This opinion will be unpublished and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

A04-1535

 

State of Minnesota,
Respondent,

vs.

Alfonzo Peek,
Appellant.

 

Filed October 11, 2005

Affirmed

Minge, Judge

 

Benton County District Court

File No. K4-04-148

 

 

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

 

Robert J. Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, 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

This appeal is from a conviction of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2002).  Appellant Alfonzo Peek argues that the prosecutor committed prejudicial misconduct in closing argument and that there was insufficient credible evidence to support the conviction and to prove that he did not act in self-defense.  Because we conclude the prosecutor did not commit prejudicial misconduct, and the evidence is sufficient to support the conviction, we affirm.

FACTS

            Appellant Alfonzo Peek was charged with assaulting a former friend and co-worker, Mark Glerup, at the site of an asbestos-removal project where Glerup was working.  The complaint alleged that Peek cut Glerup’s face with a dangerous weapon – a utility knife, or “box cutter” – during a confrontation.  On the day of trial, the state added a charge of third-degree assault, requiring infliction of substantial bodily harm.

            Both Peek and Glerup testified that they had worked together on asbestos-removal projects and interacted socially, with Glerup staying with Peek’s family for a time and visits between their families.  Peek testified that a week or two before the assault, he heard Glerup refer to him as a “stupid n----r” during a phone call and that he was shocked and hurt by the racial slur.  At the time of the offense, Glerup was working on a project at the Sauk Rapids High School.  Although Peek no longer worked on the project, he lived across the street from the school.  Peek conceded that he went to the school after seeing Glerup and Tom Purinton, his former boss, arrive for work on the morning of the assault. 

            Glerup testified that he was talking with Purinton in a former classroom when Peek entered, swearing at him and offering to fight.  Glerup testified that he made it clear that he did not want to fight, but that Peek came after him, hit him in the throat with his open hand, and then pursued him around a desk.  Glerup testified that he stopped and punched Peek, knocking him down and breaking his own hand in the process; that when Peek got up from the floor, he swung at Glerup; and that although Glerup did not see a knife at that point, blood began flowing from his cheek.  Glerup testified that he then saw a utility knife in Peek’s hand, that Purinton called police, and that Peek left the room.  Glerup denied using any racial slurs during this incident, but he admitted using the racial slur during Peek’s phone call several days or weeks earlier.  Glerup also testified that after the scuffle started Purinton made no effort to stop it until Glerup was cut, when Purinton called police. 

            Purinton testified that on the way to the school Peek had called him on his cell phone, asking about his W-2 forms, which Purinton told him were in the mail.  Purinton testified that Glerup seemed concerned about the call and that, after they arrived, Peek came in and began confronting and threatening Glerup.  Purinton testified that Peek put his coffee cup down and Glerup took his glasses off.  Purinton testified that Peek chased Glerup around a desk and was the first to take a swing; that Peek then went down when Glerup punched him, that when Peek got up, Purinton did not see anything in his hand; but that when he noticed that Glerup was cut, he saw a utility knife in Peek’s hand.

The investigating officer, Dan Falk, testified that he was dispatched to the scene, where he found Purinton and Glerup, who had a cut on his cheek that looked like it would need stitches.  Falk did not see a utility knife at the scene or any sharp objects on which Glerup could have cut himself during the fight. Falk testified that he looked outside, around the door to the school for a utility knife but found nothing.  He also returned after the snow had melted but again found no utility knife.  Falk testified that he did not search a dumpster that was located near the door because it contained hazardous material.

Peek testified that he had called Purinton that morning about the W-2 forms, admitted that when he went to the school he expected to have words with Glerup, but testified that he did not expect a fight.  Peek testified that Glerup spoke first, getting “in his face,” and using a racial slur.  Peek further testified that he then pushed Glerup in the throat, but softly, with his coffee cup still in his hand; that Glerup then pushed and “sucker-punched” him, sending him to the floor, where Glerup stomped and kicked him; that two other men were there, and all were laughing; that when he stood up, he exchanged punches with Glerup; that he noticed that Glerup was bleeding; that he did not have a knife or a box cutter at the scene; and that when Purinton said he was calling police, Peek picked up his coffee cup and walked out. 

In his closing argument, the prosecutor noted that critical details of Peek’s testimony conflicted with that of Glerup and Purinton.  The prosecutor told the jurors, “As jurors, you will have to decide which side you believe.”  He then stated, “I would submit if you believe the testimony of Tom Purinton who wasn’t one of the two people involved, then you must find the defendant guilty in this case.” Later, the prosecutor argued that “[t]his is going to be one [of] those cases where again you just need to decide who you can believe.”  Peek was convicted and appeals.

D E C I S I O N

1.      PROSECUTORIAL MISCONDUCT

The first issue is whether the prosecutor engaged in prejudicial misconduct in his closing argument by misstating the burden of proof and by injecting his personal opinion.  Defense counsel did not object to any of the statements that Peek now argues were misconduct.  Failure to object or seek a curative instruction generally waives any challenge to the alleged misconduct on appeal.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984); see generally State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (holding defendant forfeited claim of prosecutorial misconduct by failing to object and responding to challenged argument in defense closing argument).  But this court may review the issue if the misconduct was unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

This court will reverse a conviction due to prosecutorial misconduct at trial only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  There are two harmless-error standards, one for more serious misconduct and one for less serious misconduct.  If the misconduct was serious, the conviction will be reversed unless the misconduct was harmless beyond a reasonable doubt, in that the verdict was surely unattributable to the error.  Id.  If the misconduct was less serious, the standard is whether it “likely played a substantial part in influencing the jury to convict.”  Id; see also State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (applying plain-error test to alleged misconduct to which the defense did not object). 

Peek claims three types of statements were improper.  First, he argues that the prosecutor presented the case as a credibility contest between Peek and the state’s witnesses in which the jury merely had to decide whom to believe, and that this diluted the state’s burden of proving guilt beyond a reasonable doubt.

The prosecutor may not distort the burden of proof.  State v. Costello, 646 N.W.2d 204, 210 (Minn. 2002).  The supreme court has held that a prosecutor misstated the burden of proof when he told the jury to “weigh the story in each hand and decide which one is most reasonable, which one makes the most sense.”  State v. Strommen, 648 N.W.2d 681, 690 (Minn. 2002).  The prosecutor here, however, did not suggest a method by which the jury should decide the case or make a statement addressing the burden of proof.  The prosecutor’s comment that “[a]s jurors you are going to believe one side or the other” merely pointed out in a common-sense fashion what the jurors could have observed themselves. The prosecutor did not refer to the jury “weigh[ing]” evidence or comparing two conflicting “stor[ies]” and deciding “which one is most reasonable.”  Strommen, 648 N.W.2d at 690.  And the prosecutor’s statement did not suggest a legal standard, other than beyond-a-reasonable-doubt, for determining guilt or innocence.  Cf.  State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995) (holding it was misconduct to argue repeatedly that the jury’s role was to determine if the evidence was sufficient to convict).

Second, Peek challenges the prosecutor’s argument that the jury had to decide “what is the more plausible story here.”  This statement is more questionable, because plausibility suggests a lower standard of proof.  However, unlike the statement in Strommen, the argument by the prosecutor, here, was not phrased in terms of a burden of proof.  Furthermore, defense counsel did not object to it, but instead responded to it in her closing argument, suggesting that the state needed to present witnesses, in addition to Glerup and Purinton, to meet its burden of proof.  We conclude that, even if the prosecutor’s “choosing who is credible” argument was error, it was not plain error or so prejudicial that a new trial is required.

Third, Peek argues that the prosecutor committed misconduct in making a number of “I” statements, such as “I submit” or “I think,” thereby injecting his personal opinion.  See Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004) (holding that “use of the first-person pronoun ‘I’ during closing argument . . . was an improper interjection of personal opinion into the argument.”).

But the use of “I” statements is not misconduct if the statements are merely ways of phrasing arguments from the evidence rather than arguments based on the prosecutor’s personal opinion.  In State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000), the supreme court held that a prosecutor who stated, “I submit to you [the victim] was killed by her partner,” “was offering an interpretation of the evidence rather than a personal opinion as to guilt.”  See also State v. Reed, 398 N.W.2d 614, 617 (Minn. App. 1986) (holding phrase “the state submits” did not inject prosecutor’s personal opinion), review denied (Minn. Feb. 13, 1987).

In Blanche, 696 N.W.2d at 375, the court addressed the prosecutor’s use of “approximately 18 statements in closing argument [prefaced] with phrases such as ‘I suggest to you,’ ‘I think,’ ‘I ask you,’ and ‘I submit to you.’”  Id.  The supreme court stated:

A prosecutor’s use of phrases such as “I suggest to you” and “I think” to interject personal opinion into a closing argument is improper.  Prosecutors must not interject their personal opinions into a case.  This is so in order to prevent “exploitation of the influence of the prosecutor’s office.”  Here, the postconviction court concluded that the prosecutor’s use of these phrases was inadvertent and rooted in the prosecutor’s rhetorical idiosyncrasies and that “[t]he prosecutor’s comments were not such that a jury would view the prosecutor as taking on the role of a witness.”  We conclude that the language, while poorly chosen, was not, under the facts and circumstances of this case, plain error.

 

Id. (citations omitted).

            Here, the prosecutor’s “I” statements were almost entirely rhetorical introductions to arguments tied strictly to the evidence presented.  Statements such as “I think the evidence shows,” used by the prosecutor here at one point, are verbal tics preceding proper argument from the evidence.  Other of the prosecutor’s “I” statements were not as innocuous, and some may have implied a personal opinion to some degree.  But they were not so “unduly prejudicial” as to warrant reversal despite Peek’s failure to object.  See generally Whittaker, 568 N.W.2d at 450-51.

            In addition to concluding that the three types of statements are not individually prejudicial, we conclude that they are not cumulatively prejudicial so as to require reversal.

            2.  SUFFICIENCY OF THE EVIDENCE

The second issue is whether the record supports Peek’s conviction of third-degree assault.  Peek challenges the credibility of Glerup and Purinton, the state’s two key witnesses, and argues that the state failed to prove that he did not act in self-defense, or, at least, with the victim’s consent.

a.  Credibility

In considering a claim of insufficient evidence, this court undertakes a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is assumed that the jury believed the state’s witnesses and disbelieved contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  That is particularly true when the case turns mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The relative credibility of the witnesses is a matter for the jury to determine.  Id.

The testimony of Glerup and Purinton established that Peek was the aggressor, that he had an opportunity to withdraw from the confrontation and did not do so, and, therefore, that he did not act in self-defense.  There were some inconsistencies in their testimony.  But the inconsistencies, such as the exact sequence of events, Peek’s words preceding the assault, and whether Purinton had answered Peek’s earlier phone calls, do not concern “crucial” details, as Peek argues.  In any event, inconsistencies in the testimony of the state’s witnesses do not require reversal.  See State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  This is particularly true when a victim is recounting a stressful event.  State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).  Both Glerup, the victim, and Purinton, who was witnessing an unexpected confrontation between a former and a current employee, were in a stressful situation.  Nevertheless, we conclude that their testimony was consistent as to the key details of the incident and sufficiently credible to support the jury’s verdict.                         

Peek also argues that because Glerup agreed to fight, there could be no assault.  The general rule is that the consent of the victim is not a defense to a crime unless the crime is so defined that the victim’s consent would negate one of the elements of the crime.  See State v. Fahlk, 524 N.W.2d 39, 49 (Neb. 1994); 1 Wharton’s Criminal Law  § 46 (15th ed. 1993).  LaFave states that the victim’s consent is a defense to a battery that involves “a minor sort of offensive touching” but not one that involves “hard blows and more serious injury.”  2 Wayne R. LaFave, Substantive Criminal Law § 16.3(d) (2nd ed. 2003).  LaFave suggests that this analysis is also applicable to assault.  Id. at § 16.3(e).  No Minnesota cases hold that the victim’s consent to fight is a defense to assault. 

Peek cites Minnesota’s statute on the reasonable use of force in contending that Glerup’s consent to fight is a defense.  Minn. Stat. § 609.06, subd. 1 (2002).  Although the statute defines when reasonable force may be used against a person “without the other’s consent,” that phrase does not necessarily imply that consent is a defense to assault.  Id.  The crime of assault is defined in terms of the actor’s intent, without any mention of the victim’s consent or lack of consent.  Minn. Stat. § 609.02, subd. 10 (2004).  If the legislature intended to create a consent defense to a charge of assault, it could have done so in defining the crime of assault.  Cf. State v. McCuiston, 514 N.W.2d 802, 805 (Minn. App. 1994) (concluding that, by the plain language including “defense of dwelling” in 1963 Criminal Code, the legislature intended to make the “policy judgment” that defense of habitation should be recognized).  We do not accept Peek’s argument that the phrase “without the other’s consent” in section 609.06, subdivision 1 creates a defense of consent to assault by negative inference.

It is also noteworthy that the “reasonable use of force” statute, Minn. Stat.             § 609.06, subd. 1, lists ten situations in which force may reasonably be used “without the other’s consent.”  Many of these are highly specialized situations involving teachers and pupils, public officers effecting arrests, common carriers expelling passengers, and those acting to restrain the mentally ill.  Minn. Stat. § 609.06, subd. 1 (1)-(10) (2002).  The statute makes it clear that force may be used against a person without that person’s consent.  But it does not follow that where consent is present, such as in the “mutual combat” situation posited by Peek, that consent is a defense to assault.  Peek cites no authority from other jurisdictions in which a consent to assault has been found to be a defense by negative inference from similar statutory language.  See generally State v. Hatfield, 356 N.W.2d 872, 876 (Neb. 1984) (citing with approval the general rule that “a person cannot consent to an unlawful assault”).  We believe that, had the legislature intended to enact as significant an exception to the law of assault as “mutual combat,”[1] it would have done so in straightforward fashion in the definition of the offense, rather than by negative inference and leaving the matter to the courts.  It is contrary to the principles of an orderly society to so excuse assault and fighting.

The state presented sufficient evidence to support the conviction, and Peek has not shown that Minnesota recognizes consent, or “mutual combat,” as a defense to assault.

Affirmed.