State of Minnesota, Respondent, vs. Gregory Frank Wilmes, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-413

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory Frank Wilmes,

Appellant.

 

Filed May 2, 2000

Affirmed; motion denied Willis, Judge

 

Le Sueur County District Court

File No. K2980353

 

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

 

Douglas J. Christian, Le Sueur County Attorney, 65 South Park Avenue, P.O. Box 156, Le Center, MN  56057 (for respondent)

 

Thomas G. Dunnwald, Special Assistant Public Defender, 400 Flour Exchange, 310 South Fourth Avenue, Minneapolis, MN  55415 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Gregory Frank Wilmes challenges his conviction of first-degree criminal damage to property, arguing that the district court erred in excluding the testimony of a witness Wilmes sought to offer, the prosecutor committed misconduct in closing argument, and the district court erred in instructing the jury.  We affirm.

FACTS

On June 14, 1998, Wilmes was attending the annual Bullhead Days celebration in Waterville.  Le Sueur County Sheriff's Deputies David Glizinski and Dan Prochaska saw Wilmes at a local bar and arrested him on an outstanding warrant.  The deputies testified that (1) they asked Wilmes to step outside, and he started to leave with them but then began to run away; (2) when the deputies caught Wilmes, he resisted arrest by kicking and flailing his arms; and (3) with the assistance of two bystanders, the deputies subdued Wilmes so that they could handcuff him.

  Wilmes was placed in the back of the squad car where he kicked at and damaged the vehicle's windows.  On one side of the squad car, Wilmes pushed the weather stripping out of alignment; on the other side, he shattered the movable glass and pushed out the stationary glass and frame.  

Wilmes was charged with fourth-degree assault, in violation of Minn. Stat. § 609.2231, subd. 1; obstruction of legal process with force, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2); and first-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 1(3) (cost of repair or replacement more than $500). 

At trial, three witnesses testified concerning the cost to repair the squad car.  The state called James Bratsch, owner of Wayne's Auto Body, where the repair work was done.  Bratsch testified that he charged $1,096.37 to repair the squad car; he did not testify whether he used Ford or after-market glass. 

Wilmes called Shirley Hoffman of Safelight Auto Glass and Richard Fitzloff of Main Street Auto to testify what they would have charged for repairs.  Hoffman's estimate was $672.02, but that did not include repair of the weather stripping.   Hoffman testified that at least one piece of glass in her estimate was after-market glass.  Fitzloff's estimate of the costs for repair of the squad car was $469.  But he admitted that he never saw the vehicle and that his estimate was based on an oral description of the damage by a Wilmes family member.  Fitzloff's estimate also did not include the cost to repair the weather stripping, although he noted on his estimate that the weather stripping on the left-rear door needed to be aligned.    

On cross-examination, Fitzloff testified that his estimate was not based on the use of Ford replacement glass. Following Fitzloff's testimony, Wilmes sought to call Troy Meyers, an employee of Wayne's Auto Body, to testify.  The district court disallowed the testimony because Meyers was not disclosed as a potential witness until the last day of trial.

A jury convicted Wilmes of first-degree criminal damage to property and obstruction of legal process without force.  Wilmes moved for a new trial or judgment notwithstanding the verdict; the district court denied the motion.  This appeal followed.

D E C I S I O N I.          Exclusion of Witness Testimony

            The district court excluded Meyers's testimony on the ground that it was unfair for Wilmes to present on the last day of trial a witness whom he had not previously disclosed.    Wilmes argues this was error.

            Minn. R. Evid. 103(a)(2) provides that a party may claim error based on a ruling that excludes evidence only if  "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."  Here, while Wilmes claims to have made an offer of proof during a side-bar discussion, there is no record of the proposed testimony that might have been described to the district court when Wilmes sought to call Meyers.  Because we have no record of an offer of proof, Wilmes cannot claim error on appeal.

II.        Prosecutorial Misconduct

            Wilmes claims the prosecutor committed misconduct in his closing argument by suggesting that the Wayne's Auto Body invoice could not be rebutted by the estimates presented by Wilmes.  But Wilmes failed to object at trial to the prosecutor's statements comparing the invoice to the estimates.  Generally failure to object to a prosecutor's statement at trial forfeits a defendant's right to have the issue considered on appeal.  State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996); State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980); State v. Flom, 285 N.W.2d 476, 477-78 (Minn. 1979).  But we may consider prosecutorial misconduct during closing argument that is not properly objected to at trial if the misconduct constitutes plain error affecting substantial rights that deprived the defendant of a fair trial.  See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997); Atkins, 543 N.W.2d at 647-48.  Here, we conclude that the alleged misconduct is not a plain error affecting substantial rights that deprived Wilmes of a fair trial. 

Wilmes also claims that the prosecutor committed misconduct by referring to facts not in evidence.  During his closing argument, the prosecutor said

Mr. Fitzloff testified that he could do this job for $469.  But remember when I asked him are you replacing that with Ford Replacement Parts, he said no. Well, isn't that comparing apples and oranges?

 

Wilmes claims that this argument is improper because it implies that Wayne's Auto Body used Ford replacement glass, although there is no evidence in the record regarding the kind of glass that was used in repairing the squad car. Wilmes did not object to the prosecutor's statement until after the jury was excused for deliberations.  When prosecutors make statements during closing argument that raise concerns of prosecutorial misconduct, defense attorneys should object to such statements at the time they are made.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (stating that timely objection enables district court to provide curative instructions to jury, ensures defendant a fair trial, and prevents further improper argument); State v. Senske, 291 Minn. 228, 231, 190 N.W.2d 658, 661 (1971) (stating objection should be made when evidence is presented). 

            Nevertheless, we conclude that, even if the issue were properly before us, the alleged misconduct is not the basis for a new trial.  A defendant is not entitled to a new trial if it can be said with certainty that the misconduct was harmless beyond a reasonable doubt.  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  Misconduct is harmless beyond a reasonable doubt if the verdict rendered was "surely unattributable to the error."   State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (looking to the basis on which the jury rested its verdict and determining what effect, if any, the error had on the verdict).  Here, the evidence against Wilmes includes an estimate, introduced by Wilmes, and an invoice showing the cost of repair and replacement to be more than $500.  Wilmes also introduced a partial estimate, just $31 short of $500, that was based, not on an inspection of the car, but rather on an oral description of the damage from a Wilmes family member.  In view of the evidence against Wilmes, the jury's verdict was surely unattributable to the alleged prosecutorial misconduct.     

III.       Jury Instruction

Wilmes argues that the jury instruction on first-degree criminal damage to property, to which he did not object, was "fundamentally wrong."  A jury instruction must be viewed in its entirety to determine whether it fairly and adequately explained the law of the case.  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  But this court may reverse if a jury instruction was "misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence."  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).      

Under Minn. Stat. § 609.595, subd. 1(3) (1998), the elements of first-degree criminal damage to property are (1) intentionally causing damage to physical property; (2) the property belongs to another; (3) the property owner did not consent to the damage; and (4) "the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement."

Wilmes argues that the district court erred in its instruction by separating the monetary measure of damages from the other elements of the offense and from the language regarding the reasonable-doubt burden of proof that followed those elements in the instruction.  The district court instructed the jury that if it found that the first three elements had been proved beyond a reasonable doubt, Wilmes was guilty of criminal damage to property.  The jury was further instructed that if it found Wilmes guilty of criminal damage to property, then it would have to answer the following special verdict question:  "Did the damage reduce the value of the automobile by more than $500 as measured by the cost of repair and replacement?  Unless you find beyond a reasonable doubt that the answer to a question is ‘yes,' you should answer the question ‘no.'"   Wilmes argues that this instruction somehow lowered the standard of proof on the measure-of-damages element to something approximating a preponderance of the evidence.  But the court twice instructed the jury that the state's burden is proof beyond a reasonable doubt. 

Finally, Wilmes argues that the instruction improperly suggests that the extent of monetary damage is the "cost of repair and replacement" actually paid, which precludes the jury from comparing the invoice with the estimates.  But the statute under which Wilmes was convicted provides that damage is measured by the "cost of repair and replacement."  Minn. Stat. § 609.595, subd. 1(3).  And the jury was presented with not only evidence of the cost of repair paid by the county, but also with testimony from two other glass-company owners and their estimates of the cost to repair the squad car.  The jury was free to conclude that the "cost of repair and replacement" was less than the amount the county paid to repair the squad car.  We conclude that the instruction was not misleading or confusing on any fundamental point of law so as to require reversal by this court. 

IV.       Cumulative Errors

Wilmes argues that reversal is mandated by the cumulative impact of the errors he cites.  "Cumulative error exists when the ‘cumulative effect of the * * * errors and indiscretions, none of which alone might have been enough to tip the scales, operate[s] to the defendant's prejudice.'"  State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (quoting United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979)).  This court may reverse where, under the facts and circumstances of a particular case, the interests of justice require a new trial.  State v. Schwartz, 266 Minn. 104, 114, 122 N.W.2d 769, 776 (1963) (holding that the interests of justice required a new trial where sick juror was treated by same doctor who treated victim, sheriff was seated at counsel's table, bailiff investigated crime, and prosecutor made questionable statements). 

In effect, Wilmes argues that the alleged errors improperly suggested to the jury that the cost of repair and replacement was more than $500.  But the Wayne's Auto Body invoice and one of the two estimates put into evidence by Wilmes showed that the cost of repair and replacement was more than $500.  Here, the interests of justice do not require a new trial.

V.        Motion to Strike

            The state moved to strike portions of Wilmes's reply brief as containing improper argument.   Because the disputed statements did not affect our consideration of the merits, a ruling on the state's motion is unnecessary.  See Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 n.7 (Minn. 1999), reh'g denied (Minn. Sept. 7, 1999).  The motion to strike is denied.

            Affirmed; motion denied.

           

 

                * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.