State of Minnesota, Respondent, vs. John J. Kotowski, Appellant. C6-98-1494, Court of Appeals Unpublished, May 4, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-1494

State of Minnesota,

Respondent,

vs.

John J. Kotowski,

Appellant.

Filed May 4, 1999

Affirmed

Short, Judge

Dakota County District Court

File No. K4972352

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Michael F. Cromett, Assistant State Public Defender, McMahon & Cromett, 2499 Rice Street, Suite 260, Roseville, MN 55113 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

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

SHORT, Judge

A jury convicted John J. Kotowski of two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c), (e)(i) (1996), and one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (1996). On appeal, Kotowski argues the trial court erroneously: (1) refused to suppress evidence obtained pursuant to a warrant executed at nighttime; (2) admitted irrelevant, prejudicial statements Kotowski allegedly made to a witness while precluding cross-examination of that witness on bias; and (3) deprived Kotowski of a fair trial by committing four errors. We affirm.

D E C I S I O N

Generally, search warrants may only be executed between the hours of 7:00 a.m. and 8:00 p.m. Minn. Stat. § 626.14 (1996). However, a nighttime search may be authorized to "prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public." Id. But the state must make a sufficient showing to justify inclusion of a nighttime search clause. See, e.g., State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978) (holding police did not make sufficient showing to justify inclusion of nighttime search clause).

Kotowski argues the information presented in the application for the search warrant was insufficient to make the nighttime execution reasonable under the state and federal constitutions. See U.S. Const. amend IV; Minn. Const. art. I, § 10. (prohibiting unreasonable searches and seizures). We disagree. The record demonstrates: (1) the affidavit detailed the sexual assault and specified numerous items of evidence that could be easily moved or destroyed; (2) although Kotowski was in custody at the time the search was executed, two other people had access to the evidence; and (3) due to the victim's delay in reporting, 24 hours had elapsed between the sexual assault and the search. These circumstances justify inclusion of a nighttime search clause. See State v. Ailport, 412 N.W.2d 35, 38 (Minn. App. 1987) (holding deputy's affidavit contained requisite showing to justify no-knock, nighttime entry), review denied (Minn. Nov. 18, 1987).

II.

Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion that results in prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). Evidence that a defendant committed a prior crime or misconduct is inadmissible to show character as a basis for an inference that the defendant acted in conformity with that trait on a particular occasion. Minn. R. Evid. 404. Such evidence is admissible to establish motive, intent, or the existence of a common plan or scheme. Minn. R. Evid. 404(b); State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977). But even when offered for a proper purpose, evidence of a prior crime is admissible at trial only if the Spreigl requirements are met. See State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (requiring notice, disclosure of evidence, relevance, clear and convincing evidence defendant participated in other offense, and probative value outweighing prejudice).

Kotowski argues the trial court erred by admitting testimony from Christian Knappe in violation of State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1967), and precluding cross-examination for bias in violation of Minn. R. Evid. 616. But the record shows: (1) Knappe's limited testimony involved statements made by Kotowski, but excluded any reference to Kotowski's prior acts; (2) the testimony was admitted to show intent, plan, and design under Minn. R. Evid. 404(b); (3) the testimony was limited to information consistent with the victim's account of the attack; (4) the trial court analyzed the evidence under Minn. R. Evid. 403; and (5) Kotowski's offer of proof regarding a burglary was vague and unsubstantiated. Under these circumstances, the trial court did not abuse its discretion by admitting limited testimony from Christian Knappe.

III.

Kotowski also argues the cumulative effect of four errors made during trial warrants reversal. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (holding cumulative effect of errors compelled reversal). We disagree. First, the trial court did not abuse its discretion when it permitted the prosecution a brief rebuttal to address factual misstatements by defense counsel. See Minn. R. Crim. P. 26.03, subd. 11(j) (stating trial court may allow state to make rebuttal if court determines defense made misstatement of law or fact); State v. Nielsen, 467 N.W.2d 615, 619 (Minn. 1991) (holding permission to rebut was appropriate, and rebuttal was properly limited to short and direct response to misstatement). Second, Kotowski was in the courtroom when his counsel consented to allow the jurors to separate over the weekend, and there is no allegation of resulting prejudice from the trial court's failure to sequester. See Minn. R. Crim. P. 26.03, subd. 5(1) (stating trial court may allow jurors to separate overnight with defendant's consent). Third, the jury instructions as a whole did not give the impression that Kotowski had a duty to present evidence. See State v. Schmieg, 322 N.W.2d 759, 760 (Minn. 1982) (holding court will not reverse where jury instructions as a whole did not give impression that defendant had duty to present evidence). And fourth, Kotowski does not claim the judge's off-the-record conversations with the jury while they were deliberating were prejudicial. See State v. Danforth, 573 N.W.2d 369, 373 (Minn. App. 1997) (citing State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994)) (holding new trial is warranted only where judicial misconduct is prejudicial), review denied (Minn. Feb. 19, 1998). Under these circumstances, a new trial is not warranted based on judicial misconduct.

After a careful review of the record, we conclude the additional issues raised in the pro se supplemental brief are without legal or factual support and there are no grounds for a new trial.

Affirmed.