State v. Mildenstein

Court of Appeals of Minnesota

State v. Mildenstein

358 N.W.2d 115, 1984 Minn. App. LEXIS 3793

CourtCourt of Appeals of Minnesota

DecidedNovember 20, 1984

DocketC1-84-694

StatusPublished

Cited by2 cases

This text of 358 N.W.2d 115 (State v. Mildenstein) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Mildenstein, 358 N.W.2d 115, 1984 Minn. App. LEXIS 3793 (Mich. Ct. App. 1984).

Pincite

Opinion

SUMMARY OPINION

POPOVICH, Chief Judge.

FACTS

Appellant Larry Mildenstein was charged with aggravated robbery in violation of Minn.Stat. §§ 609.245 and 609.11 (1982), by a complaint alleging that Mildenstein and another person robbed Dorn’s Liquor Store in Minneapolis. Appellant was identified by the store owner and a customer as the gunman in the robbery. Following a jury trial, appellant was found guilty as charged and sentenced to 81 months in prison.

On appeal appellant contends (1) the evidence was insufficient to sustain his conviction and (2) the prosecutor committed misconduct during cross-examination of the defense witness and during closing argument.

DECISION

1. The claim of insufficiency of evidence is without merit. The identification testimony of the store owner and the customer was sufficient to sustain the conviction. Both of them identified appellant in a photo display as well as in person at trial. There is no claim that the photo display was improper. Instead, defense argues eyewitness identification reliability. Any fallibility is for the fact finder to evaluate. See Caldwell v. State, 347 N.W.2d 824, 828-29 (Minn.Ct.App.1984) (citing State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969)), pet. for rev. denied, (Minn. Sept. 12, 1984).

2. During cross-examination of appellant’s alibi witness, the prosecutor asked her to tell the jury the last time she was drunk. Over an objection of relevance, the prosecutor replied “I’d be glad to state the relevance. I don’t think [defense] counsel wants to hear.” Following a discussion at the bench the prosecutor asked the same question and the witness answered the question. This remark by the prosecutor, although gratuitous, improper and rude, is so insignificant we cannot say appellant was denied a fair trial.

3. We have reviewed the entire closing argument of the prosecutor. Any error in the closing argument, relating to the community’s stake in the outcome of every case, was not objected to by defense counsel. See State v. Brown, 348 N.W.2d 743, 747 (Minn.1984). Under the standards set out in State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), we find no reversible error since the comment did not likely play a substantial part in influencing the jury.

*117 4.Appellant’s conviction for aggravated robbery is affirmed.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

SUMMARY OPINION

POPOVICH, Chief Judge.

FACTS

Appellant Larry Mildenstein was charged with aggravated robbery in violation of Minn.Stat. §§ 609.245 and 609.11 (1982), by a complaint alleging that Mildenstein and another person robbed Dorn’s Liquor Store in Minneapolis. Appellant was identified by the store owner and a customer as the gunman in the robbery. Following a jury trial, appellant was found guilty as charged and sentenced to 81 months in prison.

On appeal appellant contends (1) the evidence was insufficient to sustain his conviction and (2) the prosecutor committed misconduct during cross-examination of the defense witness and during closing argument.

DECISION

1. The claim of insufficiency of evidence is without merit. The identification testimony of the store owner and the customer was sufficient to sustain the conviction. Both of them identified appellant in a photo display as well as in person at trial. There is no claim that the photo display was improper. Instead, defense argues eyewitness identification reliability. Any fallibility is for the fact finder to evaluate. See Caldwell v. State, 347 N.W.2d 824, 828-29 (Minn.Ct.App.1984) (citing State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969)), pet. for rev. denied, (Minn. Sept. 12, 1984).

2. During cross-examination of appellant’s alibi witness, the prosecutor asked her to tell the jury the last time she was drunk. Over an objection of relevance, the prosecutor replied “I’d be glad to state the relevance. I don’t think [defense] counsel wants to hear.” Following a discussion at the bench the prosecutor asked the same question and the witness answered the question. This remark by the prosecutor, although gratuitous, improper and rude, is so insignificant we cannot say appellant was denied a fair trial.

3. We have reviewed the entire closing argument of the prosecutor. Any error in the closing argument, relating to the community’s stake in the outcome of every case, was not objected to by defense counsel. See State v. Brown, 348 N.W.2d 743, 747 (Minn.1984). Under the standards set out in State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), we find no reversible error since the comment did not likely play a substantial part in influencing the jury.

*117 4.Appellant’s conviction for aggravated robbery is affirmed.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

358 N.W.2d 115, 1984 Minn. App. LEXIS 3793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mildenstein-minnctapp-1984.

Opinion

Related

Cite This Page — Counsel Stack