This opinion will be unpublished and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

A05-1959

 

State of Minnesota,

Respondent,

 

vs.

 

Dana Alan Abendroth,

Appellant.

 

Filed September 12, 2006

Affirmed

Halbrooks, Judge

 

 

Isanti County District Court

File No. K6-04-849

 

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Maggie Skelton, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008  (for respondent)

 

Timothy R. Anderson, 310 Fourth Avenue South, Suite 1050, Minneapolis, MN 55415 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, 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 second-degree assault with a dangerous weapon and argues that he is entitled to a new trial on three grounds: insufficiency of the evidence, erroneous jury instructions, and prosecutorial misconduct.  Because the evidence of intent was sufficient to support the verdict; because the district court’s failing to, sua sponte, give a unanimity instruction was not error; and because the portion of the prosecutor’s closing argument that was plain error did not impair appellant’s right to a fair trial, we affirm.

FACTS

            Respondent State of Minnesota charged appellant Dana Abendroth with two counts of second-degree assault with a dangerous weapon as a result of an incident that occurred on July 13, 2004.  That day, appellant’s daughters and a friend were sitting outside of the Abendroth home, talking.  Sixteen-year-old D.R.B. was staying down the road with his aunt and uncle, the Opgaards.  D.R.B. was riding his dirt bike with his cousin Sean when they drove into appellant’s driveway and began harassing appellant’s daughters and their friend, damaging a vehicle parked in the driveway as they left.

            Appellant’s daughters told appellant what D.R.B. and Sean had done.  Appellant became upset, in part, because of an earlier incident when appellant’s daughters were riding horses and D.R.B. allegedly drove his dirt bike in a manner that spooked the horses and nearly caused one of the girls to fall off her horse.  In response to this incident, appellant called the Opgaard home and then got into his van and sped after D.R.B., who was driving toward the Opgaards’ home.  As appellant pulled out of his driveway, D.R.B. had to drive into the ditch in order to avoid a collision.  Appellant then got out of his van, upset and swearing at D.R.B.  D.R.B., concluding that appellant was very angry at him, sped off.  Appellant got back into his van and continued to chase D.R.B.  Both appellant and D.R.B. were traveling at high speeds.   

At some point, appellant pulled his van next to D.R.B.’s dirt bike, rolled down his window, yelled that he wanted to talk to D.R.B., and told him to stop.  D.R.B. did not comply.  As the chase continued, D.R.B. testified that appellant “kept on bumping—like, he bumped me, and I went down—I like went down in the ditch, and he just kept following me.”  D.R.B. stated that appellant followed him into the ditch and continued bumping him, to a point that D.R.B. was concerned that he was going to hit the fence.

D.R.B. floored his bike to get out of the ditch and back onto the road.  At this time, Jesse Erickson, a friend of D.R.B.’s, was driving a four-wheeler; Erickson accidentally got between D.R.B. and appellant.  As appellant accelerated, he struck Erickson on the four-wheeler.  D.R.B. saw appellant hit Erickson and testified that he was “freaked out” and “terrified.”  D.R.B. made it to his aunt and uncle’s house just before appellant “came barreling in the driveway.”  D.R.B. observed that the front end of appellant’s van was damaged, and at least one tire was flat.  Appellant drove around the Opgaards’ circle driveway, continuing to yell, and then drove home.

Opgaard, Erickson’s mother, and appellant each called 911.  Following an investigation, the police arrested appellant, and he was charged with two counts of second-degree assault with a dangerous weapon.

Following trial, the jury returned a verdict of not guilty on the assault charge involving Erickson and a guilty verdict on the assault charge involving D.R.B.  In addition to its verdict, the jury passed a note to the district court stating:

We the jury, made the decision the court asked us to make to the letter of the law.  However, we all have great conviction that [D.R.B.] through youthful indiscretion and immaturity caused this unfortunate incident resulting in an adult’s criminal action. 

 

If there is an opportunity, we the jury would appreciate your counseling to the youth on his actions.

 

The district court stayed imposition of appellant’s sentence and placed him on probation for seven years, subject to various conditions.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the evidence was insufficient to support the conviction because the state did not prove that appellant committed an act with intent to cause D.R.B. fear of immediate bodily harm.  Appellant was convicted of assaulting D.R.B. with a dangerous weapon in contravention of Minn. Stat. § 609.222, subd. 1 (2004).  Assault is defined as either “[a]n act done with intent to cause fear in another of immediate bodily harm or death; or . . . [t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2004).  “‘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.”  Id., subd. 9(4) (2004).  And “‘[i]ntentionally’ means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.”  Id., subd. 9(3) (2004).

In considering a claim of insufficient evidence, 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 they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that 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).  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 that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

            A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  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.

To successfully challenge a conviction based upon circumstantial evidence, a defendant must point to evidence in the record that is consistent with a rational theory other than guilt.  However, “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. Taylor, 650 N.W.2d 190, 206 (Minn. 2002) (quoting State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995)) (citation omitted).

            Appellant argues that the note that the jury sent with the verdict is proof that the jury concluded that he did not “cause” this incident and that the jury did not believe D.R.B.’s testimony.  Thus, appellant asserts that “[t]he Court should defer to the jury’s determination that D.R.B. ‘caused’ the incident by his threatening and harassing behavior, and that it was with knowledge of this behavior that [appellant] conducted himself as he did.” 

            We disagree with the argument that the jury concluded that D.R.B. “caused” the incident, as the jury clearly stated that, under the “letter of the law,” appellant committed a “criminal act[].”  Whether or not the jury believed all or just a portion of D.R.B.’s testimony is not dispositive.  It is the province of the jury to believe only parts of a witness’s testimony.  State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1997).  “In reaching its conclusion, the jury may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). 

Here, there are numerous pieces of evidence that objectively support the jury’s finding that appellant intended to assault D.R.B.  Appellant chased D.R.B. with his van when D.R.B. was on a dirt bike; appellant drove in a manner that caused him to lose control of his van on at least one occasion; D.R.B. testified that appellant drove in such a way as to force D.R.B. off the road; witnesses observed appellant trying to push D.R.B. into a barbed-wire fence in the ditch; D.R.B. testified that he was “terrified”; appellant admitted that he was yelling, swearing, and very angry with D.R.B.; appellant hit Erickson with his van and still continued the chase of D.R.B.; and despite popping a tire and nearly totaling his van, appellant kept chasing D.R.B. 

This evidence evinces an “intent to cause fear in [D.R.B.] of immediate bodily harm or death.”  Therefore, it is sufficient to support the jury’s finding that appellant possessed the intent to assault D.R.B.

II.

Appellant contends that the district court erred when it “failed to instruct the jury that it had to agree unanimously on which type of assault [appellant] had committed upon D.R.B.”  Appellant contends that this was error, despite his failure to request the instruction, object to its absence, or raise the issue in a motion for a new trial, because he argues that one of the theories of assault requires general intent and one requires specific intent, but the jury was not required to specify the theory it based its conviction on.

            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).  Jury 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.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

If a defendant fails to object to a proposed jury instruction, he has waived the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But “a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law.”  Id.; see also Minn. R. Crim. P. 26.03, subd. 18(3) (stating that “[a]n error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court”).  

            When a defendant fails to object, our review is under the plain-error standard.  See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The plain-error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.  Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (alteration in original) (quotation omitted).

Whether a defendant’s right to a unanimous verdict has been violated turns on whether the defendant’s conduct constituted separate criminal “acts” or simply various “means” by which the criminal act may be committed.  State v. Begbie, 415 N.W.2d 103, 105-06 (Minn. App. 1987) (holding that jury’s failure to agree on which victim defendant terrorized did not violate right to unanimous verdict), review denied (Minn. Jan. 20, 1988); see also State v. Stempf, 627 N.W.2d 352, 354-55 (Minn. App. 2001) (stating that unanimity is not required when the district court determines that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime”).  “[T]he jury need not . . . decide unanimously which of several possible means the defendant used to commit the offense.”  State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002) (emphasis added).  But when “jury instructions allow for possible significant disagreement among jurors as to which acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.”  Stempf, 627 N.W.2d at 354 (emphasis added).

The United States Supreme Court’s holding in Schad v. Arizona, 501 U.S. 624, 631-32, 111 S. Ct. 2491, 2497 (1991), controls this issue.  The Court stated that

[w]e have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. . . .  [I]n litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.  Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”

 

501 U.S. at 631-32, 111 S. Ct. at 2497.

 

The Court went on to apply that general rule, which had previously only been applied to the wrongful-act element of an offense, to the state-of-mind requirement.  Id. at 632, 111 S. Ct. at 2497 (stating “[w]e see no reason, however, why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea.”).

Here, appellant argues that the district court should have instructed the jury that they had to unanimously agree on whether he acted with the intent to cause fear of bodily harm or whether he intentionally attempted to inflict bodily harm on D.R.B.  But under Schad, it is irrelevant whether some jurors believed the former and some the latter, because they clearly all believed that he intended to commit the assault.  This is not a situation in which the jury was required to find one or the other.  The jury unanimously agreed that the state had met its burden of proving beyond a reasonable doubt all elements for a conviction of second-degree assault with a dangerous weapon.  Therefore, the jury instructions were not erroneous.

III.

            Appellant’s third issue on appeal is that he is entitled to a new trial because the prosecutor’s improper closing argument constituted plain error that was prejudicial.  We note at the outset that appellant’s counsel did not object to the state’s closing argument.  Our review is, therefore, under the plain-error standard.  See Minn. R. Crim. P. 31.02; Griller, 583 N.W.2d at 740.  In order to show that an error affected his substantial rights, a defendant must show that the error was prejudicial and that it affected the outcome of the case.  Griller, 583 N.W.2d at 741.  The supreme court considers this burden to be a heavy one.  State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005).

            Appellant alleges several instances of misconduct in the prosecutor’s closing argument:  inflaming the jury’s passions, denigrating the defense, and inserting his own opinion.  In order to determine whether a prosecutor’s statements during closing argument were erroneous, we look at the “closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

A.        Inflaming the jury’s passions

            Appellant contends that the prosecutor appealed to the jury’s passions during his closing argument by stating, “[T]here have been many cases, some tried right here in this courtroom, mind you I’ve been part of them, where an automobile driven in the manner that [appellant] was operating his van will kill a teenage child just as dead as any conventional weapon you can think of.”  And, referring to appellant’s vehicle’s contact with Erickson, the prosecutor stated, “You just hit this four wheeler and you’ve got a human being on your grill[e].”

            A prosecutor is not required to make a colorless closing argument, but rather “has the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.”  State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998) (quotation omitted).  But a “prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant.”  MacLennan, 702 N.W.2d at 235 (quoting State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997)).

Taken in context, the prosecutor’s statement about similar cases he was involved in, in which teenagers had been killed, was made as a statement of proof of one element of the assault offense—that a vehicle qualifies as a deadly weapon—not to inflame the jury’s passions about saving the lives of teenagers.  While we agree that the prosecutor’s statement depicting Erickson on appellant’s vehicle’s grille is factually inaccurate and perhaps unfairly dramatic, the jury demonstrated that it followed the district court’s instructions and was not affected by this statement by acquitting appellant on the charge of assault against Erickson.  Therefore, we conclude that the prosecutor’s statements were not plain error that affected appellant’s substantial rights.

B.        Denigrating the defense

            Appellant asserts that the prosecutor denigrated the defense by stating that the trial was “excruciatingly boring” and by characterizing the defense’s theory as a “teenage spat, who scared who on a horse.”  In addition, appellant focuses on the prosecutor’s statement that

[t]he statutes of Minnesota provide that whoever assaults another with a dangerous weapon is guilty of a crime.  That’s your instruction.  You’ll note that it doesn’t say he’s guilty of a crime unless some scary guy flipped your daughters off and some scary guy with tattoos flipped your daughters off or unless [D.R.B.]’s a turd or whatever part of this teenage spat Mr. Bruno wants to present to you.  That’s not an excuse to run down some kid in your van.

 

And appellant asserts that the prosecutor denigrated him, personally, by calling his body “pathetic.”

            Prosecutors are allowed to argue that a particular defense has no merit or to anticipate arguments that defense counsel will make in their closing argument, but they are not allowed to denigrate or belittle the defense itself.  Ashby, 567 N.W.2d at 28.  For example, prosecutors are not allowed to state that defense attorneys always attempt to draw attention away from defendants, State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993),comment that a defendant raises an insanity defense only when he has no other argument, State v. Bettin, 309 Minn. 578, 579, 244 N.W.2d 652, 654 (1976),or say that a particular defense is “soddy,” State v. Kirvelay, 311 Minn. 201, 202, 248 N.W.2d 310, 311 (1976).

Because the prosecutor’s statement about the trial being excruciatingly boring applied to the state’s case as well as the defense, we conclude that it did not denigrate the defense.  The prosecutor’s statement that the defense was presenting a case about a “teenage spat, who scared who on a horse,” amounted to his effort to contrast the two sides’ theories of the case.  The prosecutor’s characterization had a factual basis in the record.  Whether or not a reasonable jury would agree with the statement, we do not determine the statement to have amounted to denigration of the defense theory.

            We reach the same conclusion with respect to the prosecutor’s argument that “You’ll note that it [referring to the jury instruction] doesn’t say he’s guilty of a crime . . . unless [D.R.B.]’s a turd or whatever part of this teenage spat [defense counsel] wants to present to you.”  Although this is an unnecessary and inartful statement, it does not rise to the level of plain error.  Taking that statement in context, it was not a mischaracterization of the defense theory, nor did it in any way attribute that statement to the defense.  The prosecutor wanted the jury to know that regardless of how they felt about D.R.B., that did not excuse appellant’s actions. 

In his rebuttal argument, the prosecutor stated, referring to appellant, “Pathetic body, couldn’t even take his shirt off in front of you all.”  Appellant argues that by making this statement, the prosecutor was denigrating not just the defense, but appellant himself.  But here it is particularly important to examine the context.  It was appellant’s trial counsel who raised this issue in his closing argument, stating: “Well you heard ample evidence this is not the type of guy [whose] pathetic body is going to allow him to get in a fist fight with a young, strong, teenager.”  This argument, meant to reinforce the defense’s theory that appellant only wanted to talk to D.R.B. and had no intention of frightening D.R.B. or hurting him was based on appellant’s trial testimony on direct examination that he has burns on 75% of his body and limited mobility in his right shoulder.  Thus, the prosecutor was essentially parroting defense counsel’s own words in his rebuttal argument.  Again, while arguably inartful, we conclude that the statements do not constitute plain error.

C.        Inserting self into proceedings

            The ABA Standards on Criminal Justice state that “[t]he prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”  ABA Standards for Criminal Justice, Prosecution Function Standards, 3-5.8(b) (3d ed. 1993).  The commentary provides the rationale behind the rule: “Expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate a lawyer from the cause being argued.”  Id., Commentary (3d. ed. 1993) (emphasis added).

Appellant alleges that the prosecutor committed misconduct by inserting himself and his experience into the closing argument by, first, commenting on previous cases he tried where this type of driving conduct resulted in the deaths of teenagers.  As previously discussed, the prosecutor’s statement about previous cases in connection with whether an automobile is a dangerous weapon was made to demonstrate that he proved this element of the offense.  While it may have been borderline, we conclude that it was not plain error. 

Second, appellant contends that the prosecutor implied that he had some particular insight as to how the district court thought, so that the jury could infer that it would be consistent with the prosecutor’s interpretation of the law.  The prosecutor argued:

I walk over to Mr. Bruno, snack [sic] him one right in the face, Judge throws me in jail.  That’s an assault, is it not?  I did an act to inflict bodily harm upon another.  Wait a minute, Judge, I say, I was just a little disappointed with how he treated my witnesses and I wanted to show him that I was disappointed in that.  You know what the Judge would tell me?  I guess I don’t know what he’d say but I can tell you the reasoning he’d use.  We don’t care why you did it, did you mean to do it?  . . .  If you did, you’re held responsible for natural consequences of your action, which in this case would be to inflict bodily harm.

 

As the state points out, the prosecutor used a hypothetical to distinguish intent from motive.  While the prosecutor could have chosen a better hypothetical, it did not amount to plain error.

Third, appellant asserts that it was improper for the prosecutor to use his own children in an analogy.  The prosecutor stated:

[T]he most important thing to most people is their children, it’s no exception for me, I have a two year old and a six year old and if they take after their dad, which unfortunately it looks like they do, they’re going to make a lot of people mad when they grow[]up, teachers, girlfriends, girlfriends’ fathers, they’re going to make some people down right furious.  But you know what?  I don’t care how mad you think you are, what my kids did, what you think they might have done, don’t you dare get in your van and chase my kids down.  And these aren’t the rantings of a father, of an overzealous father giving you some hypothetical here, that’s what the law says. 

 

This was clearly improper argument.  The prosecutor interjected himself into the proceedings by speaking of his children and how it would make him feel if appellant’s actions had been directed toward his children.  The argument “undermine[d] the objective detachment that should separate a lawyer from the cause being argued.”  ABA Standards for Criminal Justice, Prosecution Function Standards, 3-5.8(b), Commentary.  “Prosecutors must not interject their personal opinions into a case.  This is so in order to prevent exploitation of the influence of the prosecutor’s office.”  State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (quotation omitted).  Because the prosecutor in this case interjected himself into the closing argument by referring to his children and personalizing the argument, we conclude that the error was plain.  Therefore, the next inquiry is whether appellant has met his burden to show that the error was prejudicial and that it affected the outcome of the case.

            “Plain error is prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Baird, 654 N.W.2d at 113 (quotation omitted).  But when “the jury has acquitted the appellant of some counts, but convicted the appellant of others, we view the verdicts as an ‘indica[tion] that the members of the jury were not unduly inflamed by the prosecutor’s comments.’”  State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (quoting State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990)) (alteration in original). 

            Here, the jury acquitted appellant of assaulting Erickson while convicting him of assaulting D.R.B.  And the evidence that appellant assaulted D.R.B. was very strong.  Having reviewed the evidence at trial, we conclude that the error in the prosecutor’s closing argument did not have a significant effect on the jury’s verdict.

            Affirmed.