State of Minnesota, Respondent, vs. Bernard Ray Vinson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Bernard Ray Vinson,
Appellant.

Affirmed

Ramsey County District Court

File No. KX984068

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

CRIPPEN, Judge

            Appellant asserts that he is entitled to a new trial because the prosecution failed to disclose testimony given by a robbery victim.  Because the record shows no trial court error in determining that the prosecutor's failure did not substantially affect appellant's defense, we affirm.

            Appellant was convicted and sentenced for aggravated robbery in the first degree.  The victim was hit from behind and rendered unconscious; he later determined that $8-$9 had been taken from his wallet.

            The prosecuting attorney has an obligation to "provide defense counsel with the substance of any oral statements which relate to the case."  Minn. R. Crim. P. 9.01, subd. 1(2).  The judicial response to violation of discovery rules is "particularly suited to the judgment and discretion of the trial court."  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citation omitted).  The trial court is to consider, among pertinent factors, the extent of prejudice created by the violation.  Id.

            Appellant's defense at trial was that he was at his sister's house the whole day and night that the robbery occurred.  The victim testified for the state that he had seen appellant at a bar the night of the robbery.  Although the defense attorney did not object to this testimony as it was given, nor did she cross-examine the victim about this testimony, she did object to the testimony later, and made a motion to dismiss, claiming that there had been no disclosure of this testimony as required by Minn. R. Crim. P. 9.01, subd. 1(2).  The prosecutor acknowledged that he had learned of this testimony earlier and had not disclosed it.

The trial court agreed that it was error for the prosecution to have elicited this testimony without first disclosing the statement to the defense.  But the trial court found the error would be corrected with a curative jury instruction ordering the jury to disregard portions of the victim's testimony on his sighting of appellant in the bar the night of the robbery.

In the circumstances here, the state correctly asserts that the error was not unusually serious, nor did it likely play a substantial part in influencing the jury to convict.  For example, the circumstances do not reflect an intentional wrongdoing by the prosecutor.  See, e.g., State v. Jahnke, 353 N.W.2d 606, 611 (Minn. App. 1984) (remanding for new trial where prosecutor intentionally elicited testimony regarding pictures previously ruled inadmissible).  And the undisclosed testimony did not reveal evidence that could have exculpated appellant.  Cf. State v. Kaiser, 486 N.W.2d 384, 386 (Minn. 1992) (withheld evidence was exculpatory).  Furthermore, the victim's testimony was imprecise as to when and under what circumstances he had seen appellant at the bar.  In addition, the defense successfully presented the testimony of three witnesses that appellant was with them during the night of the robbery, which, had the jury chosen to believe their testimony, would have rebutted the victim's testimony.  See, e.g., State v. Eggert, 358 N.W.2d 156, 162 (Minn. App. 1984) (jury entitled to believe or disbelieve witnesses).  Finally, the judge issued a curative instruction, and the Minnesota Supreme Court has held that "the giving of cautionary instructions by the trial court is a significant factor favoring the denial of a motion for a mistrial."  State v. Caldwell, 322 N.W.2d 574, 590 (Minn. 1982) (citing State v. Carlson, 264 N.W.2d 639, 642 (Minn. 1978)).

Appellant also asserts that, because the victim did not see his assailant and there were no other witnesses to the actual assault, the evidence in the case was circumstantial and insufficient.  Where a verdict is based on circumstantial evidence, it will be upheld "if the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of his guilt."  State v. Webb,440 N.W.2d 426, 430 (Minn. 1989) (quotations omitted).  When reviewing the circumstantial evidence and the inferences that may be derived from it, a reviewing court recognizes that a jury is in the best position to evaluate the evidence.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

In the circumstances here, the jury could properly determine that the inferences from the evidence, beyond a reasonable doubt, were inconsistent with appellant's innocence.  The evidence included testimony that: (a) a neighbor, who, immediately after the attack, saw a person hunched over the victim, shortly thereafter saw the same person, who resembled appellant, walking away and wearing a gray and white or gray and black jacket, (b) a police dog picked up a scent around the victim and began to track it, following it to the outside of a house where appellant was staying; (c) after police entered the house where the dog stopped tracking, appellant's sister told them appellant had just come in to the house and was wearing a gray jacket; (d) when police entered the house and interviewed appellant's seven-year old niece, she showed them nine dollars (a five and four ones) hidden under a couch cushion and told them that appellant had put this money under the couch cushions immediately after he had run in to the house and before the police entered; (e) appellant had exclaimed when arrested that he did not do anything, he knew the victim, he did not rob the victim because the victim had no money, but the victim owed him money and he had gotten it; and (f) a police officer had seen a person, matching the neighbor's description of the man he saw, leave the house, and then abruptly run back in to the house.  In addition, appellant gave inconsistent testimony regarding how many trips he had made to the liquor store during the day and evening of the robbery.

Appellant attempts to minimize some of the evidence presented by demonstrating that neither his sister nor his niece testified at trial as the police reported they had stated the night of the incident, and he maintains that he had a good alibi for the time in question. These assertions, however, largely call for a determination of credibility, which was resolved by the jury.

            Affirmed.