State of Minnesota, Respondent, vs. Jeffrey Ross Stone, 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This opinion will be unpublished and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

A03-1156

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Ross Stone,

Appellant.

 

Filed August 10, 2004

Affirmed

Parker, Judge*

 

St. Louis County District Court

File No. F8-02-583

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Parker, Judge.

 

U N P U B L I S H E D  O P I N I O N

                                   

PARKER, Judge

 

            On appeal from conviction of first and second-degree criminal sexual conduct, appellant argues that the district court abused discretion in declining to sever two cases arising from separate incidents occurring at different times and involving different victims.  Appellant argues that the error was not harmless when the court engaged in a Spreigl rather than a joinder analysis and did not give a proper cautionary instruction.  Appellant also argues that the court abused discretion in admitting evidence of prior incidents involving the victims without conducting a Spreigl analysis, and without the state giving notice, and in admitting an audiotape of appellant's interview with police without redacting statements in which police allegedly vouched for the victims' credibility.  Finally, appellant argues that the prosecutor committed prejudicial misconduct during closing argument by (1) misstating the burden of proof beyond a reasonable doubt and (2) inflaming the passions of the jury by comparing appellant to a literary character who committed murder.  We affirm.

FACTS

 

            This case involves the sexual misconduct of a stepfather against his stepdaughters.  Appellant Jeffrey Stone married the mother of K.G. and G.H. in 1989, when K.G. was three years old and G.H. was seven years old.  In or around 1992, when K.G was approximately six years old, K.G. said she was watching television with Stone in the family's living room, that Stone put K.G. on his stomach, took off her shirt and put his hands in her pants, and that he then put his fingers in her vagina and showed her his penis.

G.H. said that:  when she was twelve years old, she was sleeping on the couch in the family's living room; Stone put his hands inside her pants in her pubic area; he put his hands inside her shirt and touched her breasts; she awoke during the incident but she pretended to be asleep; and after Stone left, she went to the bathroom and threw up.

In September 2002, when K.G. was 16 years old, she ran away from home.  She eventually arrived at G.H.'s marital home in Duluth.  During this time, the sisters told each other of the incidents with Stone.  They also told their mother, and the three women confronted Stone.

Following the confrontation, Stone attempted suicide and was taken to the hospital. At the hospital, Stone gave a taped statement to a police officer and a social worker, in which he stated that several years ago, he was lying on the living room with K.G. on his stomach.  He said, "I know what I did was wrong, very wrong.  I knew when I was doing it to [K.G.], I knew it was wrong. . . . I was hoping she wasn't going to remember, . . . I was hoping she wasn't going to remember, and I just tried to pass it off."  He stated that he had taken her shirt off and kissed her.  He initially stated that he remembered rubbing her back but that he did not remember touching or penetrating her vagina.  Later in the interview he stated, "my hand most likely did go down there." 

He also stated that he had once gotten an erection while picking up G.H. when his hand got close to her crotch.  But he stated that he did not recall waking G.H. while she slept or touching her pubic area or breasts. 

Stone was charged with one count of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(a) (2002), against K.G.; one count of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(g) (2002), against K.G.; one count of second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(a) (2002), against G.H.; and one count of second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(g) (2002), against G.H.  Stone moved to sever the counts arising from the charges of sexual misconduct against K.G. from those arising from the sexual misconduct charged against G.H.   The district court denied the motion, holding that there was no need to subject both victims to the stresses of trial testimony in two separate trials.

At trial, both K.G. and G.H. testified as to Stone's sexual misconduct against them.  They also stated that he watched them when they showered.  K.G. testified that Stone came into her room "a handful" of times in the middle of the night and pulled off her covers and her underwear.  She stated that she just kept turning around and he would eventually leave.  G.H. testified that Stone had tried to come into her room and take her covers off but she would roll over and pretend to sleep. 

Stone testified that nothing beyond an inappropriate kiss occurred with K.G.  He denied that he ever touched G.H.  He did not, however, deny what he said during the interview with the police officer and the social worker, which the jury heard on audiotape.

The jury convicted Stone of all counts.  The district court sentenced Stone to 81 months in prison for the first count and a consecutive 21-month prison term for count III.  This appeal followed.

D E C I S I O N

 

I.

 

Appellant Jeffrey Stone argues that it was prejudicial for the district court not to sever counts I and II, which arose out of allegations of criminal sexual conduct against K.G., from counts III and IV, which arose out of allegations of criminal sexual conduct against G.H.  We review the denial of a motion to sever under an abuse of discretion standard.  State v. Dick, 638 N.W.2d 486, 490 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).

Joinder of criminal offenses is governed by Minn. R. Crim. P. 17.03, subd. 1, which states that "[w]hen the defendant's conduct constitutes more than one offense, each such offense may be charged in the same indictment or complaint in a separate count."  The joined offenses must be part of a single behavioral incident.  State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999).  The factors relevant to determining whether offenses constitute a single behavioral incident are the "time and place [of the offenses] and * * * whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective."  Id. (citation & quotation omitted).  Here, the parties agree that it was error for the district court to find that the two offenses were part of a single behavioral incident.

"[E]ven though joinder was improper, remand is not required if the district court's denial of the motion to sever was not prejudicially erroneous."  Id. at 460.  Generally, under Profit, if the evidence of each offense would have been admissible Spreigl evidence in the trial of the other, there was no prejudicial error in joinder.  Profit, 591 N.W.2d at 461.  Spreigl evidence may only be admitted if "(1) there is clear and convincing evidence that defendant participated in the Spreigl offense; (2) the evidence is relevant and material to the state's case, and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice."  State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).  "In determining relevancy, we have generally required that the other crime be similar in some wayeither in time, location, or modus operandito the charged offense, although this, of course, is not an absolute necessity."  State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983).  "While it is important to make plain that such bad act evidence cannot be used to prove action in conformity therewith, it can be used to show a link between the bad act and the charged offense in order to establish a modus operandi."  State v. Jackson, 615 N.W.2d 391, 395 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).

First, the respective "other crimes" must be held to have been proven by clear and convincing evidence because the jury found Stone guilty beyond a reasonable doubt on both charges.  Second, the record shows that the two offenses share a common modus operandi: both victims are Stone's stepdaughters, both victims alleged that Stone assaulted them in the living room of their home while they were living there; both victims stated that no one else was in the living room at the time, except possibly their infant brother; both victims also alleged that Stone put his hands under their clothing.  Finally, the record also shows that the probative value of the evidence outweighs the potential for unfair prejudice because one case could be used to show Stone's modus operandi in the other case and to support the statement Stone gave in the hospital.  Thus, the evidence of each incident would be admissible Spreigl evidence to show identity, knowledge, or common plan, and there was no prejudicial error in the district court's ruling.

            Stone correctly argues that courts admitting Spreigl evidence must give cautionary instructions to avoid undue weight being given evidence of past crimes and "bad acts."  See State v. Slowinski, 450 N.W.2d 107, 114-15 (Minn. 1990) (noting judge read cautionary instructions to jury before testimony and at close of entire case, which lessened probability of undue weight being given to evidence); State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994) (stating district court minimized prejudice by narrowly limiting scope of testimony and giving cautionary instruction at time evidence was admitted and at close of trial), review denied (Minn. Mar. 15, 1994).  But while trial courts are advised, even absent a request, to give a cautionary instruction upon the receipt of other-crimes evidence, failure to do so is not ordinarily reversible error.  State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).  In addition, the Profit court stated:

In Spreigl evidence cases, such limiting instructions are necessary to ensure that the jury does not convict the defendant of the uncharged Spreigl offense rather than for the crime with which the defendant was charged.  But in joinder cases the defendant is actually charged with both crimes. When a defendant is charged with and may permissibly be convicted of both crimes, there is less danger that the jury will try to punish the defendant for one crime by convicting him of the other.

 

Profit, 591 N.W.2d at 460.  Thus, it seems that while the district court was required to conduct a Spreigl analysis to determine whether to deny Stone's severance motion because of potential prejudice, once that motion was denied, the function of the Spreigl analysis was completed, and the district court was then required to instruct the jury to consider each of the charges separately.  See State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000) (holding "for trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately"). 

Here, the district court instructed the jury that there were eight verdict formstwo verdict forms for each separate charge.  The jury instructions give the law for each of the charges separately.  The district court properly instructed the jury to consider each of the charges separately.

In denying Stone's severance motion based on a Spreigl analysis, the district court also referred to the interests of justice in not subjecting the victims to "the stresses of trial testimony in a sexual misconduct case involving their step-father" in two separate trials.  Of course, the interests of justice and victim impact are not specific factors to be weighed where joinder of offenses is concerned.  But we note that the district court expressed these factors, after discussing the Spreigl determination as dispositive, by the phrase, "[t]hat being the case," there is no need to subject them to it.  See Minn. R. Crim. P. 17.03, subd. 1 (giving district court authority to join offenses without providing guidelines on victim impact or the interests of justice).  Thus, we hold that the district court did not abuse discretion in referring to victim impact and the interests of justice in explaining the decision.

II.

            Stone argues that the district court committed reversible error by admitting "prior bad act" evidence without subjecting it to a Spreigl-style analysis.  The state argues that appellant forfeited this issue for appeal by failing to object to the testimony of K.G. and G.H. at trial.

            Failure to object

Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis.  State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001).  Ordinarily, a party need not renew an objection to the admission of evidence to preserve a claim of error for appeal following a ruling on a motion in limine.  State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002); see also Minn. R. Evid. 103(a) advisory committee's note (stating that a motion in limine to preclude evidence operates as a timely objection and obviates further objection).

            Stone moved in limine to exclude the transcript and audiotape of his statement to the police and social worker because the police officer and the social worker explained KG. and G.H.'s allegations to Stone.  In his motion in limine, Stone does not request exclusion of all evidence of "prior bad acts" regardless of whether it was presented during live testimony or on the audiotape of his statement to the police.  Instead, he specifically states that the motion in limine "is relative to the statement Mr. Stone gave to law enforcement."  The district court ruled that the audiotape could be admitted in evidence and stated that the court would give a "cautionary instruction, relative to the fact that the questions are not to be considered as substantive evidence but only the answers are."  On appeal, Stone argues that during trial "several witnesses testified regarding other inappropriate incidents."  But this testimony is not part of the audiotape; it occurs during portions of K.G.'s and G.H.'s testimony during trial.  Because his motion in limine only requested exclusion of the transcript and audiotape, Stone has waived his right to appeal the admission of "prior bad act" evidence presented during the live testimony of K.G. and G.H.

Plain error

An appellate court may consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affects the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  To satisfy the third prong, a defendant bears a "heavy burden" of persuasion to show that "the error was prejudicial and affected the outcome of the case."  Id. at 741.  If these three prongs are met, the court must then decide whether it should address the issue in order to "ensure fairness and the integrity of the judicial proceedings."  Id. at 740.

In State v. Vick, the Minnesota Supreme Court held that when there was a failure to object to Spreigl evidence, the question was whether the district court's failure to strike the testimony, sua sponte, or to provide a cautionary instruction, constituted plain error.  Vick, 632 N.W.2d at 685.  We have already addressed the issue of a Spreigl cautionary instruction and hold that any error resulting from the trial court's decision not to strike the testimony sua sponte was not plain.  Furthermore, both K.G.'s and G.H.'s testimony on the incidents for which Stone was charged, as well as Stone's testimony and statements, provide a strong basis for Stone's convictions without the evidence of the other alleged occurrences.  Thus, even if there was an error, Stone cannot satisfy his heavy burden under the third prong of the plain-error test because he cannot show that the error was so prejudicial as to have affected the outcome of the case.  Because there was no plain error, we do not address the waived issue of whether the district court committed reversible error when it admitted "prior bad act" evidence without subjecting it to a Spreigl-style analysis.

III.

            Stone argues that the district court erred by admitting an audiotape of his conversation with the police officer and social worker because it contained improper "vouching" and irrelevant evidence.  The state argues that Stone's objection was not specific enough and that he failed to object to the relevant evidence and has therefore forfeited this issue on appeal.  The state concedes that Stone made, as part of his motion in limine regarding the tape-recorded statement, an objection that the police officer and social worker were "rendering an opinion that they believed the allegation to be true and that they believed Mr. Stone's denial to not be true." 

"An objection must be specific as to the grounds for challenge."  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  In Rodriguez, this court concluded, "Rodriguez' objection to the word ‘kidnapping' on grounds of a ‘legal conclusion' could not have alerted the trial court to the detailed hearsay and confrontation clause arguments Rodriguez now raises on appeal."  Id.  Here, Stone objected to admission of the audio recording because he felt the police officer and the social worker were "vouching" for the truth of the allegation.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (stating vouching testimony is testimony that another witness is telling the truth or testimony that one believes a witness over another).  Because Stone's objection contained elements of vouching, it could have alerted the district court to the vouching argument he raises on appeal.

In addition, even though the objection did not point specifically to portions of the audiotape, this is more specific than the objection in Rodriguez.  Thus, Stone objected to admission of the audiotape on the ground that it contained inappropriate vouching. 

Vouching on the audiotape

We next turn to the question of whether the district court erred in admitting the audiotape because it contained vouching and irrelevant evidence.  Because "the credibility of a witness is for the jury to decide," one witness cannot vouch for or against the credibility of another witness.  State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995).  For example, in Koskela, the supreme court stated that it was troubling for a police officer to state, "I had no doubt whatsoever that I was taking a truthful statement."  Id.; see also State v. Ellert, 301 N.W.2d 320, 323 (Minn. 1981) (holding that it was error to admit police testimony that defendant was lying when she made her statement to the police).  If, during the audiotape, the police officer or the social worker stated that K.G , G.H., or Stone was telling the truth, the evidence would be considered vouching and would be inadmissible.  But that is not what happened here.  The transcript of the audiotape shows that the police officer told Stone, "[T]here's been some disclosure by your stepdaughters and that's what we're really here to talk about."  The police officer then explained that the hospital staff were mandatory reporters and Stone was hospitalized after attempting suicide.  He told staff what happened, and they had to tell the police.  The officer explained that he was concerned that if there had been a crime, he had to investigate it but that the social worker was concerned with his well-being and his family's well-being.  The police officer stated that what Stone told them coincides with what K.G. said but stated that he was not accusing him.  While the police officer stated that it was good that Stone was being honest about his alleged medical condition and that he believed that Stone remembered the incidents, the officer never said that either K.G. or G.H. was telling the truth or that Stone was or was not telling the truth about what he may have done to his stepdaughters.  Thus, this does not rise to the level of vouching. 

Even if there were vouching, the district court instructed the jury regarding the audiotape as follows :

The questions being posed are not the evidence in the case.  The answers are.  Of course, we can't exclude the questions, or else the answers wouldn't make any sense to you.  But in terms of listening to the tape, the part that you should be considering as evidence is the answers of [Stone].

 

Thus, the jury was instructed to disregard those portions of the audiotape that Stone argues contain vouching. 

Vouching during the officer's testimony

Stone also argues that when the police officer testified, he vouched for the credibility of the complainants.  The police officer testified:

I can't tell you my exact frame of mind at the time.  But my overall feeling is that these things are going to run their course, and the sooner we get through them, the sooner they're going to get done.  And I do believe that the truth is going to come out.  And I believe it has.  And so ultimately what I feel I told him was the truth. 

 

This portion of the transcript refers back to defense counsel's cross-examination, in which the police officer stated that he encouraged Stone to confess.  Again, this does not rise to the level of vouching because the police officer does not indicate what "the truth" is and does not indicate whether he thinks Stone's confession was true or untrue.

Relevancy

Stone argues that his answers to the police officer's questions extended to "several irrelevant topics."  Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.  "The district court is in the best position to determine whether the prejudicial effect of the evidence substantially outweighs its probative value."  State v. Smith, 669 N.W.2d 19, 28 (Minn. 2003).  Relevant evidence may be excluded if its prejudicial effect will substantially outweigh its probative value.  Minn. R. Evid. 403.  Even when evidence does "nothing but inflame the jury," the error in admitting it is harmless where the other evidence of the defendant's involvement is "so overwhelming as to lead a reasonable jury to arrive at the verdict even without the prejudicial evidence."  State v. Townsend, 546 N.W.2d 292, 296-97(Minn. 1996).

It is unlikely that the evidence of Stone's alleged medical condition and his testimony of sexual abuse against him inflamed the jury.  Even if it did, however, the other evidence, including Stone's statement to the police and the testimony of K.G. and G.H., was so overwhelming as to lead a reasonable jury to arrive at the verdict even without the prejudicial evidence.  Id.

IV.

Prosecutorial misconduct

Stone argues that the prosecutor committed serious misconduct during his closing argument by misstating the burden of proof and by inflaming the passions and prejudices of the jury.  Prosecutorial misconduct does not in and of itself constitute grounds for granting a defendant a new trial.  See State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996).  Once misconduct has been established, the court must then determine whether the defendant was denied a fair trial.  Id. at 647-48.

Whether prosecutorial misconduct was harmless depends partly upon the type of misconduct committed.  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).  For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.  See State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997).  "For less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict."  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).

Stone claims that the prosecutor misstated the burden of proof by saying that "reasonable doubt" was "not some sort of magical standard that the state meet every once in a great while."  Stone argues that this gave the jury the impression that the state meets its burden of proof in hundreds, if not thousands, of other cases from speeding to murder.  Stone's argument is without merit.  First, Stone's speculation as to the jury's impression is unfounded because the prosecutor did not say that the state meets the burden in thousands of cases; second, reasonable doubt is the standard for both speeding and murder cases; and third, Stone concedes that the district court set forth the correct standard during the instructions before closing argument.  Thus, it is highly unlikely that the prosecutor's statement played a substantial part in influencing the jury to convict.

Stone also claims that the prosecutor's reference to an Edgar Allen Poe character inflamed the jury.  Given the amount of evidence supporting Stone's conviction, including his own admissions, these statements also are highly unlikely to have played a substantial part in influencing the jury to convict.  Because if there was any prosecutorial misconduct at all, it was harmless beyond a reasonable doubt, and Stone is not entitled to a new trial on this issue.

V.

Cumulative effect

Stone argues that even if this court does not hold that any one of the errors committed at his trial warrant a new trial, the court should consider the cumulative effect the errors had on his right to a new trial.  See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (granting defendant a new trial when several errors, taken cumulatively, had the effect of depriving defendant of a fair trial).  This court may evaluate the errors together to see if the cumulative effect was harmless beyond a reasonable doubt.  State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998). 

We find no error (1) in the district court joining the criminal offenses because both offenses would be admissible Spreigl evidence for the other, (2) in the jury instructions where Stone waived the issue of other "prior bad act" evidence, (3) in the district court admitting the audiotape of Stone's statement to the police officer and the social worker because it did not contain vouching and irrelevant evidence, and (4) in prosecutorial misconduct.  Thus, where we find no error there can be no cumulative effect. 

                                                                  VI.

Stone argues in his pro se supplemental brief that there were some jury members who knew of the case before the trial started and that there were three other witnesses who did not get a chance to testify on Stone's behalf.  We have reviewed and considered these issues and find that they are unsupported by citation or analysis and thus we decline to address the arguments.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation). 

            Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.