A05-1276

State of Minnesota,

Respondent,

vs.

Booker Roberts,

Appellant.

Filed August 1, 2006

Affirmed

Willis, Judge

Stearns County District Court

File No. K8-04-4993

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (for respondent)

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

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

WILLIS, Judge

Appellant challenges his conviction of offering a forged check, arguing that he is entitled to a new trial because of the prosecutor’s misconduct in his closing argument. Because the prosecutor’s error was harmless, we affirm.

FACTS

On November 11, 2004, at a St. Cloud U.S. Bank, appellant Booker Roberts attempted to cash a U.S. Bank check that appeared to be from State Farm Fire and Casualty Company, made payable to Roberts for $1,845.62. The teller serving Roberts took the check and Roberts’s Minnesota ID to her manager because she was “uncomfortable” with the check and noticed that it differed from standard U.S. Bank checks. The manager investigated the account shown on the check and discovered that there had been recent fraudulent activity on that account. She asked another employee to call 911 and told the teller to go back to her window. The manager then went into the bank’s lobby. She testified that Roberts approached her and was “very upset” with the delay and that she told him that the teller was getting him the money. Roberts started to approach the teller’s window, but instead he left the bank as the police arrived, leaving behind the check and his Minnesota ID.

One of the responding police officers testified at trial that Roberts was about to leave the bank through the same door that the officer was entering, but Roberts turned and walked in a different direction when he saw the officer. The officer followed Roberts from the outside of a glass-walled corridor. The officer testified that Roberts ran down the corridor as the officer ran outside, parallel to Roberts. Roberts then ran out of the building, and the officer ran after him, yelling for him to stop. Roberts did not stop until the officer caught him from behind and grabbed his hand. The officer then arrested Roberts. The teller, the manager, and the police officer each identified Roberts at trial as the person involved in the November 11, 2004 incident.

At Roberts’s trial, a State Farm special investigator described the particulars in which the check offered by Roberts differed from an authentic State Farm check and stated his opinions that the check Roberts offered was a forgery and that the check would not look genuine to an average person.

The jury convicted Roberts of offering a forged check, in violation of Minn. Stat. § 609.631, subd. 3 (2004), and he received a 25-month sentence. This appeal follows.

D E C I S I O N

Roberts argues that the prosecutor committed prejudicial misconduct during his closing argument that entitles Roberts to a new trial. Roberts bases his appeal on the following statement made by the prosecutor:

I will grant you that he came in with a check payable to the name that he goes under now, and with what appears to be a Minnesota ID card. I shouldn’t give secrets away, but if you go out to the Department of Motor Vehicles out here by Walgreen’s, they have a whole pad of applications sitting on the counter where you can tear off one, fill it out, and send it in and get a driver’s license or an ID card, and just about anybody can get it. But I’m assuming his name is Booker Roberts.

In any event, yeah, he used the name Booker Roberts, he had an ID card, and he put a thumbprint on there which, intentionally or unintentionally, is of no evidentiary value.

At trial, Roberts’s attorney did not object to the prosecutor’s comments that Roberts now complains of or seek a curative instruction. Roberts argues on appeal that the prosecutor’s comments lacked evidentiary support and thereby violated Roberts’s right to a fair trial.

Generally, a defendant who fails to object to a prosecutor’s statement or to seek a curative instruction waives his right to raise the issue on appeal. State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). But this court may reverse a conviction, even absent an objection at trial, if the prosecutor’s comments are sufficiently prejudicial to warrant reversal. See State v. McDonough, 631 N.W.2d 373, 389 (Minn. 2001).

When an appellant raises a claim of prosecutorial misconduct after having failed to object to a statement or to seek a curative instruction at trial, this court reviews the claim for plain error. See State v. Leake, 699 N.W.2d 312, 327 (Minn. 2005). “Plain error requires: (1) error; (2) that is plain; and (3) that affects substantial rights.” Id. An error affects substantial rights if the error was prejudicial and affected the outcome of the case. Id. Plain error is prejudicial “if there is a reasonable likelihood that the error had a significant effect on the jury’s verdict.” Id. (quotations omitted).

“A prosecutor’s closing argument should be based on the evidence presented at trial and inferences reasonably drawn from that evidence.” State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990). A prosecutor may not speculate during closing argument about events that may have occurred during the commission of the crime without a factual basis in the record for his comments. See Leake, 699 N.W.2d at 327.

Here, during his closing argument, the prosecutor appeared to question Roberts’s identity and whether Roberts was in fact who he said he was. Because the prosecutor did not rely on the evidence presented at trial for this speculation, this statement was improper.

But we conclude that the statement was harmless error because the evidence against Roberts was strong and because the prosecutor’s closing argument, as a whole, focused on the evidence and the relevant legal standard. “When reviewing claims of prosecutorial misconduct arising out of closing arguments, we consider the closing argument as a whole rather than focusing on particular phrases or remarks that may be taken out of context or given undue prominence.” Id. (quotation omitted). During his closing argument, the prosecutor focused on the elements of the crime of offering a forged check. It is undisputed that Roberts attempted to cash a check that day. And the evidence strongly supports the conclusion that the check was a forgery. It is also undisputed that Roberts ran from the responding police officer. Therefore, we conclude that there is no reasonable likelihood that the prosecutor’s improper statement had a significant effect on the jury’s verdict.

Affirmed.