Filed February 21, 2006

Affirmed

Randall, Judge

Ramsey County District Court

File No. K2-03-4775;

T8-03-64589

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

Manuel J. Cervantes, St. Paul City Attorney, Jessica McConaughey, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

On appeal from conviction for gross misdemeanor harassment and misdemeanor violation of an order for protection, appellant argues that (a) the trial court abused its discretion in denying appellant’s motion for a new trial based on the state’s failure to disclose numerous complaints and calls to police that had been made by the complainant, appellant’s estranged wife, and in failing to timely disclose other evidence; (b) the court abused its discretion in admitting character evidence that appellant may have associated with thieves or fences and drug users; and (c) the testimony of the complainant and her family was too lacking in credibility to support the conviction. We affirm.

FACTS

This appeal follows convictions for harassment and violation of an order for protection (OFP). At the time of the events leading up to appellant Jeffrey Clemons’ convictions, appellant was estranged from his wife Christie Borgan (Christie). In early September 2003, after appellant forced Christie to leave their home and relocate to a new residence, Christie filed for divorce. Due to the animosity between the parties, Christie also obtained an OFP that required appellant to remain at least one block away from her home. Similarly, Christie’s mother, Claudette Borgan (Claudette), whose relationship with appellant had also become strained as a consequence of the divorce proceedings, obtained a restraining order against appellant.

In late September 2003, Christie was walking her dog in front of her home when appellant stopped by to talk to her, begging her to “come back to him” and threatening to hurt himself and Christie’s family members if she would not call off the divorce proceedings. At the same time, Claudette’s daughter Diane Vasquez drove Claudette to Christie’s new residence to check on Christie because she was not answering her phone. As they approached Christie’s home, they noticed Christie standing outside of appellant’s car, talking to him while he remained alone inside the parked car. Vasquez drove by appellant’s car and then pulled into Christie’s driveway, turned the car around, and went back to see if Christie needed help. When they approached appellant’s vehicle, he immediately departed. After talking with Christie they decided to return home. As they were leaving, appellant drove around the block and began to follow Vasquez’s car, tailing them closely for three to four blocks until Vasquez turned into the driveway of a local business to avoid him. Claudette testified that during this episode, she was concerned for her safety and the safety of Vasquez.

Claudette also testified that after the restraining order was granted, appellant would call her “almost every day.” However, Claudette could only remember two specific phone calls that she received after midnight on October 10, 2003. She remembered the date and time of these two calls, in particular, because she claimed it was the same date that appellant had set for Claudette and Christie to comply with an ultimatum he imposed. According to Claudette, appellant threatened that if she and Christie did not terminate their court-ordered protection, and if Christie did not agree to “go back” to appellant by October 10, 2003, appellant would report the family’s various illicit activities to the police. Recordings from some of the phone messages allegedly left by appellant were entered into evidence.

Claudette further testified that appellant drove by her house on numerous occasions, causing her to fear for her safety. Although Claudette could not remember specific dates, her son Timothy Borgan (Timothy), testified that on October 19, 2003, while he was sitting on the couch in his mother’s living room, he noticed appellant drive by his mother’s home.

On October 28, 2003, Claudette received a letter addressed to “Mom Borgan” at her home address. Claudette determined that the letter was from appellant because it concerned details of the Borgan family’s relationship with appellant. Claudette testified that the letter caused her to feel angry and afraid.

Finally, Christie testified that on November 30, 2003, appellant came to her home and rang the doorbell. Appellant began pleading with Christie to take him back, but Christie refused and asked him to leave. Instead, appellant pushed past the door and into the house and implored her again to take him back. At that time, Christie’s niece, Tina Saucedo-Baker, who lived in the upstairs unit of the same duplex as Christie, had just arrived home and noticed that appellant’s vehicle was parked outside. Saucedo-Baker then discovered appellant talking to Christie inside her home and noted that appellant seemed “irritated and aggressive,” while Christie seemed frightened. Saucedo-Baker ran into Christie’s home, told appellant to leave, and then called the police.

Appellant was charged with one count of harassment and five counts of violating a restraining order based on the events involving Claudette. Appellant was also charged with one count of violation of an OFP against Christie. The cases were then consolidated into one jury trial. At the end of the state’s case, three counts of violating a restraining order were dismissed. The jury returned verdicts of not guilty on two counts of violation of a restraining order, but found appellant guilty of gross misdemeanor harassment, and one count of misdemeanor violation of an OFP. Appellant subsequently moved for a new trial, which was denied. This appeal followed.

D E C I S I O N

Because the “trial court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated,” the imposition of sanctions for violations of discovery rules and orders rests within the sound discretion of the trial court. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). A reviewing court “may not overturn a trial court’s ruling on an alleged violation of discovery rules absent a clear abuse of discretion.” State v. Adams, 555 N.W.2d 310, 311 (Minn. App. 1996). Ordinarily, a new trial may only be granted if there is a reasonable probability that, had the evidence been disclosed, the outcome would have been different. State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).

Appellant claims that the district court abused its discretion in denying his motion for a new trial due to discovery violations by the prosecution. He asserts a right to a new trial based on (1) the prosecution’s failure to disclose “hundreds” of complaints Claudette Borgan allegedly made to police regarding appellant; and (2) insufficient notice of four potential witnesses to the November 30, 2003, incident involving Christie Borgan.

A. Failure to disclose alleged complaints

In regard to the police reports, appellant initially requested documentation of Claudette’s claims from the prosecution, but was denied access because the investigation had not been closed. Appellant purportedly received at least one continuance and an order compelling disclosure of the documents, but never received the police reports before moving to trial.

Because the alleged complaints filed by Claudette relate to a gross misdemeanor harassment charge, the prosecution’s required disclosures are governed by Minn. R. Crim. P. 9.01 (providing discovery requirements for prosecution in felony and gross misdemeanor charges). Under this rule, a prosecutor must disclose and permit defense counsel to inspect and reproduce any law enforcement reports made in connection with the case. Minn. R. Crim. P. 9.01, subd. 1(3). If the prosecution fails to comply, the court may take appropriate action to remedy the violation, including levying sanctions. Minn. R. Crim. P. 9.03, subd. 8 ; State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998). To determine whether a sanction should be imposed, courts must consider: (1) the reason the disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors. Lindsey, 284 N.W.2d at 373.

The state claims that the rule does not apply to this situation because the prosecution was unaware that the evidence existed. We disagree. “The prosecuting attorney’s obligations under this rule extend to material and information in the possession or control of . . . any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the attorney’s office.” Minn. R. Crim. P. 9.01, subd. 1(7). The complaints, which were in the possession of the law enforcement officials who conducted the investigation, are imputed to the prosecution and fall within the ambit of the rule. The prosecution’s failure to disclose the complaints are a violation of the discovery rules. With over 100 complaints allegedly filed by Claudette Borgan, and at least one that occurred while appellant was incarcerated, this evidence held significant impeachment value because it potentially discredited the truthfulness of her testimony. Consequently, a reasonable possibility existed that, if this information were disclosed, appellant may have been acquitted. Further, the prosecutor’s basis for noncompliance raises issues of fairness and impropriety. Withholding information on the basis of a continuing investigation is a self-serving justification that would allow the prosecution to engage in collusion with investigators in order to circumvent the discovery requirements.

However, despite the prosecution’s failure to comply with mandatory discovery, appellant’s tactical decisions warrant consideration. To cure a violation, district courts are instructed to either compel discovery, “grant a continuance, or enter such order as it deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8. Here, based on the record, the district court offered these remedies. For example, at the omnibus hearing, after appellant alerted the district court to the prosecution’s failure to disclose the reports, the district court indicated that it would sign an order to compel disclosure of the material. Similarly, at the hearing on appellant’s motion for a new trial, appellant again voiced his frustration with the lack of disclosure, and cited the noncompliance as a basis for relief. In response, the district court replied: “I know we talked about this extensively at the trial. I gave you continuances to get information. I signed orders to try to get you access to police reports. Once again, you went to a jury, the jury believed the witnesses. That’s the bottom line.” The record reflects the fact that appellant chose not to exhaust all available procedural safeguards.

Appellant’s defense was prejudiced by the nondisclosure, and the reason for noncompliance was unconvincing, but with evidence in the record that the district court attempted to cure the violation on multiple occasions, we conclude the district court did not abuse its discretion in denying a new trial.

B. Alleged insufficient notice of potential witnesses

At trial, Christie disclosed that her duplex had a surveillance camera, and Tina Saucedo-Baker testified that her in-laws entered the duplex with her. Because the prosecution neglected to inform him of the video surveillance camera at Christie Borgan’s home, as well as other witnesses to the November 20, 2003 incident, appellant claims that he should be afforded a new trial.

Discovery with respect to this offense is less formal because it concerns a conviction for violation of an OFP, a misdemeanor. See Minn. R. Crim. P. 7 (governing discovery for misdemeanor charges). On its face, nothing in rule 7 requires disclosure of video surveillance or witnesses prior to trial. Id. Beyond requiring the prosecution to permit the accused to inspect police investigatory reports, all other discovery must be obtained by consent of the parties or motion to the court. Id. Therefore, the court’s denial of a new trial on this issue was not an abuse of discretion.

II.

Appellant also asserts that the district court abused its discretion in admitting prejudicial evidence against him. On direct examination of Christie, the prosecution inquired into the strained relationship between Christie and appellant, and the issues that motivated her to obtain an OFP. The following exchange occurred:

[Prosecutor]: Have you ever argued with the defendant in the past?

[Christie Borgan]: Yes.

[Prosecutor]: Without going into specifics, what types of things or issues have you argued about?

[Defense Counsel]: Again, Your Honor, relevance.

[Court]: Overruled too. Briefly.

[Christie Borgan]: Okay. People coming over with hot property. People coming over doing drugs.

After this exchange, a discussion was held off the record. Notably, no curative instruction was provided.

Appellant claims that this information, admitted over objection, framed him as a “‘fence’ who bought and sold stolen property,” and also portrayed him as a person who associated with drug dealers, or someone who used or sold illicit drugs. Because this issue concerns an evidentiary ruling, the judgment of the district court may only be reversed if the district court committed an abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). A defendant claiming that the trial court erred in admitting evidence has the burden of proving both error and resulting prejudice. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).

Appellant first maintains that Christie’s testimony elicited improper character evidence. It could be taken that way. Generally, evidence of other crimes, wrongs, or acts is not allowed to prove an individual’s character or that the individual acted in conformity therewith, but may be offered for other purposes. Minn. R. Evid. 404(a), (b). However, the statement at issue was not offered to prove appellant’s propensity for using drugs or possessing stolen property, but, instead, as testimony explaining why Christie asked for a protective order. The way it came in, the prosecution cannot be faulted for the witness’s honest answer.

Appellant alternatively claims that the evidence is irrelevant. It is settled that only relevant evidence is admissible at trial. See Minn. R. Evid. 401. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. Because the question goes to why the OFP was obtained, we conclude that the evidence was relevant enough so a new trial is not warranted on this basis.

It is dubious as to the extent to which the probative value of this statement can be fairly balanced against the risk of prejudice it may arouse. Minn. R. Evid. 403 prohibits otherwise relevant evidence when the probative value of the evidence is substantially outweighed by the risk of unfair prejudice. Unfair prejudice “is evidence that persuades by illegitimate means, giving one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). Here, even if the statement had slight probative significance, its value was outweighed by the risk of unfair prejudice because obvious illegitimate and prejudicial inferences could be drawn from it. As appellant attests, this information does not relate to violation of the order and depicts him as, at the very least, associating with unsavory characters, which could have resulted in him being convicted based solely on his affiliations.

Nevertheless,in order to require a new trial, appellant must demonstrate that “the error substantially influence[d] the jury to convict.” State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). This court will not reverse a conviction based on the erroneous admission of objected-to evidence that is harmless beyond a reasonable doubt. State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998). An error is harmless when the “verdict actually rendered was surely unattributable to the error.” State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). “The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state’s evidence and the weaknesses of any defense evidence.” State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993). Generally, an error is less likely to be prejudicial where the evidence of guilt is strong. State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).

Here, it is difficult to attribute the convictions to Christie’s testimony because appellant was found not guilty of two of the four charges. The sequence involving this testimony was brief in comparison to the witness’s testimony as a whole, and the prosecutor did not refer to this testimony in closing arguments, or encourage the jury to misuse it. In view of the record as a whole, we cannot conclude this one answer to one question substantially influenced the jury to convict.

III.

Appellant challenges the sufficiency of the evidence with regard to his convictions for harassment and violation of an OFP. When considering such a challenge, this court considers the evidence and any reasonable inferences to be drawn from that evidence in the light most favorable to the verdict. State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988). A verdict will not be disturbed if the jury, “acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty of the crime charged.” State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980).

A. Harassment

Appellant contends that the evidence presented at trial failed to prove the essential elements of harassment. Under the statute, harassment occurs when a person harasses another by stalking, following, or pursuing. Minn. Stat. § 609.749, subd. 2(2) (2002). For purposes of the statute, harassment includes any intentional conduct that “(1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim.” Minn. Stat. § 609.749, subd. 1 (2002).

In this case, significant testimony adduced at trial demonstrated a pattern of harassment toward Claudette Borgan by appellant. Both Vasquez and Claudette testified that appellant followed them in his car after he left Christie Borgan’s home. In addition, Timothy Borgan testified that a vehicle matching appellant’s drove past his mother’s home. Furthermore, Claudette claimed that she received phone calls and messages from appellant, and also introduced a letter into evidence addressed to her as “Mom Borgan” that she believed was sent to her by appellant. Finally, Claudette testified that these incidents caused her to become frightened. Based on this record, a reasonable juror could have found, beyond a reasonable doubt, that the evidence established both elements of harassment by appellant.

Appellant further argues that because some of the charges were dismissed and he was found not guilty of two others, the evidence fails to support the harassment conviction. However, standing alone, acquittals on some counts have never meant that other similar counts cannot be sustained. See generally State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978). Minnesota law allows a jury in a criminal case to exercise lenity. Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). The focus is not upon a claimed inconsistency in the acquittals, but upon whether there is sufficient evidence to sustain the guilty count. Id.

B. Order for Protection

Similarly, appellant challenges the sufficiency of the evidence involving his conviction for violating an order for protection against Christie Borgan. Under Minn. Stat. § 518B.01, subd. 14 (2002), a person is guilty of a crime if he violates an order for protection and knows of the existence of that order.

Appellant does not dispute having knowledge of the order, but claims that he did not violate it. In support of his contention, appellant focuses on the credibility of Christie Borgan and Saucedo-Baker and the discrepancies in their testimony. His argument centers on the fact that Christie was in the process of divorcing him at the time of the violation, and that Saucedo-Baker, as Christie’s niece and neighbor, was biased. Appellant also claims that their testimony lacks credibility because their individual accounts of the night the violation occurred are disparate with respect to the time he allegedly entered Christie’s home and whether or not a video surveillance camera was positioned outside of the dwelling.

Appellant’s argument is not persuasive. It is the role of the jury to weigh evidence and make credibility determinations. State v. Washington, 521 N.W.2d 35, 42 (Minn. 1994) (“The weight and credibility to be given disputed evidence are determinations to be made by the jury.”); State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002) (“Weighing the credibility of the witnesses is the province of the jury.”). On appellate review, we assume that the jury believed the state’s witnesses and disbelieved contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Christie and Saucedo-Baker testified in considerable detail about the alleged violation, and the jury also listened to the 9-1-1 call placed by Saucedo-Baker on the day in question that identified appellant. We conclude that, a reasonable juror could have found that appellant committed the offense.

Affirmed.