State v. Bolton
| Decision Date | 17 September 2012 |
| Docket Number | A11-2262 |
| Parties | State of Minnesota, Respondent, v. Charles Morgan Bolton, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Hennepin County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Susan L. Segal, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)
Rory Patrick Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Johnson, Chief Judge; and Huspeni, Judge.*
UNPUBLISHED OPINION
Appellant challenges his conviction of misdemeanor violation of a harassment restraining order (HRO), arguing that (1) the district court abused its discretion by denying his motion for a mistrial following testimony as to evidence previously ruled inadmissible, (2) the district court abused its discretion by denying his request for a jury instruction on intent, and (3) the prosecutor committed serious misconduct. We affirm.
Appellant Charles Bolton met P.P. while she was working as a bartender at Rick's Cabaret, a nightclub in downtown Minneapolis, and the two began a romantic relationship in 2006. Bolton objected to P.P. working at Rick's, so she quit by mid-2007. After their relationship ended in mid-2009, P.P. went back to work at Rick's.
On April 1, 2010, P.P. obtained an HRO against Bolton. The HRO prohibited Bolton from harassing P.P. by (1) "[a]ny repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of [P.P.]," or (2) having "any contact with [P.P.] in person, by telephone, or by other means or persons."
Bolton was charged with violating the HRO after an incident on February 10, 2011. P.P. finished her shift at Rick's around 3:00 a.m. and walked to the nearby parking lot where she had parked her car. The only other vehicle in the lot was a black SUV, which was angled toward her car with its lights on. P.P. drove out of the parking lot onto Third Street. A vehicle approached quickly beside her, then slowed down. P.P. lookedover and saw Bolton driving the black SUV. Bolton stared at her and "gave [her] a dirty look," which scared her. Bolton then accelerated, pulled in front of her, and slowed down, causing her to slam on her brakes. They both stopped at a red light. When the light turned green, Bolton sped away. P.P. drove home and called the police.
Before trial,1 the district court ruled that evidence pertaining to a prior criminal case involving Bolton's prohibited contact with P.P. was inadmissible. Notwithstanding that ruling, P.P. referenced the prior case in her testimony. The prosecutor asked P.P. why she believed that Bolton knew where she was employed in February 2011; P.P. responded that Bolton "was on probation." The district court sustained Bolton's objection, and Bolton moved for a mistrial. The district court denied the motion and Bolton's request for "a very detailed, formal curative instruction" as to both the series of questions and P.P.'s responses, reasoning that the question was not improper, only the answer. The district court therefore instructed the jury to disregard P.P.'s answer.
Bolton also testified. He acknowledged that the HRO was in effect and that he saw P.P. in downtown Minneapolis on the night in question. Bolton testified that he happened to park in the same lot as P.P. at 3:00 a.m. because he had a gastro-esophageal-reflux attack while on his way home from another nightclub and stopped in the parking lot to "work [it] out." He also testified that he did not realize at first that he drove past P.P.'s car, then recognized her behind him while he was stopped at the light, but immediately drove away to avoid contact.
At the close of the evidence, Bolton asked the district court to instruct the jury on intent. The district court denied the request, instead giving the standard instruction on the elements of misdemeanor violation of a restraining order. The jury found Bolton guilty. This appeal follows.
"[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. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (alteration in original) (quotation omitted). We review the district court's denial of a motion for a mistrial for abuse of discretion, considering the entirety of the trial, including the mitigating effects of a curative instruction. Id.
Evidence that a defendant is on probation generally is inadmissible. See Minn. R. Evid. 404(b) (); State v. Hjerstrom, 287 N.W.2d 625, 627 (Minn. 1979) (). And a prosecutor has a duty to prepare witnesses to avoid introducing inadmissible evidence. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). But the erroneous admission of inadmissible evidence generally does not warrant a new trial when it is "of a passing nature, or [when] the evidence of guilt is overwhelming." State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations omitted). Striking theevidence from the record and instructing the jury to disregard the evidence also help to cure the erroneous admission of such evidence. State v. Johnson, 291 Minn. 407, 415, 192 N.W.2d 87, 92 (1971).
We agree with Bolton that P.P.'s reference to Bolton being on probation was improper. But we conclude that this testimony was not prejudicial. First, the district court sustained Bolton's timely objection and instructed the jury to disregard the testimony. We presume the jury followed that instruction. State v. Gatson, 801 N.W.2d 134, 151 (Minn. 2011). Second, P.P.'s reference to Bolton's probationary status was the only such comment, was brief, and was made in passing. Third, the state's evidence was undisputed as to most of the elements of the charged offense. With strong evidence of guilt, it is extremely unlikely that the jury's verdict was affected by the improper reference. On this record, we conclude that the district court did not abuse its discretion by denying Bolton's mistrial motion.
A district court is afforded "considerable latitude" in fashioning jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). We review instructions "in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).
Bolton requested an intent instruction pursuant to 10 Minnesota Practice, CRIMJIG 7.10 (Supp. 2011), which defines "know," "[h]ad reason to know," "[i]ntentionally," "[w]ith intent," and "[r]ecklessly." The district court denied the request and gave the standard instruction, advising the jury that the elements of a violation of an HRO are: "First, there was an existing court order restraining defendant from harassing [P.P.]; second, the defendant violated a term or condition of the order; third, the defendant knew of the order; fourth, the defendant's act took place on February 10th, 2011 in Hennepin County." See 10 Minnesota Practice, CRIMJIG 13.54 (2006).
Bolton argues that the district court abused its discretion by declining to include an instruction on intent. We disagree. The plain language of Minn. Stat. § 609.748, subd. 6(b) (2010), does not require the state to prove intent to violate an HRO. Rather, the misdemeanor-level violation of an HRO, like the misdemeanor-level violation of an order for protection, "requires only that the defendant 'know of' the order and then violate it." See State v. Colvin, 629 N.W.2d 135, 138 (Minn. App. 2001) ( order-for-protection statute), rev'd on other grounds, 645 N.W.2d 449 (Minn. 2002); Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (). The district court's instruction accurately states the elements of the offense, including the requirement that the defendant have knowledge of the HRO. See State v. Gunderson, 812 N.W.2d 156, 160 (Minn. App. 2012) (). We conclude that the district court did not abuse its discretion by denying Bolton's request for an instruction on intent.
Bolton also argues that insofar as Minn. Stat. § 609.748, subd. 6(b), does not require an intentional violation of the HRO, it is unconstitutionally vague, restricts his right to travel, and is inconsistent with the requirement in other states that an HRO violation be knowing. Bolton did not present these arguments to the district court. The constitutionality of a statute cannot be challenged for the first time on appeal from a criminal conviction. State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980). Bolton could have raised these arguments in support of his request for an intent instruction, or when the district court denied that request, but he failed to do so. On this record, we conclude that Bolton has waived his constitutional arguments, and we decline to address them.
Bolton argues that the prosecutor committed...
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