State of Minnesota, Respondent, vs. Howard Lachowitzer, Appellant.

State of Minnesota, Respondent, vs. Howard Lachowitzer, Appellant. A04-347, Court of Appeals Unpublished, May 17, 2005.

This opinion will be unpublished and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

A04-347

 

State of Minnesota,

Respondent,

 

vs.

 

Howard Lachowitzer,

Appellant.

 

Filed May 17, 2005

Affirmed

Kalitowski, Judge

 

Cottonwood County District Court

File No. K0-03-168

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Howard Lachowitzer, who was convicted of first-degree criminal sexual conduct and second-degree criminal sexual conduct, argues that (1) the district court erred in admitting into evidence a three-ring binder containing pornographic pictures because it was overly prejudicial; and (2) the district court erred in omitting a cautionary jury instruction on several items admitted to show the relationship of appellant and his accusers.  We affirm.

D E C I S I O N

I.

 

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  The admission of photographs is in the discretion of the district court and will not be reversed absent a showing of an abuse of discretion.  State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994).

            Appellant challenges the admission of a three-ring binder with over 100 pornographic pictures arguing that the district court erred because, even if admissible under Minn. R. Evid. 402 and 404, the evidence was more prejudicial than probative under Minn. R. Evid. 403.  But this court has allowed the submission of a pornographic magazine for corroboration purposes, to assist the jury in placing the defendant's conduct in its proper and relevant context, and to enable evaluation of the defendant's denial.  State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993); see also State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (admitting other crime evidence to corroborate the victim's testimony where defendant claimed the victim fabricated the allegations). 

            Here, L.G. testified that appellant sexually abused her and that appellant showed her a big white notebook five times; L.G. accurately described the general contents of the three-ring binder.  Appellant denied that he was ever alone with the children and that he ever abused L.G. and A.G.  Appellant admitted there was a three-ring binder of pornography under his bathroom sink that belonged to a friend but denied showing the pictures to L.G.

            We conclude that the evidence here is similar in nature to the magazine admitted in Wiskow, and that the evidence was offered to corroborate L.G.'s testimony that appellant showed her the binder on several occasions and her description of the contents of the binder.  Thus, as in Wiskow, we conclude that the district court did not err in admitting the binder because it was relevant and probative both to corroborate L.G.'s testimony and to evaluate appellant's denial of any abuse.

II.

            District courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  "An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court's instructions must define the crime charged.  In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).  And even where a defendant fails to object to the instructions, a reviewing court "could reverse if the instructions were 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).

            Here, appellant concedes that he did not request a limiting instruction on the proper purpose of admission of relationship evidence during trial.  But he argues that the district court should have given the limiting instruction sua sponte and that this error requires reversal.  We disagree.

            In State v. Williams, 593 N.W.2d 227, 237 (Minn. 1999), the supreme court noted that "the failure to provide limiting instructions absent a request is not reversible error," although a district court should generally do so to ensure that 404(b) evidence is not used for an improper purpose.  And in State v. Forsman, 260 N.W.2d 160, 169 (Minn. 1977), the supreme court held that where the state has given notice under rule 7.02, "the other Spreigl-Billstrom procedures become mandatory only upon the defendant's objection and/or request."  The Forsman court also noted that while the trial court should, sua sponte, give a limiting instruction both at admission of the evidence and at the close of trial, "in the absence of a request, its failure to do so was not reversible error."  Id. We thus conclude that while a limiting instruction would have been appropriate, based on Williams and Forsman the district court did not commit reversible error by omitting the instruction.

            Finally, appellant raises several challenges to the factual record in his pro se brief.  Because these allegations are outside the record, we must disregard them.  See Minn. R. Crim. P. 28.02, subd. 8 (stating that "[t]he record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceeding, if any").  In addition, appellant makes a bare allegation that his trial counsel was ineffective.  But because that claim is not supported by the record, we conclude it is without merit.

            Affirmed.