State of Minnesota, Respondent, vs. Matthew NMN Trice, 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This opinion will be unpublished and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

A04-106

 

State of Minnesota,

Respondent,

 

vs.

 

Matthew NMN Trice,

Appellant.

 

Filed ­­­November 16, 2004

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. 03042505

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges his conviction of solicitation of a child to engage in sexual conduct, arguing that the prosecutor committed prejudicial misconduct.  We affirm.

F A C T S

 

            S.S., a 13-year-old girl, testified that appellant Mathew Trice, her mother's boyfriend, made sexually suggestive comments to her and gave her a pornographic movie while he was living in S.S.'s home.  S.S. also read four e-mails she that claimed were sent to her by Trice.  The e-mails contained sexually explicit language and the alleged solicitation to engage in sexual conduct.

S.S. told her mother, T.M., about the e-mails.  T.M. testified that, when she confronted Trice, he initially denied sending the e-mails, but later admitted to sending them to determine whether S.S. "liked him."  T.M. also testified that, while Trice was in custody pending trial, he asked her to send e-mail to S.S. from his e-mail accounts to indicate that someone other than Trice had sent the e-mails to S.S.  Finally, T.M. testified to letters Trice sent from jail wherein he discussed money and wrote, "Angela . . . wants to know how much it will take for you to help me."

At trial, Trice denied making sexually suggestive remarks to S.S. and denied sending the e-mails, suggesting that someone had stolen his identity and sent the e-mails using his name.  Trice also testified that the letters he sent to T.M. were about bills.  Mickey Simmons, T.M.'s ex-boyfriend, testified that S.S. had a reputation for untruthfulness.  A jury convicted Trice of solicitation of a child to engage in sexual conduct.  Trice appeals from his conviction.

D E C I S I O N

Appellate courts reviewing claims of prosecutorial misconduct "will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  Less serious misconduct warrants reversal only if the misconduct played a substantial part in influencing the jury.  Id.

1.         Witness Examination

Trice argues the prosecutor committed prejudicial misconduct in eliciting testimony about incidents between Trice and S.S. that had been ruled inadmissible.  The prosecutor asked S.S.'s grandmother, "And just generally . . . what, if anything, did you observe about [Trice and S.S.'s] interactions?"  S.S.'s grandmother answered, "Him sitting on the couch with his arms around her at my house."  Trice's objection to this remark was sustained, and the jury was instructed to ignore the answer.  Trice moved for a mistrial, arguing the prosecutor had been told not to elicit the testimony provided by grandmother.  The district court denied the motion, explaining that the instruction was a sufficient remedy and the "objectionable portion [of the grandmother's testimony]" was "the next sentence of what counsel had originally indicated [the grandmother] was going to say."

It is improper for prosecutors to ask questions that are calculated to elicit an inadmissible answer.  State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001).  Nevertheless, assuming, without deciding, that the prosecutor's question amounted to misconduct, we note that the district court gave a relevant instruction.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (courts should consider whether a relevant instruction was given).  And the question was asked once and was not repeated.  See State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (any misconduct must be viewed in the context of the whole trial), review denied (Minn. Sept. 20, 1995).  Thus, even if there were misconduct, we conclude that it did not play a substantial part in influencing the jury.  See Powers, 654 N.W.2d at 678 (standard of review for less serious misconduct).

2.         Closing Argument

Trice alleges five instances of prejudicial prosecutorial misconduct during closing argument.  First, Trice argues that the prosecutor committed misconduct by stating:

I would ask you to note that the sexual innuendo began to become more frequent.  We heard [S.S.] testify that one day when she was walking through the house in her pajamas, the defendant noted that her nipples were showing. . . .  He then rubbed his hand along her back to confirm that she wasn't wearing a bra.  She testified that at one point he made a comment about how he wanted to rub ice on her nipples.  We had testimony that . . . he asked [S.S.] about her masturbation habits. . . .  He gave her a pornographic video. . . .  And as this sexual behavior escalated, it lowered her resistance because as you kind of get more and more conditioned to this kind of behavior, you are allowed to go one step further, and one step further, and one step further.  And in this case, it escalated to the e-mails.

 

Trice contends that this amounts to misconduct because the district court had previously sustained an objection to a witness examination question on the topic of "grooming behavior."

Trice did not object to the prosecutor's alleged misconduct.  Failure to object weighs heavily against a decision to reverse.  Washington, 521 N.W.2d at 40.  The prosecutor did not use the catchword "grooming," and her remarks accurately described the evidence and argued its reasonable inferences.  See State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (a prosecutor is permitted to argue reasonable inferences from facts presented).  And the jury was instructed at the beginning and close of trial that the statements of attorneys were not evidence.  See Washington, 521 N.W.2d at 40 (relevant instruction).  For these reasons, we conclude that the prosecutor did not commit misconduct by making these remarks.

Trice argues that the second and third instances of misconduct occurred when the prosecutor improperly stated her opinion regarding Trice's credibility as a witness.  The prosecutor responded to Trice's assertions that his identity had been stolen and the implication that S.S. sent the e-mails to herself.  The prosecutor said, "And I would ask you to look at the e-mails themselves.  The writing style is very different in [S.S.'s] e-mails compared to what the defendant has written.  To the State, it is very clear that these were written by very different people."  Trice's objection was sustained, and the remark was stricken.

It is improper for the prosecutor to inject his or her personal opinion of the defendant's credibility.  State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994).  But a prosecutor is permitted to argue reasonable inferences from the facts presented.  Johnson, 616 N.W.2d at 728 (Minn. 2000).  Here, the prosecutor's statement, taken in context, is an argument drawn from the e-mails that were admitted as evidence and is therefore not misconduct.  Additionally, even if there was misconduct, we note that the district court's twice given instructions were pertinent and controlling.  See Washington, 521 N.W.2d at 40 (relevant instruction).

Trice argues that the prosecutor again improperly stated her opinion regarding Trice's credibility as a witness when, after reading a portion of the e-mails, the prosecutor said, "If that is not an invitation and if that is not intent that you actually want someone to follow through.  It is quite clear what the defendant's intent was."  Trice's objection was sustained, and the remark was stricken.

We assume, without deciding, that this statement injects the prosecutor's opinion.  See Stewart, 514 N.W.2d at 564 (improper for prosecutor to inject personal opinion of defendant's credibility).  But the statement was only two sentences in a closing argument that amounted to 18 transcribed pages.  See Johnson, 616 N.W.2d at 28 (appellate courts consider the closing argument as a whole).  Additionally, once again, the district court's instructions were pertinent and controlling.  See Washington, 521 N.W.2d at 40 (relevant instruction).  The statement did not amount to prejudicial misconduct.

Fourth, Trice argues that the prosecutor improperly stated her opinion regarding S.S.'s credibility as a witness.  With regard to S.S.'s testimony, the prosecutor said, "As the State indicated, [S.S.] could have said she was sexually assaulted.  She could have said there were more than four e-mails.  She could have made it much worse than it was.  And instead, she sat before you and told the truth."

A prosecutor may not express a personal opinion about a witness's credibility.  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).  But a prosecutor may argue that the state's witnesses were worthy of credibility.  State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977).  Here, the prosecutor's remark, when considered in its context, amounts to an argument that S.S. was worthy of credibility.  See Johnson, 616 N.W.2d at 727-28 (appellate courts consider closing argument as a whole).  And Trice failed to object to this statement.  See State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (appellate court generally will not consider issue if defense did not object in the trial court).  The prosecutor did not commit misconduct in her remarks regarding S.S.'s testimony.

Finally, Trice contends that the prosecutor committed misconduct by insinuating that Trice had committed an uncharged offense of bribery.  While discussing the letters Trice sent to T.M., the prosecutor said, "And then as the letter goes on further, he comes out with what some could construe as a bribe."

Trice did not object to this statement.  See Parker, 417 N.W.2d at 647 (failure to object).  The prosecutor used the term "bribe" in its colloquial sense; this is distinguishable from previous cases where prosecutors have remarked on crimes that may have been supported by the evidence but were not charged.  Cf. State v. Page, 386 N.W.2d 330, 336 (Minn. App. 1986) (remark during closing argument that defendant could have been, but was not, charged with another offense was prosecutorial misconduct, even absent an objection), review denied (Minn. June 30, 1986).  There was no misconduct.

3.         Cumulative Effect

Trice argues the cumulative effect of all errors requires that this court reverse and remand for new trial.  See State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998) (appellate courts may evaluate errors together to see if cumulative effect was harmless beyond a reasonable doubt).  But where there is no error there can be no cumulative effect.  Here, most of the complained of conduct was not misconduct.  In the few instances where we have assumed misconduct, it was not prejudicial, a curative instruction was given, and the conduct was not repeated.  Thus, we conclude that Trice's right to a fair trial was not impaired.

Affirmed.

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