This opinion will be unpublished and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

A04-2358

 

State of Minnesota,

Respondent,

 

vs.

 

Donald Scaife,

Appellant.

 

Filed February 14, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 04020959

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

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

 

 

            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of third-degree assault arguing that (1) the district court erred in its evidentiary rulings; (2) the prosecutor committed misconduct by mischaracterizing evidence during cross-examination and closing argument; (3) the district court erred by instructing the jury on appellant’s duty to retreat; and (4) even if the errors individually are harmless, when taken cumulatively, they require reversal.  Because we conclude that the district court did not err, appellant was not prejudiced by the prosecutor’s comments, and the district court properly instructed the jury on the evidence, we affirm.  

FACTS

            Appellant Donald Scaife and the victim had lived together for about a year-and-a-half and were engaged at the time he was charged with assault.  On March 24, 2004, appellant left the victim at appellant’s friend’s home.  Some people at the house, including the victim, were using drugs and alcohol.

            When appellant returned around 10:00 p.m., the victim asked him to take her to her mother’s home in Brooklyn Park.  They argued on the way there and arrived around midnight.  The victim refused to get out of the truck because it was late, and she was intoxicated.

            The victim testified that she then asked appellant to take her to one of her children’s homes, and they continued to argue.  At some point on this drive, appellant stopped the vehicle and hit the victim in her face.  She yelled at appellant, but as they exited the freeway, the victim asked to remain with appellant.  Appellant refused and drove to her daughter’s home.  The victim again refused to get out of the vehicle and told appellant to take her to her son’s home.  But when they were near her son’s home, the victim looked in the mirror and realized that she was injured.  The victim said her eye was “busted open,” and she was spitting up blood.  She said that she didn’t want to see her family “looking all beat and bloody.”

            When appellant ordered the victim out of the vehicle, she got out but climbed onto the top of it.  When she saw police patrolling nearby, she ran to them.  The police waited with the victim until an ambulance arrived and she was taken to the hospital.  The victim testified that she never fell on the night of the offense.  The victim also testified as to an incident that occurred in October 2003.  She stated that she and appellant were arguing and he became physically violent.  She called the police the next day due to the extent of her injuries, but refused to attend court for the prosecution of the matter.  As a result, it was dismissed.  Appellant and the victim resumed their relationship.

            Appellant’s testimony was mainly consistent with the victim’s testimony about events occurring before appellant drove the victim from her mother’s home to her daughter’s home.  At that point, according to appellant, the victim began grabbing for the steering wheel, telling appellant to turn around.  Appellant stated that he pulled over and got out of the car, but that the victim tried to take control of the vehicle.  Appellant testified that he attempted to take the victim to her mother’s home twice, her daughter’s home twice, and finally her son’s home. 

But at some point, appellant testified that they were driving on the freeway when the victim attacked him.  She kicked and cracked the windshield and then took off the visor mirror and broke it on the dash.  The victim hit appellant in the face, knocking off his glasses. 

Appellant stated that he was afraid that the victim would cause the vehicle to roll because she was sharply jerking the wheel and there were cars on the side and behind him.  Appellant backhanded the victim and grabbed her to get control of the vehicle.  Appellant thought he might have hit the victim twice.  He stopped the vehicle on Highway 694 near the University and Central exits in order to restrain the victim.

Appellant testified that he drove toward the victim’s mother’s home again.  But when she began attacking him again, he stopped the vehicle, opened the passenger door, and pushed the victim out.  They both rolled out onto the ground.  As appellant got up, the victim jumped on his back and then fell off.  Appellant picked up the victim, they got back in the vehicle and drove off.

When they arrived at the victim’s son’s home, the victim refused to get out of the vehicle.  Appellant pushed the victim out and locked the doors.  Appellant stated that he and the victim argued outside the vehicle, that he saw a police car, and that the victim then climbed on top of the vehicle.  The police officers arrived and arrested appellant.

John Baxter, M.D., the victim’s treating physician, testified that she was initially diagnosed with a fracture of her orbital socket.  The bone fracture was surgically repaired.  The victim was sedated because she was very agitated, and the hospital staff was not initially sure of the cause or extent of her injuries.  She tested positive for cocaine and alcohol.  Dr. Baxter concluded that the victim was assaulted for purposes of his treatment of her, but he testified that he did not know for certain what had happened.  Dr. Baxter described the victim as “not completely unconscious but she was quite sleepy” when he saw her.

Paul Brunik, M.D., the first physician to treat the victim in the emergency room, testified for the defense.  Dr. Brunik described the victim as “wild, completely out of control, completely uncooperative,” out of touch with reality, and unable to speak coherently.  Dr. Brunik also diagnosed the victim with “toxic psychosis” due to the drugs and alcohol in her system.  Dr. Brunik sedated the victim with haldol and valium in order to examine and treat her.  Dr. Brunik testified that the victim’s injuries could have been sustained from a fall or from hitting something while inside the vehicle.  Dr. Brunik also testified that he did not think the victim would remember much from the evening because of her drug and alcohol use.  He said that he would not trust anything the victim said about that night because she was in toxic psychosis.

The other witnesses at trial were Officer Steve Parshall, the arresting officer, testifying for the state, and appellant’s daughter-in-law, who testified about the victim’s violent character and drug use.  Officer Parshall observed the victim sitting on the hood of appellant’s vehicle and saw appellant trying to pull her off.  He stated that the victim immediately ran to the police and told them what happened after they arrested appellant. 

At trial, the district court admitted into evidence two of appellant’s controlled-substance convictions from 1999 and 2003 for impeachment purposes, but excluded appellant’s controlled-substance conviction from 1993.  The district court excluded all of the victim’s prior convictions.  The district court also admitted evidence of an act of domestic abuse on October 11, 2003, to show the relationship between the victim and appellant.  Finally, over appellant’s objection, the district court instructed the jury on appellant’s duty to retreat. 

The jury convicted appellant of third-degree assault.  This appeal follows.

D E C I S I O N

I.

 

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  If the district court has erred in admitting evidence, the reviewing court determines “whether 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).  “[I]f there is a reasonable possibility that the verdict might have been more favorable to the defendant” without the evidence, then the error is prejudicial.  Id.  If the district court has erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  Id. (citation omitted).  But if “there is a reasonable possibility that the verdict might have been different if the evidence had been admitted,” the error is prejudicial.  Id.

A.        Admission of Appellant’s Prior Convictions

            A district court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under an abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Whether the probative value of the [prior] convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court.”  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The district court’s decision will not be reversed absent a clear abuse of discretion.  Id. at 209.

            Minn. R. Evid. 609 provides the rule by which evidence of prior convictions is admitted:

(a) General rule.  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 death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

 

Minn. R. Evid. 609(a).  But evidence of a conviction is generally not admissible if more than ten years have elapsed since the conviction.  Minn. R. Evid. 609(b).

            To determine whether the probative value of a prior conviction outweighs its prejudicial effect, the district court uses the following factors:  “(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 [the] defendant’s testimony, and (5) the centrality of the credibility issue.”  State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

            Here, the district court admitted for impeachment purposes appellant’s 1999 and 2003 felony convictions for controlled-substances crimes.  The state argued that the convictions were admissible under Minn. R. Evid. 609 because the convictions were (1) evidence of appellant’s credibility because he portrayed himself as uninvolved in the violent and drug-using lifestyle of the victim; (2) felonies occurring within the last ten years; (3) not similar to the charged offense of assault; and (4) relevant to show appellant as a “whole person.”  Appellant argued that the prior convictions were not relevant because no evidence existed to show that appellant was under the influence of controlled substances during the offense.

            While the district court did not expressly analyze the Jones factors on the record, it readily agreed with the state that the two felony convictions were admissible for impeachment purposes.  But the district court expressly stated that the convictions were not to be used as Spreigl evidence.  And the district court instructed the jury not to consider appellant’s prior convictions as evidence of his guilt in the proceeding.  The potential for a jury to misuse impeachment evidence is minimized by a limiting instruction that “directs the jury to consider the prior conviction only as it relates to appellant’s credibility.”  State v. Heidelberger, 353 N.W.2d 582, 590 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984) (quotation omitted).

            Although the prior convictions were not directly relevant to credibility, that does not bar their use for impeachment purposes.  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (stating that impeachment by prior conviction allows the jury “to see the whole person and thus to judge better the truth of [a defendant’s] testimony” (quotation omitted)).  We conclude that the district court did not abuse its discretion by allowing evidence of the convictions for impeachment purposes.

B.        Exclusion of the Victim’s Prior Convictions

            As noted, admission of prior convictions is governed by Minn. R. Evid. 609.  However, Minn. R. Evid. 404(a)(2) also provides for admission of evidence of the victim’s character in limited circumstances:

Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . . [e]vidence 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. 

 

            And the supreme court has noted that

[i]f it can be established that the accused knew at the time of the alleged crime of prior violent acts by the victim, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused.  Since this is not the circumstantial use of character evidence to prove conduct, such use is not barred either by Rule 404 or by Rule 405.

 

State v. Bland, 337 N.W.2d 378, 383 (Minn. 1983) (emphasis omitted) (quotation omitted).

            Here, appellant argued for admission of several of the victim’s prior convictions for felonies and misdemeanors.[1]  Apparently, the victim’s criminal history included the following:  felony theft in 1984, 1985, and 1986; second-degree assault that expired in 1985; second- and third-degree assault in 1989; false information to police and obstruction of legal process in 1991; misdemeanor theft in 2001; and a conviction for misdemeanor damage to property in 2003.

            Only the misdemeanor theft in 2001 and the misdemeanor damage to property in 2003 survive the rule 609(b) time bar.  And the more recent misdemeanor conviction for damage to property in 2003 is not admissible under rule 609(a) because it is not a felony nor does it involve dishonesty or false statement.  See Minn. R. Evid. 609(a).  The district court would have had to determine that the probative value of the victim’s older convictions substantially outweighed the prejudicial effect in order to admit any of the older convictions.  See Minn. R. Evid. 609(b).  Only the victim’s 2001 misdemeanor theft conviction involved dishonesty or false statement and was therefore admissible under rule 609(a) and (b).  And respondent argued at trial that the 2001 conviction was actually a guilty plea that was continued and dismissed after a year of probation on October 1, 2002. 

            The district court excluded evidence of the victim’s prior convictions on the ground that they were too remote.  Even if we were to accept appellant’s argument that the district court abused its discretion in excluding evidence of the victim’s 2001 misdemeanor theft conviction because it is a crime of dishonesty, appellant must still show prejudice from the ruling. 

            Throughout the victim’s cross-examination and re-cross-examination, appellant’s counsel ably questioned the victim and exposed the inconsistencies in her statements to officers at the scene, during her stay in the hospital, and prior to trial.  The victim also stated that she was testifying under threat of subpoena.  She admitted at trial that she was drunk on the night of the incident and had used cocaine and had “blacked out” parts of the night, although she remembered the details of the assault.  The jury heard a significant amount of impeachment of the victim as appellant’s counsel questioned her.  Thus, appellant was not prejudiced by the district court’s exclusion of the 2001 theft conviction.

C.        Admission of a Prior, Uncharged Assault on the Victim by Appellant

 

            “This court will not reverse a trial court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.”  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show “error and the prejudice resulting from the error.”  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  “Evidence of similar conduct by the accused against the victim of domestic abuse . . . 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 victim reluctantly testified to a prior occurrence of domestic abuse in October 2003.  She stated that appellant hit her and that she called the police the next day to report it.  She explained that she waited because “[she] didn’t know [she] was hurt so bad . . . [her] brother told [her] to call the police.”  Appellant was arrested, but because the victim did not go to court, she thought that the case was dismissed.  The parties resumed their relationship.  Before respondent introduced this testimony, the district court gave a cautionary instruction to the jury, warning it not to convict appellant solely on the basis of the October 2003 incident.

Appellant contends that the district court erred in admitting evidence under Minn. Stat. § 634.20 of his prior assault of the victim because the evidence was not clear and convincing as required under Minn. R. Evid. 404(b).  While Minn. Stat. § 634.20 does not mandate a burden of proof for admission of similar-conduct evidence, the supreme court has held that, unlike Spreigl evidence, admissibility of similar-conduct evidence under Minn. Stat. § 634.20 need not be proven by clear and convincing evidence.  State v. McCoy, 682 N.W.2d 153, 155 (Minn. 2004). 

We conclude that the district court did not abuse its discretion by admitting this evidence to “illuminate the history of the relationship.”  Id. at 159.  The victim also admitted that she became violent with appellant during the October 2003 incident.  Thus, the jury was presented with a prior occurrence where both parties were physically violent with each other. 

II.

            Appellate courts reviewing claims of prosecutorial misconduct “will reverse 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 distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while “[f]or less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quotation omitted).  “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error was sufficient, this court may review.”  Id.

            A defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for cautionary instructions.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

A.        Prosecutorial Misconduct by Mischaracterizing Evidence

            We have held that the state cannot be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes that plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.  State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) (quotation omitted).  “[I]t is unprofessional conduct to ask a question which implies a factual predicate which the examiner cannot support by evidence, . . . or intentionally to mislead the jury in argument as to inferences it may draw.”  State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973).  And it is improper for prosecutors “to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer.”  State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001).

            Here, appellant claims four instances of prosecutorial misconduct:  (1) the prosecutor’s use of the term “headlock” during cross-examination of appellant; (2) the prosecutor’s use of the term “blow” during cross-examination to describe an impact made by appellant; (3) the prosecutor’s description of the victim as “lucid, although intoxicated” based on an officer’s testimony during closing argument; and (4) the prosecutor’s statement during closing argument that appellant “got [the victim’s] head under his arm.”  Appellant argues that (1) appellant never used the term “headlock” in his testimony but rather described the action that he took to restrain the victim; (2) appellant never used the term “blow” to describe the motion appellant used to fend off the victim’s attack in his vehicle; and (3) the officer never testified that the victim was lucid but intoxicated.

            First, with regard to the prosecutor’s use of the terms “headlock” and “blow,” we conclude after reviewing the testimony, that appellant’s arguments have no merit.  The prosecutor was merely describing appellant’s actions or permissibly using a word with a similar meaning to paraphrase appellant’s testimony.  Further, the district court sustained appellant’s objection to the prosecutor’s use of the term “blow” and the prosecutor re-phrased the question.

            Appellant also challenges the prosecutor’s characterization of the victim during closing arguments as “lucid although intoxicated” at the crime scene.  Here, too, the prosecutor’s statement is supported by the officer’s testimony.  He testified on cross-examination that the victim was “hysterical,” but “somewhat cooperative” with the officer.  The victim did not want to go to the hospital and tried to leave the hospital, but while they waited at the scene for the ambulance, the victim “freely” answered the officer’s questions.  The victim told the officer at the scene what had happened to her.  The officer also testified on cross-examination that he believed the victim was under the influence of a controlled substance.  Based on the officer’s testimony, the prosecutor’s characterization of the victim as “lucid although intoxicated” is supported by the evidence.

            Fourth, appellant challenges the prosecutor’s characterization of appellant’s action as a “headlock,” during closing argument.  But appellant, himself, testified on cross-examination that he restrained the victim by putting her head and shoulders under his arm.

B.        Prosecutorial Misconduct by Improper Argument

Appellant challenges the following statement from the prosecutor’s closing argument as an improper use of evidence of a prior bad act committed by appellant against the victim and admitted as relationship evidence:

[The victim] also told you about the incident from October 11th of 2003 when the defendant was arrested for punching her after an argument.  She meekly stated that she didn’t follow through with that case because she didn’t want to get him in trouble.  Even this time, she was only appearing because of the subpoena.  She declined to hold him responsible then.  I’m asking you to hold him responsible now.

 

            A prosecutor may properly refer to the victim’s injuries and talk about accountability “to help persuade the jury not to return a verdict based on sympathy for the defendant.”  State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985).  “[B]ut the prosecutor should not emphasize accountability to such an extent as to divert the jury’s attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.”  Id. 

The supreme court has admonished prosecutors against emphasizing the accountability of the defendant.  State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993).  In Salitros, the defendant challenged, among other statements, the following statement made by the prosecutor during closing argument:

You know, this whole trial could be boiled down into one word, accountability.  Accountability.  The rule of accountability.  That’s the rule where we’re talking about it is important when we go through life to hold people accountable for their actions, to hold people responsible for the crimes they commit. . . .  Accountability is a lesson that this young man has not yet learned, and the State is asking you to teach it to him.

 

Id. at 819-20.  In Montjoy, the court found the prosecutor argued improperly but did not reverse because of the use of curative instruction, the evidence of the defendant’s guilt, and the failure of defense counsel to object.  366 N.W.2d at 109.  But in Salitros, a case decided eight years later, the supreme court reversed “prophylatically” even though defense counsel never objected to the statements.  499 N.W.2d at 820.

Finally, the supreme court has noted that to evaluate “claims of prosecutorial misconduct, [courts] have looked to the American Bar Association Standards for Criminal Justice as a model.”  State v. Johnson, 616 N.W.2d 720, 729 (Minn. 2000) (citing Salitros, 499 N.W.2d at 817-18).  “The ABA Standards provide that it is unprofessional conduct for a prosecutor to ‘knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to . . . make other impermissible comments or arguments.’”  Id. (citing American Bar Association Standards for Criminal Justice, Standard 3‑5.6(b) (2d ed. 1980)).  In Johnson, the court refused to reverse where the defendant failed to ask for a limiting instruction after the prosecutor’s argument because the comment was not so prejudicial as to have denied the defendant his right to a fair trial.  Id.

Here, the prosecutor’s argument comes very close to conflating appellant’s actions on October 11, 2003 with the alleged actions for which he was on trial.  That would be impermissible use of prior-bad-acts evidence because the prosecutor essentially suggested to the jury that it should or could convict appellant to hold him responsible for uncharged acts. 

Appellant did not object at trial.  But at the time the domestic-abuse evidence was admitted, the district court instructed the jury not to convict appellant on the basis of any offense other than the charged offense.  The district court repeated that instruction right before closing arguments. 

While the prosecutor’s statement may have been improper, we conclude that the statement alone did not deprive appellant of a fair trial.  Appellant ably attacked the victim’s credibility as a witness.  Appellant testified on his own behalf and the emergency-room physician testified as to the victim’s incoherent behavior at the hospital but also testified that, in his opinion, an assault could not be ruled out as a cause of the victim’s injury.

C.        Prosecutorial Discovery Violations

            Appellant argues that the prosecutor also committed misconduct by failing to properly disclose certain evidentiary items including (1) the victim’s complete criminal history; (2) a copy of the affidavit accompanying the victim’s application for an order for protection (OFP); and (3) a complete copy of the transcript of the OFP proceedings.  The prosecutor stated that she provided defense counsel with the tape of the OFP proceedings and a partial transcript but that it was defense counsel’s responsibility to listen to the tape.  Whether or not the prosecutor violated discovery rules, appellant admits that the district court suppressed the affidavit and the partial OFP transcript, and thus appellant cannot show prejudice based on these two alleged discovery violations. 

            With regard to the prosecutor’s alleged failure to provide the victim’s complete criminal history, respondent contends that the prosecutor did not knowingly violate discovery because the prosecutor was unaware that the victim had a criminal record under several aliases.  As a result, the prosecutor did not have actual knowledge of the victim’s complete criminal history.  And respondent argues that appellant knew the victim much better than the prosecutor and thus, should have been aware that the victim might have a criminal history under an alias. 

Minn. R. Crim. P. 9.01, subd. 1(1)(a), requires a prosecuting attorney to disclose the “names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions, if any, within the prosecuting attorney’s actual knowledge.”  The prosecutor stated that she checked the victim’s criminal history under the name by which she knew the victim.  The victim had only minor traffic violations under that name.  The prosecutor stated that she was unaware that the victim had criminal histories under aliases and only found out when defense counsel provided her with the criminal histories.  On this record, the district court did not abuse its discretion in its determination that no discovery violations occurred.

III.

            Appellant contends that the district court erred by instructing the jury on the duty to retreat.  The duty to retreat is derived from the common law.  State v. Carothers, 594 N.W.2d 897, 900 (Minn. 1999).  While the supreme court has recognized an exception to the duty to retreat for defense-of-dwelling claims, see id. at 901, one has a duty to retreat in self-defense claims occurring outside the home because “the law presumes that there is somewhere safer to go—home.”  State v. Glowacki, 630 N.W.2d 392, 401 (Minn. 2001).

            District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain[] the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court’s instructions must define the crime charged.  In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).

            Here, the district court instructed the jury according to the jury instruction guides on assault, self-defense when death is not a result, and the duty to retreat.[2]  Appellant argues, without providing legal authority, that he had no duty to retreat from his vehicle while he and the victim fought because he could not retreat and be able to control the car at the same time.  First, appellant’s argument would have required the district court to make a factual determination—that appellant was unable to retreat.  That was a question for the jury.  Second, appellant provides no legal authority for the proposition that he had no duty to retreat because he was in a moving vehicle.  Assignment of error in a brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Third, a review of Minnesota caselaw indicates no such exception for the duty to retreat when an assault occurs in a moving vehicle.  The district court did not err in its instruction on appellant’s duty to retreat.  

IV.

            Finally, appellant asserts that even when an error at trial, standing alone, would not be sufficient to require a reversal, the cumulative effect of the errors compels reversal here.  See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979); see also State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000) (reversing and remanding for new trial where the cumulative effect of several erroneous admissions of evidence, numerous instances of prosecutorial misconduct, and improper jury instruction denied the defendant of a fair trial), review denied (Minn. May 16, 2000).  “And where error may have prejudiced a close factual case, this court will order a new trial, even if the evidence is otherwise sufficient to support the verdict.”  State v. Blasus, 445 N.W.2d 535, 541 (Minn. 1989).

            Appellant’s arguments can be reduced to two claims of errors with any merit:  (1) the district court’s failure to admit evidence of the victim’s 2001 misdemeanor theft conviction; and (2) the prosecutor’s “responsibility” argument for appellant’s act of domestic abuse toward the victim which was admitted to show their past relationship under Minn. Stat. § 634.20.  But appellant has not shown that either of these errors was unduly prejudicial.  Appellant adequately questioned the victim and impugned her credibility without using the 2001 misdemeanor theft conviction to impeach her.  And while the prosecutor’s “responsibility” argument may have crossed the line into misconduct, the district court twice instructed the jury not to consider the prior domestic-abuse evidence as a basis for convicting appellant. 

            Appellant argues that the matter was factually a close call and in such situations, this court should reverse based on the cumulative errors.  However, appellant asks us to reverse a jury determination that he is guilty based on the evidence that presented two very different versions of the incident.  The jury determines the weight and credibility of individual witnesses, and a conviction may rest on the testimony of a single credible witness.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  We do not find this matter to present a close factual case of the type that would warrant a new trial. 

            Affirmed.