A06-1040

State of Minnesota,

Respondent,

vs.

Brian J. Bloom,

Appellant.

Filed September 11, 2007

Affirmed

Hudson, Judge

Hubbard County District Court

File No. K2-04-572

Lori Swanson, Attorney General, Rita Coyle DeMeules, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Donovan D. Dearstyne, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Street, Park Rapids, Minnesota 56470 (for respondent)

John Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

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

HUDSON, Judge

On appeal from his conviction of second-degree assault with a dangerous weapon, appellant Brian Jon Bloom argues that the district court abused its discretion by denying his motion for a mistrial, despite the fact that the victim testified that she was afraid of Bloom because of “previous incidents” and that she had “bailed [Bloom] out many times.” Bloom also argues that the evidence is insufficient to support the jury’s determination that the folding knife used in the assault was either designed as a weapon or used with the intent to cause fear of death or immediate bodily harm. Because we conclude that the district court did not abuse its discretion by denying Bloom’s motion for a mistrial and that the evidence is sufficient to support the jury’s verdicts, we affirm.

FACTS

In July 2004, the state charged appellant Brian Jon Bloom with second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2002). A jury found Bloom guilty of second-degree assault and of the lesser-included offense of fifth-degree assault. The district court imposed the presumptive sentence for the second-degree assault conviction.

At trial, K.E., Bloom’s girlfriend and the mother of his infant child, testified that after a night of drinking, she and Bloom argued after K.E. indicated that she wanted to go home instead of going to Bloom’s sister’s house. K.E. stated that when they arrived at Bloom’s sister’s house, Bloom called K.E. a bitch, made her pick up his sweatshirt, and began “palming” her in the back of the head. K.E. asked Bloom’s mother for a ride home and went to the car with her infant child and with her older child from a different relationship. Bloom followed her, continuing to hit her in the back of the head.

K.E. testified that when she reached the car, she put the older child in the back seat and sat in the front passenger seat with the baby on her lap. She indicated that Bloom stood next to her with the car door open and began stabbing the front passenger seat with a silver knife that looked like a “switchblade.” K.E. testified that she saw Bloom slice the seat twice with the knife and estimated that the blade was as much as six inches long.

K.E. stated that after Bloom’s sister pulled Bloom away from the car and K.E. was able to close the door, Bloom started punching and kicking the car window, yelling at K.E. to give him their infant child. Fearing that Bloom might break the glass and injure the baby, K.E. gave Bloom the child.

Bloom’s sister then drove K.E. to the police station, where K.E. reported the assault and gave a statement. Officer Carrie Parks, who took K.E.’s statement, testified that K.E. was crying and shaking when she reported that Bloom had physically assaulted her while holding a knife. Parks testified that K.E. was frightened rather than angry. Based on K.E.’s report, the police arrested appellant. During a search incident to the arrest, the police discovered a knife.

On direct examination, K.E. stated that she reported the assault because she was “afraid for [her] life and [her] child’s life.” When the prosecutor asked her why she was afraid of Bloom, she responded, “Because of the previous incidents that happened before that day.” Bloom’s counsel objected, and the district court struck the statement from the record and instructed the jury to disregard it.

During cross-examination, while attempting to show that K.E. had bailed Bloom out after he was incarcerated for the present assault, Bloom’s counsel asked K.E. if she had given a bondsman money to bail Bloom out. K.E. responded, “Not that I know of. I’ve bailed Brian out many times.” Bloom’s counsel objected, and there was an unrecorded conference at the bench. Counsel then continued his cross-examination.

In late August 2004, K.E. recanted her original statement and asked the prosecutor to drop the charges against Bloom. Prior to contacting the prosecutor, K.E. had gone to Bloom’s lawyer and told him that she was angry when she reported the incident to the police and that the knife blade was not exposed. Subsequently, she went to the police and made a similar report.

At the beginning of trial, the district court ruled that it would not allow the state to introduce evidence of prior bad acts. At the conclusion of the evidence, Bloom’s counsel moved for a mistrial based on K.E.’s reference to “previous incidents” and her implicit reference to Bloom’s prior incarcerations. The district court denied the motion, reasoning that it had instructed the jury to disregard the reference to “previous incidents” and that K.E.’s statement that she had bailed Bloom out many times was made in response to Bloom’s counsel’s question. The district court then instructed the jury on second- and fifth-degree assault. The jury found Bloom guilty of both offenses, and the court imposed the presumptive sentence for second-degree assault. This appeal from the judgment of conviction follows.

D E C I S I O N

Bloom first argues that the district court abused its discretion by denying his motion for a mistrial, claiming that K.E.’s reference to “previous incidents” and her statement that she had “bailed [Bloom] out many times” were highly prejudicial under the circumstances and warranted a mistrial. We disagree.

Evidence of prior bad acts is inadmissible to prove that a defendant acted in accordance with past behavior. Minn. R. Evid. 404(b). Brief, inadvertent references to prior bad acts constitute harmless error, however, when the references lack detail, “present only an imprecise suggestion of any prior bad acts,” are struck from the record, followed by a cautionary instruction, and not mentioned again. State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002) (holding that admission of statements alluding to defendant’s involvement in prior murder was not error, when statements were brief, lacked detail, only vaguely referred to prior murder, and were followed by cautionary instructions). When evidence of a defendant’s guilt is overwhelming, references of a “passing nature, the import of which might have been missed by the jury,” are also harmless error. State v. Hagland, 267 N.W.2d 503, 506 (Minn. 1978).

Reviewing courts are more likely to reverse a conviction when the prosecutor intentionally elicits evidence of prior bad acts, knowing that the evidence is inadmissible. State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974). When the evidence is not elicited intentionally, this court will reverse only if the evidence is prejudicial. Id. The admission of inadvertent references to prior bad acts is prejudicial and warrants a mistrial only when there is a reasonable probability that the outcome of the trial would have been different had the references not been made. Id.; see also State v. Asfeld,662 N.W.2d 534, 544 (Minn. 2003) (stating that mistrial is warranted only when there is reasonable possibility that wrongfully admitted statement significantly affected the verdict). The denial of a mistrial motion is subject to an abuse-of-discretion standard of review. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).

The allowance of K.E.’s reference to “previous incidents” and her implicit reference to Bloom’s prior incarcerations constituted error. But the error was not sufficiently prejudicial to justify a mistrial. First, like the statements in Budreau, which alluded to the defendant’s involvement in a previous murder, the challenged statements in this case were brief, lacked detail, were not repeated or highlighted, and only vaguely suggested previous assaults or incarcerations. Additionally, K.E.’s statement regarding “previous incidents” was ambiguous, was struck from the record, and was followed by a cautionary instruction. See State v. Carlson, 264 N.W.2d 639, 642 (Minn. 1978) (giving of cautionary instructions is significant factor favoring the denial of a motion for a mistrial). The record in this case contains no indication that the jury failed to follow the court’s instruction or that it otherwise considered the evidence. See Budreau, 641 N.W.2d at 926 (considering whether record indicated that jury failed to follow instructions, in determining if evidence of prior bad act warranted mistrial).

Second, the statements were elicited unintentionally, in response to questions triggered by K.E.’s testimony. Although the prosecutor knew that there were other incidents of assault and that evidence of those incidents was inadmissible, nothing in the record suggests that the prosecutor intended to elicit that evidence. The prosecutor asked a broad question (“Why were you afraid of [the defendant]?”), the answer to which did not necessarily require a reference to previous assaults. K.E. could just as likely have responded that she was afraid of Bloom because he was very agitated at the time of the assault, had a knife, sliced the passenger front seat, and could easily have injured the baby, who was sitting on K.E.’s lap. Because nothing in the record suggests that the prosecutor intended to elicit evidence of previous assaults, this court may not assume that the statements were elicited intentionally. See State v. Holbrook, 305 Minn. 554, 558, 233 N.W.2d 892, 895 (1975) (stating that in absence of record establishing that elicitation of evidence was intentional, reviewing court “cannot presume that the elicitation was intentional”). Because the evidence of Bloom’s guilt is strong, there is no reasonable probability that K.E.’s statements played a significant role in persuading the jury to convict.

Relying on State v. Caldwell, 322 N.W.2d 574, 590–91 (Minn. 1982), Bloom argues that the district court’s cautionary instruction was futile. In Caldwell, the Minnesota Supreme Court noted that in cases where “the impact of [a] prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not properly a part of the case,” the assumption that the prejudicial effect of the remark can be overcome by a curative instruction is “naïve.” Id. (quotation omitted). But the Caldwellcourt recognized that in other cases, the supreme court has indicated that “the giving of cautionary instructions by the trial court is a significant factor favoring the denial of a motion for a mistrial.” Id. at 590. Moreover, after Caldwell, the supreme court indicated that jurors are presumed to follow curative instructions. Budreau, 641 N.W.2d at 926.

The statements in this case did not “impart to the minds of the jury substantial prejudicial evidence not properly a part of the case,” and the record contains no evidence that the jury disregarded the court’s instructions. The district court’s cautionary instruction, therefore, supports the denial of Bloom’s mistrial motion. See State v. Bergland, 290 Minn. 249, 254, 187 N.W.2d 622, 626 (1971) (recognizing that “[a]s a general rule, any error which may occur by reason of the erroneous admission of evidence is cured when that evidence is stricken from the record and accompanied by a clear instruction to disregard so that the evidence is not put to use by the jury”).

Bloom next argues that the evidence is insufficient to prove beyond a reasonable doubt that he committed the assault with a dangerous weapon. We disagree.

Our review of a sufficiency-of-evidence claim is limited to ascertaining whether, given the evidence in the record and the legitimate inferences that may be drawn from that evidence, a fact-finder could reasonably find the defendant guilty of the charged offense. Asfeld, 662 N.W.2d at 544. We view the evidence in the light most favorable to the verdict and assume that the jury believed the state’s evidence and disbelieved any contrary evidence. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). We also resolve all inconsistencies in favor of the state. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990). We will uphold the verdict if, “giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt,” the jury could reasonably have found the defendant guilty. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).

The state charged Bloom with second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2002). The relevant statute defines assault as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10 (2002). And it defines a dangerous weapon as “any device designed as a weapon and capable of producing death or great bodily harm, . . . or [any] other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” Id., subd. 6 (2002).

Relying on In re Welfare of P.W.F., 625 N.W.2d 152, 153 (Minn. App. 2001), Bloom first argues that the state failed to prove beyond a reasonable doubt that his folding knife was designed as a weapon. Specifically, Bloom claims that a folding knife has many uses and that the state did not establish beyond a reasonable doubt that the knife was designed for use as a dangerous weapon. But in P.W.F., the folding knife was only three inches long and there was no claim that the defendant used or intended to use the knife to cause death or bodily harm. Id. (stating that defendant left knife in locker during the day until he turned it over to a friend to hold). Here, by contrast, the knife was as much as six inches long, and the manner in which Bloom wielded the knife and stabbed the front passenger seat supports the jury’s determination that the knife was a dangerous weapon. Most important, the knife was admitted into evidence without objection, and the jury was able to make its own determination as to whether it was a dangerous weapon.

Bloom next argues that because the state’s own evidence suggests that the knife blade was not exposed during the assault, the evidence does not support the jury’s determination that he used the knife as a dangerous weapon. But a conviction may rest on the testimony of a single credible witness. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). K.E. testified that the knife’s blade was exposed and that Bloom made two tears in the front passenger seat with the knife. And, although corroboration of a victim’s testimony is not required, K.E.’s testimony was consistent with the statement she gave to the police immediately after the assault and with Officer Parks’s testimony that K.E. was visibly shaken when she reported the assault. See State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990)(victim’s demeanor after assault corroborated her testimony), review denied (Minn. Mar. 16, 1990); State v. Foreman, 680 N.W.2d 536, 538–39 (Minn. 2004)(rejecting argument that corroboration of victim’s testimony is required when victim recants allegations against defendant). If credible, therefore, K.E.’s testimony was sufficient to support the verdict.

Bloom argues that K.E.’s testimony is not credible, claiming that it is inconsistent with Bloom’s sister’s testimony. Bloom’s sister testified that she did not see a knife in Bloom’s hand, but she acknowledged that in an earlier statement to the police she indicated that Bloom had something in his hand when he punched the seat. She also told the police that any marks on the car seat were burn holes rather than slices, and that if Bloom had a knife, the blade was not exposed.

Assessing the credibility of witnesses is exclusively the jury’s function, however, State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000), and this court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. McDonough, 631 N.W.2d 373, 390 (Minn. 2001). Moreover, conflicts in the evidence are insufficient to undermine the jury’s verdict, where the evidence is sufficient to support the verdict. State v. Buchmann, 380 N.W.2d 879, 882 (Minn. App. 1986) (noting that evidence was sufficient to support defendant’s conviction of assault even though testimony was conflicting on whether knife blade was exposed).

Bloom also argues that K.E.’s testimony is unreliable because she recanted her initial statement that the knife blade was exposed. But it is well established that it is for the trier of fact to determine whether a recantation is more credible than the witness’s original statement. In re Welfare of R.B., 369 N.W.2d 353, 358 (Minn. App. 1985). And it is generally known that victims of domestic abuse commonly recant their testimony to protect the assailant. See Foreman, 680 N.W.2d at 538 (summarizing expert testimony that recantation by victims of domestic abuse is common). Here, the reasons for the victim’s changing stories were disclosed to the jury, and it was the jury’s role to determine which story was credible. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (stating that issues regarding credibility of witnesses and weight of evidence are for the fact-finder to decide). Thus, the district court did not abuse its discretion by denying Bloom’s motion for a mistrial.

Affirmed.