In Re the Marriage of: Wesley U. Saline, petitioner, Respondent, vs. Joanne M. Saline, 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This opinion will be unpublished and may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

State of Minnesota,

Respondent,

vs.

Donald Gene Cox, Jr.,

Appellant.

Affirmed

St. Louis County District Court

File No. K398601088

Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55102-2106 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, Tisha R. Tallman, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)

Arthur M. Albertson, 101 West Second Street, Suite 100, Duluth, MN 55802 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

LANSING, Judge

            A jury found Donald Cox guilty of felony theft in violation of Minn. Stat. § 609.52, subd. 2(1) (Supp. 1997), for stealing $2,400 from a sweater kiosk in Duluth's Miller Hill Mall.  In this appeal from conviction, Cox claims that (1) the evidence is insufficient to support his conviction; (2) the prosecutor committed misconduct; and (3) the trial judge's evidentiary and procedural errors denied him a fair trial.  We affirm.

D E C I S I O N

            When a conviction is challenged for insufficient evidence, this court may review only whether, when viewed in a light most favorable to the conviction, the evidence was sufficient to permit the jury to reach the verdict.  State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).  Circumstantial evidence is entitled to the same weight as other evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  To sustain a conviction based entirely on circumstantial evidence, the evidence as a whole must exclude beyond a reasonable doubt any rational hypothesis other than guilt.  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

            The record shows that, after the robbery, Cox bragged to Rabryda Loomer and Randy Lindberg about stealing $2,400 from the sweater kiosk at the Miller Hill Mall on December 24, 1997.  Cox was a temporary employee of an adjacent kiosk and worked on December 24.  Cox told Loomer that he knew that the sweater kiosk's money drawer did not close tightly.  Cox also knew that the kiosks were not secure unless the cable that locked the kiosks was wrapped tightly around a stool or another object.  Cox told Loomer and Lindberg that he took the money when nobody was looking, discarded $600 in checks, and used the cash to buy ladders for his subcontracting job.  Lindberg testified that in late December 1997 Cox showed him a wad of money.  Lindberg also stated that after the state charged Cox, Cox called Lindberg and asked Lindberg not to testify against him.

Based on these facts, the jury reasonably could have concluded that Cox committed felony theft.  Cox disputes Loomer's and Lindberg's veracity, reasserts testimony supporting his innocence, and points to minor contradictions in the state's witnesses' accounts of when the kiosk closed and when Cox left the mall.  But issues of credibility are the exclusive province of the jury.  See Ostrem, 535 N.W.2d at 923 (jury is free to accept or reject competing factual accounts).  And inconsistencies in the state's case do not require reversal when the evidence, taken as a whole, makes the hypothesis of innocence seem unreasonable.  Id.  Assuming, as we must, that the jury believed the testimony supporting Cox's guilt, the evidence is more than sufficient to sustain the conviction.

            Cox argues the prosecutor committed misconduct by (1) failing to investigate the case properly before charging it, (2) failing to disclose a witness's statement in a timely manner, and (3) improperly arguing the case to the jury during closing arguments.  Prosecutorial misconduct warrants a new trial only when "the misconduct, viewed in light of the entire record, is of such serious and prejudicial nature that appellant's constitutional right to a fair trial was impaired."  State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000) (citation omitted).

            We see no reversible misconduct in the prosecutor's failing to interview defense witnesses before charging the case.  To charge a case, a prosecutor must have probable cause to believe the defendant committed the offense.  See Minn. R. Crim. P. 2.01; State v. Rud, 359 N.W.2d 573, 580 (Minn. 1984) (probable cause exists when admissible evidence is sufficient to withstand motion for directed verdict of acquittal).  Loomer's and Lindberg's statements alone provide an adequate basis for probable cause.  Further, failure to request a preliminary hearing or otherwise timely object to a charge constitutes waiver.  See Minn. R. Crim. P. 10.01, 10.03 (failure to raise before trial defense capable of determination without trial constitutes waiver); State v. Staag, 342 N.W.2d 124, 127 (Minn. 1984) (same).

           Second, the prosecutor did not commit reversible misconduct by failing to disclose a witness's statement before trial.  We recognize that the prosecutor may have had a duty to discover and disclose material exculpatory evidence possessed by the police.  State v. Williams, 539 N.W.2d 227, 234-35 (Minn.), cert. denied, 120 S. Ct. 180 (1999).  But we are not persuaded that the statement was material or that Cox was prejudiced by the delayed disclosure.  See id. at 235-36 (no reversible error when evidence not material and no material consequences on defendant's ability to prepare case).  The prosecutor gave Cox's counsel the statement immediately after learning of it, and the trial court allowed Cox to recall the witness for additional cross-examination.

           Finally, Cox lists a number of statements in the prosecutor's closing argument that he claims constitute misconduct.  Cox did not object to any of these statements at trial.  At most, the statements support a marginal argument on impropriety, but certainly do not reach the level of egregious conduct that would warrant review notwithstanding the failure to object.  See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (except in cases involving unduly prejudicial conduct, defendant's failure to object waives right to raise the issue of prosecutorial misconduct on appeal).

III

            Cox's final challenges are directed to the district court's evidentiary and procedural rulings.  Evidentiary rulings generally rest within the sound discretion of the district court and will not be reversed on appeal absent a clear abuse of that discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn.  1989). None of the rulings Cox challenges reflects an abuse of the trial court's broad discretion.

            First, the trial court properly allowed the state to use Cox's prior burglary and unauthorized-use-of-a-motor-vehicle convictions for impeachment purposes.  The convictions had strong impeachment value, were less than ten years old, were sufficiently dissimilar from the charged crime, did not prevent Cox from testifying, and reflected on Cox's credibility, which was a central issue at trial.  See State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (listing factors determining admissibility of prior convictions under Minn. R. Evid. 609(a)(1)).

            Second, the district court correctly instructed the jury on circumstantial evidence by giving the standard instruction and rejecting the proposed instruction on the rational-hypothesis test.  The rational-hypothesis test is an appellate measure for sufficiency, but does not apply to jury instructions.  State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (reasoning that jury instructions are conceptually different from appellate tests for sufficiency of evidence).

            Third, Cox has demonstrated no prejudice from the state's failure to provide Loomer's and Lindberg's criminal histories until the day of trial.  See Minn. R. Crim. P. 9.01, subd. 1(1)(a) (requiring prosecutor to disclose, before omnibus hearing, all records of state witnesses' prior convictions).  Loomer had no prior convictions, and Lindberg had only a gross misdemeanor conviction that did not involve dishonesty.  See State v. Jackson, 346 N.W.2d 634, 638 (Minn. 1984) (any error resulting from state's failure to disclose criminal record of key prosecution witness was not prejudicial).

            Fourth, Cox has demonstrated no prejudice from the prosecutor's alleged violation of a sequestration order.  State v. Bergland, 202 N.W.2d 223, 224 (Minn. 1972) (reversible error must be predicated on actual prejudice).  No evidence shows that the state intended to elicit testimony on the point the witness and the prosecutor briefly discussed, and the court, as a precaution, ordered the state not to question the witness on that issue.  See State v. Johnson, 324 N.W.2d 199, 201 (Minn. 1982) (nonprejudicial statements made in violation of sequestration order did not warrant exclusion of witness's testimony). 

Cox's five remaining claims are without merit because (1) the exchange between some of the state's witnesses and the county's director of victim services did not involve the witnesses' testimony and was not overheard by the jurors; (2) the record demonstrates that Cox was permitted ample opportunity to inquire into and attempt to establish Lindberg's motive to lie; (3) the district court acted well within its discretion in permitting the prosecution rebuttal, under Minn. R. Crim. P. 26.03, subd. 11(j), to reply to a misstatement on the state's burden of proof; (4) Cox's claim relating to exclusion of photographs is not reviewable because it is not supported by argument or authority, see State v. Lipscomb, 289 Minn. 511, 513, 183 N.W.2d 790, 792 (1971) (refusing to consider claim not supported by argument or authority); and (5) Cox's claim that he was improperly required to disclose the nature of his proposed witnesses' testimony is similarly devoid of authority or argument that would require review.

            Affirmed.