This opinion will be unpublished and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

A05-2206

 

In the Matter of the Welfare of :

 

L.F.L.G.

 

Filed ­­­August 8, 2006

Affirmed in part, reversed in part, and remanded

Dietzen, Judge

 

Hennepin County District Court

File No. 245991/J6-05-055874

 

Leonardo Castro, 4th District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant L.F.L.G.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his adjudication as an extended jurisdiction juvenile (EJJ) on two counts of second-degree assault with a dangerous weapon in violation of Minn. Stat. §§ 609.222 and 609.11 (2004), arguing that the district court abused its discretion by: (a) refusing to suppress evidence of a gun found in his bedroom; (b) making various evidentiary rulings; and (c) refusing to grant his motion for a mistrial.  Appellant also argues that there was prosecutorial misconduct during closing argument, that the evidence was insufficient, and that the district court erred in ordering that appellant’s sentence be stayed on the condition that he be placed in a secure long-term facility with correctional programming. We affirm in part, reverse in part, and remand.

FACTS

In April 2005, police responded to a 911 call from Benjamin Valle-Badillo who stated that a Hispanic male had shot at his car in the area of 29th Street and Bloomington Avenue in Minneapolis and that he and the driver, Manuel Ortega-Sosa, exited the vehicle and followed the young man until he entered a nearby house. 

When the police arrived at the house, a number of people, including appellant’s mother, were on the front porch.  Appellant then came out of the house and was identified as the shooter by Valle-Badillo.  Appellant, who was 15 years old at the time, was arrested, pat searched, and placed in the squad car.  No gun was found on appellant.

The police searched the house without a warrant.  In an upstairs bedroom, Officer Werner observed a mattress askew from the bed frame, along with a grey pullover and two .22-caliber bullets on the bed.  Werner then lifted the corner of the mattress and discovered a black handgun between the box spring and the mattress. 

Appellant was charged with two counts of second-degree assault in violation of Minn. Stat. §§ 609.222 and 609.11 (2004).  The complaint was accompanied by the state’s motion for extended jurisdiction juvenile (EJJ), which the court granted. 

At a pre-trial hearing, appellant moved to suppress evidence taken as a result of a search of appellant’s home.  Officer Werner testified that the officers went inside the house “to make sure nobody else was shot” and to locate the gun.  The court denied appellant’s motion to suppress the evidence, determining that there were exigent circumstances justifying the officers’ entry into the house. 

Appellant also moved to prevent the state from introducing evidence that appellant was affiliated with a gang.  In response, the prosecution stated that it would introduce testimony from Valle-Badillo and Ortega-Sosa that appellant made certain hand gestures at them that are used as gang symbols; and that appellant’s mother admitted to police that appellant was involved with a gang.  Appellant also sought to prevent the state from referring to Ortega-Sosa and Valle-Badillo as “victims.”  The court denied both motions.  

At trial, Ortega-Sosa testified that, as he was driving on Lake Street, a young man started to “move around his hands.”  He stated that he drove around the block to drive by him again.  At that point, Ortega-Sosa testified that appellant fired a shot at him and that glass shattered over his arm. 

Valle-Badillo stated that appellant, who was wearing a black hat and a white shirt over a long-sleeved black shirt, “started to make gestures with his hands” and when they drove by a second time appellant pulled out a gun and fired at them.  He also stated that he saw blood on Ortega-Sosa’s hand and heard a second shot fired as they drove away.

Joan Haug, a 911 operator, testified that Valle-Badillo called 911 and stated that a Hispanic male wearing a black cowboy hat had shot at his car, that a passenger was injured by flying glass, and that the gunman then left the scene and entered a nearby house.  Appellant’s mother also testified.  During direct-examination, she was asked if she told the police that her son was a member of “Ceranos Ceranos.”  She replied, “At no moment did I say that.  I only said I know he gets together, but that he is one of them, no.”  The mother also testified, over objections, that there were no Ceranos in the neighborhood, but she worried that her son “hangs out” with gang members.

Appellant’s counsel then moved for a mistrial, arguing that any implication that appellant was a gang member was unduly prejudicial. The district court denied the motion, concluding that there had been no testimony that appellant flashed gang symbols at Ortega-Sosa and Valle-Badillo, that the reference to hand gestures was minimal, that the mother denied that her son was a member of a gang, and that the jurors all indicated during voir dire they could be fair in light of the potential gang issue.  The district court later provided a cautionary instruction to the jury, stating, “You should disregard [ ] any reference to gangs or gang affiliation.” 

            Appellant’s version of the incident is markedly different.  He testified that when he was walking home, a black Acura drove by with a little round hole in the passenger window with shattered glass around it.  Appellant then saw someone in the Acura give him the finger, so he “flicked them off.”  About one-half block later, the passenger exited the vehicle and flashed a knife at appellant, so he ran away to his residence. 

The jury found appellant guilty of both counts of assault. The district court adjudicated appellant a delinquent and sentenced him to two concurrent 36-month adult sentences, with the execution of the sentence stayed until appellant’s 21st birthday.  The stay of the sentence was conditioned on, inter alia, appellant’s entry to and successful completion of placement in a secure long-term correctional facility.  This appeal follows.

D E C I S I O N

 

I.

Appellant contends that the district court erred by denying his motion to suppress evidence seized as a result of the warrantless search of his parents’ residence.  “We review pretrial motions to suppress evidence by independently considering the facts to determine whether the district court erred in its decision.”  State v. Kouba, 709 N.W.2d 299, 304 (Minn. App. 2006).  We accept the district court’s findings of fact unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

The United States and Minnesota constitutions proscribe unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.  But a warrantless search may be justified when the police have probable cause that a felony has been committed and exigent circumstances exist.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  It is the state’s burden to establish an exception to the warrant requirement.  State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).

The exigent-circumstances exception can be triggered by the presence of a single factor or by the totality of the circumstances.  State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).  One single factor justifying a warrantless search is the protection of human life.  In re Welfare of B.R.K., 658 N.W.2d 565, 579 (Minn. 2003).  A single factor must be “clearly implicated” to constitute exigent circumstances.  Gray, 456 N.W.2d at 256.  This court independently evaluates the record to determine, as a matter of law, whether exigent circumstances existed.  Id.

Appellant argues that there were no exigent circumstances because there was no indication that anyone else was inside the residence.  Respondent argues that the single factor, i.e., protection of human life, was “clearly implicated” and justified the warrantless search.  

Here, the officers responded promptly to a dispatch report that a young man had shot at two individuals in a public place and had gone into the subject residence.  When appellant came out of the residence without a gun, the officers had reason to believe that there was a loaded gun in the house that they needed to seize in order to provide for public safety. 

Appellant cites Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969 (1970), and B.R.K., 658 N.W.2d 565, to argue that there were no exigent circumstances that justified a warrantless search of appellant’s residence.  But Vale was a search incident to an arrest in which the arresting officers had observed the sale of narcotics in a car parked near defendant’s residence and then conducted a warrantless search of the premises.  Vale, 399 U.S. at 32-33, 90 S. Ct. at 1971.  And in B.R.K, the police responded to a complaint of underage drinking and conducted a warrantless search of a residence, which resulted in the arrest of a guest at the residence.  B.R.K., 658 N.W.2d at 568.  Here, the officers were responding to a shooting incident that occurred in a public place and were attempting to locate a loaded gun to protect human life.

On this record, we conclude that the district court did not abuse its discretion in finding that exigent circumstances existed to conduct a warrantless search for the loaded gun at the subject residence. 

II.

            Appellant next contends that three evidentiary rulings of the district court deprived him of a fair trial.  “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) (citation omitted). 

First, appellant argues that permitting the prosecutor to refer to Valle-Badillo and Ortega-Sosa as “victims” undercut the presumption of innocence and unduly prejudiced him.  But appellant produces no case law in support of his argument.  We do not find any prejudice to appellant on this record; therefore, we conclude that the district court did not abuse its discretion.

Second, appellant argues that the district court abused its discretion by permitting the state to elicit testimony from witnesses that appellant may have been a member of a street gang.  The state argues that such evidence was relevant to prove motive and that even if it was not relevant, its introduction was harmless.  Evidence of other crimes, wrongs, or bad acts is generally not admissible to prove that a criminal defendant acted in conformity with his character.  Minn. R. Evid. 404(b).  But such evidence may be admissible to prove, inter alia, motive for the crime.  Id. Here, the state did not introduce any evidence linking appellant’s alleged gang affiliation and the shooting.  Thus, the evidence was not relevant to prove motive, and it was error to admit it.  We turn then to whether its admission constituted harmless error. 

Harmless-error review considers the impact of the disputed evidence on the jury verdict.  In a harmless-error review, we determine 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).  “A conviction can stand only if the error committed was harmless beyond a reasonable doubt.”  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  Harmless-error review looks to the basis on which the jury actually rested its verdict.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1986).  The inquiry is “whether the jury’s verdict is ‘surely unattributable’ to the testimony.”  Id. at 811 (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)). 

Here, the disputed testimony was, in the context of the entire trial, minimal in nature.  See State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (determining that error was harmless because of, inter alia, the “minimal cumulative effect of the comments”).  The district court gave a cautionary instruction to the jury that they “should disregard any reference to gangs or gang affiliation.”  See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998) (concluding that appellate courts presume that a jury follows the instructions of the court). 

And the district court concluded that the evidence in support of appellant’s conviction was significant.  We agree.  Both Valle-Badillo and Ortega-Sosa testified that appellant shot at them, that there was a bullet hole in the window of the car; and a gun with two bullets missing was recovered from appellant’s bedroom.  On this record, we conclude that there is no reasonable possibility that the disputed testimony significantly affected the verdict.

Third, appellant argues that the district court abused its discretion by permitting police officers to repeat prior consistent statements made by Ortega-Sosa and Valle-Badillo to them during the investigation.  Rule 801 of the Minnesota Rules of Evidence provides that a statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and is helpful to the trier of fact in evaluating the declarant’s credibility as a witness.”  Minn. R. Evid.801(d)(1)(B).

Here, the district court concluded that the testimony of Officer Kimmerle would be helpful to the jury in evaluating the credibility of Ortega-Sosa and Valle-Badillo regarding their identification of appellant.  And appellant was able to cross-examine the witnesses.    On this record, the district court did not abuse its discretion.

III.

Appellant contends that the district court erred in denying appellant’s motion for a mistrial.  “We review a [district] court’s denial of a motion seeking a mistrial for an abuse of discretion.”  State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). The district court is in the best position to determine whether prejudice has occurred warranting a mistrial.  State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001).

During cross-examination of appellant, the state sought to demonstrate that appellant did not state to the police at the time of his arrest that it was self defense, i.e., that the passenger in the black Acura flashed a knife at him.  The prosecutor began to ask appellant, “You said you saw the black—,” but appellant interjected, stating, “I did—when they talked to me because I don’t talk to the police.  I have the right to remain silent.  Okay?  I don’t talk to the police.  In the interview room that’s when I told them he came­[.]”  Appellant’s counsel objected to the answer as nonresponsive and then moved for a mistrial, which the district court denied. 

Both the United States and Minnesota constitutions guarantee a criminal defendant the right to remain silent.  U.S. Const. amend. V; Minn. Const. art. I, § 7.  As a corollary to this right, “the state may not impeach a testifying defendant with postarrest silence.”  State v. Parker, 585 N.W.2d 398, 403–04 (Minn. 1998).  But when “the record clearly shows that the defendant chose not to rely on his right to remain silent, but instead made statements to police, the prosecution may show and comment upon the defendant’s failure to relate to police crucial exculpatory statements recited by the defendant at trial.” State v. Darveaux, 318 N.W.2d 44, 50 (Minn. 1982) (quotation omitted).

Here, the prosecutor’s question was not completed before appellant, on his own initiative, made statements regarding his right to remain silent.  Generally, the prosecutor has the right to ask a defendant whether he made exculpatory statements to the police at the time of his arrest.  See id. (stating that the prosecution may show and comment on the defendant’s failure to relate to police crucial exculpatory statements recited by the defendant at trial).  And appellant did not make a statement about what he told police after he was arrested, i.e., his post-arrest silence.  See Parker, 585 N.W.2d 403–04 (noting that right to remain silent applies to post-arrest silence).  We conclude that the prosecutor’s question did not unfairly prejudice appellant.

IV.

Appellant contends that the prosecutor engaged in misconduct during closing argument by improperly vouching for the veracity of the state’s witnesses and that this deprived him of the right to a fair trial.  This court reviews a district court’s decision on the propriety of a prosecutor’s closing argument for an abuse of discretion.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  A party waives any challenge to the alleged misconduct on appeal by failing to object or seek a cautionary instruction.  Id.

Here, appellant made no objections to the prosecutor’s closing argument at trial and did not seek a curative instruction.  And appellant does not develop his argument on appeal, arguing only that “the prosecutor’s closing was full of improper statements” without identifying any specific argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (noting that assignment of error based on “mere assertion” and not supported by argument is generally waived on appeal).  Thus, appellant has waived his right to challenge prosecutorial misconduct on appeal.

V.

Appellant argues that the evidence was insufficient to convict him of both counts of second-degree assault.  On a claim of insufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).  We 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Appellant was convicted of two counts of second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (2004).  A person commits assault if he performs an act “with intent to cause fear in another of immediate bodily harm or death” or intentionally inflicts or attempts to inflict “bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2004). 

Appellant argues that the physical evidence was insufficient for a reasonable jury to conclude that appellant shot at Ortega-Sosa and Valle-Badillo with the intent to cause fear or death.  Appellant asserts that there was no evidence that (1) shattered glass was found in the vehicle; (2) Ortega-Sosa was bleeding as the result of glass shattering; (3) appellant’s gun had been recently fired; or (4) appellant handled the gun found in his bedroom.

But viewing the evidence in the light most favorable to the jury’s verdict, a reasonable jury could have concluded that appellant assaulted Ortega-Sosa and Valle-Badillo.  Both Ortega-Sosa and Valle-Badillo identified appellant as the gunman.  Police testimony and photographic evidence indicate that a bullet entered the black Acura through the front passenger window.  And a reasonable jury could have found that appellant’s denial that he was the gunman lacked credibility. 

            Alternatively, appellant argues that the sufficiency of the evidence can only sustain one assault conviction because he claims only one gunshot was fired at Valle-Badillo, the passenger, and not Ortega-Sosa, the driver.  But Ortega-Sosa testified that appellant “fired at me.”  See, e.g., State v. Abeyta, 328 N.W.2d 443, 444­–45 (Minn. 1983) (upholding two convictions after the defendant fired a shotgun at a house occupied by two people).  And Valle-Badillo claimed he heard a second shot fired.  See, e.g., State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (when an assailant fires numerous shots into a residence, it may be inferred that the assailant intends to cause fear of immediate bodily harm or death to those within the residence).  On this record, the evidence was sufficient to convict appellant of both second-degree assault charges.

VI.

            Appellant contends that the cumulative effect of the errors he asserts occurred during trial deprived him of a fair trial.  The cumulative effect of errors at trial may warrant reversal of a conviction and a new trial, even if viewed in isolation, such errors would not warrant a new trial.  State v. Erickson, 597 N.W.2d 897, 904 (Minn. 1999).  Here, the only error that occurred related to evidence regarding appellant’s potential gang affiliation that we concluded was harmless.  On this record, appellant was not deprived of a fair trial.

VII.

Appellant contends that the district court abused its discretion in staying appellant’s sentence on the condition that he be placed out-of-home without making adequate findings.  District courts have broad discretion to order dispositions authorized by statute in delinquency cases.  In re M.A.C., 455 N.W.2d 494, 498 (Minn. App. 1990).  “Absent a clear abuse of discretion, a [district] court’s disposition will not be disturbed.”  Id. “The goal of delinquency dispositions is to rehabilitate the offender.”  Id.  “A [district] court’s disposition ‘must be necessary to achieve that goal.’”  Id. (citation omitted).  “The severity of ‘both the act and the proposed disposition’ must be considered by the court.”  Id. (citation omitted).

Following a disposition hearing, the district court ordered that appellant serve two concurrent 36-month sentences, but the execution of the sentence was stayed until appellant’s 21st birthday.  Appellant argues that the district court made no findings explaining why out-of-home placement is in his best interests.  “[A] district court ordering out-of-home placement is required to make findings of fact that show (1) why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child’s present custody is not acceptable; and (5) how the correctional placement meets the child’s needs.”  In re Welfare of N.T.K., 619 N.W.2d 209, 211 (Minn. App. 2000) (citing Minn. Stat. § 260B.198, subd. 1(m) (Supp. 1999) and Minn. R. Juv. P. 15.05, subd. 2(A)).  Written dispositional findings are mandated to facilitate meaningful appellate review, and failure to make sufficient written findings constitutes reversible error.  Id.; see also Minn. R. Juv. Delinq. P. 15.05, subd. 2(A) (requiring that dispositional order contain written findings).

            Here, the district court did not make written findings regarding why out-of-home placement is in appellant’s best interests.  See In re L.K.W., 372 N.W.2d 392, 400 (Minn. App. 1985) (noting that to ensure placement serves child’s best interests, record must contain specific evidence that the placement is suitable for specific needs of the particular child); see also In re C.A.W., 579 N.W.2d 494, 499 (Minn. App. 1998) (“Correctional placements cannot occur without evidence and findings reflecting consideration of the child’s familial relationships.”).  Accordingly, we reverse and remand for findings regarding whether out-of-home placement is in appellant’s best interests.  On remand, the court may in its discretion reopen the record.

Affirmed in part, reversed in part, and remanded.