State of Minnesota, Respondent, vs. Tonia Louise Dennison, 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This opinion will be unpublished and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

A03-799

 

State of Minnesota,
Respondent,
 
vs.
 
Tonia Louise Dennison,
Appellant.

 

Filed August 10, 2004 Reversed and remanded Wright, Judge

 

Mower County District Court

File No. K9-02-839

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Patrick W. Flanagan, Mower County Attorney, Jeremy L. Clinefelter, Assistant Mower County Attorney, 201 First Street Northeast, Austin, MN  55912 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Wright, Judge.
U N P U B L I S H E D   O P I N I O N

WRIGHT, Judge

 

Appellant challenges her convictions of child neglect and contributing to a child's need for protection or services.  She argues that (1) the district court abused its discretion by admitting evidence of her alleged substance addiction; (2) the state committed prejudicial misconduct in closing argument when it relied on character evidence and asked the jury to "send a message"; and (3) the cumulative effect of otherwise harmless errors requires a new trial.  We reverse and remand for a new trial.

FACTS

 

            Appellant Tonia Dennison was convicted of two counts of child neglect, a violation of Minn. Stat. § 609.378, subd. 1(a)(1) (2000), and two counts of contributing to a child's need for protection or services, a violation of Minn. Stat. § 260C.425, subd. 1 (2000).  The convictions arise out of events from May 7 through May 9, 2002.  At the time, appellant and her ex-husband, Jeffrey Dennison, shared joint physical custody of their two children, ten-year-old J.D. and seven-year-old D.D.

            On the late afternoon of May 7, the children were at appellant's residence in Austin.  According to Jeffrey Dennison, he called appellant's residence shortly after 5:00 p.m. to confirm that J.D. had gone to dance class.  D.D. answered and told him that J.D. had not gone that day.  When Jeffrey Dennison asked about appellant's whereabouts, D.D. told him that appellant had gone to the store.  He called back around 6:40 p.m.  J.D. answered and reported that appellant had not yet returned.  Jeffrey Dennison then called appellant's boyfriend, Matthew Cain, at his workplace, but Cain did not know appellant's whereabouts.

            Jeffrey Dennison called police and reported that the children had been left home alone.  He then went to appellant's residence, where both Cain and Officer Eric Blust of the Austin Police Department had recently arrived.  In the kitchen, they saw the children using the blender, the stove, and the oven.  J.D. later explained that they were hungry and did not know when appellant was going to prepare dinner for them.

            After Blust and Jeffrey Dennison talked to the children, Jeffrey Dennison took the children to his mother's residence.  Blust left a note for appellant explaining where the children had gone and asking her to call him when she returned.  Blust did not receive a response to the note.

            Appellant offers this account of her whereabouts:  As she was returning from the store on May 7, she saw Blust and Jeffrey Dennison departing with the children but chose not to intervene.  Cain and J.D. also claimed to have seen appellant approaching the residence around this time.  At her residence, appellant spoke with Cain, but he did not tell her about Blust's note.  Afterwards, she placed phone calls to the children and Jeffrey Dennison.

            Appellant then went to some bars downtown.  She met Cain, who took away her car keys because she was intoxicated.  Appellant spent the night at a friend's house and did not return to her residence until the next day.

            On May 8, appellant attempted to pick up her children at school around 3:00 p.m., but they had already departed with their grandmother.  Appellant claimed to have parked her car outside the school, but it is unclear whether appellant in fact had her car back.  That evening, appellant went out drinking with her friend and returned home.

On May 9, appellant was returning to her residence on foot and ran into her sister, Tina Arndt.  When Arndt later recalled the event, she said she thought appellant was not intoxicated.  Appellant reached her residence, and officers arrived shortly afterwards.

According to Jeffrey Dennison, he had no contact with appellant from May 7 to May 9.  In a call from Cain the evening of May 7, Jeffrey Dennison learned that appellant was downtown drinking and had left her car there overnight.  On May 9, Jeffrey Dennison received another call, this time from appellant's mother.  She related an account in which Arndt claimed to have seen appellant walking down the road in a delirious and possibly suicidal state.  In turn, Jeffrey Dennison reported this information to the Austin Police Department.

            Shortly thereafter, Blust and another officer were dispatched to appellant's residence, possibly on Jeffrey Dennison's report.  According to Blust, appellant told him that she had been gone for a few days and had been drinking and smoking marijuana.

            On May 22, 2002, appellant was charged with child neglect and contributing to a child's need for protection or services.  Although the complaint's factual basis recited events from May 7 to May 9, the counts of the complaint only referred to events taking place on May 7.  On December 16, 2002, appellant's case proceeded to jury trial. 

            Jeffrey Dennison's testimony included several references, without defense objection, to appellant's problems with substance abuse and addiction.  The first substantial reference occurred in Jeffrey Dennison's direct testimony about his attempts to reach appellant on May 7:

Q:        Why is it that you decided to contact [the police] instead of calling the house?

 

A:        Tonia has had a drug addiction.  She's been in and out of treatment twice.  The second time she went in there, I said, "Get yourself cleaned up.  The kids need you.  They need a mother."  And at that point in time I told her we weren't going to put up with it anymore .  .  .  .

 

Q:        When was the last time she had been in treatment prior to this incident?

 

A:        She didn't finish.  She got kicked out of outpatient treatment probably must have been two weeks prior to this.  She never really finished either of them.

 

When Jeffrey Dennison was cross-examined on the events following his arrival at appellant's residence, he added:

A:        . . . At that point I found she hadn't gone to the store, that she went to pick a person up from treatment in Albert Lea.  So then, well, at that point in time, [Cain] came, looked at me and said, "If she's picking a person up for treatment, she's probably into the crack cocaine."

 

Cross-examination also elicited this exchange:

Q:        Had there been any other incidents that raised your concern as to why you contacted law enforcement on May 7th rather than handle it yourself?

 

A:        As I said, she had been in and out of drug dependency.  She was in outpatient treatment, got kicked out of that.  I told her the kids were getting stressed out about it.  I was getting fed up.  I decided I was going to do something about it if it ever happened again. . . .

 

            Cain was called as a defense witness.  Although appellant did not elicit any testimony about her history of substance addiction on direct, the state cross-examined Cain as follows:

Q:        Are you aware of the last time [appellant] had been out of treatment prior to May 7th?

 

A:        Yes.

 

Q:        Was it approximately a week and a half, two weeks before that?

 

A:        I would have to say longer than that.

 

Q:        Are you aware of how many times she's gone through treatment?

 

A:        No, not for sure.

 

Q:        More than once, though, would that be fair to say?

 

A:        Yes.

 

Q:        More than twice?

 

A:        I don't believe she has more than twice, but I'm not sure.

 

Q:        . . . Was there ever a time that you were with [appellant] when the girls were around that the two girls saw a package of methamphetamine?[1]

 

            [Defense counsel:]  Objection, Your Honor. . . .

 

            [Prosecutor:]  I withdraw the question, Your Honor.

 

            When appellant later testified, without any discussion of her substance-abuse history on direct, the state cross-examined as follows:

Q:        [I]t was your testimony [at a pretrial hearing on June 28, 2002] that you were still in treatment?

 

A:        I was not in treatment anymore, no.  The last time I was, was in March.

 

Q:        Let me ask it this way.  You were asked [by the state] about any treatment that you had since May 7th.

 

A:        Of this year?

 

Q:        Correct.

 

A:        I haven't had treatment since May 7th of this year, correct.

 

Q:        You have not?

 

A:        Correct.

 

Q:        And you responded [at the pretrial hearing] . . . you were hoping to get back into outpatient treatment . . .?

 

A:        I had spoken to [a probation officer].

 

Q:        So you were kicked out of outpatient treatment?

 

A:        I was not kicked out, no. . . .

 

Q:        You did not complete outpatient treatment, correct?

 

A:        I did not complete the outpatient treatment, correct.

 

Q:        This is during the time period of May 7th, correct?

 

A:        No, this was all months before.  I was in outpatient treatment in March and II went to outpatient and then I started working.  It was in and then out and out and then in and I'm not . . . .

 

Q:        And whether or not you complete that outpatient treatment, you were out drinking this evening and the next evening?

 

A:        Yes.

 

            In closing argument, the state again raised the substance-abuse issue.  To explain why Jeffrey Dennison called the police on May 7, the state argued,

Why did he want [to call the police]?  Why did he come in?  Because [appellant] was failing at treatment.  She had a substance abuse problem.  The girls had a truancy problem.  They weren't getting to school.  Was it because of the actions of the girls or was it because of the action of [appellant]?  It was the action of [appellant]. 

 

Did he win those [custody modification] cases?  Apparently not.  He provided an explanation.  He said, "[Appellant] told the court, ‘You know what?  I'm in treatment.  I'm getting my act together.'" 

 

How many times are we going to allow that excuse to pass?  By her own testimony this is now [number three].  At what point do we say "No more"?  All right.  We are going to send you a message.  We are going to let you know.  You have had your chance.  Now you are going to reach this point. . . .

 

. . . .

 

If the [family court] considered [appellant] was getting her act together in treatment and getting another chance, and now we are here. . . .

 

Now, we can argue about the semantics.  Was she kicked out of treatment or did she just not go because it didn't work with her schedule?  It seems just common sense.  You are working on your outpatient treatment.  You are trying to get back in.  Going out drinking and disappearing is not the way to do it.

 

. . . .

 

We also have the issue . . . of the [appellant] talking about the [substance-abuse] therapy.  The reason you go to therapy is because there's something going on.  I'm asking you to apply the facts as presented.

 

Appellant's closing statement responded:

I want you to remember that you are not supposed to find [appellant] guilty because she went through treatment . . . or because she never finished outpatient treatment.  You are supposed to focus on what happened on May 7th.

 

Prior to closing statements, the district court read CRIMJIG § 3.11, instructing the jury not to rely on the comments of attorneys as evidence.  See 10 Minnesota Practice, CRIMJIG § 3.11 (4th ed. 1999).  The jury found appellant guilty on all counts.  This appeal followed.

D E C I S I O N

 

In a criminal case when the defendant fails to preserve an objection at trial, but substantial rights are affected, we review for plain error.  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  Under this standard, there must be an obvious error that affected the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).  We reverse only if the error "‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.'"  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548 (1997)).

The admissibility of character-trait evidence is governed by Minn. R. Evid. 404(a), which provides, in relevant part:

Evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

 

(1)       Character of accused.  Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same . . . .

 

With respect to this rule, the Minnesota Supreme Court observed in State v. Loebach:  "‘No rule of criminal law is more thoroughly established than the rule that the character of the defendant cannot be attacked until he himself puts it in issue by offering evidence of his good character.'"  310 N.W.2d 58, 63 (Minn. 1981) (quoting City of St. Paul v. Harris, 150 Minn. 170, 171, 184 N.W. 840, 840 (1921)).

            The Loebach court identified three risks underlying the exclusion of character evidence in criminal prosecutions:  First, it raises the possibility of conviction based on the suggestion that the defendant is an undesirable person.  Id. at 63.  Second, there is a danger that the jury may accord too much weight to character evidence when assessing the evidence.  Id.  Third, it requires the defendant not only to defend against the criminal charge, but also general allegations of being an undesirable person.  Id.  Because Rule 404(a) excludes evidence of a character trait unless that trait is first called into issue by the defendant, when the defendant in Loebach did not introduce evidence that he was a peaceable person, it was error for the prosecution to show that defendant suffered from "battering parent" syndrome and was a violent person.  See id. at 64.

            When substance abuse is not an element of or otherwise at issue with a charged offense, evidence that characterizes the defendant as a substance abuser is inadmissible.  Cf. State v. Walthers, 620 N.W.2d 727, 728 (Minn. App. 2000) (disallowing evidence that the defendant drank alcohol in a prosecution for providing alcohol to a minor); United States v. Sutton, 41 F.3d 1257, 1259 (8th Cir. 1994) (disallowing evidence of the defendant's substance addiction in a theft case).  Noting that it was improper to infer motive from defendant's addiction, the Sutton court reasoned, "We cannot say that the slight probative value in knowing one possible motive . . . outweighs the likely prejudicial effect on the jury of being told that the defendant was a crack-cocaine user."  Sutton, 41 F.3d at 1259.

            Here, substance use or abuse was neither an element nor an alleged factual basis for the charged offenses.  Moreover, appellant never placed her character into issue.  The state nevertheless repeatedly introduced evidence of appellant's substance addiction.  Furthermore, the inference from this evidenceconsistently urged by the state during trialwas that appellant's substance addiction made her an unfit parent.  Because the evidentiary rule at issue here is well settled and the error committed incurs all of the risks identified by Loebach, particularly that the jury's decision to convict would be based on appellant's undesirable character, we conclude that the error here is obvious.

            When a defendant fails to object to prosecutorial misconduct, we review for plain error.  State v. Johnson, 672 N.W.2d 235, 240 (Minn. App. 2003), review denied (Minn. Mar. 16, 1994).  Regardless of whether a defendant timely objects, reversal is warranted in cases where the prosecutor's comments are "unduly prejudicial."  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

            Prosecutorial misconduct occurs when the state appeals to passion or prejudice and distracts the jury from deciding the issue of proof beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  When misconduct is alleged, the defendant cannot rely on a few isolated statements; the misconduct must be considered in the context of the parties' arguments and the entire trial.  State v. Powers, 654 N.W.2d 667, 678-79 (Minn. 2003). 

            In criminal prosecutions, "the jury's role is not to enforce the law or teach defendants lessons or make statements to the public or to ‘let the word go forth.'"  State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993).  Thus, misconduct occurs when a prosecutor urges the jury to protect society, State v. Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000), review denied (Minn. May 16, 2000), or to hold the defendant "accountable," Salitros, 499 N.W.2d at 820.  Here, the state asked the jury to "send a message" and argued that appellant "had her chance."  This line of argument is nearly indistinguishable from others that have been held to be prosecutorial misconduct.  See Salitros, 499 N.W.2d at 820; see also State v. Montjoy, 366 N.W.2d 103, 109-10 (Minn. 1985) (dicta).  In the context of a plain-error analysis, this error is obvious. 

            For plain-error analysis, an error also must affect the defendant's substantial rights.  Griller, 583 N.W.2d at 740.  The errors here present a significant likelihood of prejudice, but we do not conclude that either error by itself influenced the outcome of the case.  See State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).

            Under some circumstances, the cumulative effect of multiple harmless errors may deny a fair trial and therefore require reversal for a new trial.  State v. Litzau, 650 N.W.2d 177, 180 (Minn. 2002).  When determining whether reversal is appropriate, we balance the egregiousness of the errors against the weight of proof against the defendant.  See State v. Cermak, 350 N.W.2d 328, 334 (Minn. 1984).

            The instant case involves two serious errors, compounded over the course of trial, which exposed the jury to improper and prejudicial evidence.[2]  Even if each error in isolation is harmless, their cumulative effect compromised the integrity of the proceeding and denied appellant a fair trial.  We, therefore, conclude that reversal and remand for a new trial are warranted.

            Reversed and remanded.

[1]  The record does not disclose whether appellant has any prior history involving methamphetamine.

[2]          Other aspects of the evidence in this case also are troubling.  We observe that, even though the complaint only alleges offenses occurring on May 7, the district court allowed evidence of subsequent events occurring on May 8 and 9.  See generally State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997).  Although defense counsel did not object, many of these events are established by testimony that may constitute inadmissible hearsay.  Cf. State v. Jackson, 655 N.W.2d 828, 833 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).