This opinion will be unpublished and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

A05-724

 

State of Minnesota,
Respondent,

vs.

Jeremy Daniel Buschman,
Appellant.

 

Filed June 27, 2006

Affirmed

Wright, Judge

 

Wright County District Court

File No. K8-03-3925

 

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Elizabeth Richter Scheffer, Assistant Attorneys General, 1800 BremerTower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Thomas Kelly, Wright County Attorney, 10 Second Street, Northwest, Buffalo, MN  55313 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

            Appellant challenges his conviction of attempted first-degree murder and two counts of assault, arguing that (1) there is insufficient evidence of intent to support the conviction; (2) the district court abused its discretion by permitting testimony regarding appellant’s character and prior bad acts; (3) the prosecutor committed misconduct by mischaracterizing evidence, disparaging the defense, and inflaming the jury; and (4) the district court abused its discretion by limiting the scope of the Schwartz hearing.  We affirm.

FACTS

            During the fall of 2003, appellant Jeremy Buschman became depressed after he failed to obtain custody of his child and his relationship with Tiffany Heddan-Perez ended.  Buschman alternately expressed his intention to rekindle that relationship or kill himself in front of Heddan-Perez.  Buschman spoke at length with friends and relatives about obtaining a gun.  He advised them that, because he was afraid to commit suicide, he intended to provoke a shootout with police in order to cause his death.  Buschman’s friends and relatives testified that, in order to provoke a shootout, Buschman intended to brandish a gun or to shoot in the air in the presence of police. 

            On November 29, 2003, Buschman’s family learned that he had taken a gun from a relative’s home in Illinois and, with the gun in his possession, he was heading to Minnesota in a disturbed state of mind.  Buschman’s family called the Wright County Sheriff’s Department to warn them about Buschman.  When they placed the call, they were concerned about the safety of Heddan-Perez, Buschman, and the law-enforcement officers that Buschman might encounter.  In response to the call, Wright County Sheriff’s Department personnel issued a warning to its officers that Buschman was expected in the area and appeared to be armed and dangerous.   

            At approximately 1:30 a.m. on November 30, 2003, Deputy Wachter observed Buschman in the drive-through lane of a McDonald’s restaurant in Monticello.  Deputy Wachter notified dispatch of Buschman’s presence, and several squad cars silently converged on the area.  The responders included Deputy Wachter, and Deputies Picht, Salls, Kramber, and Torkelson.  Concluding that a confrontation at the McDonald’s drive-through lane would be too dangerous, the deputies remained concealed until Buschman left the restaurant.  As Buschman left, Deputy Wachter activated his emergency lights.  Driving at a high rate of speed, Buschman drove through a SuperAmerica parking lot and turned onto the public street.  The other squad cars followed Deputy Wachter. 

            As the chase proceeded, Deputy Kramber, who had his driver’s-side window down, heard a shot from Buschman’s car as it left a hotel parking lot.  The proximity of the shot caused Deputy Kramber to check himself and his canine to see if they had been hit.  Deputy Kramber warned the other deputies that a shot had been fired.

            Continuing at a high speed, Buschman went through several intersections without stopping at stop signs.  He ultimately entered a cul-de-sac that led to a commercial parking lot.  Deputy Wachter entered the parking lot after Buschman.  Deputy Picht, who was driving a sport utility vehicle, attempted to stop Buschman on the icy parking-lot surface; instead, Deputy Wachter’s squad car hit Deputy Picht’s vehicle.  Deputy Picht’s vehicle then struck Buschman’s car.  As Buschman’s car swung around, it crashed head-on into Deputy Picht’s vehicle.  As this was happening, Deputy Picht observed the barrel of Buschman’s gun pointed at him.  Buschman shot through his windshield into Deputy Picht’s windshield.  The bullet struck the middle of Deputy Picht’s windshield.  Fearing that he had been shot, Deputy Picht dove toward the driver’s-side door, attempting to seek cover behind his vehicle.  As he dove, he heard two more shots.  Forensic testimony later established that these two bullets hit the radiator and hood and appeared to follow the direction of Deputy Picht’s movement toward the door.  Once outside the vehicle, Deputy Picht drew his gun and shot at Buschman.  Deputy Picht recalled firing three shots; a forensic investigation showed that Deputy Picht fired a total of five shots.  According to the videotape, the confrontation between Buschman and Deputy Picht lasted approximately eight seconds.

            Deputy Torkelson arrived as the collision occurred and the shots began.  Deputy Torkelson began yelling, “Gun, gun, gun!”  Deputy Torkelson could not see Deputy Picht and thought that Deputy Picht had been shot.  Deputy Torkelson saw Buschman’s head turn toward him as Buschman crawled out of the driver’s window of his car.  Buschman was holding a gun in his left hand.  It appeared to Deputy Torkelson that Buschman was turning and pointing the gun at Deputies Torkelson and Wachter.  Fearing for his life, Deputy Torkelson fired two shots at Buschman at the same time that Deputy Picht was firing.  Buschman’s body went limp.  Deputy Torkelson testified that Buschman never fired in the air during the entire incident.

            Deputy Wachter, who was in the squad car directly behind Buschman, was getting out of his squad car when Buschman shot at Deputy Picht’s vehicle.  As Deputy Wachter turned toward Buschman, Buschman pointed his gun at Deputy Wachter.  Before Deputy Wachter could shoot, Buschman’s body went limp.  Buschman had been struck in the head and was unconscious.  Deputy Wachter administered oxygen.  As he regained consciousness, Buschman became agitated, screaming that he should have been killed and that he wanted to die.

            Buschman was subsequently charged with one count of attempted first-degree murder, a violation of Minn. Stat. § 609.185(a)(4) (2002), and two counts of assault, a violation of Minn. Stat. §§ 609.221, subd. 2(a), .222, subd. 1 (2002).  Before trial, Buschman made a number of motions in limine.  The district court ordered that testimony relating to the restraining orders Heddan-Perez had obtained and testimony regarding the violations of these orders by Buschman would not be permitted.  The district court also ruled that Heddan-Perez could not testify that Buschman had “an aggressive propensity or is otherwise apt to act in an assaultive manner.”  At trial, the prosecutor asked Heddan-Perez if she were afraid of Buschman, and she replied, “Yes.”  Buschman’s counsel objected.  The district court overruled the objection based on its determination that the remark did not violate its rulings on the motions in limine.

            The prosecutor also asked Deputy Picht if he had been told why he was ordered to go to Heddan-Perez’s residence earlier in the evening.  Deputy Picht replied, “I was advised by Sergeant Hagerty that [Buschman] had been down in – I think it was Illinois or Iowa, I can’t remember, and had stolen some guns and was en route to Monticello to kill his ex-girlfriend.”  Buschman’s counsel objected, stating that this testimony was either evidence of a prior bad act or highly prejudicial and violated the order in limine.  The district court overruled the objection. 

            The jury found Buschman guilty of attempted first-degree murder and two counts of assault.  Shortly after the trial, a Schwartz hearing was held on allegations that the jury had prematurely deliberated and that a bailiff had advised the jurors that they could not direct questions to the district court.

            The 12 jurors and the alternate juror were subpoenaed for the Schwartz hearing; 11 appeared.  After questioning the two jurors who Buschman contended were the source of the allegations, the district court concluded that there was no basis for a finding of jury misconduct.  The two jurors testified that there had been general discussions about depression and mental illness, in the context of becoming acquainted, but that these discussions did not include discussions about Buschman.  The testimony also established that, during a break in deliberations, a juror asked the bailiff why Buschman’s mental state was not raised as an issue.  The bailiff responded that he could not address this.  Because the jury asked the district court another question during deliberations, the district court concluded that the jurors were aware of their right to address questions to the court.  Buschman was later sentenced, and this appeal followed.

D E C I S I O N

 

I.

            Buschman challenges his conviction of attempted first-degree murder, arguing that the evidence is insufficient to establish his intent to cause death of a peace officer in the line of duty.  We review a claim that the evidence is insufficient to support a guilty verdict to determine whether the jury could reasonably find the defendant guilty of the offense, based on the facts in the record and the legitimate inferences that can be drawn from those facts.  State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999).  In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id. 

            A conviction based solely on circumstantial evidence “merits stricter scrutiny.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Circumstantial evidence is accorded the same weight as any other evidence, “so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”  Id.  It is the exclusive province of the jury to determine the credibility of and the weight to be given to circumstantial evidence.  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).  We will reverse a conviction based solely on circumstantial evidence, however, if that evidence leads equally to a rational hypothesis other than guilt.  Bernhardt v. State, 684 N.W.2d 465, 479 (Minn. 2004).  The “possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”  State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003) (quotation and citations omitted). 

            A conviction of the first-degree attempted murder of a peace officer charge requires proof beyond a reasonable doubt that Buschman acted with the intent to cause the death of a peace officer.  Minn. Stat. § 609.185 (a)(4).  “‘With intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2004).  Intent is a state of mind that usually is proved by circumstantial evidence and is inferred from the “words and acts of the actor both before and after the incident.”  State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000).  “Intent to cause death may be inferred from the manner of shooting.”  State v. Fields, 679 N.W.2d 341, 349 (Minn. 2004) (quotation omitted). 

            Buschman argues that he did not intend to cause the death of a peace officer.  Rather, he intended to brandish a gun and provoke a shootout resulting in Buschman’s death.  Weighed against Buschman’s stated intent is Buschman’s actual conduct: (1) at no time did Buschman simply brandish his gun or shoot into the air; (2) after he became aware of the deputies’ presence, he fled at high speeds and shot once toward a squad car, causing Deputy Kramber to believe that he or his canine might have been hit; (3) once stopped, Buschman shot into the center of the windshield of Deputy Picht’s vehicle, followed in rapid sequence by two more shots directly at the vehicle; and (4) as he emerged from his car, Buschman appeared to level his gun and point it toward Deputies Torkelson and Wachter. 

            The factual scenario here is similar to that in Stiles v. State, in which the defendant argued that the evidence established that he intended to scare the victim, not cause the victim’s death.  664 N.W.2d 315, 321 (Minn. 2003).  The Minnesota Supreme Court rejected this argument, noting that the defendant helped to plan the robbery of the victim, armed himself with a loaded gun, attempted to rob the victim, and shot the victim during the course of the robbery.  Id.  Here, Buschman planned the shootout, armed himself with a loaded gun, and shot directly at a peace officer. 

Despite Buschman’s expressed intentions, his conduct provides strong circumstantial evidence that he intended to harm a peace officer.  Accordingly, the evidence is sufficient to sustain the guilty verdict on this charge.

II.

Buschman also challenges two of the district court’s evidentiary rulings.  A district court’s evidentiary rulings will not be disturbed on appeal absent an abuse of discretion resulting in prejudice to the defendant.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  “An abuse of discretion occurs when the [district] court’s erroneous ruling substantially influences the jury to convict.”  Stiles, 664 N.W.2d at 322.  Prejudice occurs when there is the reasonable possibility that wrongfully admitted evidence influenced the jury’s verdict.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

Buschman’s first objection is to the admission of Heddan-Perez’s statement that she was afraid of Buschman.  A victim’s state of mind, including fear of a defendant, may be relevant when used to rebut defenses of accident, suicide, or self-defense.  State v. Blanchard, 315 N.W.2d 427, 432 (Minn. 1982).  Heddan-Perez was not, however, the victim here; nor does this testimony serve any other apparent purpose.  The district court erred by admitting this evidence.  Thus, we next consider whether the erroneous admission of this evidence was harmless beyond a reasonable doubt.

            A conviction may stand despite erroneously admitted evidence “if the guilty verdict actually rendered in the trial was surely unattributable to the error.”  State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn. 2005).  “When determining whether a jury verdict was surely unattributable to an erroneous admission of evidence, the reviewing court considers the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant.”  Id. 

Heddan-Perez’s statement was one brief reference in a lengthy trial transcript.  It was not referred to in the prosecutor’s opening statement or closing argument.  Other evidence addressing Buschman’s harassment of Heddan-Perez, damage to property, and violation of orders for protection, was properly and effectively excluded.  The jury no doubt could infer from unchallenged testimony that Buschman had a dangerous and unhealthy obsession with Heddan-Perez, which likely would cause her to fear him.  Moreover, there was ample evidence independent of this statement that Buschman committed the charged offenses.  Thus, the district court’s error was harmless beyond a reasonable doubt.

            Buschman also objects to Deputy Picht’s testimony that he had been told that Buschman had stolen guns.  Deputy Picht’s testimony was not offered to prove that Buschman had committed any crime.  Rather, it was offered as an explanation of what precipitated the officers’ actions that evening.  The district court’s admission of this testimony was not error.  Cf. State v. Nunn, 561 N.W.2d 902, 907-08 (Minn. 1997) (stating that evidence that incidentally shows commission of another crime may be admissible when it is part of facts surrounding charged offense).

III.

            Buschman asserts that the prosecutor committed misconduct during the trial by mischaracterizing one witness’s testimony during the opening statement and closing argument; eliciting testimony that Deputy Salls was on active duty in Iraq and, therefore, would not be testifying; referring to a mythical top-ten most wanted list; and disparaging the presumption of innocence.  Defense counsel’s objection to the last of these items was sustained; no other objections were raised.

Prosecutorial misconduct is reversible error “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.  If the misconduct was serious, [it] is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.  For less-serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quotations omitted).  When the defendant fails to object to the prosecutorial misconduct at trial, the defendant forfeits the right to have the prosecutorial misconduct claim considered on appeal unless the error is sufficiently serious to warrant our review.  Id.  Indeed, a defendant’s failure to object may suggest that the remarks were not seen as objectionable.  State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998).   With one exception, Buschman did not object to any of the conduct about which he now complains.

Buschman argues that the prosecutor’s contention during the opening statement regarding Deputy Wiley’s warning that Buschman would “harm any officer that got in his way” was not supported by testimony.  We agree.  But this prosecutorial misconduct does not warrant reversal because the jury was instructed that attorney statements are not evidence.  And it is presumed that jurors follow the district court’s instructions.  State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).  Thus, Buschman’s right to a fair trial was not impaired.

Buschman also cites as an example of prosecutorial misconduct the prosecutor’s characterization that Buschman “wasn’t going to allow [Heddan-Perez] to get one over on him.”  Because the prosecutor’s characterization was closely related to Deputy Wiley’s testimony that Buschman wanted to “get even” with her, it does not constitute misconduct.  See State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003) (concluding that prosecutor’s remarks were not misstatements of evidence but unartful paraphrases of witness testimony).  

The statement and testimony about Deputy Salls’s duty in Iraq also do not constitute misconduct.  Our review establishes that they were limited in nature and were offered to explain his inability to testify.  Thus, we reject the contention that they were merely a plea for sympathy from the jury.  Further, we note that the remarks were a very minor part of a voluminous trial transcript.  See Powers, 654 N.W.2d at 679 (declining to find prosecutorial misconduct when objectionable remarks were limited in nature).

Similarly we conclude that the remarks about the “top-ten most wanted list,” which were a minor part of the closing argument, do not constitute reversible error.  Counsel is given a certain amount of latitude during closing argument and is not required to make a “colorless argument.”  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996); see also Taylor, 650 N.W.2d at 208 (finding reference to O.J. Simpson to be without purpose but not reversible error).  These remarks, which arguably were inflammatory, did not deprive Buschman of a fair trial.

Buschman argues that the last two comments that we address here were disparaging of his defense.  A prosecutor may argue that a particular defense is not supported by evidence or that an argument is without merit.  But a prosecutor may not belittle a particular defense.  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  Nor may the prosecutor suggest that it is the jury’s responsibility to hold a defendant accountable for his actions.  State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985). 

Buschman challenges as misconduct the prosecutor’s remark that all criminal convictions occur in conjunction with the presumption of innocence and the requirement of proof beyond a reasonable doubt.  This remark, when viewed in context, is part of a much longer explanation that Buschman is presumed innocent and that the state has the burden of proving guilt beyond a reasonable doubt.  The prosecutor then elaborates on what doubts are reasonable.  There was no suggestion that Buschman’s defense was somehow deficient.  When this statement is reviewed as a whole, as required, there is no basis to conclude that the jury ignored the district court’s instructions and was influenced to convict Buschman by this statement.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (noting that closing argument must be examined as whole).

The last remark—that Buschman did not want to be held accountable for his conduct—is indeed objectionable.  It was made during a rebuttal argument that reviewed the circumstantial evidence of Buschman’s criminal intent.  The remark was limited in nature and thus distinguishable from the remarks found objectionable in Montjoy, where the prosecutor argued at length that the jury should hold the defendant accountable for his actions or the entire system of justice would become meaningless.  Montjoy, 366 N.W.2d at 108-09.  On careful review, we conclude that this statement, although objectionable, was harmless.

Finally, Buschman alleges prosecutorial misconduct based on a statement that the prosecutor attempted to make but failed to complete because the district court sustained his counsel’s objection.  Because the proper procedure and appropriate remedy occurred here, and because the jury is presumed to have followed the district court’s instruction to disregard statements as to which an objection has been sustained, Buschman’s claim of reversible error is unavailing.  See Sanderson v. State, 601 N.W.2d 219, 224-25 (Minn. App. 1999) (noting duty of defense counsel to object to improper statements so that district court can make curative instructions), review denied (Minn. Mar. 28, 2000).

IV.

Finally, Buschman argues that the manner in which the district court conducted the Schwartz hearing was insufficient to determine whether the jury engaged in premature deliberations.  A Schwartz hearing permits the district court to inquire into allegations of juror misconduct while avoiding inquiry into the jury’s thought processes or deliberations.  State v. Martin, 614 N.W.2d 214, 226 (Minn. 2000); see Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  “[T]he manner in which a Schwartz hearing is conducted rests within the sound discretion of the trial court.”  Powers, 654 N.W.2d at 678 (quotation omitted). 

Here, based on information obtained by his sister, Buschman alleged that the jury had engaged in premature deliberation and that the bailiff had refused the jury’s request to relay a question to the district court.  The district court subpoenaed the 12 jurors who served to verdict and the alternate juror.  The district court examined the two jurors who Buschman contended were the source of the allegations.  Both jurors denied the allegations, and the district court concluded that further inquiry was unnecessary.  Based on the nature of the allegations and the results of the district court’s inquiry, the district court did not abuse its discretion by declining to expand its inquiry.

In sum, Buschman’s challenges to the sufficiency of the evidence, the prosecutor’s conduct, and the district court’s rulings do not warrant reversal.  Accordingly, we affirm.

Affirmed.