A06-184

State of Minnesota,

Respondent,

vs.

David Gherity,

Appellant.

Filed June 5, 2007

Affirmed

Willis, Judge

Dakota County District Court

File No. T6-05-067444

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

Alina Schwartz, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Wright, 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 obstruction of legal process, arguing that the district court’s jury instructions violated his right to a unanimous verdict, that the district court erred by admitting prejudicial evidence, and that the state committed prosecutorial misconduct. Because we conclude that neither the jury instructions nor the challenged evidentiary ruling was an abuse of the district court’s discretion and that any prosecutorial misconduct was harmless beyond a reasonable doubt, we affirm.

FACTS

On July 5, 2005, Burnsville Police Officers TerMeer and Yakovlev went to an apartment in Burnsville in response to a call from the police dispatch center. Officer TerMeer was the state’s only witness at trial. He testified that he had been informed by dispatch that a daughter of a female resident of the apartment had called “from out of state” to report that she had been speaking to her mother on the phone when her mother’s boyfriend “became upset,” and the phone went dead. The mother then called her daughter from a different phone and left a message stating that her boyfriend had broken the phone and that “she was afraid.” The dispatch center also relayed the fact that the daughter reported that “there was a past history of abuse [and] that there [were] firearms in the residence.”

Officer Yakovlev knocked on the apartment door, appellant David Gherity answered the door, and the officers asked to speak to the female resident of the apartment. Gherity responded that she was on the phone with her daughter and that she was fine, and when the officers asked again to speak with her, Gherity responded that the officers could not enter without a warrant. Officer Yakovlev continued to speak with Gherity, and Officer TerMeer “started yelling” for the female resident, at which time Gherity “slammed the door into [Officer Yakovlev].” The officers entered, and Officer Yakovlev told Gherity to put his hands behind his back. Gherity “had his right hand in his pocket, was kind of turned and was heading back towards the bedroom area.” After a struggle, the officers handcuffed Gherity.

Gherity was charged with obstruction of legal process, in violation of Minn. Stat. § 609.50, subd. 1 (2004). He was convicted following a jury trial, and this appeal follows.

D E C I S I O N

Gherity argues that the district court violated his right to a unanimous verdict by “permitting the prosecutor to charge a single count yet present multiple, discrete events each of which, if believed, could have been an independent basis to find appellant guilty of obstructing legal process.” District courts are accorded great deference in the language of the jury instructions and will not be reversed absent an abuse of that discretion, although an error in the law is an abuse of discretion. State v. Babcock, 685 N.W.2d 36, 40 (Minn. App. 2004), review denied (Minn. Oct. 19, 2004).

In an on-the-record discussion of the proposed jury instructions, the state requested that the district court amend the instruction on the third element of obstruction to provide that the jury would have to find that Gherity “acted with the intention of obstructing, hindering, preventing, or interfering with Officer YakovlevorOfficer TerMeer.”[1] The district court agreed to amend the instruction over defense counsel’s objection.

Gherity concedes that the state presented evidence that he (1) slammed the door into a police officer to prevent an investigation, (2) refused to produce the female resident of the apartment, (3) refused to allow the police to enter during a reported domestic dispute, and (4) resisted attempts to be restrained by police. Because any one of these acts could have amounted to obstruction, Gherity argues, the jury may not have unanimously agreed on the occurrence of any one act, and under Blakely v. Washington, he is entitled to a unanimous decision “of every fact necessary for conviction.”

A verdict must be unanimous. Minn. R. Crim. P. 26.01, subd. 1(5). This court has held that the jury must be unanimous in its ultimate conclusion (guilt or not) but need not unanimously agree on the means the defendant used to accomplish the act that constituted the offense. State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987). If the evidence consists of multiple, separate incidents—each of which could be charged separately—then the jury must be instructed to reach unanimous agreement regarding which incident is the basis for the conviction. See State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001).

Gherity cites Stempf to support his argument that the jury may have convicted him without agreeing on the “exact facts,” which would have violated his right to a unanimous verdict. In Stempf, the police found narcotics in the defendant’s workplace; when the defendant arrived at the workplace during the search, the police also searched his vehicle and found narcotics. Id. at 354. The defendant was charged with one count of possession of narcotics, but the state offered evidence of both discoveries. Id. At the close of trial, the district court denied the defendant’s motion for an instruction requiring the jury to evaluate the two incidents independently, and the state argued that the defendant could be convicted if some of the jurors found that narcotics were in the defendant’s workplace, while other jurors found that narcotics were in the vehicle. Id.

This court determined in Stempf that because the statute makes possession an element of the crime, the jury must agree unanimously on at least one act of possession. Id. at 357. This court illustrated the difference between application of the unanimity requirement to the elements of an offense and its application to the means used to effect those elements with a hypothetical assault case in which the jurors unanimously agree that an officer had been struck in the face but disagree as to whether he had been struck with a knee or a fist—this would be permissible because the element of “contact” would have been unanimously agreed on. Id. at 355.

In Stempf, the court explained that the incident at issue was not a single course of conduct—the acts of possession occurred at different places and at different times. Id. at 358. But here, each of the four acts occurred at the same time and in the same place. Gherity’s conduct constitutes a single incident—his acts took place at one time and in one location. The district court instructed the jurors that, before convicting Gherity, they must find that each element of the crime of obstruction was established beyond a reasonable doubt and that their verdict must be unanimous. Thus, whether the jury convicted him because he slammed the door, refused to produce the female resident, refused to allow the police to enter during a reported domestic dispute, resisted attempts to be restrained, or some combination thereof, the jury was unanimous in its ultimate conclusion that he obstructed legal process, even if the jurors disagreed on the means he used to effectuate that ultimate act. The district court’s jury instructions were not an abuse of discretion.

II.

Gherity next argues that the district court abused its discretion by admitting evidence of the details of the call from a daughter of Gherity’s girlfriend to police dispatch that led police officers to be present at Gherity’s home. The call “included information there was a history of domestic violence between [Gherity] and the female resident.” Defense counsel moved to exclude any reference to any history of domestic violence. The state explained that it would offer the evidence of the details of the dispatch call to show only “what the officers had in their mind” and “why they felt it was necessary to go in that apartment.” The district court concluded that because the evidence would not be offered for the truth of the matter asserted, it was “therefore not hearsay,” and the court admitted the evidence “as foundational evidence only,” assuring counsel that it would prepare a cautionary instruction for the jury. The district court further concluded that the probative value of the evidence outweighed its prejudicial effect, so the evidence was not inadmissible under Minn. R. Evid. 403. See Minn. R. Evid. 403 (providing that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).

Evidentiary rulings rest within the sound discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). An appellant challenging an evidentiary ruling must establish that the district court abused its discretion and that he was thereby prejudiced. Id.

Gherity asserts that because the caller did not personally observe anything in the apartment and was not available for cross-examination, the evidence of the history of domestic violence “was not relevant to anything” and was “pure prejudice” and therefore “forbidden under Minn. R. Evid. 404(a).” Gherity further argues that the evidence was prejudicial because the district court’s curative instruction was ineffective and because “the evidence was not overwhelming,” so the jury might “perhaps” have been swayed by the “hint that [he] was a repeat domestic assailant.”

Minn. R. Evid. 404(a) prohibits the admission of evidence of a person’s character “for the purpose of proving action in conformity therewith on a particular occasion.” Here, the evidence was not offered to prove any action by Gherity on the day of the incident, or even that there had in fact been a history of domestic violence, but rather to establish the effect that the dispatch call had on the police officers. Similarly, the evidence was not inadmissible under the hearsay rule, which Gherity invokes only indirectly on appeal, because it was not offered to prove the truth of the matter asserted (i.e., that there had been a history of domestic violence). Minn. R. Evid. 801(c). Defense counsel conceded as much at trial.

In an attempt to establish that admission of the evidence was error, Gherity cites two cases, State v. Williams, 525 N.W.2d 538 (Minn. 1994), and State v. Ford, 322 N.W.2d 611 (Minn. 1982), to argue that the evidence admitted was more than was necessary to “explain the investigation.” But in both Williams and Ford, the district court had admitted, for the purpose of establishing the reason for a police investigation, the content of a tip advising police that the defendant would commit the crime for which the defendant was on trial. 525 N.W.2d at 544-45; 322 N.W.2d at 615. Here, the statement at issue related to Gherity’s history of domestic violence, and he was on trial for obstructing legal process, so the evidence of the tip did not “point[] directly to [Gherity’s] guilt of the crime” with which he was charged. See Ford, 322 N.W.2d at 615. Also, we note that, although the Ford court determined that admission of the content of the tip was error, it declined to reverse the conviction because it concluded that there had been no prejudice, in part because the district court gave a cautionary instruction to the jury. Id.

Here, as in Ford, the district court limited any potential prejudicial effect by giving a cautionary instruction in the form that defense counsel requested and by giving the instruction to the jury three separate times. Although Gherity asserts on appeal that the cautionary instruction could not cure the damage, he has not met his burden of showing that any error was prejudicial. See State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). We conclude that the district court’s admission of evidence of the details of the dispatch call was not an abuse of discretion.

III.

Gherity argues finally that the district court erred when it denied his motion for a mistrial after the prosecutor “commented on [Gherity’s] decision about testifying.” The exchange to which Gherity refers took place after the police officer, the state’s only witness, finished testifying. The district court asked in the jury’s presence, “Do either of you have any objection to my excusing the officer?” And the prosecutor replied, “I don’t know whether Mr. Gherity’s going to testify, and I’ve asked the officer to remain available for possible—.” The prosecutor explained later, after the jury had been dismissed, that he had been about to say that he asked the officer to remain available for possible rebuttal testimony. Defense counsel moved for a mistrial, and the district court denied the motion but offered to give a curative instruction, which defense counsel declined.

Gherity asserts that the comment was prosecutorial misconduct and that it prejudiced him because it compelled him to testify, which he would not have done otherwise. The state argues that the prosecutor’s comment was not misconduct because “it was neither directed at the jury nor did it reference the failure of [Gherity] to testify.” The state further argues that even if the comment was misconduct, it was harmless because the comment was brief and the evidence against Gherity was substantial.

In general, prosecutors “may not directly or indirectly comment on a defendant’s failure to testify.” State v. DeRosier, 695 N .W.2d 97, 107 (Minn. 2005). But references to a defendant’s failure to testify are prohibited only if they manifest a prosecutor’s intent to call attention to such a failure or if the jury would understand the references to be a comment on the defendant’s failure to testify. Id. Here, the prosecutor’s brief comment was to the district court in direct response to a question by the court regarding a logistical matter. Although ill-advised, it did not rise to the level of misconduct.

And even if we were to conclude that the prosecutor’s comment was misconduct, Gherity is not entitled to relief if the misconduct was harmless beyond a reasonable doubt, that is, if the jury’s verdict was “surely unattributable” to the misconduct. See State v. Dobbins, 725 N.W.2d 492, 507 (Minn. 2006). Although Gherity argues that the comment prejudiced him by compelling him to testify, he does not explain how his testimony was prejudicial or assert that the jury’s verdict was attributable in any way to the prosecutor’s comment or to Gherity’s resulting testimony. The district court did not commit reversible error by denying Gherity’s motion for a mistrial.

Affirmed.

[1] The record does not indicate what the original proposed jury instruction provided, but it is likely that the instruction asked the jury to specify an officer because defense counsel objected on the ground that the instruction as amended would allow the jury to convict without “agreement as to the actual facts of the case.”