State of Minnesota, Respondent, vs. Willie Cobbs, 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This opinion will be unpublished and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

A03-1888

 

State of Minnesota,

Respondent,

 

vs.

 

Willie Cobbs,

Appellant.

 

Filed November 30, 2004

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Carlton County District Court

File No. K4-01-641

 

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

 

Marvin E. Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Willie Cobbs appeals from his conviction of third-degree criminal sexual conduct.  Cobbs argues that the prosecutor committed prejudicial misconduct by eliciting vouching testimony from a witness and mischaracterizing the DNA evidence in closing argument.  Cobbs also argues that the district court erred in ordering him to reimburse the public defender fund without holding a hearing on his ability to pay and by ordering him to pay for a psychological assessment required as part of sentencing.  We affirm in part, reverse in part, and remand.

FACTS

Cobbs was hired at the Mash-Ka-Wisen Treatment Center in January 2001 and began working as a rehabilitation technician.  On May 13, 2001, Cobbs worked an overnight shift and asked A.D. and T.M, two female residents at the center, to engage in oral sex with each other while he watched.  Later the same evening, Cobbs entered A.D.'s room and repeatedly rubbed and touched her.  A.D. eventually had sexual intercourse with Cobbs because she feared Cobbs would alter her center records.  Cobbs then wiped himself off with a towel and left the room.

A deputy sheriff interviewed A.D. and requested a sexual-assault examination.  Cobbs was interviewed later and claimed he merely watched A.D. and T.M. engage in sexual activity while he masturbated into a towel.

Cobbs was suspended from his employment with the center and subsequently terminated on May 21, 2001.  He was later charged with third-degree criminal sexual conduct and indecent exposure.  At trial, Kerry Gauthier, the center's director, was asked on direct examination the reasons for Cobbs's termination.  Defense counsel objected on hearsay grounds and the objection was overruled.  Gauthier then testified that Cobbs was terminated because of "allegations of sexual misconduct," and "upon investigation with the sheriff's department and our internal investigation, he was terminated by the board of directors."

The forensic scientist who performed the DNA analysis on the samples obtained from A.D. and Cobbs testified that the DNA profile was consistent with being a mixture from two or more individuals.  A.D. was not a contributor to the mixture and 99.99997 percent of the general population could also be excluded as a contributor to the mixture.  The data indicated that about one out of every two million people would be a possible contributor and the other 1,999,999 would not be a contributor to the DNA mixture. 

Cobbs was convicted of third-degree criminal sexual conduct.  At the sentencing hearing, the district court imposed a $500 fine, ordered him to pay a psychological assessment fee of $615, and ordered him to reimburse the public defender fund.  Neither Cobbs nor his attorney objected to the order for reimbursement of the public defender fund and payment of the psychological-assessment fee, and no hearing was held on his financial ability to pay.  This appeal followed.

D E C I S I O N

1.         Prosecutorial Misconduct

            a.         Vouching Testimony

            Cobbs argues that the state committed prosecutorial misconduct by intentionally eliciting "vouching" testimony from Gauthier on direct examination.  But Cobbs's counsel failed to object to Gauthier's testimony at trial, raising this issue for the first time on appeal. 

            Generally, an appellate court does not review matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  However, if there is plain error that affects a defendant's substantive rights, this court has the discretion to consider the issue.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  In Minnesota, this court uses a three-prong test for plain error requiring that, before an appellate court may review an objection not raised below, there must be (1) error (2) that is plain and (3) the error must affect substantial rights.  Id.  "The test for determining plain error is ‘whether there was or was not a reasonable likelihood that any error substantially affected the verdict.'"  Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996) (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

            Because witness credibility is for the jury to decide, it is improper for one witness to vouch for or against the credibility of another.  State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995); see also Van Buren, 556 N.W.2d at 552 (explaining that testimony from one witness that vouches for the credibility of another witness is improper).  Cobbs argues that the testimony concerning the reasons for his termination validated A.D.'s version of events and convinced the jury that A.D.'s testimony was the truth.  Gauthier specifically testified that "[t]here were allegations of sexual misconduct with the client, [Cobbs] was suspended on the 14th  upon investigation with the sheriff's department and our internal investigation, [Cobbs] was terminated by the board of directors."

In Van Buren, the central issue was the credibility of the victim.  556 N.W.2d at 550.  But, in the present case, there was significant DNA evidence as well as the testimony of two investigating sheriff's officers.  The court was not forced to weigh the credibility of the victim solely against the credibility of the defendant.  Further, Cobbs's own admission during the sheriff's investigation that he masturbated into a towel while watching two minor patients engage in oral sex would have given Gauthier ample reason to terminate Cobbs's employment irrespective of whether penetration with A.D. ever occurred.   Therefore, Cobbs is unable to demonstrate that if there was error, there is a reasonable likelihood it substantially affected the verdict.

            b.         DNA Evidence in Closing Argument

            Cobbs next asserts that the prosecutor committed misconduct during closing argument by misrepresenting the DNA evidence.  Cobbs argues that the prosecutor improperly led the jury to believe that Cobbs was the source, to the exclusion of all others, of the DNA leading to the conclusion that he committed the crime.

            In State v. Bloom, the Minnesota Supreme Court outlined the rules regarding the explanation of DNA evidence.  516 N.W.2d 159, 168 (Minn. 1994).  The court stated that an "expert [should not] be allowed to say that the defendant is the source to the exclusion of all others or to express an opinion as to the strength of the evidence."  Id.  But when arguing the evidence, the prosecutor is not confined to delivering a "colorless" argument.  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).  Prosecutorial misconduct does not arise when the prosecutor draws reasonable inferences from the evidence in the record.  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1986). 

            During closing argument the prosecutor stated, "the vaginal swab [from] inside [A.D.] indicates that out of 2 million people, you can exclude this many, 1,999,999.  You can't exclude one, and that one person, ladies and gentleman, is [Cobbs].  He violated [A.D.], and I ask that you focus on this, because this piece of evidence corroborates her statement."  The DNA evidence established a high statistical likelihood that Cobbs was a contributor to the DNA mixture created from the sperm recovered during A.D.'s sexual assault examination.  The prosecutor's statements in closing argument were based on reasonable inferences drawn from the evidence in the record.  Finally, the prosecutor, rather than an expert witness, made the challenged statement on the DNA evidence.  See State v. Roman Nose, 667 N.W.2d 386, 402 (Minn. 2003) (explaining that "[a]n expert's testimony would undoubtedly be viewed with greater credibility than a prosecutor's closing argument and therefore deserves closer attention"). Therefore, we conclude that the prosecutor's statements during closing argument do not constitute prosecutorial misconduct.

            c.         Cumulative Effect of Alleged Errors

            Finally, Cobbs argues that, although a single error alone may not warrant reversal, the cumulative effect of the alleged errors compels reversal.  The accumulation of error that would not warrant reversal in a case with overwhelming evidence may justify a new trial in a close factual case.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  In Underwood, there were numerous errors, including comments on the fact that the defendant did not take the stand, evidence of other crimes introduced for inadmissible purposes, and improper jury instructions.  Id. at 342-44.  In a criminal sexual conduct case, cumulative error requires that there be a series of evidentiary and procedural errors that seriously prejudice the defendant.  See, e.g., State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (concluding that the cumulative effect of district court's instruction, violation of confrontation rights, and prosecutorial misconduct in closing argument required reversal); State v. Jahnke, 353 N.W.2d 606, 609-11 (Minn. App. 1984) (concluding that the extensive questioning on prior convictions, character evidence, and improper reference to a polygraph test constituted a denial of appellant's right to a fair trial).

            The present case is distinguishable from Underwood in several respects.  First, the state had substantial evidence incriminating Cobbs.  This was not a close factual case and did not turn solely on the credibility of the victim.  Second, neither of the errors alleged by Cobbs can be substantiated or was prejudicial.  Gauthier's testimony regarding the center's reasons for terminating Cobbs did not improperly vouch A.D.'s version of events.  Gauthier would have had reason to terminate Cobbs based on Cobbs's own admission to the deputy sheriff that he masturbated into a towel while watching A.D. and T.M. engage in oral sex.  Further, the prosecutor's references to the DNA evidence in closing argument summarized the testimony of the DNA expert and were based on reasonable inferences drawn from that evidence.  There was no prosecutorial misconduct.  Thus, the facts here do not warrant a reversal. 

2.         Reimbursement of the Public Defender Fund

Cobbs argues that it was reversible error for the district court to have ordered him to reimburse the public defender fund without first having a hearing on his ability to pay.  Minn. Stat. § 611.35, subd. 1 (2002), states that a person represented by a public defender or appointive counsel "shall, if financially able to pay, reimburse the governmental unit chargeable with the compensation of such public defender or appointive counsel . . . ."  In State v. Larson, this court held that "[t]he proper method for obtaining reimbursement for public defender services is for the trial court to afford a hearing on the financial ability to pay."  374 N.W.2d 329, 331 (Minn. App. 1985); see also Foster v. State, 416 N.W.2d 835, 837 (Minn. App. 1987) (stating the purpose of the hearing is to ascertain whether a defendant is able to pay and determine the amount of costs).

Cobbs was represented by a public defender throughout the proceedings and was ordered, during sentencing, to reimburse $1,960 to the public defender fund.  The district court did not hold any hearing on Cobbs's financial ability to reimburse the public defender.  Therefore, we remand this issue to the district court for a determination on Cobbs's financial status and ability to reimburse the public defender fund.

3.         Psychological Assessment Fee

At sentencing, Cobbs was also ordered to pay $615 for a mandatory psychological assessment required under Minn. Stat. § 609.3452 (2002) for all individuals convicted of a sex offense.  The state argues that payment of the psychological assessment fee is proper under Minn. Stat. § 631.48 (2002), which allows the court to order the defendant to pay  "the whole or any part of the disbursements of the prosecution . . . ."  The state further argues that because Cobbs failed to object to the imposition of the fee at sentencing, he has waived his right to object on appeal. 

Cobbs, however, correctly argues that neither Minn. Stat. § 609.3452 nor Minn. Minn. Stat. § 631.48 permits the court to transfer this cost to the appellant.  See State v. Lopez-Solis, 589 N.W.2d. 290, 293 (Minn. 1999) (requiring costs to "either be expressly provided for in the statute or analogous to costs taxable to the prevailing party in a civil action").  Further, the cost of the psychological assessment is more accurately characterized as a cost related to the sentencing of the appellant rather than a cost of prosecuting the appellant.  This is not a disbursement of the prosecution or a cost appropriately associated with the prosecution, and the fact that Cobbs failed to object at sentencing is irrelevant.  Therefore, the district court erred in ordering Cobbs to pay the cost of the mandatory psychological assessment fee. 

Affirmed in part, reversed in part, and remanded.