all the interaction we had.

 

Q.        Was she, in your opinion when she interacted with you personally, was she hon—did she perform honestly?

 

The state objected and the court sustained the objection.

            Another witness testified that she felt appellant was an honest person and a good friend.  When asked if she knew B.K.J.’s reputation in the community for honesty, she stated, “[y]eah, but she’s not an honest person.  I don’t—I don’t think she can tell the truth about anything right now.”  The state objected and a bench conference was held where the state asserted that testimony was getting into specific character incidents.  The court stated that the witness was asked about her opinion as to reputation in the community, but, “[w]e have to have the reputation in the community because she goes then into specifics, and that is not appropriate.  You may not give specific instances.”  Upon the state’s request, the court instructed the jury to disregard the witness’s last answer.  When appellant asked about the community’s view on her honesty, the witness stated she “couldn’t really say.”

            Three additional witnesses testified.  Each of them was asked about both appellant’s and B.K.J.’s reputation in the community.  One witness testified that he did not know B.K.J’s reputation in the community for honesty and stated that he had not “heard anything bad about [appellant] or nothing.”  Another witness testified that both had very good reputations in the community.  The third witness testified that she did not know the community reputation for appellant and did not know B.K.J. at all.   

            The jury returned a verdict finding appellant not guilty of count one, first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(c), and guilty of count two, first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i).  This appeal followed.

D E C I S I O N

I.

            The first issue is whether the district court abused its discretion by ruling that appellant could not introduce specific acts of conduct through his character witnesses or impeach S.T. with testimony of her prior convictions.  Evidentiary rulings are within the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.  Id.  Due process requires that criminal defendants be given the opportunity to offer a complete defense while complying with established rules of evidence.  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000).

A.     Testimony about witness credibility

 

Although evidence of a person’s character is generally not admissible, Minn. R. Evid. 404(a)(3) states that certain evidence of the character of a witness may be introduced, as provided in Rules 607, 608, and 609.  Minn. R. Evid. 608(a) allows a witness to testify about another witness’s general character for truthfulness, by opinion or reputation testimony.  On cross-examination of the witness, inquiry can be allowed into specific instances of conduct.  Minn. R. Evid. 608(b). 

Appellant argues that the district court abused its discretion by not allowing the witnesses he introduced to give their opinions of his and B.K.J.’s character for truthfulness.  The district court stated in the pre-trial conference that both opinion testimony and reputation-in-the-community testimony was allowed.  During the trial, the state objected to testimony of two witnesses on the grounds that the testimony was getting into specific instances regarding honesty or dishonesty.  The district court ruled that the testimony going to specific instances was not allowed, and said nothing about opinion testimony.  Although the testimony appellant hoped to elicit from his witnesses would arguably have been opinion evidence, in the context of the questioning it could have been referring to specific incidents.  It was within the district court’s discretion to determine the nature of the evidence being elicited, and if it had to do with specific incidents, to exclude it.  Appellant never argued to the district court that the character testimony should be allowed or that he was trying to present opinion evidence.  Because appellant did not present this issue to the district court, the district court never considered it and we do not consider it on appeal.  See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (stating that appellate courts do not consider issues raised for the first time on appeal). 

Appellant also argues that the testimony of other witnesses was improperly curtailed because appellant was only allowed to inquire into their knowledge of reputation in the community rather than opinion testimony.  Again, because appellant did not argue this issue to the district court, we do not consider it on appeal.    See Garza, 632 N.W.2d at 637.

B.  Impeachment of S.T. with prior convictions

            Evidence of a prior crime may be admitted in order to attack the credibility of the witness, if the underlying crime involved dishonesty or false statement, regardless of the punishment.  Minn. R. Evid. 609(a).  When dishonesty is an element of a crime or the manner in which the crime was committed involved dishonesty, evidence of a conviction of the crime will automatically be admissible.  State v. Head, 561 N.W.2d 182, 187 (Minn. App. 1997), review denied (Minn. May 28, 1997). 

            Appellant argues that he should have been allowed to introduce evidence of a past conviction to impeach S.T.’s testimony.  During the trial, appellant attempted to offer evidence of a conviction for “bad checks” to impeach the credibility of the victim’s daughter, S.T.  In the subsequent bench conference, the district court stated that S.T. had previously appeared before him and was convicted on charges of non-sufficient funds and there were no felony convictions.  The district court ruled that these convictions could not be used for impeachment purposes because they were misdemeanors and were “not crimes of moral turpitude or involving honesty.”  Appellant never clarified or made an offer of proof regarding the exact nature of the conviction. 

            Although this court has indicated in unpublished decisions that a conviction for “bad checks” is a crime involving dishonesty, there are no published cases that have made that determination, and unpublished decisions of this court are not precedential.[1]  However, even if the district court erred in not allowing evidence of S.T.’s “bad check” conviction to impeach her, the error is evaluated by the harmless error standard.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (holding that harmless error impact analysis applies to the erroneous exclusion of defense evidence).  Pursuant to that standard, an error is harmless only if this court is satisfied beyond a reasonable doubt that a reasonable jury would have reached the same verdict if the evidence had been admitted and the discrediting potential of the evidence fully realized.  Id. 

            S.T.’s credibility had little effect on the outcome of this trial.  S.T. testified that B.K.J. called her after her alleged rape and she picked her mother up and took her to the hospital.  She testified that after B.K.J. was examined she took her home.  The central issue in this case is whether the jurors believed B.K.J.’s version or appellant’s version of what happened at appellant’s house.  That S.T. picked up B.K.J. afterwards and took her to the hospital is undisputed.  B.K.J.’s demeanor and appearance is also covered in the testimony of medical and law enforcement witnesses.  S.T.’s testimony added negligible, if any, value to B.K.J.’s accusation of rape.  Therefore, even if the decision to not allow her testimony to be impeached by her conviction for “bad checks” was incorrect, it appears to be harmless error.   

II.

The next issue is whether Dr. Hannah’s sexual assault statement denied appellant a fair trial.  Expert testimony on the ultimate issue is not admissible if it involves a legal conclusion.  State v. Saldana, 324 N.W.2d 227, 231 (Minn. 1982).  In looking at whether harmless error occurred in the district court, this court needs to review whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  Post,512 N.W.2d at 102 n.2.  In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).  On review a court should look at the record as a whole.  State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).  If there is a reasonable possibility that without the evidence the verdict potentially might have resulted more favorably to the defendant, then the error is prejudicial.  Post, 512 N.W.2d at 102.

Appellant argues that Dr. Hannah’s testimony regarding a sexual assault was improper and that this testimony had a prejudicial effect on the jury.  During the trial, Dr. Hannah was asked if there were any other objective findings he had noted on his report.  He stated that “[t]he sexual assault evidence kit was completed.  My impression was sexual assault─.”  At this point he was cut off by appellant’s objection, which the district court sustained.  The uncompleted statement indicates that a sexual assault occurred and as such the statement is improper because it appears to be leading to the final legal conclusion that the jury must arrive at on its own.  See Saldana, 324 N.W.2d at 231 (stating that because the jurors are equally capable of considering the evidence and determining whether rape occurred, the witness’s legal conclusion is error because it is of no value to the jury and has a danger of prejudice).  However, appellant’s immediate objection cut off Dr. Hannah in mid-sentence.  If the doctor had finished his sentence, he might have changed the statement to one of a possibility of the rape. 

Even if the jury understood the statement to be an endorsement of B.K.J.’s claim of rape, there is strong evidence supporting the jury’s verdict and the statement has little effect on the central issue in the case.  Both B.K.J. and appellant agreed that sexual intercourse occurred and both agreed that appellant grabbed B.K.J. around the neck.  The central issue was whether the jury believed appellant’s or B.K.J’s version of the circumstances under which these events occurred.  Dr. Hannah testified extensively regarding the injuries he observed and what B.K.J. told him about the events of that evening.  A jury would likely understand that any statement regarding whether sexual assault occurred reflected what B.K.J. told Dr. Hannah.  It is not reasonably possible that the jury would have reached a different decision if Dr. Hannah’s statement had not been made.  See Post, 512 N.W.2d at 102. 

In addition, if the comment was wrongfully admitted as evidence, there is no allegation it was elicited by the prosecution.  See State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978) (stating that appellate court will reverse more readily if inadmissible evidence is intentionally elicited by the prosecutor).  It was spontaneous and the district court offered to give the jury a curative instruction.  There is no indication that the district court failed to recognize the adverse effect of the statement.  Although appellant worried that such an instruction would re-emphasize the improper testimony, the specific instruction could also have served to remedy any effect of the statement.  See State v. Johnson, 679 N.W.2d 378, 389 (Minn. App. 2004) (stating that curative instructions can ameliorate an improper prosecutorial comment), review denied (Minn. Aug. 17, 2004).     

Affirmed.