Patrick James Kissner, petitioner, Appellant, vs. State of Minnesota, Respondent.

Patrick James Kissner, petitioner, Appellant, vs. State of Minnesota, Respondent. A05-2122, Court of Appeals Unpublished, September 5, 2006.

This opinion will be unpublished and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

A05-2122

 

Patrick James Kissner, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 5, 2006

Affirmed Willis, Judge

Concurring specially, Randall, Judge

 

Stearns County District Court

File No. K1-02-3082

 

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Elizabeth Lamin, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4701 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this appeal from a denial of postconviction relief, appellant argues that he was denied the right to a fair trial when the jury was improperly exposed to questioning and testimony that implied that he was a danger to children.  Because the challenged statements were either proper rebuttal evidence or attempts to elicit proper rebuttal evidence, we affirm.

FACTS

Appellant Patrick James Kissner was convicted of a crime that required him to register under Minn. Stat. § 243.166 (2000), which provided that "[a]t least five days before . . . living at a new address," a person who is required to register under the statute "shall give written notice of the new living address to the assigned corrections agent or to the law enforcement authority with which the person currently is registered."  Minn. Stat. § 243.166, subd. 3(b).  In June 2002, Kissner was charged with failure to notify authorities of change of address in violation of section 243.166, subdivisions 3(b), 5(a). 

Before trial, Kissner stipulated that he was required by law to register; that he knew of this registration requirement; and that he knew that, as a part of the requirement, he had to give notice of a new primary living address at least five days before living at that address.  The only issue at trial was whether Kissner told his probation officers of his change of address as required by section 243.166, subdivision 3(b). 

Also before trial, Kissner's attorney told the district court that the state had agreed not to bring up at trial the facts that Kissner was prohibited by his conditions of probation from having unsupervised contact with children and that the two children of his girlfriend, Dee Notch, were with their mother when she visited Kissner while he lived at an allegedly unregistered address.  Kissner's attorney argued that such information "would be more prejudicial than probative."  The prosecutor responded, "I will not question on that topic directly.  However, I reserve the right to develop any testimony that comes from defense direct examination." 

At trial, Kissner's primary probation officer, John Ruprecht, one of four probation officers assigned to Kissner, testified that from November 2001 to January 15, 2002, Kissner was believed to have been living at an address on Seventh Street North in St. Cloud.  During this time, Kissner had weekly office visits with Ruprecht, and at each visit, Kissner indicated on the sign-in log that he was living at the Seventh Street address.  Ruprecht testified that Kissner notified him on January 15, 2002, for the first time, that Kissner had moved to the Gateway Motel on January 14, 2002, and was currently living there.  Ruprecht called the St. Cloud police, who, after an investigation, verified that Kissner no longer lived at the Seventh Street address, that Kissner was living at the Gateway Motel, and that Kissner actually had begun living at the motel before January 14, 2002. 

The manager of the Gateway Motel testified that Kissner stayed at the motel during December 2001 and part of January 2002.  Receipts and the check-in register from the motel show that Kissner stayed there from approximately December 1, 2001, to January 17, 2002, and that, on some dates, Notch stayed as his guest.  The state's case-in-chief consisted of testimony from the motel manager, two of Kissner's probation officers, and two police officers.  During its case-in-chief, the state did not bring up the facts that Kissner was prohibited from having unsupervised contact with children and that Notch's two children were with her when she visited Kissner at the motel. 

Notch testified for the defense that between December 2001 and January 2002, Kissner stayed at her house when he was not at the motel; that during this period, she told Kissner's probation officers that Kissner was staying at her house and at the motel; that Kissner's probation officers told her they did not approve of Kissner staying at her house because he was not on the lease and it was not a permanent arrangement; and that, notwithstanding the probation officers' disapproval, they allowed Kissner to stay with her.  During cross-examination, Notch admitted that she had two minor children, and the prosecutor asked Notch, "And you knew part of the reason that [Ruprecht] didn't want [Kissner] around you was because of the kids, right?"  Kissner's attorney objected and moved for a mistrial.  The district court denied the motion. 

The defense rested its case, and the state called all four of Kissner's assigned probation officers as rebuttal witnesses.  All four testified that they did not know of or have any contact with Notch before January 16, 2002.  The prosecutor asked one of the probation officers how Kissner responded when the officer asked him why he had not told his probation officers that he was staying at the motel.  The probation officer testified that Kissner "had indicated that he did not contact our department to register his address because there were kids staying at the motel, and he thought our department would not approve of that living situation." 

After the testimony of the state's rebuttal witnesses, Kissner testified that in December 2001 he had told Ruprecht, at his weekly meetings and once during a telephone call, that Kissner was living at the Gateway Motel.  Kissner testified that Ruprecht and the other probation officers who testified were lying when they said that before January 15, 2002, they did not know that Kissner was living at the Gateway Motel. 

            The jury found Kissner guilty of failure to notify authorities of change of address.  In March 2004, the district court sentenced Kissner to 24 months in prison.  Kissner did not file a direct appeal from his conviction. 

            In May 2005, Kissner petitioned for postconviction relief, asking for a new trial on the grounds that

he was denied his constitutional right to a fair trial where the prosecutor insinuated by his cross-examination of defense witness Dee Notch that [Kissner] was a danger to children and also elicited testimony on rebuttal that [Kissner] told his corrections agents he knew they would not approve of him staying at the Gateway Motel because there were children there.  The concern over [Kissner] having contact with children was irrelevant to any issue before the jury and interjection of this issue into [Kissner's] trial deprived [him] of a fair trial by inflaming the prejudices and exciting the passions of the jury against [Kissner]. 

 

In August 2005, the postconviction court denied Kissner's petition, finding that

[p]roviding the jury with an explanation as to why [Kissner] had not told his agents that he was staying somewhere else lends credibility to the agents' testimony that he in fact had not told them.  It also provided further explanation as to why [Kissner] would not have told his agents that he was staying with Ms. Notch.  Further explanation was needed considering that [Kissner] was also not on the . . . Seventh Street lease, but yet [Kissner] had disclosed that to his agents who did not object. 

 

The postconviction court concluded that the testimony regarding Kissner's "probation condition of not being allowed to have contact with children" was "more probative than prejudicial"; that "there was sufficient evidence for a guilty finding without the contested evidence"; and that "there is no reasonable doubt that the result would have been [the same] had the evidence been excluded."[1]  This appeal follows.

D E C I S I O N

This court reviews a postconviction court's denial of relief for an abuse of discretion.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).  A postconviction court's findings will be sustained if they are supported by sufficient evidence.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). 

Kissner argues that he was "denied his right to a fair trial" because the jury at his trial "was repeatedly exposed to questions and testimony implying that [Kissner] was a danger to children."  The state argues that this testimony was admissible rebuttal evidence.  "Rebuttal evidence is evidence which explains, contradicts, or refutes earlier evidence and is admitted at the discretion of the trial court."  State v. Gore, 451 N.W.2d 313, 316 (Minn. 1990).  The determination of what is "appropriate rebuttal evidence rests within the discretion of the trial court and will only be reversed upon a showing of a clear abuse of discretion."  State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003).  "Proper rebuttal evidence may include evidence that might not otherwise be admissible."  Id. (citing 8 Henry McCarr & Jack Nordby, Minnesota Practice-Crim. Law and Proc. § 32.54 (3d ed. 2001) (describing "opening the door" as the introduction by a party of material, either in the form of evidence, argument, or as a question or remark, that creates a right to respond with material that would otherwise be inadmissible)). 

Prosecutor's Cross-Examination of Notch

The record shows that, during direct examination, Notch testified that Kissner's probation officers did not want him to live with her because he was not on the lease and that on cross-examination the prosecutor asked Notch, "And you knew part of the reason that [Ruprecht] didn't want [Kissner] around you was because of the kids, right?"  Counsel for Kissner objected and moved for a mistrial, and Notch did not respond to the prosecutor's question.  The district court denied the motion, stating that "the door was opened by this witness" to this line of questioning and that "given all of the testimony before the Court, I don't think this one reference to the children and Mr. Kissner residing at her address rises to the level of being so prejudicial as to justify a mistrial." 

Although Kissner does not expressly argue that the prosecutor committed misconduct by asking this question, Kissner does argue that the prosecutor's question was "prejudicial."  But the defense opened the door to the prosecutor's question, which was an attempt to elicit testimony that would rebut the reason offered by the defense for why Kissner's probation officers might disapprove of his living at the motel or with Notch.  We therefore conclude that the prosecutor's question was not misconduct. 

Even if we were to conclude that asking this question was prosecutorial misconduct, it was harmless.  A new trial based on prosecutorial misconduct will be granted only "when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant's constitutional right to a fair trial was impaired."  State v. Johnson, 616 N.W.2d 720, 72728 (Minn. 2000).  There are two distinct standards for determining whether prosecutorial misconduct is harmless:  serious misconduct will be found "harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error," while for less-serious misconduct, the standard is "whether the misconduct likely played a substantial part in influencing the jury to convict."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

Here, the record evidence is unrebutted that Kissner resided at the Gateway Motel from December 2001 to mid-January 2002 and that when Kissner went to his weekly appointments with his probation officer during this period, he listed the Seventh Street address as his primary address on the sign-in sheet.  Kissner testified that he told his probation officers in December that he was living at the Gateway Motel; his probation officers testified that Kissner told them for the first time on January 15, 2002, that he was living at the motel.  By finding Kissner guilty, the jury chose to believe the testimony of the probation officers.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (noting that "weighing the credibility of witnesses is the exclusive function of the jury").  This court defers to a fact-finder's credibility determinations.  State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002). 

We conclude that if the prosecutor committed misconduct by asking the single question of Notch that Kissner complains of, it was misconduct of the less-serious variety.  Therefore, because we determine that it did not likely play a substantial part in influencing the jury to convict, if it was misconduct, it was harmless.

State's Rebuttal Testimony

The state called Kissner's probation officers as rebuttal witnesses.  One of them testified that Kissner "had indicated that he did not contact [the probation] department to register his address because there were kids staying at the motel, and he thought our department would not approve of that living situation."  The record shows that before the officers' testimony, the prosecutor told Kissner and the district court the expected content of the rebuttal testimony, including the above admission by Kissner, and that the district court allowed the testimony over Kissner's objection.  The postconviction court concluded that the testimony was "more probative than prejudicial."  We conclude that the statement was proper rebuttal of Kissner's defense that he had given the required notice of his primary address at the Gateway Motel to his probation officers and that, therefore, the district court did not abuse its discretion by allowing the testimony.

            Even if we were to conclude that the district court abused its discretion by admitting the testimony, it was harmless error.  If a district court has abused its discretion in admitting evidence, the reviewing court determines "whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  "If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence," then the error is prejudicial.  Id.  But in completing a harmless-error-impact analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather what effect the error had on the jury's verdict "and more specifically, whether the jury's verdict is ‘surely unattributable' to [the error]."  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)). 

            Here, the postconviction court concluded that "[w]hile the jury certainly could infer from the testimony that one of [Kissner's] conditions of probation was to stay clear of children, that does not mean that the jury would assume that because [Kissner] may be a danger to children, that he lies or does not give notice to his agents."  In light of the overwhelming record evidence of Kissner's guilt, there is no reasonable possibility that rebuttal testimony that hinted at the fact that Kissner was prohibited from unsupervised contact with children significantly affected the jury's determination that Kissner did not inform his probation officers of his change of address.

The postconviction court did not abuse its discretion by concluding that Kissner was given a fair trial and denying his petition for postconviction relief.

            Affirmed.

           

RANDALL, Judge (concurring specially)

 

I concur with the majority's reasoning in affirming the district court's denial of postconviction relief.  I write separately simply to point out that, on this record, the initial sentence of 24 months in prison raises the "Modtland" question.

The Minnesota Supreme Court was clear, emphatic, and unambiguous.  State v. Modtland, 695 N.W.2d 602 (Minn. 2005).  Modtland was an "Austin" probation revocation issue (which we do not have here).  But what we have here as the charged offense is virtually identical to the Austin/Modtland holding.  The charged offense in this case is simply a status offense.  Appellant, while on probation, did not commit any new crimes nor did he do anything untoward other than that he did not technically comply with the law requiring him to give "notice of the new primary address to the assigned corrections agent or to the law enforcement authority with which the person currently is registered."  Minn. Stat. § 243.166, subd. 3(b) (Supp. 2005).  In June 2002, Kissner was charged with failure to notify authorities of a change of address.

Certainly, being registered is important, but the failure to timely register, if it is unaccompanied by any allegations of an independent crime, is perhaps more than de minimis, but not by much.

Modtland emphasized over and over the importance of weighing the drastic sanction of confinement in a state penitentiary against the reasonable and considered
public policies favoring probation, when the facts so indicate.  Modtland, 695 N.W.2d at 608.  In relevant portions, the Modtland court stated:

In making the third Austin finding, we emphasize that district courts must bear in mind that "policy considerations may require that probation not be revoked even though the facts may allow it" and that "[t]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed."  When determining if revocation is appropriate, courts must balance the "probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety," and base their decisions "on sound judgment and not just their will."

 

Id. at 606-07 (citation omitted).

 

The Modtland court went on to quote extensively from the American Bar Association Standards for Criminal Justice regarding probation and said in pertinent part:

Revocation followed by imprisonment should not be the disposition, however, unless the court finds on the basis of the original offense and the intervening conduct of the offender that:

(i)        confinement is necessary to protect the public from further criminal activity by the offender; or

(ii)       the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii)     it would unduly depreciate the seriousness of the violation if probation were not revoked.

 

Id. at 607 (citations omitted).

 

The Modtland court further stated:

Rather, once an intentional or inexcusable violation has been found, the court must proceed to an evaluation of whether the need for confinement outweighs the policies favoring probation.  This process prevents courts from reflexively revoking probation when it is established that a defendant has violated a condition of probation. . . .  "The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender's behavior demonstrates that he or she cannot be counted on to avoid antisocial activity."

 

Id. at 608 (emphasis added) (quoting State v. Austin, 295 N.W.2d 246, 251 (Minn. 1980)).

            I suggest that if status offenses, even when they constitute intentional violations of probation, are scrutinized strictly by the Minnesota State Court before confinement to a penitentiary is affirmed; the same equities apply when sentencing a defendant who has committed nothing more than a status offense, unaccompanied by any other crime related to any person or any person's property.

[1] The district court actually stated that "there is no reasonable doubt that the result would have been different had the evidence been excluded," but the parties agree that the district court meant to state that the result would have been the same had the evidence been excluded.