STATE of Minnesota, Respondent, v. Ian Christopher MITCHELL, Appellant.
No, A15-0982.
Court of Appeals of Minnesota.
May 31, 2016.
Review Denied Aug. 23, 2016.
883 N.W.2d 558
did not err in dismissing this claim without an evidentiary hearing.
B.
The second postconviction issue is whether the prosecutors committed misconduct. Pointing to a prosecutor‘s affidavit submitted in the postconviction proceeding, Vang contends that one line indicates that the prosecutors misled him into believing that a plea agreement was possible when, in fact, the county attorney planned to seek an indictment all along. Vang argues that this alleged misrepresentation affected the way defense counsel approached the case. Vang claims that he did not discover the alleged misconduct until after trial.
The district court did not read the prosecutor‘s affidavit in the same way Vang does, and neither do we. The affidavit simply made it clear that the prosecutors were not authorized to agree to a plea to second-degree murder. The postconviction court‘s findings that there was no prosecutorial misconduct but only “good-faith efforts by both sides to resolve the case” are not clearly erroneous and therefore an evidentiary hearing was unnecessary.
Therefore, we affirm Vang‘s first-degree premeditated murder
Affirmed.
Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by ROSS, Presiding Judge; SCHELLHAS, Judge; and STAUBER, Judge.
OPINION
SCHELLHAS, Judge.
Appellant argues that the district court abused its discretion by denying his mistrial motion and seeks a new trial on charges of first-degree burglary. He also makes pro se arguments, including that the district court erred by entering convictions and imposing sentences on multiple counts of burglary arising from a single course of conduct. We affirm in part and remand.
FACTS
Appellant Ian Christopher Mitchell began a dating relationship with K.K. in October 2003, which K.K. ended on November 29 in part because of conflicts about sex.1 Around 2 a.m. on November 30, Mitchell entered K.K.‘s residence without her permission; when K.K. confronted Mitchell, he physically assaulted her and fled, leaving lacerations on her scalp and abrasions on her shoulder and knee. Within the hour, police arrested Mitchell as he started to drive away from his residence. He had a knife in his vehicle.
Respondent State of Minnesota charged Mitchell with one count of first-degree burglary (assault) and one count of first-degree burglary (dangerous weapon). Mitchell‘s trial resulted in a hung jury. At his second trial on both counts of first-degree burglary, Mitchell moved for a mistrial during a break in the state‘s direct examination of K.K. He argued that K.K.‘s nonresponsive answer to a question by the prosecutor resulted in irreparable prejudice to him. The district court denied the mistrial motion, and the jury found Mitchell guilty as charged.
Mitchell failed to appear for sentencing in January 2005, and sentencing was delayed for more than ten years. Mitchell appeared for sentencing in March 2015, and the district court entered convictions on both counts of first-degree burglary and sentenced Mitchell to 52 months’ imprisonment for each count of first-degree burglary, to be served concurrently.
This appeal follows.
ISSUES
I. Did the district court abuse its discretion by denying Mitchell‘s motion for a mistrial?
III. Do Mitchell‘s pro se arguments have merit?
ANALYSIS
I. Mistrial motion
“A mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different if the event that prompted the motion had not occurred.” State v. Mahkuk, 736 N.W.2d 675, 689 (Minn.2007) (quotation omitted). “[Appellate courts] review the denial of a motion for a mistrial for an abuse of discretion because the district court is in the best position to evaluate the prejudicial impact, if any, of an event occurring during the trial.” State v. Bahtuoh, 840 N.W.2d 804, 819 (Minn.2013).
Mitchell‘s mistrial motion was based on the following testimonial exchange:
PROSECUTOR: Now, your relationship [with Mitchell] to [November 21, 2003,] had involved sexual relations?
K.K.: Yes, it had.
PROSECUTOR: And you were okay with that?
K.K.: Okay with what?
PROSECUTOR: You were agreeable in the course of your relationship to have sexual relations?
K.K.: We might want to discuss this before I answer that.
PROSECUTOR: Did you have sexual relationships—
K.K.: Yes.
PROSECUTOR:—with Mr. Mitchell prior to [November 21, 2003]?
K.K.: Yes.
Mitchell argues that irreparable prejudice resulted from K.K.‘s nonresponsive answer to the prosecutor‘s question whether K.K. was “agreeable in the course of [her] relationship to have sexual relations” with Mitchell. Mitchell contends that the nonresponsive answer “left the jury with a clear impression that the sexual encounters [between K.K. and Mitchell] were not always consensual.” He also claims that “there was no way to minimize the impact this had on the jury.”
But as noted by the state, a juror would not necessarily infer from K.K.‘s nonresponsive answer that Mitchell sexually assaulted K.K. during the course of their relationship. “Agreeable” may mean “[r]eady to consent or submit,” but it may also mean “[t]o one‘s liking” or “pleasing.” The American Heritage Dictionary of the English Language 35 (4th ed.2006) [hereinafter American Heritage Dictionary]. Moments after giving her nonresponsive answer, K.K. testified that sex with Mitchell included activities that she found disagreeable. In this context, the nonresponsive answer appears to have been innocuous. Even if we accept Mitchell‘s argument that K.K.‘s nonresponsive answer created a risk that the jury improperly considered an implied prior bad act by Mitchell, such a risk is not grounds for a mistrial unless it is tantamount to “a reasonable probability that the outcome of the trial would be different” in the absence of the question and answer. Mahkuk, 736 N.W.2d at 689 (quotation omitted).
The state did not pursue a theory that Mitchell entered K.K.‘s residence with an intent to sexually assault her. Instead, the prosecutor asserted that Mitchell was “angry, frustrated, [and] bitter” about the breakup and hypothesized that Mitchell‘s motive was to “confront,” “scare,” “threaten,” or “assault” K.K. At trial, K.K. testified
In light of the state‘s theory of the crime and the ample evidence of Mitchell‘s guilt, we conclude that no reasonable probability exists that Mitchell would have been acquitted absent the prosecutor‘s question and K.K.‘s nonresponsive answer. We defer to the district court‘s evaluation of prejudicial impact, Bahtuoh, 840 N.W.2d at 819, and conclude that the district court did not abuse its discretion by denying Mitchell‘s motion for a mistrial.
II. Multiple convictions and sentences
In his pro se supplemental brief, Mitchell argues that his convictions violate
“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.“,
The elements of first-degree burglary (dangerous weapon) are (1) entry of a building without consent; (2) entry with intent to commit a crime, or commission of a crime while in the building; and (3) possession of a dangerous weapon “when entering or at any time while in the building.”
Here, one of Mitchell‘s burglary convictions was based on
But the state offers little to support its reading of the statute, and we have found no Minnesota authority that directly answers the question whether “any other crime,” as used in
In one published opinion, we affirmed multiple convictions of and sentences for single-course-of-conduct first-degree burglary (occupied dwelling) and first-degree burglary (assault). State v. Hodges, 384 N.W.2d 175, 178 n. 1, 182-83 (Minn.App. 1986), aff‘d as modified, 386 N.W.2d 709 (Minn.1986). We affirmed the multiple convictions based on the multiple-victims exception to
Focusing on the language “any other crime” in
III. Other pro se arguments
Mitchell argues that the district court judge “impermissibly injected his personal opinion as to what the evidence showed” by speculating that K.K.‘s nonresponsive answer indicated that “maybe she was confused about ... whether she had ever consented to spanking or rough talk or something like that” and by stating that “that‘s how I took the testimony.” Mitchell does not appear to argue that the judge‘s statement indicated bias; rather, his argument is that the judge improperly “expressed [his] personal opinion to the jury as to what [K.K.] was thinking” when she gave the nonresponsive answer. But the record shows that the judge‘s comments were made outside the presence of the jury, and Mitchell‘s complaint about the judge therefore is meritless.
Mitchell also appears to argue that the constitutional prohibition against double jeopardy is violated by statutory exceptions to the general rule against multiple convictions and sentences, that prosecutorial misconduct requires reversal of his convictions, and that insufficient evidence supports his conviction of first-degree burglary (dangerous weapon). Mitchell‘s double-jeopardy and prosecutorial-misconduct arguments are forfeited as wholly unsupported by briefing. See State v. Sontoya, 788 N.W.2d 868, 876 (Minn.2010) (declining to consider pro se argument where appellant cited neither record nor legal support of argument). Any sufficiency-of-the-evidence argument is based on Mitchell‘s attempt to deny the existence of record evidence
DECISION
Because “any other crime,” as used in
Affirmed in part and remanded.