This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-515

 

 

State of Minnesota,

Respondent,

 

vs.

 

Don Yoo Dong Kim,

Appellant.

 

 

Filed July 3, 2007

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 01046050

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN 55113-3724 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Don Yoo Dong Kim guilty of fifth-degree criminal sexual conduct for nonconsensual sexual contact with OOE.  In this appeal from conviction, Kim argues that the admission of a posed photograph of OOE in her work area and the prosecutor’s improper cross-examination of two character witnesses denied him a fair trial.  Because the unobjected-to admission of the photograph was not error, and the prosecutor’s cross-examination did not pose hypothetical questions that improperly assumed Kim’s guilt, we affirm. 

F A C T S

            Don Yoo Dong Kim and OOE were both at work in the Hennepin County Government Center at about 6:30 on the evening of January 21, 2005.  Kim, a law clerk, was in his office on the nineteenth floor of the building and OOE, a maintenance worker, was on the same floor cleaning a small, interior bathroom that was on a hallway adjacent to Kim’s office.  

            OOE testified that she had seen Kim sitting at his computer when she pushed her cleaning cart down the hallway to the interior bathroom.  She said that she placed her cleaning cart directly in front of the doorway to the bathroom and propped the door half open with a wooden doorstop.  She was cleaning the mirror when she heard someone in the doorway.  She turned around and saw Kim standing a short distance away from her. She asked him if he wanted to use the bathroom.  He said, “No,” but continued to talk to her, moved into the bathroom, and said, “I want to touch you.”  He then put his right hand on OOE’s left breast.  OOE pushed him away with her hands and said, “What’s going on,” and Kim left.  OOE stayed in the bathroom for a few seconds and, after making sure that Kim was not in the hallway, she grabbed her things and went to another floor of the government center.  After completing her cleaning assignments on the other floors, OOE reported the incident to her supervisor and told him that she did not want to go back to the nineteenth floor.  Her supervisor notified security.

            Kim testified that he had walked down to the interior bathroom about 6:30, had not seen a cleaning cart in the hallway, and did not know that someone was in the bathroom until he opened the closed door.  He said that both he and OOE were surprised, and she asked him if he wanted to use the bathroom.  He said, “Oh, I’m sorry, I didn’t realize,” and left the bathroom.  A short time later he went home. 

            Kim presented two character witnesses who each acknowledged that Kim had talked about the incident.  During the cross-examination of one of the witnesses, Kim’s attorney objected after the prosecutor asked several questions that were prefaced by the phrase, “did he tell you.”  At a conference outside the jury’s presence, the district court cautioned the prosecutor to frame his questions carefully but declined to strike the previous answers because the defense attorney had not objected to the questions.

            The state admitted several photographs as exhibits.  One of the photographs, taken several days after the incident, showed OOE positioned in the bathroom in the same way she had described where she was standing on the night of the incident—with her back to the door and her left side visible through the partially propped-open door.  Defense counsel initially objected to the admission of the photograph for lack of foundation, but after a brief voir dire of OOE, he withdrew his objection. 

            The jury returned a verdict of guilty on the fifth-degree criminal-sexual-conduct charge.  Kim appeals his conviction arguing that he was unfairly prejudiced by the admission of the posed photograph and that the state’s cross-examination of his character witness constituted prosecutorial misconduct that undermined the presumption of innocence. 

D E C I S I O N

I

The starting point for our analysis of Kim’s asserted evidentiary error is his failure to object to this alleged error at trial.  Although before trial defense counsel objected to the accuracy of the photograph and the foundation for its admission, he withdrew that objection at trial after he was permitted to voir dire OOE on the origins of the photograph.  Defense counsel also interposed a hearsay objection to a question of whether the police detective had asked OOE to stand in a specific place.  But he did not raise at trial the hearsay objection that he now asserts on appeal, and specifically stated that he did not object to the admission of the photograph. 

In general, the failure to object to the admission of evidence constitutes a waiver of the issue on appeal.  State v. Vick, 632 N.W.2d 676, 684 (Minn. 2001).  Under the plain-error doctrine, however, we will review error that is plain and affects the defendant’s substantial rights.  Id. at 685 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997).  An error is clear or obvious if it “contravenes case law, a rule, or a standard of conduct.”  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  If the plain-error standard is satisfied, we correct the error “only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.”  State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation omitted).

Kim argues that the admission and use of the photograph was error.  The decision to admit a photograph, as with all evidence, is committed to the broad discretion of the district court.  State v. Dame, 670 N.W.2d 261, 264 (Minn. 2003).  A photograph is admissible when it accurately portrays something that a witness may competently describe in words or when it is helpful as an aid to an oral description.  State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005); State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950).  If “a photograph is not misleading and is properly illustrative, the rule is liberally construed in favor of admission.”  Schulz, 691 N.W.2d at 478.  A posed photograph is admissible if it is a correct likeness of the scene, object, or person that it purports to depict.  See, e.g., Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 48 (1st Cir. 1991) (affirming admission of staged version of accident scene); Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1199 (4th Cir. 1982) (affirming admission of photographs depicting vehicles crashed in controlled-barrier test). 

On appeal Kim does not contest the accuracy of the photograph but argues that the photographic depiction of OOE in the physical surroundings of the actual incident amounted to hearsay.  He contends that the photograph was improperly introduced, in effect, as a prior consistent statement of OOE’s report to law enforcement.  And, as an extension of this argument, that it did not qualify as a hearsay exception because OOE’s credibility had not yet been challenged on cross-examination.  See State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004) (stating that witness’s credibility must be challenged before prior consistent statement can be admitted and statement must bolster witness’s credibility).  Kim has provided no authority for this newly raised argument, and the state submits that the only case addressing this theory has rejected it.  See People v. Bryant, 202 Ill. App. 3d 1057, 1065, 560 N.E.2d 955, 960 (1990) (rejecting defendant’s claim that posed photograph amounted to inadmissible prior consistent statement).  We do not agree that the photograph amounted to an improperly admitted prior consistent statement. 

The photograph was used as an illustrative exhibit that depicted a correct likeness of the bathroom where both Kim and OOE agree that the encounter took place.  OOE provided testimony identifying each aspect of the photographic image.  The picture portrays the physical surroundings that OOE described in her testimony and functioned as an illustrative aid to her oral description.  See State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999) (endorsing visual aid used for illustrative purposes).  Illustrative evidence is evidence that is used to illustrate or express a competent witness’s testimony.  Because the photograph was not misleading and was properly illustrative, the district court acted within its discretion by permitting it to be introduced into evidence.  We are able to discern no error, much less plain error, in the district court’s discretionary decision to admit the photograph. 

II

            Kim’s second alleged ground for a new trial is that the prosecutor’s improper cross-examination of his two character witnesses amounted to misconduct.  The overarching problem presented by prosecutorial misconduct is that it may deny the defendant’s right to a fair trial.  Ramey, 721 N.W.2d at 300.  We will reverse a conviction if prosecutorial error, “considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).  If the defendant objects to the prosecutorial misconduct, a new trial will be granted unless the misconduct was harmless beyond a reasonable doubt.  Francis v. State, 729 N.W.2d 584, 590 (Minn. 2007) (using harmless-error standard).  Prosecutorial misconduct is “harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”  Swanson, 707 N.W.2d at 658. 

            Kim argues that the state’s cross-examination of his character witnesses was improper because the prosecutor asked questions that implied Kim had committed the crime as charged.  The question that prompted Kim’s objection and that he primarily relies on for this appeal is:  “Did he tell you how he missed the cleaning cart?”  The prosecutor also asked, “Did he tell you anything about a cart being in front of that bathroom?” and “And did he tell you whether or not there was a cleaning cart in the hallway?”  Kim argues that these questions violated his right to be presumed innocent.

            As a basis for his argument Kim cites three federal cases:  United States v. Guzman, 167 F.3d 1350, 1352 (11th Cir. 1999); United States v. Mason, 993 F.2d 406, 408 (4th Cir. 1993); United States v. Barta, 888 F.2d 1220, 1224-25 (8th Cir. 1989).  These cases generally stand for the proposition that it is improper for the prosecutor to ask the witness hypothetical questions that assume the defendant’s guilt.  The prosecutor’s questions were not hypothetical, therefore this rationale does not apply. 

            One of the cited cases, Barta, indicates that asking character witnesses if they “possessed familiarity with the facts underlying the present charges” is improper because this type of question presumes the defendant’s guilt.  888 F.3d at 1225.  Although this question is more comparable to the questions that Kim challenges in this appeal, any argument by analogy is overcome by the factual circumstances.           In Barta, the prosecutor was cross-examining witnesses who were testifying to the defendant’s “community reputation for truth and veracity.”  Id.  Kim’s witnesses, on the other hand, were testifying to their personal opinions.  A prosecutor may inquire “into relevant specific instances of conduct” when examining a character witness.  Minn. R. Evid. 405(a); Francis, 729 N.W.2d at 590.  The purpose of allowing the inquiry is to test the witness’s knowledge and credibility.  Id. 

            In addition, both witnesses testified that Kim had discussed the case with them, thus they were properly treated not only as character witnesses but also as fact witnesses.  Because the witnesses acted as fact witnesses, the prosecutor could ask them about Kim’s statements relating to the cart to try to establish the cart’s actual location.  The witnesses both answered in the negative to the questions of whether Kim had told them specific details about the case.

            The prosecutor’s questions about Kim’s statements to the witnesses were narrow and specific.  The questions did not pose hypothetical situations that presupposed Kim’s guilt.  Rather, the questions pertained to relevant instances of Kim’s conduct at the time of the incident, i.e., what he did and what he heard and observed.  In addition to eliciting factual information, this line of questioning could arguably provide the jury a basis to assess whether the witnesses’ lack of knowledge about the case might have an impact on the witnesses’ opinion testimony that Kim would not have committed the charged act.  The prosecutor’s questions were proper to test the witnesses’ knowledge of Kim and the credibility of their assertions about his character.  See id. (stating that inquiry is allowed to test witnesses’ knowledge and credibility).

            We conclude that Kim has failed to show that any prosecutorial misconduct occurred in the cross-examination of his character witnesses because they were also fact witnesses, the questions were not hypothetical, and the questions did not presume that Kim was guilty of the charged crime.

            Affirmed.