STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1254

State of Minnesota,
Respondent,

vs.

Karen Marie Martineau,
Appellant.

Filed July 18, 2006

Affirmed

Minge, Judge

Carlton County District Court

File No. K4-03-1261

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

Thomas H. Pertler, Carlton County Attorney, 204 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges her conviction for first-degree arson. Because we find that sufficient evidence supports the verdict, that the district court did not err in denying appellant’s motion to suppress evidence from the fire scene on the basis of an alleged violation of discovery rules, and that appellant was not denied her right to a fair trial by prosecutorial misconduct, we affirm.

FACTS

A few days after the romantic relationship between appellant Karen Martineau and Randy Erickson ended, appellant and her son visited Erickson at his mobile home residence. Erickson told appellant that he did not want to resume their relationship. After leaving, appellant called Erickson at least once and stopped back the same evening. Erickson thought appellant was upset. During one of her visits, appellant returned a key for Erickson’s mobile home. Later that evening, Erickson left for some night fishing with a friend. At approximately 11:05 p.m., police received a call reporting that Erickson’s mobile home was on fire.

A fire investigator concluded that the fire at Erickson’s mobile home was started intentionally. The investigator determined that a burner on the kitchen stove had been turned on, that a frying pan was sitting on towels on the burner, and that a “trailer” of towels led to the floor, presumably to spread the fire. The investigator also utilized a dog trained to alert to various fire accelerants. The dog’s response indicated that an accelerant was present on the towels.

Erickson testified that when he left his home, the burners were off, there were metal covers on each of the burners, and there were no towels or rags in the kitchen. However, Erickson noted that lamp oil and rags were missing from a camper in his yard.

A police officer interviewed appellant at her parents’ home. Both in that interview, and in a subsequent interview at the police department, appellant stated that she had been at Erickson’s home early in the evening and stayed home all night. However, based on other information, appellant was charged with first-degree arson, in violation of Minn. Stat. § 609.561, subd. 1 (2002).

At her omnibus hearing, appellant moved to suppress evidence related to the investigation of the fire scene because Erickson’s mobile home was demolished and disposed of, precluding appellant from conducting her own investigation. Erickson testified that the fire investigator told him that he could demolish the mobile home after the investigator completed his investigation, which Erickson did. The district court denied appellant’s motion.

Multiple witnesses at appellant’s jury trial testified that they saw appellant at the trailer home both shortly before the fire and in the vicinity during the fire. Appellant was convicted of first-degree arson, sentenced to 52 months, and ordered to pay restitution. This appeal follows.

D E C I S I O N

The first issue is whether appellant’s conviction is supported by sufficient evidence. In considering a claim of insufficient evidence, the reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). This court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Circumstantial evidence is entitled to the same weight as direct evidence, but warrants stricter scrutiny. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). “The evidence as [a] whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.” State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). In general, a jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.

A conviction for arson in the first degree is warranted when one “unlawfully by means of fire or explosives, intentionally destroys or damages any building that is used as a dwelling at the time the act is committed.” Minn. Stat. § 609.561, subd. 1 (2002). Arson convictions often rely on circumstantial evidence because typically no one is at the scene when the fire is discovered. State v. Jacobson, 326 N.W.2d 663, 665 (Minn. 1982). Whether the accused had the motive, means, and opportunity to commit arson is important in determining guilt when the sufficiency of the evidence is challenged. See State v. Conklin, 406 N.W.2d 84, 87 (Minn. App. 1987); State v. McDonald, 394 N.W.2d 572, 574 (Minn. App. 1986) (affirming first-degree arson conviction where appellant and victim fought during the day, appellant made threatening comment to victim, and witnesses saw appellant’s car near the scene of the fire around the time the fire was discovered), review denied (Minn. Nov. 26, 1986).

Appellant does not argue that the fire was unintentional, but instead argues that the state did not establish that she was the one who set the fire. Erickson testified that he and appellant had multiple discussions on the day of the fire about ending their relationship and that appellant was upset and hurt. This establishes a motive for appellant to set fire to Erickson’s trailer. Other evidence indicates that appellant had the means to gain entry and commit arson. Erickson testified that he left two windows open in his home, that there were hay bales near one of the windows, and that he used the bales to climb in the window when he was locked out. He also testified that the materials used to start the fire were available in the trailer or the camper in the yard.

Several witnesses placed appellant at the scene shortly before the fire. Dawn Abramowski, who had known appellant since childhood, testified that she and her children drove by Erickson’s home around 10:00 or 10:15 p.m. and that she saw appellant and her son standing outside Erickson’s home, and appellant’s car parked near the house. Appellant argues that this testimony is not credible because Abramowski was driving a car with six children, and was speeding, but this argument is weakened by the fact that Abramowski testified that she specifically remembered waving to appellant as she drove by. Appellant also argues that Abramowski likely was confused and actually drove by earlier in the evening when appellant was present at the home, but this argument is not persuasive because Abramowski did not indicate any confusion as to her sighting of appellant.

Laurie Hansen, who formerly worked with appellant, testified that she drove by Erickson’s residence at approximately 10:30 p.m. Hansen said that she saw appellant’s car, which she knew to be a white Grand Prix, parked in front of the mobile home. Although appellant challenges the sufficiency of Hansen’s identification of appellant’s vehicle, because of her detailed description and her prior knowledge of the vehicle, the challenge is not persuasive. The testimony of Abramowski and Hansen permits the inference that appellant was outside the home at 10:00 or 10:15 p.m., and then inside at 10:30 p.m.

Officer Tom Foldesi testified that he directed traffic away from the fire scene from approximately 11:30 p.m. to 1:00 a.m. and saw appellant drive through the intersection. Appellant argues that Foldesi could not have seen her because the area was not well-lit, but Foldesi testified that he had known appellant for several years, that her car came to a stop 10 yards from him, that he had a flashlight, and that he was certain he saw appellant driving the car.

Erickson’s mother, Corrine Wick, testified that she also drove through the same intersection during the fire and saw appellant driving the car in front of her. Appellant argues that Wick’s testimony is not persuasive because Wick admitted that her son initially identified appellant. At a minimum, this testimony undermines the credibility of appellant’s claim that she had been at home all night. Erickson also testified that appellant taunted him about the fire sometime afterwards.

We conclude that based on our review of the record the state provided evidence of appellant’s motive, means, and opportunity to set fire to Erickson’s mobile home and that the record supports appellant’s conviction for first-degree arson beyond a reasonable doubt.

II.

The second issue is whether the district court erred in denying appellant’s motion to suppress evidence from the scene of the fire because the mobile home was demolished before appellant was charged, thus precluding her from conducting her own investigation. Appellant frames her argument in the context of a violation of the discovery provisions in the Minnesota Rules of Criminal Procedure.

A prosecutor is required to provide a defendant access to certain evidence:

Without order of court . . . the prosecuting attorney on request of defense counsel shall . . . allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:

(3) Documents and Tangible Objects. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce books, grand jury minutes or transcripts, law enforcement officer reports, reports on prospective jurors, papers, documents, photographs and tangible objects which relate to the case and the prosecuting attorney shall also permit defense counsel to inspect and photograph buildings or places which relate to the case.

Minn. R. Crim. P. 9.01, subd. 1. Appellant argues that this provision implies a requirement that the state preserve evidence – including evidence belonging to a private party, such as Erickson’s mobile home – in order to permit future access by the defendant. “Whether a discovery violation occurred is an issue of law which this court reviews de novo.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005); see State v. Halseth, 653 N.W.2d 782, 784 (Minn. App. 2002) (stating that this court reviews the construction of a rule of criminal procedure de novo).

We have interpreted the above-quoted language from rule 9.01 and concluded that it “does not explicitly limit the defense right to inspect the alleged crime scene to those premises in the ‘possession or control’ of the prosecution.” State v. Lee, 461 N.W.2d 245, 246 (Minn. App. 1990). But Lee did not consider whether the state must require a private party to preserve the crime scene, and rule 9.01, subd. 1(3), does not indicate such a requirement. We conclude that the state was not required to compel Erickson to preserve his mobile home in its burned state.

Even if there were a violation of discovery rules, a district court has broad discretion when imposing sanctions for such violations, and this court will not reverse the district court’s determination absent an abuse of that discretion. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). Factors to be considered in deciding whether to impose sanctions include “(1) the reason why 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.” Id. (quoting State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979)).

Here, the district court denied appellant’s motion to suppress the evidence from the crime scene, finding that appellant was not prejudiced because “the scene was preserved in great detail by numerous photos by the investigators, as well as a full video.” Appellant argues that by independently investigating the fire scene, she could have challenged testimony that the fire was set intentionally. But appellant did not present any expert evaluation of the photos and video at the trial and did not indicate how the photos and video were insufficient. Appellant also argues that an investigation may have given her an opportunity to find evidence of how an intruder entered the home. But police found no evidence of forced entry, and appellant does not explain why she believes such evidence existed. The district court did not err in denying appellant’s motion to suppress the evidence from the crime scene.

III.

The third issue is whether appellant was denied a fair trial due to prosecutorial misconduct. This court will reverse a conviction due to prosecutorial misconduct at trial only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Reversal is required for unusually serious misconduct unless it was harmless beyond a reasonable doubt, but reversal is only required for less serious misconduct when it substantially influenced the verdict. State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002).

Generally, a party waives any challenge to the alleged misconduct on appeal by failing to object or seek a cautionary instruction. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). Here, appellant only objected to the prosecutor’s characterization of testimony of Laurie Hansen, appellant’s former coworker. Appellant did not object to any of the other allegedly improper statements. Although the parties dispute the standard to be used to evaluate unobjected-to prosecutorial misconduct, the Minnesota Supreme Court in several recent cases utilized the plain-error standard, only granting relief if “(1) there was error, (2) that is plain, and (3) the error affected the defendant’s substantial rights.” State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005); State v. Morton, 701 N.W.2d 225, 234 (Minn. 2005); see State v. Leake, 699 N.W.2d 312, 327 (Minn. 2005). We also use that test.

With respect to prosecutorial misconduct during closing argument, we look at the closing argument “as a whole.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). It is prosecutorial misconduct for a prosecutor to state his personal opinion in his argument to the jury because of the potential for “exploitation of the influence of the prosecutor’s office.” State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (quotation omitted). It is also prosecutorial misconduct to bolster the credibility of the state’s witnesses with the prosecutor’s own opinion: an advocate “may not throw onto the scales of credibility the weight of his own personal opinion.” Ture, 353 N.W.2d at 516. But the use of the phrase “I submit” or “the state submits” when preceding an offer of an interpretation of the evidence has been held not to be such an impermissible opinion. State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000); State v. Reed, 398 N.W.2d 614, 617 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).

Appellant argues that the prosecutor improperly stated his opinion when he characterized Hansen’s testimony. However, the challenged statements were not expressions of the prosecutor’s opinion. Instead, the prosecutor was merely describing the evidence, which does not constitute misconduct. See Bradford, 618 N.W.2d at 799.

Appellant also argues that the prosecutor improperly bolstered the credibility of the state’s witnesses with his own opinion. In most of the challenged statements, the prosecutor highlighted factors to the jury that were relevant to a credibility determination, such as the strong emotional reaction of Erickson’s mother, Corrine Wick, upon seeing appellant at the scene, and, in general, the state’s witnesses’ lack of “waffling.” These statements do not express the prosecutor’s opinions on credibility, but instead properly point to factors the jury can consider in deciding credibility.

Appellant finally challenges the following statement by the prosecutor regarding testimony by Dawn Abramowski: “I would suggest to you, what she saw is what she saw, a human, breathing person.” Even if this was an improper statement of the prosecutor’s opinion as to Abramowski’s credibility, it does not rise to the level of plain error.

Reviewing the incidents of alleged misconduct, we conclude that individually none is plain error and that collectively they do not establish that appellant was denied her right to a fair trial due to prosecutorial misconduct.

IV.

Appellant also makes two arguments in her pro se supplemental brief. First she asserts that she was denied the effective assistance of counsel because her attorney was referred to in transcripts as both a private attorney and a public defender. This appears to be a clerical mistake, and appellant does not allege any specific prejudice. Appellant’s claim does not merit relief. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (requiring a showing that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for the error, the result of the proceeding would have been different). Second, appellant identifies various inconsistencies in witness testimony. It is the jury’s function to weigh witness credibility, and none of the inconsistencies identified requires reversal here. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Affirmed.