This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0885
State of Minnesota, Respondent,
vs.
Nammoun Khampanya, Appellant.
Filed May 2, 2016 Affirmed Stauber, Judge
Hennepin County District Court File No. 27CR146878
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
On appeal from a conviction of first-degree robbery, appellant argues that the
district court abused its discretion by (1) denying his mistrial motion after a witness referred to him as a possible narcotics user and (2) admitting evidence that a handgun
barrel was found on his person on the day after the robbery. We affirm.
FACTS
On March 2, 2014, H.L. was robbed at gunpoint. H.L. had arranged to buy a cell
phone through Ying Vang, so he picked up Vang at Mystic Lake Casino and drove to
Brooklyn Park to meet appellant Nammoun Khampanya. They all waited in H.L.’s car at
a parking lot for appellant’s cousin, who supposedly had a phone to sell. After appellant
made a call, a car drove into the lot and parked immediately behind H.L.’s car. Appellant
pulled out a semi-automatic handgun, pointed it at the back of H.L.’s head, and said:
“Give me your money and your phone or I will blow your head up.” H.L. complied.
Vang and appellant drove away in the other car.
H.L., who was familiar with appellant, positively identified appellant in a police
lineup. Appellant was later arrested and charged with first-degree robbery.
At appellant’s jury trial, two police officers testified about the consistent
statements H.L. made about the robbery immediately after the crime and during a formal
police interview. H.L.’s 911 call was also played for the jury in which he described
appellants’ getaway vehicle as a 2008 black Camry. H.L.’s trial testimony was consistent
with his pretrial statements. The prosecution also offered evidence from a Mystic Lake
Casino surveillance video that verified Vang getting into H.L.’s vehicle on March 2, as
H.L. had described. Further, a Mystic Lake Casino employee testified that the
surveillance video showed appellant and Vang entering a hotel room that was registered
2 to Vang, and Vang later leaving the hotel in a black Toyota Camry. The prosecution also
introduced surveillance video from the parking lot where the robbery occurred.
During trial, defense counsel moved to suppress evidence of the barrel of a black
handgun that was found in appellant’s jacket pocket when he was searched by police
following a medical emergency he had on the casino floor on the day after the robbery.
In the very early hours of March 3, police had executed a search warrant at appellant’s
Mystic Lake hotel room but found nothing incriminating during the search. An officer
who had participated in that search also later responded to the medical-emergency call
and recognized appellant as one of the robbery suspects. Defense counsel argued that the
officer’s protective search of appellant that led to discovery of the handgun barrel was
unreasonable because it was done “in a medical situation.” The district court denied the
motion, ruling that the officer had “reasonable articulable suspicion that the defendant
might be armed and dangerous based on all of [the] facts that were known to him.”
During Detective Shane Husarik’s trial testimony, he stated that H.L. had
described appellant as “Lao, approximately five foot two. His eyes were sunken in. His
cheeks were puffy. He said he may be a narcotic user.” Defense counsel objected on
relevancy grounds and moved to strike. The district court granted the motion, instructed
the jury to disregard the statement, and directed them to “follow my instructions to not
consider that information in your deliberations or at any other point.” The district court
denied appellant’s motion for a mistrial.
Appellant was convicted and received a 132-month executed sentence. This
appeal followed.
3 DECISION
I. Mistrial
“[T]he state has an obligation to caution its witnesses against making prejudicial
testimony.” State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). “[T]he prosecutor
has . . . responsibility for preparing his witnesses in such a way that they will not blurt out
anything that might be inadmissible and prejudicial.” State v. Carlson, 264 N.W.2d 639,
641 (Minn. 1978). Appellant argues that the district court should have granted his
mistrial motion following Officer Husarik’s testimony about appellant possibly being a
narcotics user.
This court reviews for an abuse of discretion a district court’s denial of a mistrial
motion. Manthey, 711 N.W.2d at 506. “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.” Id. (quotation omitted); State v. Spann, 574
N.W.2d 47, 53 (Minn. 1998). A district court’s instruction to disregard an improper
comment may blunt the prejudicial effect of the comment. Id. Appellate courts
“presume that jurors follow the court’s instructions.” State v. Budreau, 641 N.W.2d 919,
926 (Minn. 2002).
Detective Husarik’s statements describing appellant’s features and postulating that
he could be a narcotics user were prejudicial. They suggested that appellant was
involved in other criminal activity that would have provided a motive for him to commit
the current offense. But given the strong evidence of appellant’s guilt, the effect of the
prejudicial statements did not establish a reasonable probability that the trial outcome
4 would have been different without the statements. H.L. knew of appellant before the
crime, and he repeatedly and consistently identified appellant and his conduct during the
robbery. Surveillance videos from the robbery site and casino corroborated H.L.’s
testimony. See State v. Miller, 573 N.W.2.d 661, 675-76 (Minn. 1998) (ruling that the
district court did not abuse its discretion by denying a mistrial motion when the court
took steps to minimize the prejudicial effect of improper statements); Ture v. State, 353
N.W.2d 518, 524 (Minn. 1984) (upholding denial of mistrial motion when jury received
curative instruction after a witness referred to defendant’s other criminal conduct). The
district court did not abuse its discretion by denying appellant’s mistrial motion. See
State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (“Where, as here . . . the
evidence of guilt is overwhelming, a new trial is not warranted because it is extremely
unlikely that the evidence in question played a significant role in persuading the jury to
convict.” (quotation omitted)).
II. Evidentiary Ruling
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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 A15-0885
State of Minnesota, Respondent,
vs.
Nammoun Khampanya, Appellant.
Filed May 2, 2016 Affirmed Stauber, Judge
Hennepin County District Court File No. 27CR146878
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
On appeal from a conviction of first-degree robbery, appellant argues that the
district court abused its discretion by (1) denying his mistrial motion after a witness referred to him as a possible narcotics user and (2) admitting evidence that a handgun
barrel was found on his person on the day after the robbery. We affirm.
FACTS
On March 2, 2014, H.L. was robbed at gunpoint. H.L. had arranged to buy a cell
phone through Ying Vang, so he picked up Vang at Mystic Lake Casino and drove to
Brooklyn Park to meet appellant Nammoun Khampanya. They all waited in H.L.’s car at
a parking lot for appellant’s cousin, who supposedly had a phone to sell. After appellant
made a call, a car drove into the lot and parked immediately behind H.L.’s car. Appellant
pulled out a semi-automatic handgun, pointed it at the back of H.L.’s head, and said:
“Give me your money and your phone or I will blow your head up.” H.L. complied.
Vang and appellant drove away in the other car.
H.L., who was familiar with appellant, positively identified appellant in a police
lineup. Appellant was later arrested and charged with first-degree robbery.
At appellant’s jury trial, two police officers testified about the consistent
statements H.L. made about the robbery immediately after the crime and during a formal
police interview. H.L.’s 911 call was also played for the jury in which he described
appellants’ getaway vehicle as a 2008 black Camry. H.L.’s trial testimony was consistent
with his pretrial statements. The prosecution also offered evidence from a Mystic Lake
Casino surveillance video that verified Vang getting into H.L.’s vehicle on March 2, as
H.L. had described. Further, a Mystic Lake Casino employee testified that the
surveillance video showed appellant and Vang entering a hotel room that was registered
2 to Vang, and Vang later leaving the hotel in a black Toyota Camry. The prosecution also
introduced surveillance video from the parking lot where the robbery occurred.
During trial, defense counsel moved to suppress evidence of the barrel of a black
handgun that was found in appellant’s jacket pocket when he was searched by police
following a medical emergency he had on the casino floor on the day after the robbery.
In the very early hours of March 3, police had executed a search warrant at appellant’s
Mystic Lake hotel room but found nothing incriminating during the search. An officer
who had participated in that search also later responded to the medical-emergency call
and recognized appellant as one of the robbery suspects. Defense counsel argued that the
officer’s protective search of appellant that led to discovery of the handgun barrel was
unreasonable because it was done “in a medical situation.” The district court denied the
motion, ruling that the officer had “reasonable articulable suspicion that the defendant
might be armed and dangerous based on all of [the] facts that were known to him.”
During Detective Shane Husarik’s trial testimony, he stated that H.L. had
described appellant as “Lao, approximately five foot two. His eyes were sunken in. His
cheeks were puffy. He said he may be a narcotic user.” Defense counsel objected on
relevancy grounds and moved to strike. The district court granted the motion, instructed
the jury to disregard the statement, and directed them to “follow my instructions to not
consider that information in your deliberations or at any other point.” The district court
denied appellant’s motion for a mistrial.
Appellant was convicted and received a 132-month executed sentence. This
appeal followed.
3 DECISION
I. Mistrial
“[T]he state has an obligation to caution its witnesses against making prejudicial
testimony.” State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). “[T]he prosecutor
has . . . responsibility for preparing his witnesses in such a way that they will not blurt out
anything that might be inadmissible and prejudicial.” State v. Carlson, 264 N.W.2d 639,
641 (Minn. 1978). Appellant argues that the district court should have granted his
mistrial motion following Officer Husarik’s testimony about appellant possibly being a
narcotics user.
This court reviews for an abuse of discretion a district court’s denial of a mistrial
motion. Manthey, 711 N.W.2d at 506. “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.” Id. (quotation omitted); State v. Spann, 574
N.W.2d 47, 53 (Minn. 1998). A district court’s instruction to disregard an improper
comment may blunt the prejudicial effect of the comment. Id. Appellate courts
“presume that jurors follow the court’s instructions.” State v. Budreau, 641 N.W.2d 919,
926 (Minn. 2002).
Detective Husarik’s statements describing appellant’s features and postulating that
he could be a narcotics user were prejudicial. They suggested that appellant was
involved in other criminal activity that would have provided a motive for him to commit
the current offense. But given the strong evidence of appellant’s guilt, the effect of the
prejudicial statements did not establish a reasonable probability that the trial outcome
4 would have been different without the statements. H.L. knew of appellant before the
crime, and he repeatedly and consistently identified appellant and his conduct during the
robbery. Surveillance videos from the robbery site and casino corroborated H.L.’s
testimony. See State v. Miller, 573 N.W.2.d 661, 675-76 (Minn. 1998) (ruling that the
district court did not abuse its discretion by denying a mistrial motion when the court
took steps to minimize the prejudicial effect of improper statements); Ture v. State, 353
N.W.2d 518, 524 (Minn. 1984) (upholding denial of mistrial motion when jury received
curative instruction after a witness referred to defendant’s other criminal conduct). The
district court did not abuse its discretion by denying appellant’s mistrial motion. See
State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (“Where, as here . . . the
evidence of guilt is overwhelming, a new trial is not warranted because it is extremely
unlikely that the evidence in question played a significant role in persuading the jury to
convict.” (quotation omitted)).
II. Evidentiary Ruling
Appellant argues that the district court also abused its discretion by admitting
evidence that police found the barrel of a handgun on appellant’s person during a
protective search conducted at the casino on the day after the robbery.1 Officer Adam
Boser had been part of the police team that executed the search warrant on appellant’s
1 Appellant submitted a pro se brief arguing that the handgun was found at the casino over a week after the crime. By reaching a guilty verdict, the jury rejected this evidence and relied on other evidence showing that the handgun was found the day after the crime.
5 hotel room on March 3, and he was the officer who later responded to the medical
emergency call involving appellant on the casino floor that same night.
Appellant claims only that the handgun barrel evidence was not relevant because
the prosecution did not “connect[] the handgun barrel . . . with the handgun used in the
robbery.” In general, “[a]ll relevant evidence is admissible.” Minn. R. Evid. 402.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Minn. R. Evid. 401. Relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” Minn. R. Evid. 403. “[U]nfair prejudice is not merely damaging evidence,
even severely damaging evidence; rather, unfair prejudice is evidence that persuades by
illegitimate means, giving one party an unfair advantage.” State v. Swinger, 800 N.W.2d
833, 839 (Minn. App. 2011) (quotation omitted), review denied (Minn. Sept. 28, 2011).
“Evidence that is probative, though it may arouse the passions of the jury, will still be
admitted unless the tendency of the evidence to persuade by illegitimate means
overwhelms its legitimate probative force.” State v. Schulz, 691 N.W.2d 474, 478-79
(Minn. 2005). “Evidentiary rulings rest within the sound discretion of the [district] court
and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d
201, 203 (Minn. 2003).
In order to prove aggravated robbery, the prosecution had to show that appellant
accomplished the crime with a dangerous weapon. See Minn. Stat. § 609.245, subd. 1
(2012) (“Whoever, while committing a robbery, is armed with a dangerous weapon . . . is
6 guilty of aggravated robbery . . . .”). The evidence that appellant possessed a handgun
barrel on the day after the crime was relevant to prove that appellant used a handgun to
commit the crime; the barrel matched the description of the weapon provided by the
victim, and it was found on appellant’s person within a day of the crime. Although the
state did not prove that appellant used that particular handgun barrel to commit the crime,
the jury was entitled to make reasonable inferences from the handgun being found in
appellant’s possession. The district court did not abuse its discretion in balancing the
probative and prejudicial aspects of this evidence in reaching its decision that the
evidence should be admitted. See United States v. Brandon, 521 F.3d 1019, 1026 (8th
Cir. 2008) (“Unfair prejudice does not refer to the legitimate probative force of the
evidence, but rather its capacity to lure a jury into declaring a defendant guilty for an
improper reason.”).
Affirmed.