This opinion will be unpublished and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

A06-555

 

State of Minnesota,

Respondent,

 

vs.

 

Mark A. Cox,

Appellant.

 

Filed July 17, 2007

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 05018105

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

                 Appellant challenges the district court’s aggravated durational departure from the presumptive sentence, arguing that it was improper for the court to use a jury to determine whether aggravating factors existed to justify an upward departure and that this also violated the prohibition against ex post facto laws.  He also alleges that evidence of the victim’s miscarriage was unduly prejudicial, that the prosecutor committed misconduct by vouching for the victim’s credibility during the closing arguments, and that the instructions given to the jury on the aggravating factors were inapposite and confusing when juxtaposed with instructions given for the crime itself.  Because the evidence was relevant to establish an element of the crime and was not unduly prejudicial, because the prosecutor referred to the witness testimony and did not express a personal opinion as to credibility, and because Cox misconstrues the overall clarity of the jury instructions by taking a single statement out of context, we affirm.

FACTS

            In 2005, Minneapolis police officers responded to a call in north Minneapolis.  When they arrived at the scene and entered an apartment, they observed A.R., who was eight weeks pregnant.  A.R. was crying and had a swollen and disfigured arm.  She told officers that appellant Mark Cox, the father of her young son, was visiting the boy when she and Cox began arguing.  While he held his son, Cox slapped A.R. and pushed her down the stairs.  Cox put down his son, followed A.R. down the stairs, and kicked and punched her in her face and upper body area, including the stomach, telling her that he was trying to kill the baby.  Cox then picked up a shovel and hit A.R. on her head, face, and arms.  One of A.R.’s brothers told police that he saw Cox kick his sister and hit her with a snow shovel and that he grabbed a baseball bat and hit Cox twice with it.      

            A.R. was taken to the hospital, where an ultrasound was performed.  No fetal motion or heartbeat could be identified, and two days after the assault, A.R. was admitted to the hospital after a miscarriage. 

            Cox was arrested and charged with one count of first-degree assault and one count of second-degree assault.  At trial in October of 2005, A.R. testified consistently with her statements to the police that Cox had threatened to kill her baby, kicked her in the stomach, and repeatedly hit her with a snow shovel.  She stated that she had a bruised face, cuts, swelling on her arms, a bruised stomach, and that shortly after the attack, she had a miscarriage. 

            A.R.’s mother also witnessed part of the attack and testified that she heard her daughter scream and that she saw Cox hit A.R. with a snow shovel, even though she did not report this to the police. 

            The jury returned a verdict of guilty of the second-degree-assault charge.  The district court also presented the same jury with a special-verdict form to determine whether aggravating factors could be applied to Cox’s crime.  The jury found two aggravating factors:  (1) the assault occurred within A.R.’s zone of privacy, and (2) a child was present during the assault.  

            At sentencing, the district court assigned one criminal-history point for each of the jury’s sentencing findings and imposed a 33-month executed term, an upward departure from the 21-month guideline sentence.  This appeal followed.

D E C I S I O N

Ex Post Facto Violation

 

Cox asserts that applying the revised version of Minn. Stat. § 244.10, subd. 5 (Supp. 2005), violated his rights under the United States and Minnesota constitutions because the statute “retroactively increases the quantum of punishment associated with his conviction offense.”  He alleges that, since on the date of his offense, before the enactment of the statutory amendments, Minnesota guidelines authority did not satisfy Blakely constitutional requirements, the maximum sentence Cox was subject to was a presumptive guidelines term.  We disagree. 

             “To fall within the ex post facto prohibition, a law must be . . . [1] retrospective—that is, it must apply to events occurring before its enactment—and [2] it must disadvantage the offender affected by it.”  Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 896 (1997) (quotations omitted). 

            In Hankerson v. State, the Minnesota Supreme Court addressed the same argument Cox makes, first determining that the 2005 amendments are retrospective, but noting that they are not

prohibited as ex post facto laws because they do not work to [a defendant’s] disadvantage.  It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.  The 2005 sentencing amendments inure to [a defendant’s] advantage because they afford [him] a new sentencing hearing where the quantum of the proof will be higher.  They vindicate, not violate, [a defendant’s] constitutional rights.

 

723 N.W.2d 232, 242 (Minn. 2006) (quotation and citation omitted).

 

            Although Cox argues that, unlike the defendant in Hankerson, his charged offense date was post-Blakely, and that on March 16, 2005, the date of the offense, no legal authority existed to put him on notice of an enhanced penalty,the jury determination posed no more onerous a sentence than authorized previously when the statute allowed for a judicial finding of aggravating sentencing factors.  Therefore, we hold that there was no violation of the prohibition against ex post facto laws.  

Inherent Authority

Cox also argues that, absent constitutionally sound authority to hold a unitary trial on guilt and sentencing, the district court lacked the authority to hold any form of a trial respecting sentencing.  Cox filed his brief before the Minnesota Supreme Court’s decision in State v. Chauvin, a case addressing the issue of judicial authority and sentencing juries in the aftermath of Blakely but prior to legislative changes.  723 N.W.2d 20, 20 (Minn. 2006).  In Chauvin, the district courtsubmitted to the same jury that had convicted Chauvin the question of whether the aggravating factor of victim vulnerability, as defined in the Minnesota Sentencing Guidelines, was present.  Id.at 23.  This sentencing-related finding of fact was made by the jury after Blakely but before the legislature amended the unconstitutional judicial-fact-finding provisions in the sentencing guidelines to comply with Blakely, and before it enacted legislation authorizing the use of sentencing juries.  Id. at 23-24. 

The Chauvin court held that the district court not only possessed the inherent judicial authority to impanel a sentencing jury to make findings regarding the aggravating factor of victim vulnerability, id., but also exercised that authority properly in that the district court’s actions were consistent with subsequent legislative enactments such as Minn. Stat. § 244.10 (2004 & Supp. 2005) (authorizing use of sentencing juries for resentencing hearings), id. at 29.  In State v. Kendell, the supreme court applied the Chauvin holding to a case in which the district court, based on special interrogatories submitted to the jury, imposed a departure under the dangerous-offender statute.  723 N.W.2d 597, 610 (Minn. 2006).  Therefore, the district court possessed and properly exercised its inherent judicial authority to submit to the jury questions as to alleged aggravating factors for sentencing purposes.

In his reply brief, Cox argues that Chauvin does not apply here because that case was decided on a narrow set of facts and is relevant only to pre-Blakely offenses.  We reject Cox’s contention and hold that Chauvin acknowledges the court’s inherent authority to employ a jury for sentencing-factor determinations, and we note that such authority was particularly applicable during the interim between the Blakely decision and the enactment of legislation to address the issue of sentencing departures.

Sentencing Enhancement Factors

 

            At the trial, the district court presented as aggravating factors three inquiries to the jury:

(1)       Was the assault committed within the victim’s zone of    privacy?

 

(2)       Was the assault committed with particular cruelty?

 

(3)       Was there a child (infant) present in the immediate          area?

 

            The jury found, through answers to special interrogatories, that Cox committed his crimes within A.R.’s zone of privacy and in the presence of a child.  The jury declined to find that Cox’s crimes were committed with particular cruelty.

            Cox argues that aggravating factors for sentencing departures are substantive in nature and can be created only by the legislature.  Since there is no statute authorizing departure based on the presence-of-a-child factor, he argues that the court violated the separation-of-powers doctrine by submitting it to the jury.

            Cox’s argument fails for several reasons.  First, in United States v. Booker, the Supreme Court specified that sentencing factors are not elements of the underlying criminal offense and that the Blakely analysis was concerned with “only the required procedures for finding the facts that determine the maximum permissible punishment,” thereby rejecting the government’s argument that requiring sentencing factors to be found by a jury would constitute an impermissible usurpation of legislative authority under the separation-of-powers doctrine.  United States v. Booker, 543 U.S. 220, 242, 125 S. Ct. 738, 755 (2005) (quotation omitted). 

            Next, the Minnesota Sentencing Guidelines provide a “nonexclusive list of factors which may be used as reasons for departure” from the presumptive sentence.  Minn. Sent. Guidelines II.D.  Minn. Stat. § 244.10, subd. 4 (Supp. 2005), emphasizes that the “state is not limited to factors specified in the Sentencing Guidelines” when seeking an enhanced sentence.  The Minnesota legislature has not chosen to limit circumstances that may justify an upward departure, nor has it enumerated a list of exclusive sentencing-enhancement factors.  Rather, the legislature has allowed the Minnesota Sentencing Guidelines to provide for sentencing flexibility. 

            Finally, caselaw establishes that the presence of a child during the commission of an offense is considered a substantial and compelling basis for departure.  See State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (holding that “committing the offense in front of the children was a particularly outrageous act and that while the children maybe were not technically victims of the crime, they were victims in another sense,” and that therefore an upward departure was justified).  Here, A.R.’s one-year-old son witnessed his father severely beating his mother with his hands, fists, and a shovel, while screaming out threats and obscenities.  Cox argues that substantial and compelling circumstances would require a finding that the child incurred psychological harm.  But the nature of the assault, occurring as it did between his mother and father, as well as the proximity of the boy, and the fact that it took place in A.R.’s zone of privacy justifies an upward departure. 

Miscarriage Evidence

 

Cox next argues that the district court permitted irrelevant and overly prejudicial argument and testimony on the loss of the victim’s fetus.  On appeal, the appellant bears the burden of establishing an abuse of discretion as well as prejudice.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Absent an erroneous interpretation of the law, the question of whether to admit evidence is within a district court’s broad discretion.  Id. Evidentiary rulings regarding “materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence” will not be reversed absent a clear abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  A defendant claiming an evidentiary error must establish prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58,64 (Minn. 1981).  An error is prejudicial only if 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). 

Cox objected to A.R.’s testimony that he had threatened to kill her unborn baby, kicked her in the abdomen, and that she suffered a miscarriage immediately following the attack.  Cox also moved for a mistrial, but the district court denied his motion, concluding that evidence of the victim’s miscarriage was relevant to establishing whether the shovel used in the attack was a dangerous weapon.  Cox now argues that the evidence was irrelevant and too prejudicial in relation to its probative value.  We disagree. 

            Relevant evidence is evidence that makes the “existence of any fact that is of consequence to the determination of the action more probable or less probable . . . .”  Minn. R. Evid. 401.  Relevant evidence is inadmissible when its probative value is outweighed by the danger of unfair prejudice or confusion of the issues.  Minn. R. Evid. 403. 

            Although the record indicates that the parties believed that causation could not be established because of a lack of medically certain evidence that the attack directly caused the miscarriage, the miscarriage was relevant to establish the extent of the attack.  Cox told A.R. that he wanted to kill her baby and directed his blows towards her abdomen, which supports the determination that a shovel, when used in this context, is a dangerous weapon.  Although there was no proof to a reasonable medical certainty that the miscarriage directly resulted from the assault, the nature and direction of the blows, as well as the proximity in time of the miscarriage, supports a permissible and reasonable inference that A.R. lost the baby as the result of the attack.  The evidence was relevant to an element of the charged crime, which requires the use of dangerous weapon, and its probative value in showing the severity of the crime was not substantially outweighed by its potential for unfair prejudice.

Prosecutorial Misconduct

            Cox alleges that statements made by the prosecutor were unfairly prejudicial, that the prosecutor violated the “personal opinion” prohibition, and that justice requires reversal of his conviction.  During closing argument, the prosecutor stated that “[A.R.] has been consistent throughout the whole ordeal.  She has been truthful.  She is believable and she is a credible witness.”  Cox failed to object to the argument, and, generally, where a defendant fails to object to closing remarks, the issue is waived.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). 

            However, when the defendant has failed to object to alleged prosecutorial misconduct, we review the claim for plain error.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  To establish plain error, an appellant must show that there was “(1) error; (2) that was plain; and (3) that affected substantial rights.” In re Welfare of D.D.R., 713 N.W.2d 891, 899 (Minn. App. 2006) (quotation omitted).  An appellate court may grant relief only if these three elements are met and “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005) (alteration in original) (quotation omitted). Under Ramey, a defendant is still required to show that the alleged unobjected-to misconduct was plain and that it was error, but the burden of showing whether the error affected the defendant’s substantial rights is shifted to the prosecution. 721 N.W.2d at 299-300. 

            Cox argues that the prosecutor’s remarks amounted to an improper comment on A.R.’s credibility and character.  We disagree.  Misconduct occurs “‘when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.’”  State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quoting United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996)).  But it is not misconduct for the state to analyze the evidence and argue that particular witnesses were or were not credible.  State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003).  This is what the prosecutor did here.  As in Lopez-Rios, the prosecutor analyzed the evidence and referred only to the evidence and proper inferences to be drawn to argue that A.R. was a credible witness, without expressing a personal opinion as to credibility.  Therefore, Cox has failed to establish error respecting this aspect of the closing argument.

Jury Instructions

            Finally, Cox argues that the jury instructions were confusing and that the district court erroneously instructed the jury to determine the enhancement factors before determining guilt.  Cox did not object to the instructions at trial, but argues that his objection to the unitary trial as a whole suffices to preserve the alleged error on review.  Alternatively, he asks that this court find that the district court plainly erred by giving the inapposite and confusing instructions.  Since an objection to the unitary trial was too general to constitute a specific objection against jury instructions, we review the instructions for plain error.  Jury instructions will be affirmed as long as, when read as a whole, they do not mislead or confuse the jury on a fundamental point of law.  State v. Gutierrez, 667 N.W.2d 426, 434 (Minn. 2003). 

            Cox takes the instructions out of context, arguing that the district court first instructed the jury that “[t]he order in which the instructions are given is of no significance” but then later instructed the jury that they should decide the sentencing factors only if it first reached a guilty verdict on the assault charge.  

            However, the court specifically divided the instructions into two parts, informing the jury about the general guidelines that should be used in determining guilt for the charged crime before instructing the jury about the sentencing factors.  The court specified that the sentencing enhancement factors were an “additional task” and that the jury would be given a special-verdict form only if the jury “find[s] Mr. Cox guilty of the underlying charge.  If you find Mr. Cox not guilty, then you should leave the special verdict form blank and simply return it along with the other verdict forms.”  Since Cox takes the “order is not significant” statement out of context and misconstrues the jury instructions given by the court, he fails to show that the instructions were unduly misleading, and we do not find error in the jury charge.   

            Affirmed.