State of Minnesota, Respondent, vs. Gary R. Thurmer, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-2211

 

State of Minnesota,

Respondent,

 

vs.

 

Gary R. Thurmer,

Appellant.

 

Filed January 13, 2004

Affirmed as modified Hudson, Judge

 

Crow Wing County District Court

File No. K8012528

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Donald F. Ryan, Crow Wing County Attorney, John J. Sausen, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, Minnesota 56401 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414; and

 

James T. Diamond, Jr., Special Assistant State Public Defender, Law Offices of James T. Diamond, Jr., 44 Montgomery Street, Suite 3830, San Francisco, California 94194 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant Gary Thurmer challenges his convictions of second-degree assault and first-degree criminal damage to property, arguing that the evidence was insufficient to show that he possessed the specific intent required for the crime of assault and that the prosecutor committed prejudicial misconduct.  Appellant also challenges delays in his trial, the district court's refusal to instruct the jury on a lesser-included offense, and the restitution award, and requests that his conviction be vacated or that he receive a new trial.  We affirm, but modify the restitution award. 

FACTS

            On October 20, 2001, at 1:50 a.m., Bob Rasmussen awoke to the sound of someone walking across his porch.  By the heavy footsteps, he recognized the person as appellant Gary Thurmer.  Thurmer entered the house and asked Rasmussen if he had any whiskey.  Rasmussen said no, but that Thurmer was welcome to look.  Thurmer found a bottle of rum in a cabinet and drank what was left in it.  Rasmussen shook Thurmer's hand and told him to go home.

            After Thurmer left, Rasmussen locked the door to the house.  Twenty minutes later, Rasmussen awoke to the sound of glass breaking.  He rose, went to the door, and opened the door to find Thurmer standing outside.  Thurmer had broken a hole in the screen door and the glass on the storm door.  Rasmussen noticed that Thurmer had a gun under his arm, which was pointed toward Rasmussen's face.  Rasmussen tried to talk to Thurmer, but Thurmer was non-responsive.  After Thurmer put the barrel of the gun through the hole in the door, Rasmussen decided to call the police. 

            The first officer to arrive was Mille Lacs County Deputy Leroy Lassard.  As Lassard pulled his squad car into the driveway, he saw a man with a gun on the front porch of the house.  When Lassard yelled, Thurmer turned around, faced the squad car, and pointed the gun at Lassard.  Lassard repeatedly ordered Thurmer to put down the gun, but Thurmer did not, and took several steps toward Lassard's squad car. 

            Thurmer hid behind a tree in front of the house and continued aiming his gun at Lassard, fumbling with it in what Lassard believed to be an attempt to load a round of ammunition into the gun.  Then, Thurmer ran behind the house and out of view.  Soon, two Mille Lacs Tribal Police officers arrived.  The three officers looked for Thurmer.  They found Thurmer lying on his stomach in the grass behind the house, still holding his gun pointed at the officers, while scooting backwards towards a swampy area.  In a moment when Thurmer was distracted, Lassard ran to him, kicked his gun hand, and then reached down and took the gun. 

            At some point, Thurmer's father and sister, who lived on the property, had come to the scene.  Crow Wing deputies Goddard and Peterson arrived and tried to take Thurmer into custody.  Officers found six rounds of 9mm ammunition in Thurmer's jacket pocket.  Thurmer was placed in a squad car, where he began shouting and beating his head against the window.  Deputy Goddard opened the door to talk to Thurmer, but Thurmer tried to get out of the car.  Deputy Peterson sprayed Thurmer with pepper spray, and pushed him back into the car.  Thurmer lay down in the backseat of the car and pushed the window assembly and door of the car with his feet long and hard enough to partially force the window assembly out of the frame.  Even after he was placed in a hobble restraint, Thurmer pushed at the door of the squad and managed to bow it outward. 

            A complaint was filed in Crow Wing County charging appellant with first-degree burglary, second-degree assault with a dangerous weapon, and first-degree criminal damage to property (the squad car).  On November 13, 2001, a hearing was held on Thurmer's motion for a Rule 20 evaluation.  The district court granted the motion, and the order for the Rule 20 evaluation was issued on November 29, but the examiner was changed and a new order was filed December 18, 2001.

            The Rule 20 evaluation was performed and the report completed on January 2, 2002, but for some reason, the results were not immediately mailed to court administration.  Because of the delay, appellant moved to be released on his own recognizance because he had been in custody since his arrest.  At a hearing on March 20, 2002, the district court acknowledged that there had been a delay, but noted that the report had not been received by court administration until March 18, and that it was unclear who was to blame for the delay or what the remedy should be.  The court denied Thurmer's motion for release or reduced bail.

            A jury trial began June 4.  Lassard and the Mille Lacs officers testified that Thurmer pointed the gun directly at them during the incident and that he appeared to be trying to load a round of ammunition into the 9mm semiautomatic handgun.  They testified that they found Thurmer behind the house and that he continued to point the gun at them while lying on his stomach in the grass, despite repeated orders to drop it.  When the officers finally took away the gun, they found that it was not loaded.  Deputy Goddard testified that he had to move his squad car closer to Thurmer to take him into custody because Thurmer refused to walk, and the officers could not lift him.  Goddard also described how Thurmer used his legs to push the window frame assembly partially out of the squad, even after being hobbled.  Although Lassard said he had not noticed the odor of alcohol on Thurmer, Goddard and other officers said they did smell alcohol on Thurmer and that Thurmer's speech was slurred. 

            Rasmussen testified as a witness for both the state and the defense.  He testified that he recognized Thurmer's steps on the porch before Thurmer entered the house.  He noticed that Thurmer was very drunk, and that he did not seem to be aware of his actions.  He also testified that before the police arrived, Thurmer put the gun against his own head, between his ear and jaw, saying things like "I don't care anymore," which led Rasmussen to believe Thurmer might kill himself.  As a defense witness, Rasmussen stated that he never saw Thurmer aim the gun at any of the officers.

            Thurmer's father and sister also testified on his behalf.  They both stated that when they arrived on the scene, they tried to tell the officers that the gun was not loaded, and shouted for Thurmer to put it down.  They also stated that Thurmer held the gun pointed at the ground, not the officers.  All the defense witnesses testified that Thurmer was heavily intoxicated that night.

            At the close of evidence, the district court instructed the jury that intoxication is not a defense to the charged crimes, but that if Thurmer was intoxicated to the point that he could not form the intent required for the crimes, the jury could consider that.  The court noted that it was Thurmer's responsibility to show by the greater weight of the evidence that he was intoxicated.  Counsel for both parties gave their closing arguments without objections. 

The jury found Thurmer guilty of second-degree assault and first-degree criminal damage to property, but acquitted him of the burglary charge.  He was sentenced to 36 months for assault, 13 months for damage to property, to run concurrently, plus restitution.  This appeal follows.

D E C I S I O N

I.  Sufficiency of the Evidence

Thurmer argues that the evidence introduced at trial was insufficient to show that he possessed the requisite intent to commit second-degree assault, and his conviction should be reversed.  On a claim of insufficient evidence, this court's review is limited to a "painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any defense evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

To show that Gary Thurmer committed second-degree assault, the prosecution had to prove that he acted with the intent to cause imminent bodily harm or fear of imminent bodily harm upon another person.  Minn. Stat. § 609.02, subd. 10 (2002).  Voluntary intoxication is not a defense to assault, but the jury may take a defendant's degree of intoxication into account when determining whether the defendant formed the requisite intent to commit the crime.  Minn. Stat. § 609.075 (2002).  The burden is on the defendant to show by the greater weight of the evidence that he was too intoxicated to form intent.  State v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980).  And, if the record contains evidence that supports the jury's conclusion on the issue of intoxication, this court will not reverse even if some evidence to the contrary exists.   Id. at 416.  

At trial, the jury heard Rasmussen's 911 call, in which he repeatedly told the dispatcher that Thurmer was very drunk and acting crazy.  Rasmussen and Thurmer's father and sister also testified at trial that Thurmer was very drunk that night and was acting as if he did not know what he was doing.  But the state presented evidence that Thurmer repeatedly aimed his gun at three different police officers, and that he attempted to load the gun, despite the officers' repeated commands that he drop the weapon.  Thurmer left Rasmussen's house once and returned with the gun in hand.  He also hid behind a tree and attempted to flee officers by running behind the house.  Thurmer had six rounds of ammunition for the gun in his pocket, which testimony showed could have been loaded individually into the gun without a clip.  A person's intent may be inferred from his actions and outward manifestations.  See State v. Lundstrom, 285 Minn. 130, 140, 171 N.W.2d 718, 724-25 (1969).  Despite the testimony of defense witnesses that Thurmer seemed too drunk to be thinking clearly, the jury could reasonably conclude from the evidence that he pointed his gun at Rasmussen or the police officers with the intent of either hurting them or causing them to fear that they would be hurt.  The evidence is sufficient to support the conviction. 

II.  Prosecutorial Misconduct

Thurmer argues that the prosecutor committed prejudicial misconduct at two points, denying him his right to a fair trial.  Defendants can waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  Relief may be granted in the absence of a timely objection only in extreme cases involving "unduly prejudicial" prosecutorial misconduct.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Thurmer claims the prosecutor committed misconduct by asking improper voir dire questions, exercising peremptory strikes of three jurors, and by making certain statements during closing argument.  But in the absence of an objection on the record, we review claimed errors under a narrow standard.    

A. Voir dire

            Thurmer argues that by inquiring into prospective jurors' political beliefs, and striking three jurors based on their responses to that question, the prosecutor denied him his right to an impartial jury.  The federal and state constitutions guarantee a criminal defendant the right to an impartial jury.  State v. Greer, 635 N.W.2d 82, 87 (Minn. 2001) (citing U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6).  This right allows the parties to conduct "an adequate voir dire to identify unqualified jurors."  Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 2230 (1992).

The prosecutor asked the panel of prospective jurors to tell him if they think of themselves as conservative or liberal, but he did not ask them to state a party affiliation.  Thurmer cites no Minnesota State or federal case that holds that inquiring into prospective juror's general political philosophy is inappropriate.  In fact, the Minnesota Supreme Court has declined to extend the protections of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) to a prospective juror's beliefs or philosophies.  State v. Buggs, 581 N.W.2d 329, 339 (Minn. 1998). 

And, although Thurmer claims that the three jurors the prosecutor struck were the three who answered that they were, at least in part, liberal, there is nothing in the record to show that their political philosophy was in fact the reason for the strike.  Because defense counsel did not object to any of the strikes, the prosecutor was not asked to explain his reasons.  The record of the voir dire provides any number of other reasons the prosecutor may have stricken the prospective jurors, and we will not assume he did so because of their stated political beliefs.  Thurmer has not shown that the prosecutor committed misconduct during voir dire or that his trial was prejudiced because of the alleged misconduct.

            B. Closing argument

            Thurmer argues that the prosecutor committed misconduct during his closing argument by endorsing the credibility of prosecution witnesses, giving his personal opinions, intentionally inflaming the passions of the jury, and misstating the law and evidence regarding the second-degree assault charge. 

"[T]he prosecutor and the defense have considerable latitude in closing argument, for neither is required to make a colorless argument."  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  But, it is prohibited for a prosecutor to express his personal opinion as to the credibility of a witness.  See, e.g., State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  Again, defense counsel did not object during the closing argument.  Ordinarily, by failing to take this step the defendant is deemed to have forfeited his right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980); State v. Flom, 285 N.W.2d 476, 477-78 (Minn. 1979).  When a defendant fails to object to the prosecutor's statements, it suggests that he did not consider them prejudicial.  State v. Thomas, 305 Minn. 513, 517, 232 N.W.2d 766, 769 (1975).

Thurmer argues that the prosecutor gave his personal opinion as to whether the officers feared for their safety, whether Thurmer was too intoxicated to form intent to commit assault, and whether the police witnesses were credible.  After carefully reviewing the record, we believe the statements about the officers' fear for their safety and about Thurmer's level of intoxication and intent were simply arguments that the evidence proves the elements of the crime, rather than the prosecutor's personal feelings about the case.  Thus, the prosecutor, in keeping with the court's instructions on witness credibility, called attention to the experience of the officers as one thing the jury should consider in deciding which witnesses to believe. 

Finally, Thurmer argues that the prosecutor misstated the law and evidence regarding Thurmer's level of intoxication and whose burden it was to show that he was too intoxicated to form the requisite intent.  The prosecutor's comment, although perhaps inartful, fairly and accurately conveyed that Thurmer bore the burden of showing that he was too intoxicated to form intent if he chose to argue that defense.  In any event, the court properly instructed the jury regarding the burdens of proof, making clear that the state had to prove each element of the crime beyond a reasonable doubt, but that if Thurmer argued that he was too intoxicated to form intent, the burden was on him to show that by the greater weight of the evidence.  Thus, even if the prosecutor's comment was improper, any prejudice was alleviated by the court's instruction, and the misconduct was harmless.

III.  Speedy Trial

Under the United States and Minnesota Constitutions, and the Minnesota Rules of Criminal Procedure, criminal defendants are entitled to a speedy trial.  See U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6; Minn. R. Crim. P. 11.10.  In Minnesota, a defendant must be tried within 60 days of demanding a trial unless good cause is shown for the delay.  Minn. R. Crim. P. 11.10.  Here, Thurmer acknowledges that his right to a speedy trial was not violated technically, since he made his demand for a speedy trial on April 15, 2002, and his trial began June 4, 2002, less than 60 days later.  However, he asks this court to use its "supervisory power" to vacate his conviction because of the long delay in processing his Rule 20 evaluation, during which he remained in jail, and because of other procedural irregularities before trial. 

First, Thurmer notes that he was taken into custody and not brought into his first court appearance for 37 hours, a violation of the prompt-appearance rule, which requires that a defendant be brought before a judge within 36 hours of being taken into custody; day of arrest and Sundays excluded.  Minn. R. Crim. P. 4.02, subd. 5(1).  Thurmer was arrested early in the morning on a Saturday.  His first appearance before a judge was at about 1:15 p.m. on the following Tuesday, a one-hour violation of the first-appearance rule.  He made no pretrial motions for relief because of this delay.  He also offers no suggestion that the one-hour delay was unreasonable or unnecessarily caused by the state.  Further, no caselaw suggests that vacation of a conviction would be an appropriate remedy for a violation of the first-appearance rule even if the one-hour delay were unreasonable. 

Thurmer also argues that he unnecessarily "languished" in custody for over seven months while waiting for the results of his Rule 20 evaluation, a violation of the spirit of the speedy-trial rule, if not an actual violation.  The final order for appellant's Rule 20 evaluation was entered on December 18, 2001.  The results of the evaluation did not reach court administration until March 18, 2002, and Thurmer did not appear to enter his not-guilty plea until April 15, almost six months after his arrest. 

Again, there is no actual violation of Rule 11.10.  Thurmer simply argues that the delay in processing his Rule 20 evaluation deprived him of the "fair administration of justice."  But, at the March 18 hearing on Thurmer's motion for release, the prosecutor stated that he had called the medical facility that was to perform the evaluation to find out why the results had not come in.  He was told that the hospital had mailed the results to court administration.  This shows that the prosecutor did at least "follow up" and attempt to obtain the results of the evaluation sooner.  Thurmer's counsel acknowledged that there is no legal support for granting release from custody as a remedy for the delay in obtaining a Rule 20 evaluation.  Likewise, he provides no cases that suggest that a delay in a Rule 20 evaluation is a basis for vacating a conviction.  Moreover, the sentencing transcript indicates that Thurmer accrued jail credit for time served; thus, he was not prejudiced by the delay.  While we acknowledge that Thurmer was held in jail for five months between the order for an evaluation and the time of the omnibus hearing, his right to a speedy trial was not violated, and he does not provide legal support for his requested relief. 

IV.  Pro Se Issues

            Thurmer raises several issues in his pro se supplemental brief.  After careful review of those issues, we find them to be without merit. 

            First, Thurmer calls our attention to "inconsistencies" in the trial testimony of police officers.  But his argument can be reduced to an issue of witness credibility, and this court defers to the jury on issues of credibility, as the jury is in a superior position to evaluate each witness.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

            Thurmer also argues that the district court erred in refusing to instruct the jury on the lesser-included offense of "dangerous weapon" under Minn. Stat. § 609.66 (2002).  Review of the discussion between the court and counsel shows that the prosecutor successfully argued that the dangerous-weapon offense was inconsistent with the defense theory and the evidence presented, and that if the jury did find that Thurmer had been incapable of forming intent, it could acquit appellant of the assault charge.  The district court did not abuse its discretion by denying this instruction.  See Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).

            Thurmer argues that the evidence was insufficient to show that he committed criminal damage to property.  Given the testimony of officers who were on the scene and of the mechanic who examined the squad car, the jury could reasonably conclude that Thurmer did in fact cause damage to the car during his apprehension.

            Thurmer also argues that the district court erred in denying his motion to dismiss the burglary charge before trial.  The record does not show that a formal motion to dismiss the charge was ever made, and in any event, the jury acquitted Thurmer of that charge. 

V.  Restitution

            Finally, Thurmer challenges the restitution award levied against him.  The state agrees that the restitution award should have been $833.10, rather than $883.10.  We modify the award accordingly.

Affirmed as modified.