Affirmed

Worke, Judge

Clay County District Court

File No. K7-03-1758

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

Lisa Borgen, Clay County Attorney, Courthouse, P. O. Box 280, Moorhead, MN 56561 (for respondent)

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

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

Worke, Judge.

On appeal from conviction of and sentence for first-degree criminal sexual conduct, appellant argues (1) that the district court violated his First Amendment right to free exercise of religion by requiring him to conceal his Bible during trial; (2) that the district court erroneously admitted relationship evidence and evidence of appellant’s prior conviction of possession of methamphetamine, and that the prosecutor committed misconduct by eliciting evidence of appellant’s post-arrest silence, commenting on appellant’s presence during trial, and asking “were they lying” questions—that the cumulative effect of the district court’s errors and the prosecutor’s misconduct was not harmless beyond a reasonable doubt and requires reversal of his conviction; and (3) that his sentence must be reduced because the district court lacked authority to submit to the jury the question of aggravating factors justifying the upward departure. We affirm.

FACTS

In 2001, appellant Mark Edwin Albertson began a sexual relationship with his 13-year-old niece, T.A. On September 24, 2003, a complaint was filed charging appellant with three counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(b), (g), (h)(iii) (2002). The jury heard testimony that over the course of two years appellant had intercourse with T.A. approximately 100-150 times, attempted to have anal sex with T.A. once, provided T.A. with “crank” between 30-40 times, and induced T.A. to perform fellatio on appellant approximately 40-50 times. Several of T.A.’s friends testified that T.A. had told them about the sexual abuse. Appellant testified that, while he spent time with T.A. because he felt sorry for her, he never had sexual relations with her. T.A.’s mother and grandmother testified that T.A. was a “liar” and that appellant had done nothing wrong. The jury found appellant guilty.

Prior to trial, the state moved to present to the jury by way of special interrogatories the question of aggravating factors supporting an upward durational sentencing departure in the event of conviction. Following the guilty verdicts, the district court instructed the jury to consider aggravating factors relevant to sentencing. The state proceeded to argue that two aggravating factors existed: (1) that appellant induced T.A. to engage in sexual penetration by giving her alcohol, tobacco, and gifts to gain her trust and favor; and, (2) that appellant induced T.A. to engage in sexual penetration by giving her marijuana and methamphetamine to gain her trust and favor. The jury found unanimously that both aggravating factors existed beyond a reasonable doubt. The district court sentenced appellant to 288 months in prison, a double durational departure from the 144-month presumptive sentence. This appeal follows.

D E C I S I O N

I. First Amendment right to free exercise of religion

Appellant argues that his conviction must be reversed because the district court required him to conceal his Bible during trial. Whether the district court violated appellant’s constitutional right to free exercise of religion is a question of law, which this court reviews de novo. See State v. Schwartz, 598 N.W.2d 7, 9 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).

This court decided a similar issue in State v. Tate, 682 N.W.2d 169 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). In Tate, the district court instructed Tate to tuck the cross that he was wearing around his neck inside his sweater. Tate, 682 N.W.2d at 174. This court laid out the balancing test used to determine whether a state regulation infringes on a right under the Minnesota Constitution. Id. “Courts must ask if (a) the objector’s belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.” Id. This court held that although the district court erred by not inquiring into the substance and sincerity of Tate’s beliefs, the error was not “presumptively prejudicial” warranting a new trial because a fundamental right guaranteed in a criminal trial was not affected. Id. at 175.

Here, before appellant’s trial began, the district court inquired into the purpose of a Bible sitting beyond appellant’s reach on the corner of counsel table and asked if defense counsel planned to use it during trial. Defense counsel stated that he did not know that the Bible was there, that it belonged to appellant, and that he had not planned on using it. The district court instructed appellant to put the Bible on his lap or under his chair, but because it had nothing to do with the trial, it could not stay on the table. Like Tate, appellant has not shown actual prejudice that would warrant a new trial merely because the district court, after inquiry, instructed appellant to conceal his Bible.

Appellant also argues that the district court infringed on his religious practice and that it must be shown that the Bible’s presence threatened public safety, peace, or order. But the district court is charged with restricting disruptive conduct at trial, including the regulation of religious displays. A compelling interest of conducting a trial in a secular, impartial, orderly manner justified the district court’s order. Because the district court inquired into the purpose of the Bible, had a compelling interest in conducting an orderly, impartial trial, and allowed appellant to hold the Bible in his lap, the district court did not err in ordering appellant to conceal his Bible.

II. Cumulative effect of alleged trial errors

Appellant argues that errors were committed during his trial that in isolation might not warrant a new trial, but the cumulative effect of those errors prejudiced appellant and his conviction must be reversed. When an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of errors may compel reversal. See State v. Underwood, 281 N.W.2d 337, 344 (1979).

A. Evidentiary Rulings

“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). This court must find actual prejudice in order to reverse the district court. State v. Schulz,691 N.W.2d 474, 477 (Minn. 2005).

1. Relationship Evidence

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn. Stat. § 634.20 (2002). The Minnesota Supreme Court has stated that evidence presented under this statute need not meet the heightened standard of clear and convincing evidence required for the admission of character or Spreigl evidence, but need only be more probative than prejudicial. State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). “[T]he admissibility of evidence under Minn. Stat. § 634.20 depends only on (1) whether the offered evidence is evidence of similar conduct; and (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Id. at 158.

Appellant argues that even though evidence of his past sexual conduct with T.A. and his providing T.A. methamphetamine outside of Clay County is similar prior conduct, the probative value of such evidence was outweighed by its prejudicial effect. The supreme court has “recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim.” State v. William, 593 N.W.2d 227, 236 (Minn. 1999); see also State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994) (stating that evidence bearing on the relationship is often admitted because it puts the alleged criminal conduct in context, may help the jury in assessing the defendant’s intent and motivation, and may serve other valid purposes). Such evidence is inherently probative, but the district court must still weigh its probative value against its potential prejudicial effect. Although the district court ruled that this evidence went to appellant’s relationship with T.A., the district court admitted the evidence without balancing its probative value against its prejudicial effect. But appellant is not entitled to a new trial unless “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict [.]” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

First, even if the district court had balanced the probative value of the evidence against its prejudicial effect, the evidence would have been admissible because it assisted in putting the relationship in context. Second, appellant was not prejudiced by the jury hearing that appellant had sex with T.A. and had provided her with methamphetamine outside of Clay County when the jury heard that appellant had repeatedly done those acts in Clay County. Finally, the evidence serves another valid purpose. T.A. testified that appellant sexually abused her in motel rooms and she described a water slide at one motel. Appellant denied taking T.A. to motels, but two motel employees testified that appellant was occasionally a registered guest and one of the motels, in North Dakota, has a water slide. This evidence lends credibility to T.A., and her credibility was central to the case.

Moreover, it is unlikely that the relationship evidence significantly affected the verdict. The district court instructed the jury three times on how to use the evidence: before T.A. testified, before a videotaped interview of T.A. was played, and in its final instructions. Any prejudicial effect was mitigated by the district court’s instructions to the jury. See State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (stating that the prejudicial effect of evidence of similar prior conduct was mitigated by the district court’s instruction to the jury). Thus, the district court did not abuse its discretion in admitting relationship evidence.

2. Appellant’s Prior Conviction

Appellant argues that the district court abused its discretion in admitting evidence of appellant’s prior conviction for impeachment purposes. This court reviews a district court’s ruling on impeachment of a witness by prior conviction under an abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by . . . imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect[.]

Minn. R. Evid. 609(a)(1). The district court should consider: “(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime . . . , (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.” State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). A district court should demonstrate on the record its consideration of the Jones factors. State v. Lund,474 N.W.2d 169, 172 (Minn. App. 1991). But a district court’s failure to place its Jones-factor analysis on the record is harmless error if the conviction could have been admitted after application of the analysis. State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

Here, the district court ruled that it would allow the prior-conviction evidence in the event that appellant testified. The district court determined that the offense was not the same as the alleged offenses, that it was for impeachment only, and that the probative value outweighed the prejudicial effect. Despite the district court’s error in failing to make a record of the complete Jones-factor analysis, a review of those factors as applied to the record shows that the error was harmless.

First, despite appellant’s argument that his prior conviction has no impeachment value because his drug-possession conviction has little to do with truthfulness, a prior conviction does not need to be one of dishonesty because it allows the jury to see a defendant as a whole person, especially if the prior conviction was recent. State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979). The jury was able to more accurately determine the truth of appellant’s testimony with evidence of the prior conviction. The district court properly assessed the impeachment value of appellant’s prior conviction. Second, the district court considers the date of the conviction. Appellant’s prior conviction occurred in 2003; the prior conviction is not stale.

Third, the district court considers the similarity of the past crime and the charged crime: the greater the similarity, the greater the reason for not admitting the evidence. See Jones, 271 N.W.2d at 538. Appellant argues that there is similarity because he is accused of providing T.A. with methamphetamine. But the analysis compares the past crime and the charged crime, and appellant was not charged with a drug offense. The district court properly assessed the dissimilarity of the two offenses.

Finally, the district court considers the importance of the defendant’s testimony and the centrality of credibility. If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior conviction. State v. Smith, 669 N.W.2d 19, 29 (Minn. 2003), overruled on other grounds by State v. Leake,699 N.W.2d 312 (Minn. 2005). Appellant emphatically denied sexually abusing T.A. The jury had to determine whether to believe T.A. or appellant. Credibility was a central issue, thus weighing in favor of admission of the prior-conviction evidence. Because all of the Jones factors weigh in favor of admission of appellant’s prior conviction, the district court did not abuse its discretion in admitting the evidence.

B. Prosecutorial Misconduct

Prosecutorial misconduct warrants reversal “only when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).

1. Post-Arrest Silence

Appellant argues that the prosecutor committed prejudicial misconduct when she elicited evidence of appellant’s post-arrest silence. The United States Supreme Court has held that the prosecution cannot use a defendant’s post-Miranda silence for impeachment purposes. Doyle v. Ohio,426 U.S. 610, 619-20, 96 S. Ct. 2240, 2245 (1976). This rule was adopted by Minnesota in State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978).

Here, the prosecutor questioned an investigator regarding his attempt to talk to appellant at the Cass County jail following his arrest on October 25, 2003, for possessing methamphetamine and marijuana. The investigator testified that he asked appellant to speak with him regarding the sexual-abuse allegations, but that appellant responded that it was a conspiracy and refused to answer follow-up questions. Appellant has failed to show that this testimony was evidence of post-arrest, post-Miranda silence. Appellant was in jail on unrelated charges. After pleading guilty and serving two months, appellant returned to Minnesota to face the sexual-abuse charges. There is nothing in the record to indicate that the investigator attempted to question appellant after October 25. Further, appellant has failed to show how this information may have played a substantial part in influencing the jury to convict him. Following appellant’s objection, the district court told the jury that the investigator indicated that appellant had exercised his constitutional right to remain silent. The district court’s statement lessened the possibility that the information influenced the jury. Thus, the prosecutor did not commit prejudicial misconduct.

2. Appellant’s Presence during Trial

Appellant relies on State v. Buggs, 581 N.W.2d 329 (Minn. 1998), to argue that it was misconduct for the prosecutor to comment on his presence during trial as it related to his testimony. In Buggs, the prosecutor pointed out during cross-examination the appellant’s opportunity to hear all the evidence during trial. Buggs, 581 N.W.2d at 341. The prosecutor also argued in closing argument that the appellant took advantage of his opportunity to observe the trial and then concoct an exonerating story when he testified. Id. The appellant in Buggs relied on Agard v. Portuondo, 117 F.3d 696, 707-08 (2d Cir. 1997), to argue that his Sixth Amendment right to be present during trial was violated when the prosecutor implied that he gained an advantage through the exercise of his constitutional rights. Id. The court in Buggs noted from Agard, however, that the prosecutor’s comments in closing argument were more troubling than during cross-examination, “because constitutional issues raised by the remarks either are not present or are of less concern when made upon cross-examination, due to the opportunity of defense counsel to rehabilitate the defendant’s credibility.” Id. (quotation omitted). The court in Buggs held that the prosecutor’s comments did not amount to prejudicial error because the defense failed to object and had an opportunity to rehabilitate on re-direct and to respond in closing argument. Id.

Here, on cross-examination the prosecutor commented on the fact that appellant listened to all of the witnesses testify. But the prosecutor’s comments did not amount to prejudicial misconduct. The comments occurred during cross-examination and not during closing argument; therefore, appellant could have been rehabilitated by his attorney on re-direct. Appellant also failed to object to the comments at trial. Failure to object implies that the misconduct is not prejudicial and “weighs heavily against granting any remedy.” State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997). When a defendant alleges error for the first time on appeal, we apply the plain-error standard of review. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). When assessing whether plain error occurred, we must determine whether (1) there was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rights. Id. If all three requirements are satisfied, this court may correct the error only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). Appellant has failed to demonstrate plain error that was prejudicial. See Griller, 583 N.W.2d at 741 (stating that error is prejudicial if there is a reasonable likelihood that the absence of the misconduct “would have had a significant effect on the verdict of the jury”). Because there is no reasonable likelihood that the absence of the prosecutor’s comment on appellant’s presence during trial would have significantly affected the verdict, the prosecutor did not commit prejudicial misconduct.

3. “Were They Lying” Questions

Generally, “were they lying” questions are improper. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). This type of question, when asked of a defendant whose testimony conflicts with that of a witness, requires the defendant to state whether he believes that the witness was intentionally perpetuating a falsehood—and such a statement constitutes an improper comment on another witness’s testimony. Id. at 516. This type of question is perceived as unfairly giving the jury the impression that in order to acquit, it must determine that the witness whose testimony contradicts the defendant’s testimony is lying. Id.

Recently, the supreme court addressed “were they lying” questions in State v. Morton, 701 N.W.2d 225 (Minn. 2005). In Morton, the defendant denied having conversations with two motel employees who testified that the conversations occurred. Morton, 701 N.W.2d at 234-35. The supreme court determined that the questions were improper because the defendant did not hold the credibility of those witnesses in central focus. Id. at 235. Further, although the defendant contradicted the witnesses’ testimony, he did not state or insinuate that they were deliberately falsifying their testimony. Id. The supreme court concluded that although it was plain error for the prosecutor to ask “were they lying” questions, the defendant’s substantial rights were not affected because the jury would have reached the same verdict without that evidence. Id. at 235-36.

Here, when questioned regarding his drug use, appellant responded that he had “done meth” with his friend, R.D., although R.D. had previously denied this. The prosecutor asked appellant, “Okay, so [R.D.] was lying, we knew he was lying anyway during his testimony, but he lied about that as well too, right?” The prosecutor also asked appellant “were they lying” questions regarding an incident when police were called to T.A.’s home after appellant showed up and threatened T.A. and her boyfriend. The prosecutor asked appellant if T.A.’s mother and the police officer would be lying if their testimony regarding the incident differed from appellant’s recollection. Because appellant did not object at trial, we apply the plain-error test. See Griller, 583 N.W.2d at 740. Similar to the circumstances in Morton, appellant did not hold the credibility of R.D., T.A.’s mother, or the police officer in central focus, and he did not insinuate that these witnesses deliberately falsified their testimony or statements. Thus, while it was plain error for the prosecutor to ask “were they lying” questions, appellant’s substantial rights were not affected because it is highly unlikely that the jury would have found appellant not guilty if the prosecutor had not asked these questions.

C. Cumulative Effect

While the district court erred in not explicitly weighing the probative value of the relationship evidence against its prejudicial effect and failed to conduct a complete Jones analysis on the admission of evidence of appellant’s prior conviction, the errors did not affect appellant’s right to a fair trial. Likewise, while the prosecutor’s “were they lying” questions were not proper, there is not a reasonable possibility that the prosecutor’s conduct affected appellant’s substantial rights. The cumulative effect of the errors is insufficient to warrant reversal of appellant’s conviction.

III. Sentencing

Appellant argues that the procedure the district court used to comply with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), is a change in Minnesota law and it is not the role of the district court to enact such a change. Here, the district court submitted special interrogatories to the same jury that had determined appellant’s guilt after the jury returned its guilty verdict. The Minnesota Supreme Court recently stated: “While this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentencing in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.” State v. Shattuck, 704 N.W.2d 131, 148 (Minn. 2005). Although the court declined to exercise its authority to establish procedures to apply the requirements of Blakely, it did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.” Id. at n.17. Further, “[i]n criminal cases, a special interrogatory may be used if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt.” State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). Special interrogatories relating to sentencing have been allowed as long as the jury is instructed that it must make a finding beyond a reasonable doubt. State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992).

Here, the special interrogatories were presented in a separate proceeding occurring after the jury returned its guilty verdict. The interrogatories were submitted without additional evidence and were based on jury instructions agreed on by counsel. The district court instructed the jury that the state had the burden of proving beyond a reasonable doubt that aggravating factors existed and that the jury had to find the aggravating factors unanimously. As in Schmitz and Robinson, the district court instructed the jury that if it unanimously found the existence of aggravating factors, the district court could increase appellant’s sentence. If not, appellant would receive the presumptive sentence. Appellant’s argument that the special interrogatory on the verdict form likely shifted the jury’s focus away from the elements of the offense is without merit because the special interrogatories were not submitted to the jury until after it returned a guilty verdict and the jury was instructed that the special interrogatories related to sentencing only.

The district court was guided by the constitutional mandates of Blakely. Because there is no rule or statute prohibiting the procedure, submitting special interrogatories to the jury for a determination on aggravating factors relevant to sentencing vindicated appellant’s right to a jury finding beyond a reasonable doubt. Thus, the district court did not exceed its authority in submitting the special interrogatories to the same jury that determined appellant’s guilt, after the jury had rendered its verdict on the guilt/innocence part of the trial.

IV. Appellant’s pro se brief

Appellant’s pro se brief challenges alleged inconsistencies in the trial testimony. The jury already resolved any credibility issues. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (stating that the jury determines the weight and credibility of witness testimony). Thus, appellant presents no meritorious arguments in his pro se brief.

Affirmed.