This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0568
State of Minnesota, Respondent,
vs.
Joshua Alan Pourrier, Appellant.
Filed March 2, 2015 Affirmed Reyes, Judge
Faribault County District Court File No. 22CR13407
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul, Minnesota; and
Troy Timmerman, Faribault County Attorney, Blue Earth, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Worke, Judge; and
Johnson, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant Joshua Alan Pourrier challenges his conviction of attempted first-degree
burglary and terroristic threats, arguing that the district court erroneously instructed the jury on the elements of the crime, that appellant was prejudiced by the introduction of
testimony that he had been in jail, and that the prosecutor committed misconduct in his
closing statement depriving appellant of a fair trial. We affirm.
FACTS
On July 11, 2013, J.E., while on a walk in the downtown area of Wells, Minnesota
stopped to join a party at a house where people were socializing and drinking alcohol on
the front lawn. J.E. met appellant and Nicholas Thamez for the first time at the party.
Later, the three men left the party and continued drinking at J.E.’s house. They then
walked to appellant’s house so appellant could get his phone charger. While waiting
outside for appellant, J.E. and Thamez got into an argument. After yelling back and forth
at each other, J.E. left and walked back to his house by himself.
About a half hour later, J.E. heard banging at his door and people yelling. J.E. got
his gun and shot a few bullets at the door before he called the police. J.E. told the 911
dispatcher that there were “some people at [his] house trying to kill [him]” and that he
had “shot a couple bullets through the door” to try to get them to leave. The dispatcher
told J.E. that an officer was being dispatched to the home and told J.E. to put his gun
away. At around the same time, Thamez also made a 911 call. Thamez told the 911
dispatcher that he was trying to retrieve his cell phone from inside J.E.’s home and that
J.E. had shot at them through the door.
Wells police officer Eric Neubauer was the first officer to arrive and saw appellant
and Thamez at the back door of J.E.’s home. Officer Neubauer observed one man
screaming and banging at the door, while the other one was talking on a cell phone. It
2 appeared to Officer Neubauer that the two men were either trying to enter the home or
“yell through to the guy in the house.” Officer Neubauer heard one of them yell, “I’m
going to kill the mother f-cker. He shot at us. He’s going crazy.” Officer Neubauer
asked appellant and Thamez what was going on, and appellant told the officer that he left
his phone inside J.E.’s home and was trying to get it back. Officer Neubauer noticed that
appellant and Thamez were intoxicated. At that time, Faribault County Sheriff’s Deputy
Steven Linde arrived at the scene. Deputy Linde stayed with appellant and Thamez while
Officer Neubauer went to speak to J.E. While inside J.E.’s home, Officer Neubauer
observed some “small dents in the door” and cracking on the door frame around the bolt.
J.E. appeared to be “very shooken up” and “distraught.” J.E. was also intoxicated.
Officer Neubauer brought appellant back to the police station for an interview,
which was recorded. Appellant told the officer that the three men had all been drinking
earlier in the day. Appellant stated that, at some point, they all walked back to
appellant’s house to get appellant’s phone charger. While appellant was inside his house,
there was some sort of conflict between J.E. and Thamez and J.E. decided to walk home
by himself. After appellant realized that he had left his phone at J.E.’s house, appellant
and Thamez walked back there and knocked on the door to get the phone back.
Appellant stated that the entire time he was outside he was telling J.E. that he was there
to get his phone. The following day, appellant’s phone was returned to him after it was
found inside of J.E.’s home.
Based on these facts, appellant was charged with attempted first-degree burglary
and terroristic threats. Prior to trial, the state filed a motion requesting that appellant’s
3 interview with Officer Neubauer be played in its entirety, with the exception of the
Miranda warning and the portion where appellant makes a reference to having previously
been incarcerated. In the same motion, the state also requested that the district court
acknowledge the parties’ agreement to submit the 911 calls of J.E. and Thamez into
evidence by stipulation, without additional foundation.
At the beginning of the trial and outside the presence of the jury, the district court
heard the parties’ arguments with respect to the state’s motion. Appellant objected to the
state’s request to play the recording of appellant’s interview with Officer Neubauer in its
entirety and argued that doing so would risk allowing improper or inadmissible
statements relating to appellant’s prior incarceration into the record if the recording was
not properly edited. Over appellant’s objection, the district court granted the state’s
request to play the recording of appellant’s statement in its entirety, excluding the
portions as described by the state. The court also accepted the parties’ agreement to play
the 911 tapes.
During the trial, J.E. testified that, after hanging out and drinking with appellant
and Thamez earlier that day, J.E. walked back to his house after he got into an argument
with Thamez. J.E. testified that about a half an hour later, there was “a ton of banging on
[his] door all of a sudden” and “[it] sounded like people were kicking it and . . . it was
about to be kicked open.” J.E. testified that appellant and Thamez were screaming “f
you” and “f’n kill you” at him through the door. J.E. testified that he was scared because
he believed that they wanted to beat him up. J.E. admitted that he fired three shots
towards the door before calling 911. J.E. did not hear anyone say they were looking for a
4 phone. In response to the state’s question as to whether J.E. “[knew] either [appellant] or
his friend well enough to have a sense . . . of what they were capable of,” J.E. answered,
“I knew [appellant and Thamez] were both in prison before.” Appellant objected to this
testimony and moved the district court for a mistrial. The district court denied
appellant’s motion and instructed J.E. not to make any further comments concerning the
criminal history of appellant or Thamez. At appellant’s request, the district court also
gave the jury curative instructions.
After a few more questions of J.E., the state requested to play J.E.’s 911 telephone
call for the jury. On the record, the parties stipulated to the recording of the 911 tapes
being played to the jury. Appellant’s counsel indicated to the district court that she had
the opportunity to listen to both 911 tapes prior to trial. The 911 tape of J.E.’s call was
played to the jury which included a statement J.E. made to the dispatcher stating, “I
ended up f-cking with these people and they were both in prison.” Appellant did not
object at that time. Appellant did not testify at trial. After hearing testimony from the
officers that responded to the incident that day, the district court gave the jury
instructions, and the jury returned guilty verdicts on both counts. This appeal followed.
DECISION
I.
Appellant argues that the district court erred by failing to instruct the jury on either
the definition or the elements of the alleged predicate “crime of violence.”
Jury instructions must fairly and adequately explain the law of the case. State v.
Peterson, 673 N.W.2d 482, 486 (Minn. 2004). It is well-settled that jury instructions
5 must define the crime charged, and the district court must explain the elements of the
offense to the jury. State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). A defendant is
entitled to have all the elements of the offense with which he is charged submitted to the
jury, even if evidence relating to an element is uncontroverted. State v. Carlson, 268
N.W.2d 553, 560 (Minn. 1978).
The Criminal Jury Instruction Guide provides the model instruction on the
elements of terroristic threats, including an instruction identifying the predicate offense
and providing the elements of that offense. 10 Minnesota Practice, CRIMJIG 13.107
(2006). Under the terroristic-threats statute, a person must threaten to commit a “crime of
violence.” Minn. Stat. § 609.713, subd. 1 (2014). A “‘crime of violence’ has the
meaning given ‘violent crime’ in section 609.1095, subdivision 1, paragraph (d).” Minn.
Stat. § 609.713, subd. 1 (2014). Section 609.1095, subdivision 1(d) restricts “violent
crime” to certain, specifically delineated crimes. It is undisputed that the district court’s
instructions did not identify the predicate crime of violence or provide the definition or
elements of that predicate crime as recommended by the jury instruction guide.
Because appellant did not object to the jury instructions during trial, we review for
plain error. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (stating that when a
defendant fails to object to jury instructions during trial, this court has the discretion to
review the issue on appeal for plain error). Under the plain-error test, appellant must
show (1) error, (2) that was plain, and (3) that affected the “substantial rights” of
appellant. Id. If all three prongs are satisfied, then a reviewing court may decide whether
6 to address the error to ensure the “fairness and the integrity of the judicial proceedings.”
Id. (quotation omitted).
The state concedes that the first two prongs of the plain-error test are met: the
district court erred, and the error was plain. See State v. Jorgenson, 758 N.W.2d 316,
323-34 (Minn. App. 2008), review denied (Minn. Feb. 17, 2009). Therefore, the issue
before us is whether the plain error affected appellant’s substantial rights.
The omission of an element of a crime in a jury instruction does not automatically
necessitate a new trial. State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). Instead, a
reviewing court must conduct a thorough examination of the record to determine whether
the omitted element of a charged offense from the jury instruction was “sufficiently
prejudicial.” Id. at 28-29. In doing so, we may consider, among other factors, whether:
“(1) the [appellant] contested the omitted element and submitted evidence to support a
contrary finding, (2) the [s]tate submitted overwhelming evidence to prove that element,
and (3) the jury’s verdict nonetheless encompassed a finding on that element.” Id. at 29.
The uncontroverted evidence in this case established that appellant threatened to
kill J.E. This evidence was presented to the jury during J.E.’s 911 call, where J.E. told
the dispatcher on several occasions that there were people pounding on his door and that
they were threatening to kill him. Officer Neubauer also testified that when he arrived at
J.E.’s house he heard someone scream, “I’m going to kill the mother f-cker. He shot at
us.” While neither J.E. nor Officer Neubauer testified that these threats were made by
appellant and not Thamez, appellant admitted to Officer Neubauer, in an interview that
was presented to the jury, that he was “the only one saying anything” to J.E. while the
7 men were outside of the home. There was substantial evidence presented to the jury to
prove that appellant threatened to kill J.E.
It is well-established in the record that homicide was the predicate crime of
violence threatened, and homicide of any degree is defined as a crime of violence. See
Minn. Stat. § 609.1095, subd. 1(d) (defining “violent crime” to include first-, second- and
third-degree murder; first- and second-degree manslaughter; and criminal vehicular
homicide). Therefore, as a matter of law, threatening to kill is a threat to commit a
“crime of violence” for purposes of the terroristic threats statute. Cf. State v. Schweppe,
306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975) (stating that threatened killing was a
“crime of violence” under homicide statutes then in effect).
The district court did not specifically identify the predicate crime of violence as
recommended by the jury instruction guide. But “the jury instruction guides merely
provide guidelines and are not mandatory rules.” State v. Kelley, 734 N.W.2d 689, 695
(Minn. App. 2007), review denied (Minn. Sept. 18, 2007). Moreover, jury instructions
are to be considered as a whole. State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001).
The district court instructed the jury that, to return a guilty verdict, it must find that the
state proved all three elements of terroristic threats beyond a reasonable doubt. Because
jurors are presumed to follow a district court’s instructions, State v. Miller, 573 N.W.2d
661, 675 (Minn. 1998), this court can presume that the jury found, beyond a reasonable
doubt, that appellant threatened to kill J.E., which is a crime of violence as a matter of
law. Accordingly, appellant has not met his burden.
8 Appellant argues next that the district court’s subsequent jury instruction, defining
assault with respect to attempt and first-degree burglary definitions and elements, could
have caused the jury to assume that the threatened “crime of violence” was possibly an
assault. Appellant argues that this confusion makes the case more factually similar to the
facts in Jorgenson. We are not persuaded.
In Jorgenson, a defendant was charged with terroristic threats, and the predicate
crime of violence underlying the terroristic threat was identified as assault. 758 N.W.2d
at 322. Although the district court gave instructions to the jury that “assault is a crime of
violence,” it gave no further definition of assault. Id. at 320. However, Jorgenson was
also charged with misdemeanor domestic assault pursuant to Minn. Stat. § 609.2242,
subd. 1(2) (2006). Misdemeanor domestic assault is not a crime of violence. The jury
found Jorgenson guilty of both offenses. Id. We held that the district court committed
plain error because, while “violent crime” under section 609.1095 includes first-, second-
, and third-degree assault, it does not include domestic assault, fourth-, or fifth-degree
assault. Id. at 323-24 (citing Minn. Stat. § 609.1095, subd. 1(d) (2014)). We concluded
that Jorgenson had been prejudiced because the jury could have determined that he was
guilty of no more than misdemeanor domestic assault but that this was insufficient to
support the terroristic threats conviction under section 609.1095. Id. at 325.
Unlike Jorgenson, there is no concern that the jury employed the assault definition
from the attempted burglary definition for the terroristic threat conviction. Specifically,
the state argued in closing, “Now, we have as one of the charges here, terroristic threats,
and [J.E.] said that he heard them threatening to kill him.” Here, the state’s opening and
9 closing arguments directly reference appellant’s threats to kill J.E. when discussing the
charge of terroristic threat. Moreover, in contrast to Jorgenson, the district court did not
inform the jury that assault is a crime of violence. Finally, the predicate crime of
homicide, in any degree, is indeed a “crime of violence.” Because appellant has not
established that the district court’s terroristic-threats jury instruction affected his
substantial rights, he is not entitled to relief on this ground.
II.
Appellant contends that the introduction of evidence that appellant had been in
prison prejudiced appellant’s right to a fair trial. This happened on two separate
occasions; once during J.E.’s testimony and a second time during J.E.’s conversation with
the 911 dispatcher. On appeal, appellant only challenges the statement that was made in
the 911 tape which was played to the jury. Appellant made no objection to this statement
at trial and we review for plain error. See Minn. R. Crim. P. 31.02; State v. Strommen,
648 N.W.2d 681, 686 (Minn. 2002).
A. Error
Generally, “references to prior incarceration of a defendant can be unfairly
prejudicial.” State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). However, such
evidence can be admitted when it is relevant and the relevance outweighs any potential
prejudice. See State v. Stephenson, 361 N.W.2d 844, 845-46 (Minn. 1985). Evidence
which is not relevant is inadmissible. Minn. R. Evid. 402. Here, evidence of appellant’s
prior incarceration did not have any probative value. For this reason, the evidence should
10 not have been admitted. Accordingly, the introduction of evidence that appellant had
previously been incarcerated was error.
B. Substantial rights
Even if admission of this statement was error, it was not prejudicial to appellant’s
substantial rights.1 The reference made by J.E. in his 911 call was a part of a recording
that the parties had the opportunity to review prior to trial. It was also a passing and
isolated reference as the tape did not include additional statements about appellant’s prior
incarceration nor did the state make any additional references to it. See State v. Haglund,
267 N.W.2d 503, 506 (Minn. 1978) (finding that a witness’s testimony that a defendant
had previously been incarcerated was not reversible error because the testimony was not
intentionally elicited, the statement was “of a passing nature,” and the evidence in [the]
case was overwhelming”).
Additionally, the evidence of appellant’s guilt was sufficient. J.E. testified several
times that appellant threatened to kill him and was pounding on his door, trying to enter
his home. Officer Neubauer observed damage to the door consistent with this testimony.
Officer Neubauer also testified to hearing one of the men yelling that he was going to kill
J.E. In the 911 call, J.E. told the dispatcher multiple times that appellant was trying to
kill him. There was also testimony from J.E. that he told appellant and Thamez to leave
and did not want them there. Because there is sufficient evidence of appellant’s guilt, the
1 Because we determine that the error did not affect appellant’s substantial rights, we need not reach the issue of whether the error was plain. See Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011) (“[I]f we find that any one of the requirements [under the plain-error test] is not satisfied, we need not address any of the others.”).
11 fleeting reference to his prior incarceration in the 911 tape in a two-day trial did not affect
appellant’s substantial rights.
III.
Lastly, appellant argues that he was denied a fair trial based on the prosecutor’s
prejudicial misconduct during closing argument. Specifically, appellant asserts that the
state argued facts not in evidence and improperly urged the jury to protect society and to
send a message with its verdict. We will address each in turn.
Appellate courts review closing arguments in their entirety to determine whether
prosecutorial misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). “The
prosecutor has the right to present to the jury all legitimate arguments on the evidence, to
analyze and explain the evidence, and to present all proper inferences to be drawn
therefore.” State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998) (quotation omitted).
However, a prosecutor may not argue facts unsupported by the record. See State v.
Ferguson, 729 N.W.2d 604, 616 (Minn. App. 2007), review denied (Minn. June 19,
2007) (holding that it is improper for a prosecutor to make arguments unsupported by the
record). A prosecutor must also avoid arguments that inflame the jury’s passions and
prejudices against the defendant. State v. Rucker, 752 N.W.2d 538, 551 (Minn. App.
2008), review denied (Minn. Sept. 23, 2008).
A. Facts not in evidence
In the state’s closing argument, the prosecutor argued “[e]very day in this state and
every other state in our union you can pick up your newspaper and find, read about some
12 assault or some homicide . . . .” Appellant objected to this statement and argued that the
state’s argument was not supported by the record. The objection was overruled.
An objected-to claim of prosecutorial misconduct is reviewed under the two-tier
harmless-error test. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). Appellate courts
“first address whether there was misconduct, and if so, whether it entitles [appellant] to a
new trial.” State v. Wren, 738 N.W.2d 378, 390 (Minn. 2007). In cases involving
unusually serious prosecutorial misconduct, the conduct is reviewed to determine
whether it was harmless beyond a reasonable doubt. Yang, 774 N.W.2d at 559. We
review claims of less-serious prosecutorial misconduct to determine whether it likely
played a substantial part in influencing the jury to convict. Id.
We conclude that the prosecutor’s argument constituted misconduct. Here, the
prosecutor used the statement to inflame the jury’s passion and improperly encouraged
the jury to convict appellant because of the crime problem in general. See State v. Clark,
296 N.W.2d 372, 377 (Minn. 1980) (determining that improper suggestions to the jury
that they should convict a defendant “because of the crime problem in general”
constitutes misconduct). The statement was not asserted by the state as evidence of
appellant’s guilt, nor was the statement based on evidence produced at trial. Therefore,
this statement by the prosecutor during the closing argument was misconduct.
This type of prosecutorial argument is not encouraged. Nevertheless, in view of
the entire record as a whole, this lone statement did not likely play a substantial part in
influencing the jury to convict appellant. Accordingly, we conclude that this statement
does not rise to the level to warrant reversal.
13 B. Improper encouragement of jury to send a message through its verdict
Appellant also argues that there was prosecutorial misconduct because the
prosecutor improperly encouraged the jury “to send a message” with its verdict.
Appellant relies on the following portion of the state’s closing argument:
In a sense it’s not a big case[.] . . . [B]ut it’s an important case. It’s important for many reasons, but the primary reason that it’s important is that it’s a case involving personal safety, boundaries if you will, and it’s involving basically a concept of civilized behavior and the safety of the general public.
Appellant did not make any objections to this portion of the closing argument at trial.
When an appellant does not object to an alleged prosecutorial error at trial, we apply the
modified plain-error standard of review. State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006) (stating that the burden shifts to the state to demonstrate that the misconduct did
not affect substantial rights).
1. Error
“It is improper for the [state] to make statements urging the jury to protect society
or to send a message with its verdict.” State v. Duncan, 608 N.W.2d 551, 556 (Minn.
App. 2000), review denied (Minn. May 16, 2000). Appellant relies on State v. Threinen,
328 N.W.2d 154 (Minn. 1983), to argue that this statement by the prosecutor was
improper. We agree.
In Threinen, the prosecutor made statements during closing argument “suggesting
that the jury represented the people of the community and that their verdict would
determine what kind of conduct would be tolerated on the streets.” 328 N.W.2d at 157.
The court held that those types of comments were improper. Id. The comments in the
14 instant case are much like closing arguments disapproved by the Threinen court. Here,
the prosecutor urged the jury to convict because appellant’s case is an “important case”
that involves “a concept of civilized behavior and the safety of the general public.”
These types of remarks distract a jury from its proper role of deciding whether the state
has met its burden, and instead urge the jury to view this case as a way to send a message.
See State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985) (prosecutors “should not
emphasize accountability to such an extent as to divert the jury’s attention from its true
role”). These statements by the prosecutor constitute error.
2. Substantial rights
While these statements are prosecutorial error, we conclude that reversal is not
necessary. Here, the defense did not object or seek curative instructions, “a factor that
this court has said ‘weighs heavily’ in its decision whether to reverse on that ground.”
Clark, 296 N.W.2d at 377. Furthermore, the challenged statements make up only a small
portion of the closing argument. Because the state has established that it is not
reasonably likely that the purported misconduct had a significant effect on the jury’s
verdict, appellant is not entitled to relief on this ground.
Affirmed.