A05-1535

State of Minnesota,

Respondent,

vs.

Christopher Lamont Powell,

Appellant.

Filed October 17, 2006

Affirmed

Willis, Judge

Hennepin County District Court

File No. 03038387

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

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

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

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

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

WILLIS, Judge

In this appeal from a first-degree burglary conviction, appellant argues that the district court abused its discretion by denying appellant’s motion for a mistrial based on a state witness’s unsolicited reference to appellant’s prior criminal history. On this record, we conclude that this brief reference, although error, was not prejudicial, and we affirm.

FACTS

In June 2003, respondent state charged appellant Christopher Lamont Powell with two counts of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002), for entering the building of his former girlfriend, S.D., without consent and assaulting S.D. and her then-14-year-old daughter, K.S.J.

At trial, S.D. testified that she had known Powell for approximately seven years; that Powell was the father of three of her seven children; that in the autumn of 2001, they ended their relationship; and that during the summer of 2002, she obtained a restraining order against Powell because he had been “stalking” her. S.D. testified that despite the restraining order, she still had some contact with Powell so that their children could maintain a relationship with him. S.D. testified that on March 17, 2003, she had hung up on Powell in the middle of a telephone conversation during the day; that in the evening she received a call from Powell who said, in a tone of voice that scared her, that he was at her front door; that Powell then kicked in her front door; entered her apartment; hit S.D. in the face several times; shoved her daughter, K.S.J.; and then left.

During cross-examination, counsel for Powell, who was attempting to determine whether S.D. had been seeing the father of another of her children while she was dating Powell, asked S.D. when she had broken up with Powell, to which S.D. responded, “I broke up with [Powell] way before that. He was already incarcerated.” Later, counsel for Powell asked S.D. if Powell had come back to her house after the events of the evening of March 17, to which S.D. responded, “I was at the shelter.” After S.D.’s testimony, outside of the presence of the jury, Powell moved for a mistrial, arguing that S.D.’s two statements described above were prejudicial. Counsel for Powell acknowledged that she had not objected at the time S.D. made the statements, claiming that she did not want to attract the jury’s attention to the statements, but that the parties had agreed before trial that S.D. would not discuss the fact that she went to a shelter after the incident. The district court denied Powell’s motion.

The jury found Powell guilty of one count of first-degree burglary that involved his assault of S.D. but acquitted Powell of the second count of first-degree burglary that involved his alleged assault of K.S.J. The district court sentenced Powell to 82 months in prison. Powell now appeals his conviction.

D E C I S I O N

Powell argues that S.D.’s reference to Powell’s prior incarceration “tainted the jury’s view of [Powell]” and that, therefore, he was denied the right to a fair trial. Powell does not argue on appeal that S.D.’s reference to staying at a shelter the night of the incident prejudiced the outcome of his trial; therefore, that issue is waived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (concluding that an issue is waived when the appealing party fails to address the issue in his brief), review denied (Minn. Aug. 5, 1997).

This court reviews the denial of a motion for a mistrial for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). When analyzing whether potentially prejudicial but inadvertent testimony has deprived a defendant of the right to an impartial jury, this court considers the following factors: “the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.” State v. Hogetvedt, 623 N.W.2d 909, 914 (Minn. App. 2001) (citing State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982)), review denied (Minn. May 27, 2001). The state has a duty to inform its witnesses of the limits of permissible testimony. State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979). Error based on the admission of inadvertently elicited testimony will require a reversal only when the error was prejudicial. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978). When a remark during testimony is of a passing nature, the import of which might have been missed by the jury, and when other evidence of guilt is overwhelming, such error is not so prejudicial as to require reversal. Id.

Here, the record shows that during cross-examination, in response to being asked when she had broken up with Powell, S.D. stated, “I broke up with [Powell] way before that. He was already incarcerated.” Evidence of a defendant’s criminal record is generally inadmissible except for certain purposes not present here. See Minn. R. Evid. 404(b) (describing when evidence of another crime, wrong, or act is admissible in a criminal prosecution). Therefore, S.D.’s reference to Powell’s prior incarceration was in error. But this error was not so prejudicial as to require reversal and a new trial because S.D.’s statement was the sole reference to Powell’s prior criminal record during the entire trial, the reference was made in passing, Powell’s counsel did not object to the statement in the presence of the jury, so the import of the reference may have been missed by the jury, and the evidence of Powell’s guilt is overwhelming.

A new trial is not warranted when it is unlikely that a reference to a defendant’s prior criminal record played a significant role in persuading the jury to convict. State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations omitted). Here, the jury acquitted Powell of one count of first-degree burglary, which shows the unlikelihood that S.D.’s remark persuaded the jury to convict. Cf. State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990) (noting that the jury’s acquittal of defendant on another count indicated that the jury was not “unduly inflamed” by prosecutor’s improper comments); State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (noting that it was extremely unlikely that the prosecutor’s improper remarks during closing argument influenced the jury or affected the verdict when the jury acquitted the defendant of three other counts).

Based on this record, we conclude that S.D.’s passing reference to Powell having been incarcerated, although in error, was not so prejudicial as to have affected the verdict and that, therefore, the district court did not abuse its discretion by denying Powell’s motion for a mistrial.

Affirmed.