State of Minnesota, Respondent, vs. Lotfi Kamel Fahssi, Appellant.

State of Minnesota, Respondent, vs. Appellant. A06-842, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-842

 

State of Minnesota,

Respondent,

                                                                                                      

vs.

 

Lotfi Kamel Fahssi,

Appellant.

 

Filed July 24, 2007

Affirmed

Parker, Judge*

 

Hennepin County District Court

File No. 04063461

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, Saint Paul, MN 55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Kimberly A. Weinacht, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for Respondent)

 

Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for Appellant)

            Considered and decided by Toussaint, Presiding Judge; Willis, 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 a conviction of and sentence for fifth-degree assault, appellant argues that (a) a court reporter's question about a date improperly drew the prosecutor to a problem in the state's case; (b) the district court erred in allowing the state to recall one of its witnesses to correct the problem; (c) the prosecutor committed prejudicial misconduct by vouching for witnesses, disparaging the defense, diluting the burden of proof, and referring to the other man involved in the altercation as "the victim"; (d) the district court erred in instructing the jury on how to consider the witnesses' prior testimony about the date of the incident; (e) the state presented insufficient evidence that he assaulted the "victim" or that the incident occurred on the date charged; and (f) the court erred in vacating its stay of adjudication.  We affirm.

D E C I S I O N

I.

Appellant contends that he is entitled to a new trial based on the court reporter's actions during trial and the district court's allowance of further testimony by the state.  According to appellant, the court reporter acted improperly when she asked a clarifying question that alerted the prosecution to its failure to prove the date of the incident.  The issue on appeal is whether the district court abused discretion in determining that appellant could obtain a fair trial after the jury was exposed to allegedly inappropriate communications by the court reporter.  See State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982).

Appellant was found guilty of fifth-degree assault after a physical altercation with Ridha Ben Bahi outside of Bobino's Starlight Lounge in Minneapolis on July 17, 2004.  Under the jury instructions utilized at trial, the prosecution was required to prove (1) that appellant intentionally inflicted or attempted to inflict bodily harm on Ben Bahi and (2) that the act took place on or about July 17, 2004, in Hennepin County.

At trial, the state presented three witnesses:  Ben Bahi, Phillip Woodhall, a bartender at Bobino's, and Officer Toddrick Kurth, a Minneapolis police officer who responded to the scene of the incident.  Although the prosecutor originally recognized the date of the offense as July 17, 2004, in her opening argument, on direct examination of Ben Bahi and Woodhall, she proposed that the events in question occurred on July 14, 2004, and both witnesses agreed. 

After examining Ben Bahi and Woodhall, the prosecutor called Officer Kurth to the stand.  The prosecutor asked him to focus on the evening of July 13 and the early morning hours of July 14, 2004.  Because Officer Kurth had difficulty recalling the specific details of the case, he was provided with a copy of the police report to refresh his recollection.  Upon reviewing the report, Officer Kurth testified that the report was written on July 17, 2004.  Later in Officer Kurth's testimony, the following exchange took place:

Q. [Prosecutor]:  Around, around two, 2:30 in the morning on July [unintelligible], 2004, were you called to an incident?

 

A.  [Officer Kurth]:  Yes.

 

[Court Reporter]:  Counsel, did you say the 17th?

 

            Q.  [Prosecutor]:  July 17th.  That's what's in the police reports.  You know what, thank you.  July 17th is what is indicated in your report. 

 

Appellant immediately moved for an acquittal pursuant to Minn. R. Crim. P. 26.03, subd. 17(1), on the ground that the court reporter's request for clarification about the date of the crime had incurably denied appellant a fair trial by alerting the prosecution to a deficiency in its case.  The court ruled that the motion was premature under the rule because the state had not rested its case, and permitted the state to reexamine its witnesses.  The court also formulated a curative instruction regarding impeachment that was presented to jurors.

The state completed its direct examination of Officer Kurth, who testified that the incident in question occurred on July 17, 2004.  The state then recalled Ben Bahi, who expanded his testimony regarding the date of the alleged assault.  Ben Bahi testified that he had attended a Friday night block party on the night of the altercation, which led him to believe that Friday, July 17, 2004, was the correct date.    

Due to the court reporter's status as a court official, appellant claims that a rebuttable presumption of prejudice should attach.  "Statements of a court official about the merits of a criminal case raise a rebuttable presumption of prejudice," requiring the state to demonstrate, beyond a reasonable doubt, that the prejudice did not contribute to the verdict.  Cox, 322 N.W.2d at 558 (emphasis added) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954)).

Here, we decline to apply the presumption because the question posed by the court reporter did not have any bearing on the merits of the case.  On its face, the court reporter's question appears to be an innocuous request for clarification of unintelligible testimony, and although the state admits that the question alerted it to inconsistencies in witness testimony surrounding the date of the offense, appellant has not identified any evidence in the record to establish that the inquiry was made with the intention of benefiting the prosecution or influencing the jury.  Without more, appellant's bald assertion of impropriety fails to demonstrate conduct necessary to create a rebuttable presumption.  Furthermore, contrary to appellant's suggestion, consideration of the court reporter's comments under the four-part test enunciated in Cox is unnecessary because we believe the question was appropriate and inconsequential to the merits of the case.  See Cox, 322 N.W.2d at 559 (applying a multi-factor test to determine whether improper outside influences were brought to bear upon the jury and whether the influences had any effect on the verdict).  Therefore, the district court did not abuse discretion in denying appellant a new trial based on the court reporter's question.

Appellant also maintains that a new trial is warranted because the district court did not have discretion to allow the state to recall witnesses to revise or recant testimony.  Evidentiary and procedural rulings rest within the discretion of the district court.  State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).  Absent an abuse of discretion, the district court's ruling will not be overturned.  Id.

In support of his contention, appellant cites King  v. Larsen, 306 Minn. 546, 235 N.W.2d 620 (1975), and State ex rel. Trevarthen v. City of Eveleth, 179 Minn. 99,228 N.W. 447 (1929).  However, both cases are civil lawsuits that involved a request to reopen a case after the close of evidence to present additional testimony.  King, 306 Minn. at 546, 235 N.W.2d at 621; Travarthen, 179 Minn. at 102-03, 228 N.W. at 448.  The same circumstances are not present here.  At the time of the request to reexamine witnesses, the state had not closed its case, nor had appellant presented his evidence.  Accordingly, the district court did not abuse discretion in allowing the state to recall witnesses.

II.

 

                Appellant further asserts that he is entitled to a new trial based on alleged misconduct by the prosecutor.  This court will reverse a conviction as a result of  prosecutorial misconduct if the prosecutor's actions, "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).  Appellant premises his claimed right to a new trial on several distinct aspects of the prosecutor's conduct during trial.  First, he argues that the prosecutor engaged in misconduct by referring to Ben Bahi as "the victim" throughout the trial.  Appellant also alleges that the prosecutor committed misconduct during closing arguments by vouching for the state's witnesses, disparaging defense counsel in closing arguments, and diluting the standard of proof.

A.        References to "Victim"

Before the trial began, the district court ordered the prosecution to refrain from identifying Ben Bahi as "the victim."  Instead, the court instructed attorneys for both sides to refer to him as the "alleged victim."  A careful review of the record indicates that, over the course of the three-day trial, Ben Bahi was twice referred to as "the victim" by the prosecutor.  After each occurrence, defense counsel's objections were sustained.  Appellant asserts that, by making these references, the prosecutor effectively diluted the state's burden of proof.

Because the alleged misconduct was objected to by appellant, the prosecutor's actions are reviewed under the harmless-error standard.  State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (citing State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006)).Unless the misconduct is found to be harmless beyond a reasonable doubt, appellant is entitled to a new trial.  Id.  Misconduct is harmless if the verdict rendered is surely unattributable to the misconduct.  Id.

Considering this conduct in light of the whole body of evidence, any misconduct committed was harmless error.  Although the prosecutor was instructed to abstain from referring to Ben Bahi as a victim, the verdict was unattributable to these references.  With three days of testimony and multiple witnesses, any influence these two references may have had on jury deliberations was minimal.  See State v. McDaniel, 534 N.W.2d 290, 294 (Minn. App. 1995) (stating that alleged misconduct must be viewed in the context of the whole trial), review denied (Minn. Sept. 20, 1995).

Moreover, the term "victim" has many meanings, and it cannot be necessarily assumed that any harm to Ben Bahi, as a victim, was the product of a crime.  See Black's Law Dictionary 1561 (7th ed. 1999) (defining "victim" as "[a] person harmed by a crime, tort or other wrong").  Finally, the jury was instructed at the beginning and close of trial that any statements by attorneys are not evidence.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (holding that jury instructions regarding the prosecutor's conduct are relevant to the analysis of misconduct).  Therefore, any misconduct committed by the prosecutor in identifying Ben Bahi as a victim was harmless error.

B.        Prosecutor's Comments During Closing Arguments

Appellant contends that the prosecutor committed misconduct in closing arguments, entitling him to a new trial.  Again, the prosecutor's conduct discussed in the following issues must be evaluated under the harmless-error standard because appellant objected to each during trial.  Mayhorn, 720 N.W.2d at 785 (citing Swanson, 707 N.W.2d at 658.  In assessing the seriousness of the misconduct involved in closing arguments, appellate courts evaluate "the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence."  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

1.         Vouching for Witnesses

Appellant first claims that misconduct arose as a result of the prosecutor informing the jury that she was responsible for the confusion surrounding the correct date of commission.  During her closing statement, the prosecutor stated:  "You heard the state make a number of references to July 14th and it was misspoke on my part."  Appellant argues that the prosecutor in this case committed misconduct by injecting her personal opinion regarding the veracity of the witnesses into closing arguments. 

Prosecutors are prohibited from personally endorsing the credibility of witnesses.  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).  By accepting responsibility for the discrepancies in testimony, an inference could be drawn that the prosecutor was vouching for the credibility of the witnesses.  However, the prosecutor's comment did not explicitly assert that the witnesses' testimony surrounding the date of the altercation was truthful.  See id. (finding misconduct after the prosecutor told the jury that a witness's credentials are "impeccable and unimpeached"); see also State v. Wilbur, 445 N.W.2d 582, 584 (Minn. App. 1989) (holding that a prosecutor improperly vouched for a witness by saying, inter alia, "this five-year-old girl wouldn't lie, couldn't lie, didn't lie"), review denied (Minn. Oct. 19, 1989). Instead, the prosecutor placed responsibility for the confusion surrounding the date on herself.

The ABA standards for criminal prosecution permit the state to "argue all reasonable inferences from evidence in the record."  ABA Standards for Criminal Justice: Prosecution Function and Defense Function, § 3-5.8(a) (3d ed. 1993); see also State v. Gulbrandsen, 238 Minn. 508, 511, 57 N.W.2d 419, 422 (1953) (the state's arguments must be based on the record and any reasonable inferences drawn from the evidence).  Based on the testimony elicited at trial, one could surmise that the misstatements of the date of the offense by Ben Bahi and Woodhall resulted from the prosecution's leading questions.

During their original testimony, both witnesses testified that the altercation occurred on July 14, 2004, only after the prosecution had already identified that date as the one in question.  Upon being reexamined, Ben Bahi retracted his previous testimony regarding the time of the events, and further testified that he had attended a Friday night block party, which led him to believe that July 17, 2004, was the correct date.  Therefore, the prosecutor did not act improperly by interjecting comments about her own involvement in the state's testimony because an inference could be drawn that the leading questions during the original testimony caused the witnesses to misstate the date of the incident.    

2.         Disparaging Defense Counsel

Next, appellant asserts that the prosecutor engaged in misconduct by disparaging defense counsel.  More specifically, appellant relies on the prosecutor's comment that defense counsel was "making a mountain . . . out of a mole hill" by impugning the state witnesses' inconsistent testimony regarding the date of the offense. 

Prosecutors are to abstain from disparaging the defense in closing arguments.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997).  A prosecutor is free to argue that there is no merit to a defense in view of the evidence, but must avoid belittling the defense in the abstract.  State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).  Here, the prosecutor did not engage in misconduct because, instead of disparaging the defense in the abstract, she asserted that the defense was "making a mountain out of a molehill" over the discrepancies in testimony, in light of the fact that the alleged offense occurred almost 20 months prior to trial.  Accordingly, appellant is not entitled to a new trial on the basis of disparagement.

3.         Dilution of the Burden of Proof

Appellant contends that prosecutorial misconduct occurred as a result of the state presenting arguments that allegedly diluted the burden of proof.  In a criminal trial, the state bears the burden of proving, beyond a reasonable doubt, that the defendant is guilty of the crime alleged.  State v. Robinson, 604 N.W.2d 355, 362 (Minn. 2000).  The closing argument should not "distract the jury from its proper role of deciding whether the state has met its burden."  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).

Appellant relies on the following summation by the state as grounds for reversal:  "You did hear two very different versions about what took place on July 17th and you, the jury, are the trier of fact.  It will be up to you to decide what those facts actually were, what you believe, and to evaluate the credibility of witnesses."  In addition, during the state's rebuttal argument, the prosecutor stated that "[t]here's also, as defense counsel has counted, there are nineteen inconsistencies. . . . Some inconsistencies, even a couple dozen inconsistencies are expected and normal.  Again, there's been a lapse of time." 

Appellant cites no legal authority that prohibits such argument, and without more, the state's comments are entirely appropriate.  In the first instance, the prosecutor merely described the role of the jury in determining the facts of a case.  See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (assessing the credibility of the witnesses is the province of the jury).  The second statement was also permissible.  By deducing that the inconsistencies at trial were a result of the significant time lapse between the date of the offense and trial, the prosecutor drew an inference about testimony offered into evidence, a persuasive tactic authorized by the ABA rules and legal authority.  ABA Standards for Criminal Justice: Prosecution Function and Defense Function, § 3-5.8(a) (3d ed. 1993); Gulbrandsen, 238 Minn. at 511, 57 N.W.2d at 422.  Therefore, we do not find any misconduct in these statements.

III.

 

            Next, appellant argues that the jury instructions at trial involving prior inconsistent testimony were a misstatement of law, resulting in an abuse of discretion.  An appellate court reviews jury instructions "for abuse of discretion and errors of law."  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  Trial courts have considerable latitude in selecting the language of jury instructions, but may not materially misstate the law.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).

            Here, appellant points to the district court's instruction on prior inconsistent statements as prejudicial error.  We disagree.  Upon permitting the state to reexamine its witnesses about the date of the offense, the court instructed the jury on three occasions that:

In deciding the believability and weight to be given the testimony of a witness, you may consider evidence of a statement by or conduct of the witness on some prior occasion, including testimony at this trial, that is inconsistent with their now present testimony.  Evidence of any prior inconsistent statement should be considered only for the purpose of testing the believability and weight of the witness's testimony. 

 

(Emphasis added.)

 

By inserting the language regarding testimony at trial, the district court modified CRIMJIG 3.15(3), which in its original form mirrors the evidentiary standard set forth in rule 801(d)(1)(A) of the Minnesota Rules of Evidence.  Compare 10 Minnesota Practice, CRIMJIG 3.15(3) (1999) with Minn. R. Evid. 801(d)(1)(A).  Minn. R. Evid. 801(d)(1)(A) recognizes evidence of a prior inconsistent statement given under oath as non-hearsay and permits consideration of such a statement as substantive evidence.  Thus, the district court's modification regarding testimony under oath at trial created an instruction that conflicts with rule 801(d)(1)(A).

Because the witnesses' prior inconsistent statements at trial constituted sworn testimony, the jury should have been permitted to consider any inconsistencies as substantive evidence, as opposed to the jury instruction's limitation on the value of such statements to determining witness credibility.  Therefore, a misstatement of a rule of law occurred as a result of the instruction. 

This error, however, does not require reversal if it was harmless.  See State v. Kuhnau, 622 N.W.2d 552, 558 (Minn. 2001) (applying harmless-error analysis to errors in jury instructions).  "An error in jury instructions is not harmless and a new trial should be granted if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict."  Id. at 558-59 (citing State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997)).

Appellant has not demonstrated any irreparable harm to his case or identified any testimony that could have been improperly construed by the jury as a result of the instruction.  It appears from the record that Ben Bahi's and Woodhall's disavowal of previous testimony regarding the date of the offense constitutes the only prior inconsistent statements propounded throughout the course of trial.  Furthermore, even under the instruction submitted at trial, the jurors were still informed that any inconsistencies in the witnesses' testimony could be weighed for purposes of determining credibility.  Accordingly, appellant's rights were not materially prejudiced to such a degree as to have an impact on the verdict.  Therefore, we conclude that the erroneous jury instruction amounts to harmless error.  

IV.

 

            Appellant next challenges the weight of the evidence supporting his conviction of fifth-degree assault.  When considering such a challenge, this court considers the evidence and any reasonable inferences to be drawn from that evidence in a light most favorable to the verdict.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  A verdict will not be disturbed if the jury, "acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty of the crime charged."  State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980).  Appellate courts must assume that the jury believed the state's witnesses and disbelieved evidence to the contrary.  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).

                Appellant puts forward two theories in support of his claim that the record does not sufficiently support his conviction.  First, he contends that the state failed to prove that the offense occurred on July 17, 2004.  However, by appellant's own concession, two witnesses testified that the date of the alleged altercation was July 17, 2004, and Ben Bahi bolstered his testimony by noting that Friday, July 17, 2004, was the correct date because he attended a Friday night block party.  Although the veracity of the witnesses who originally testified to the date of July 14, 2004, may have been called into question by their prior inconsistent statements, credibility determinations are the province of the jury. State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002).  Based on the testimony produced at trial, a reasonable juror could have found, beyond a reasonable doubt, that the evidence established that the offense took place on July 17, 2004.

            Appellant also asserts that the state failed to prove that he committed the offense of fifth-degree assault.  In support of his argument, appellant concentrates on several inconsistencies in the testimony of Ben Bahi and Woodhall.  For example, appellant notes that Ben Bahi testified that a woman stopped the altercation, while Woodhall claimed that no female employees were working that night and testified that he was the only one who attempted to break up the fight.  Similarly, appellant identifies discrepancies in the length of time that Ben Bahi and Woodhall claimed the fight lasted.  As mentioned above, such fact determinations are for the jury to decide, and this court is to assume that the jury believed the state's witnesses.

            There is more than sufficient evidence in the record to support the conviction.  Ben Bahi testified that appellant punched and kicked him and Woodhall identified appellant as one of the men he had witnessed physically harming Ben Bahi.  Accordingly, we decline to disturb the verdict on the basis of insufficient evidence because a reasonable jury could have found that the evidence of appellant's commission of an assault was proved beyond a reasonable doubt.

V.

 

                Appellant claims that the state was not entitled to seek reconsideration of the original sentence on the basis that the district court's sentencing authority was exceeded.  In support of this contention, appellant claims that the state's motion was untimely and that the Minnesota Rules of Criminal Procedure do not allow for reconsideration of a sentence.  Two days after the original sentence was imposed, the state moved for reconsideration pursuant to Minn. R. Crim. P. 27.03, subd. 9.  Under the rule, a court may, at any time, correct a sentence not authorized by law.  Minn. R. Crim. P. 27.03, subd. 9.  Thus, the state's motion was timely and the court's consideration of the motion was permissible under the rules.

            Appellant further asserts that the district court incorrectly held that the sentence imposed upon him was not authorized by law.  We disagree.  The district court originally sentenced appellant to a stay of imposition of sentence under Minn. Stat. § 609.135 (2002), ordering that the charges be vacated and dismissed in one year, barring further criminal activity by appellant.  However, as appellant acknowledges, and as the court later recognized in resentencing appellant, the statute does not expressly authorize a court to vacate and dismiss the conviction.  Instead, it requires the court to discharge the defendant upon expiration of the stay.  See Minn. Stat. § 609.135, subd. 2(f).

            Appellant also argues that the prosecutor's abuse of the charging function allowed for a vacation and dismissal of the charges against him.  Although no rule or statute allow for such a disposition, courts are permitted to stay adjudication of a crime upon a finding of a clear abuse of discretion in the prosecutor's exercise of the charging function.  State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996).

            The rationale of Foss is also applied to scenarios like the one involved here.  See State v. Ohrt, 619 N.W.2d 790, 791-92 (Minn. App. 2000).  Although appellant technically was sentenced to a stay of imposition, the court in Ohrt held that a stay of imposition for vacation and dismissal is akin to a stay of adjudication.  Id. at 792.  Therefore, in order for appellant to demonstrate reversible error by the district court, he must prove that the district court abused discretion in finding that the prosecutor had not abused the charging function.  Foss, 556 N.W.2d at 541.

            In originally deciding to stay the imposition for vacation and dismissal, the court cited appellant's lack of a prior criminal record and the court's belief that appellant was unlikely to become a recidivist.  However, the lack of a prior criminal record is not considered a circumstance requiring a stay of adjudication, nor has appellant cited any authority for the proposition that the improbability of a defendant committing future criminal acts supports a finding of abuse of the charging function.  State v. Leming, 617 N.W.2d 587, 589 (Minn. App. 2000) (holding that the lack of a prior criminal record is not a special circumstance).

            Beyond the district court's analysis, appellant asserts that the prosecutor abused the charging function because appellant's friend Omar Hamdani was not charged with a crime for his participation, and appellant's friend Quintus Pillai's charges were continued for dismissal by the state.  But the discretion to bring charges and strike plea agreements "rests almost entirely with the prosecutor."  State v. Streiff,673 N.W.2d 831, 836 (Minn. 2004).  Furthermore, unlike the myriad of cases cited by appellant, as well as the facts of Ohrt, where the defendant had entered a guilty plea, appellant has already been convicted by a jury of his peers after a three-day trial.  Therefore, it cannot be said that the state clearly abused the charging function by trying appellant for fifth-degree assault.  Accordingly, we hold that the court did not abuse discretion by resentencing appellant.

Affirmed.

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