State of Minnesota, Respondent, vs. Jose Marcos Perez Anguiano, Appellant.

State of Minnesota, Respondent, vs. Jose Marcos Perez Anguiano, Appellant. A04-95, Court of Appeals Unpublished, April 19, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-95

 

State of Minnesota,

Respondent,

 

vs.

 

Jose Marcos Perez Anguiano,

Appellant.

 

Filed April 19, 2005

Affirmed

Lansing, Judge

 

Nobles County District Court

File No. K8-03-285

 

 

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

 

Gordon L. Moore, III, Nobles County Attorney, John D. Gross, Assistant County Attorney, 1530 Airport Road, Suite 400, Worthington, MN 56187 (for respondent)

 

Sergio R. Andrade, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Jose Anguiano appeals his conviction of fifth-degree assault, arguing that the record contains insufficient evidence to rebut his claim of self-defense and that the

prosecutor's characterization, in closing argument, of a witness as a defense witness constituted misconduct.  Because sufficient evidence exists to rebut more than one element of self-defense and because the prosecutor's characterization of the witness as a defense witness was accurate, we affirm.

F A C T S

            A jury found Jose Anguiano guilty of fifth-degree assault for conduct in an encounter with Pedro Wheeler Jiminez (Wheeler-Jiminez) that also involved Wheeler-Jiminez's sister, Patricia Garcia Jiminez (Garcia-Jiminez), and his former fiancée, Leiby Towns.  Wheeler-Jiminez and Garcia-Jiminez were driving in Nobles County when they saw Anguiano's car stopped near a park.  Garcia-Jiminez, who was pregnant by Anguiano, had been trying to reach him on his cell phone, but he had not responded to her calls.  When she saw his car, she asked her brother to turn around so she could talk to Anguiano. 

Wheeler-Jiminez turned the car around and began following Anguiano's car, which had left the park.  To get Anguiano's attention, Wheeler-Jiminez repeatedly honked the horn and flashed the headlights.  After several minutes, Anguiano, who was apparently avoiding contact, turned the car sharply and came to a stop in a ditch because of a flat tire.  Wheeler-Jiminez passed Anguiano and then returned to where Anguiano's car had left the road.  Anguiano opened his car door.  When the car's interior light illuminated, Garcia-Jiminez and Wheeler-Jiminez saw Leiby Towns in the front passenger seat.  Upon seeing Towns with Anguiano, Garcia-Jiminez became upset and approached Towns.  Anguiano stepped out of the car and moved toward Garcia-Jiminez in an attempt to calm her.  The testimony varies on what happened next.

According to Anguiano, Wheeler-Jiminez "came after" him, and they began to struggle.  Although Wheeler-Jiminez grabbed him, Anguiano was able to pull away by slipping out of his shirt and jacket.  Wheeler-Jiminez went to separate Garcia-Jiminez and Towns, who were arguing loudly, and then advanced on Anguiano a second time.  Wheeler-Jiminez held him against the rear of the car, locked his arms around him, and choked him in a way that interfered with his breathing.  Anguiano claims that Wheeler-Jiminez said, "I am going to f--k you up" and that he had heard that Wheeler-Jiminez might have a gun.  Garcia-Jiminez testified that Wheeler-Jiminez repeatedly punched Anguiano in the face as he held him against the car and that Anguiano was incapacitated. 

At this point, both women separated the two men.  Anguiano returned to his car to look for his cell phone and found, under his seat, his phone and a claw hammer.  When he stepped back from the car, he held the cell phone in one hand and kept the hammer at his side.  After persistent questioning by the prosecutor on whether he wanted anyone else to see the hammer, he acknowledged, "Maybe not."  Anguiano then called 911, but dropped the phone before completing his report because, according to both Anguiano and Garcia-Jiminez, Wheeler-Jiminez "tried to attack [him] again."  Anguiano explained that, when Wheeler-Jiminez lifted his hands, Anguiano "did not hesitate to use the hammer."  He further testified, "When I felt that I had hit him once, he tried, he tried to escape.  When he was trying to run away . . . that is when I hit him another time."  On cross-examination, he again acknowledged that Wheeler-Jiminez was trying to get away from him.  Garcia-Jiminez placed herself between the two men, and, as Wheeler-Jiminez turned his back, Anguiano hit him repeatedly on his back, arm, and shoulder.  He testified that he wanted to scare Wheeler-Jiminez away and thought Wheeler-Jiminez might come after him again.  Garcia-Jiminez grabbed Anguiano's hand to prevent him from hitting Wheeler-Jiminez again, and he stopped. 

Wheeler-Jiminez's testimony differs from this account in three significant respects.  First, he testified that Anguiano started the fight by throwing punches when Wheeler-Jiminez tried to grab his sister to pull her away from the conflict.  Second, he claims that he only held Anguiano down on the car and did not threaten or choke him.  Third, Wheeler-Jiminez's account of the last round of violence is that he was again trying get his sister to leave when Anguiano got out of the car quickly and hit him with the hammer.

Anguiano was charged with fifth-degree assault and second-degree assault with a dangerous weapon.  In preparing its case, the state twice requested a subpoena for Garcia-Jiminez, and the court issued a subpoena each time.  The day before trial, the court issued a third subpoena for Garcia-Jiminez, but this time at the request of Anguiano.  After the state completed its case-in-chief, the defense called Garcia-Jiminez as a witness.  In closing argument, the prosecutor commented on defense counsel's reference to Garcia-Jiminez's testimony: "[Defense counsel] also talked about Patricia Jiminez and how she is not credible, yet he called her.  Yet now he is arguing that her version of events doesn't make any sense.  His witness."

Anguiano objected to the prosecutor's characterization of Garcia-Jiminez as a defense witness, arguing that she was a hostile witness who had appeared in response to the state's subpoena; he requested limiting instructions.  After noting that defense counsel did not identify Garcia-Jiminez or cross-examine her as a hostile witness, the district court overruled the objection. 

The jury found Anguiano not guilty of second-degree assault with a deadly weapon but guilty of fifth-degree assault.  Anguiano appeals his conviction.

D E C I S I O N

I

When a defendant asserts self-defense, the state has the burden of disproving, beyond a reasonable doubt, one or more of the elements of the defense.  State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).  The elements of self-defense are: (1) the absence of aggression or provocation by the defendant; (2) the defendant's actual and honest belief that he was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.  State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997) (citing State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987)).  Additionally, the degree of force used in defending one's self cannot exceed that which a reasonable person would find necessary in similar circumstances.  Id. 

In a challenge to the sufficiency of the evidence, we "ascertain[] whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts."  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We carefully review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the fact-finder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Recognizing that the jury is in the best position to evaluate the credibility of witnesses, we assume that the jury believed the witnesses' testimony that supports the verdict and disbelieved any contradicting evidence.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) ("Deciding the credibility of witnesses is generally the exclusive province of the jury.").  The jury determines what evidence is credible, and inconsistencies in the testimony of the state's witnesses will not mandate a reversal of the jury's verdict.  State v. Robinson, 604 N.W.2d 355 (Minn. 2000).

Applying the elements of self-defense, we conclude that sufficient evidence exists to sustain the conviction and disprove more than one element of self-defense.  On the first element, the record contains sufficient evidence that the jury could have found beyond a reasonable doubt that Anguiano was the aggressor.  If the jury found Wheeler-Jiminez credible and believed his version of events, it could have determined that Anguiano began the first fistfight and attacked with the hammer without provocation or threat of violence.  Or, if the jury accepted Anguiano's account of the incident, it could have found that Anguiano's acknowledged aggression disproved this element.  He admitted that Wheeler-Jiminez was not near him when he went to get the phone and found the hammer.  Even if the jury believed that the first blow was in response to Wheeler-Jiminez's renewed attack, Anguiano admitted that every blow after that occurred while Wheeler-Jiminez was trying to get away.  Each subsequent strike of the hammer could amount to an independent act of aggression.  Consequently, the jury could reasonably find that these blows were not in self-defense because Anguiano, at that moment, was the aggressor.

Second, the jury could have concluded that the state had proved beyond a reasonable doubt that Anguiano had sufficient opportunity to retreat.  He went to his car and sat down.  He could have closed the door and locked it or even attempted to leave on foot.  Nothing in the record demonstrates that Anguiano's ability to retreat was obstructed; he could have retreated before using the hammer.

Third, the jury could have concluded that Anguiano's belief that he was in danger of imminent bodily harm was unreasonable when he struck Wheeler-Jiminez with the hammer.  Assuming that the jury disbelieved Anguiano's testimony about the possible presence of a gun and the extent to which Wheeler-Jiminez choked and threatened him, Anguiano would not have a reason to believe his life was in danger.  And, by the time Anguiano introduced the hammer into the fight, any threat had dissipated significantly because he and Wheeler-Jiminez had separated.

Fourth, the jury could have concluded that the degree of force was excessive.  The jury could reasonably find that a person in similar circumstances would not escalate a fistfight by making use of a hammer.  A hammer, when used as a weapon, can inflict significantly more damage than fists.  The elevated risk of serious bodily injury could have convinced the jury that Anguiano's resort to the use of a hammer exceeded a reasonable degree of force.

The jury verdict had ample support in the record when viewed in the light most favorable to the verdict.  We defer to the jury's credibility determinations and conclude that it had a reasonable basis for determining that the state disproved at least one element of self-defense beyond a reasonable doubt. 

II

            The prosecutor has considerable latitude in closing argument; the law does not consign the prosecution to colorless arguments.  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  But a prosecutor may not express a personal opinion about the credibility of a witness or disparage the defense in closing arguments.  State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003). 

A prosecutor expresses a personal opinion about or vouches for a witness when he "implies a guarantee of a witness's truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness's credibility."  State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quoting United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996) (quotation omitted)).  A prosecutor, however, may "analyze the evidence and vigorously argue that defendant and his witnesses lack credibility."  State v. Johnson, 359 N.W.2d 698, 702 (Minn. 1984); see also State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003) (concluding that no misconduct occurred because prosecutor did not vouch for witness).  Even when a prosecutor has expressed a personal opinion about a witness's veracity, his statement is harmless if the district court "cautioned the jury that it should consider only the evidence and that counsel's final argument statements were not evidence, where the evidence of guilt was adequate, and where the prosecutor's argument was otherwise proper."  State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984).

The determination of whether a prosecutor engaged in prejudicial misconduct is largely within the discretion of the district court, and we reverse only when the misconduct, viewed in light of the entire record, is so serious and prejudicial that the defendant's constitutional right to a fair trial was impaired.  State v. Johnson, 277 Minn. 230, 235-36, 152 N.W.2d 768, 772 (1967).  We consider the closing argument as a whole and do not focus on selective phrases or remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

The prosecutor's statements were not misconduct.  Although the state did request subpoenas for Garcia-Jiminez's appearance, the defense made the final subpoena request shortly before trial.  Nothing in the record specifically states which subpoena was actually responsible for her appearance, but defense counsel apparently felt some need for another subpoena and may have anticipated that the state would not call her.  It is undisputed that the defense, not the state, called Garcia-Jiminez as a witness.  By putting Garcia-Jiminez on the stand, and failing to identify her as a hostile witness, Anguiano presented Garcia-Jiminez to the court and the jury as a defense witness.  The prosecutor did not mischaracterize Garcia-Jiminez as a defense witness.  Furthermore, the prosecutor's conduct did not amount to vouching because he expressed no opinion on her credibility and only referred to the defense counsel's comments about her credibility.  Finally, because the district court cautioned the jury that closing arguments are not evidence and because the prosecutor's closing argument was otherwise proper, any minimal vouching effect would have been harmless.

            Affirmed.