State of Minnesota, Respondent, vs. Jeremy Douglas Nelson, Appellant.

State of Minnesota, Respondent, vs. Jeremy Douglas Nelson, Appellant. A04-2425, Court of Appeals Unpublished, March 7, 2006.

This opinion will be unpublished and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

A04-2425

 

State of Minnesota,

Respondent,

 

vs.

 

Jeremy Douglas Nelson,

Appellant.

 

Filed ­­­March 7, 2006

Affirmed

Dietzen, Judge

 

Martin County District Court

File No. T7-04-119

 

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

 

Elizabeth W. Bloomquist, Fairmont City Attorney, 100 Downtown Plaza, P.O Box 751, Fairmont, MN 56031 (for respondent)

 

Max A. Keller, 1043 Grand Avenue, Suite 322, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction of misdemeanor domestic assault under Minn. Stat. § 609.2242, subd. 1 (2004), arguing that two evidentiary rulings by the district court violated his Brady rights or otherwise constituted an abuse of discretion, and that the evidence was insufficient to support his conviction.  Because appellant's Brady rights were not violated, the district court did not abuse its discretion in its evidentiary rulings, and the evidence is sufficient to sustain the jury's verdict, we affirm.

FACTS

           

            Appellant Jeremy Douglas Nelson and his girlfriend Laura Justice lived together in Fairmont, Minnesota.  After some period of time, the two agreed to go their separate ways, with Justice moving out of the apartment.

On the morning of January 20, 2004, Justice returned to the residence to retrieve her belongings.  When appellant told Justice that she owed him money, Justice replied that she would pay appellant when she had the money. A heated argument ensued, during which the two yelled and hurled obscenities at each other.  Appellant told Justice to leave the residence, but she refused.  The parties dispute what happened next.  At trial, Justice stated that appellant pushed her to the floor, pinned her down with his body, and choked her for 30 to 60 seconds.  When appellant stopped choking her and stood over her, Justice kicked him to free herself and went out the front door.  Appellant admitted to pushing Justice and that she fell on the ground, but denied choking her.  He stated that he pushed her in an effort to make her leave, not to cause her injury.  Appellant admitted that he lost his balance and fell on top of her.  Appellant states that the entire sequence of events lasted roughly ten seconds. 

 Justice then dialed 911 on her cell phone to report that appellant assaulted her.  Within five minutes, responding officer James Tietje arrived at the scene.  Officer Tietje noticed a red ring around Justice's neck.  Another officer took pictures of Justice at the scene.  After hearing Justice's description of the incident, Officer Tietje approached the residence, knocked on the door, listened to appellant's explanation of events, and then placed appellant under arrest for domestic assault.  Appellant was charged with misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1 (2004).

During discovery, appellant requested disclosure of evidence related to the case, including a list of witnesses, witness statements, and all documentary evidence, including photographs.  The prosecution's response indicated that all witnesses, statements, and supporting documents were in the police reports. 

            Before the jury trial commenced, the state provided appellant with two photographs of the incident taken by a police officer at the scene that were referred to in the police report.  The photographs showed some reddening around Justice's neck.  Appellant moved to exclude the photographs, arguing that the late disclosure prejudiced him. The state countered that it had not seen the photos until they arrived with the case file that morning and that the photos did not unduly prejudice appellant.  The court denied the motion, ruling that the photographs were not unduly prejudicial to appellant.

            At trial, Officer Tietje testified that the photographs accurately depicted what he saw at the scene, except that Justice's neck at the time appeared to be even redder than in the photograph.  He testified that the markings on Justice's neck in the photograph were consistent with choke marks.

            The state called Justice to testify at trial.  On direct examination, the prosecutor asked Justice if appellant offered to return her belongings if she did not prosecute him, and Justice replied that he did.  The defense counsel did not object to the question.  On cross-examination, the defense counsel asked, "Does it surprise you that your claimed statement that [appellant] offered to give you your items back if you did not prosecute him is nowhere in the report?"  Before Justice could answer, the prosecution objected to the question for lack of foundation, stating that Justice had not read the police report.  The district court sustained the objection, and Justice did not answer the question.

The defense counsel then moved that the prosecutor's initial question to Justice be stricken and that the jury be instructed to disregard it.  During argument out of the presence of the jury, the prosecutor admitted that she did not tell appellant about this statement, as she only learned of it over the lunch hour. The district court denied the motion to strike.

In closing arguments, the prosecution did not argue that appellant offered to give Justice her items back if she did not pursue charges against him.  But the defense attempted to refute the prosecution's initial question to Justice, arguing that she had no opportunity following the incident to speak with appellant and, therefore, the conversation never happened. 

            The jury found appellant guilty as charged.  On December 14, 2004, appellant's attorney dated and sent a notice of appeal, which was filed by the clerk of this court on December 15, 2004.  On December 17, 2004, appellant's sentencing hearing was held, and appellant was sentenced, with the order and judgment filed by the district court that same day. 

D E C I S I O N

I.

As a threshold matter, the state contends that this appeal must be dismissed because appellant filed his notice of appeal after the announcement of the jury verdict but before a final judgment, i.e., the sentencing order, was filed.  But in criminal matters, "[a] notice of appeal filed after the announcement of a decision or order, but before sentencing or entry of judgment or order shall be treated as filed after such entry or sentencing and on the day thereof."  Minn. R. Crim. P. 28.02, subd. 4(3).  Therefore, appellant's notice of appeal is treated as if it was filed after sentencing, and the appeal is properly before us.

II.

Appellant raises two issues on appeal.  First, appellant contends that the district court erred in its evidentiary rulings.  Initially, appellant argues that his due-process rights were violated by (1) the admission of the two photographs taken at the crime scene, which showed some reddening around Justice's neck; and (2) the district court's refusal to strike the prosecution's question to Justice about appellant's proposition that if she would not press charges against him, he would return her belongings.

            Appellant argues that the introduction of the above evidence violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The United States and Minnesota Constitutions guarantee criminal defendants the right to due process of law.  U.S. Const. amend. XIV; Minn. Const. art. I, § 7.  "In Brady, the United States Supreme Court held that ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005) (citing Brady, 373 U.S. at 87, 83 S. Ct. at 119697) (emphasis added).  For a "true Brady violation" to have occurred, "the evidence at issue must be favorable to the accused, either because it is exculpatory or it is impeaching."  Id. (citing Strickler v. Greene, 527 U.S. 263, 28182, 119 S. Ct. 1936, 1948 (1999)). 

Here, neither the photographs nor the testimonial evidence was favorable to appellant.  Appellant was charged with domestic assault, and the photographs showed reddening on Justice's neck.  Thus, the photographs were not exculpatory.  And the testimony that appellant offered to return Justice's belongings to her if she did not prosecute him did nothing to exonerate appellant.  Thus, the introduction of the photograph evidence and the testimonial evidence did not violate appellant's Brady rights.           

Appellant further argues that the district court abused its discretion in not excluding the two photographs taken of Justice at the scene of the incident.  Essentially, appellant argues that the late disclosure violated the discovery rules and prejudiced his defense.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Furthermore, a district court's ruling on discovery issues is reviewed for an abuse of discretion.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (reasoning that "the trial court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated.").  The violation of a discovery rule requires a showing of prejudice in order to exclude evidence admitted as a result of the violation.  See id.

Here, there is no showing of prejudice by appellant.  Appellant was on notice that the photographs existed because they were referenced in the police report.  While this does not excuse the state's failure to disclose, it shows that appellant knew or should have known of the existence of the photographs and mitigates any possible showing of prejudice caused by the late disclosure.  Finally, the photographs did not prejudice appellant because the officer was able to testify based on his personal knowledge that Justice's neck was red and exhibited signs of choking.  Because appellant fails to show prejudice caused by the admission of the photographs, we cannot conclude that the district court abused its discretion in denying appellant's motion to exclude the photographs.  

Appellant next argues that the district court abused its discretion by not excluding the testimony of Justice that appellant stated to her that he would return her belongings to her if she agreed not to prosecute him.  The crux of appellant's argument is that this testimony was not revealed to the defense in a timely manner, i.e., before trial. But appellant failed to timely object to the prosecution's question.  It was only after appellant attempted to undermine Justice's testimony by asking why it was not referenced in the police report that appellant moved to strike the initial question.  A district court's denial of a motion to strike will not be reversed unless it constitutes an abuse of discretion. See State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995) (a district court has wide discretion with respect to discovery matters).  It is unlikely, after defense counsel asked Justice why appellant's statement was not in the police report, that striking the initial question would have had any impact on the jury.  Given this sequence of events, we cannot say that the district court abused its discretion by not striking the question or offering a limiting instruction unduly prejudiced appellant. 

III.

Appellant next contends that without the photographs or the alleged statement that appellant told Justice he would return her belongings if she would not pursue charges against him, the evidence is insufficient to convict appellant of misdemeanor domestic assault.  Because the district court did not abuse its discretion in admitting the photographs or refusing to strike the prosecutor's question regarding appellant's alleged statement, this court need not address appellant's argument.  But even considering appellant's contention, the evidence was sufficient to convict appellant of misdemeanor domestic assault.

On a claim of insufficiency of the evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and the weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

A person is guilty of misdemeanor domestic assault if he (1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.  Minn. Stat. § 609.2242, subd. 1 (2004).  Here, we must assume that the jury believed the testimony of the state's witnesses, Justice and Officer Tietje, that it believed Justice was pushed to the ground and choked, and that the officer saw red marks on Justice's neck, and that it believed appellant intended to inflict fear and/or bodily harm on appellant.  We believe that even without the evidence of photographs or the prosecution's question, the evidence is sufficient to convict appellant.

            Affirmed.