State of Minnesota v. Scott Joseph Mirkovich ( 2016 )

This opinion will be unpublished and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
A15-0249
State of Minnesota,
Respondent,
vs.
Scott Joseph Mirkovich,
Appellant.
Filed January 25, 2016
Affirmed
Schellhas, Judge
St. Louis County District Court
File No. 69DU-CR-14-2116
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and
Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges his convictions of second-degree assault, felony domestic
assault, felony domestic assault by strangulation, terroristic threats, and interference with
an emergency call, arguing that (1) the evidence was insufficient to prove venue beyond a
reasonable doubt and (2) the district court (a) plainly erred by failing to issue sua sponte a
jury instruction on voluntary intoxication and (b) abused its discretion by allowing
impeachment of appellant with his prior felony conviction. Appellant also argues pro se
that the district court erred by admitting a witness’s testimony. We affirm.
FACTS
After a drunken party on June 25, 2014, at the Duluth residence of S.K. and her
boyfriend, appellant Scott Mirkovich, the two argued about whether their guests should
leave or stay. The next morning, Mirkovich resumed drinking malt liquor with one of the
guests over S.K.’s objection. In the early afternoon, police responded to a medical call at
the residence after S.K. struck Mirkovich in the face with a beer bottle. Police found
Mirkovich lying on a couch with an inch-long laceration above one of his eyes. Mirkovich
refused medical treatment, and police left. Mirkovich and S.K. then argued, and Mirkovich
grabbed S.K. by the front of her shirt, grabbed a steak knife and held it to S.K.’s throat,
and told S.K. that he was going to kill her. When S.K. told Mirkovich that she was going
to call police, he tackled her, pinned her down, pulled her hair, and choked her. After
Mirkovich left the residence that afternoon, S.K. called police. An officer who responded
to the call and entered the residence saw that items were knocked over. Police took
photographs of S.K.’s neck and collected the knife as evidence. S.K. refused medical
treatment.
The state charged Mirkovich with second-degree assault, felony domestic assault,
felony domestic assault by strangulation, terroristic threats, and interference with an
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emergency call. A jury found Mirkovich guilty as charged, and the district court imposed
a presumptive guidelines sentence of 45 months’ imprisonment for Mirkovich’s conviction
of second-degree assault.
This appeal follows.
DECISION
Venue
Mirkovich first argues that the evidence was insufficient to prove venue beyond a
reasonable doubt. “When assessing the sufficiency of the evidence, [appellate courts] make
a painstaking review of the record to determine whether the evidence and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient
to allow the jury to reach its verdict.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014)
(quotation omitted).
Venue is an element of an offense, “which, like all other elements, must be
established . . . by proof beyond a reasonable doubt to support a conviction.” State v.
Eibensteiner, 690 N.W.2d 140, 150 (Minn. App. 2004), review denied (Minn. Mar. 15,
2005). “The venue element of an offense is determined by all the reasonable inferences
arising from the totality of the surrounding circumstances.” Id. (quotations omitted).
“Venue may be proved by indirect evidence.” State v. Trezona, 286 Minn. 531, 532, 176
N.W.2d 95, 96 (1970); see also State v. Bahri, 514 N.W.2d 580, 582 (Minn. App. 1994)
(“Venue . . . may be proven by circumstantial rather than direct evidence.”), review denied
(Minn. Jun. 15, 1994). While “[i]t is better practice to make proof of the place where an
offense was committed by direct evidence than to leave it for inference, . . . the great weight
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of authority is to the effect that direct evidence is not essential.” State v. Frost, 160 Minn.
317, 319, 200 N.W. 295, 295 (1924).
Mirkovich argues that venue was not proved because “[n]o witness testified to the
county” in which the offenses occurred. The state concedes that it did not offer direct
evidence of the county in which the offenses occurred. But the state argues that sufficient
circumstantial evidence proved that the offenses occurred in St. Louis County because the
offenses occurred in Duluth and Duluth is a well-known city in St. Louis County. S.K.
testified that she lived with Mirkovich at a residence in Duluth and provided the specific
address. Responding police officers testified that they worked for the Duluth Police
Department and responded to the incident while they were on duty.
Evidence that an offense occurred in a well-known location is sufficient to prove
venue in a particular county. See Trezona, 286 Minn. at 532, 176 N.W.2d at 96 (concluding
that evidence was sufficient to prove venue where it demonstrated that offense occurred at
“intersection of Buffalo Street and Highway No. 61” at “Benson Airport”); Bahri, 514
N.W.2d at 583 (concluding that evidence was sufficient to prove venue where it established
that offenses took place in well-known area of city of Minneapolis); State v. Larsen, 442
N.W.2d 840, 842 (Minn. App. 1989) (concluding that evidence was sufficient to prove
venue where “[t]hroughout the case witnesses referred to Lake Florida, which is located in
the north central part of Kandiyohi County”). In Larsen, the defendant apparently did not
object to the lack of venue evidence, 442 N.W.2d at 842, and Mirkovich therefore argues
that Larsen is distinguishable because he objected to the lack of evidence regarding the
county in which the offenses occurred. He cites to an unpublished case to support his
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argument. Unpublished opinions of this court have limited value in deciding an appeal
because they are not precedential. See Minn. Stat. § 480A.08, subd. 3(c) (2014)
(“Unpublished opinions of the Court of Appeals are not precedential.”); see also Gen. Cas.
Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 575 n.2 (Minn. 2009) (noting that an
“unpublished Minnesota court of appeals decision does not constitute precedent”). We
decline to consider the unpublished opinion cited by Mirkovich. We conclude that the
evidence in this case was sufficient to prove venue beyond a reasonable doubt.
Voluntary-intoxication instruction
Mirkovich argues that the district court plainly erred by failing to issue sua sponte
a jury instruction on voluntary intoxication as to his second-degree assault charge and that
this failure affected his substantial rights. He concedes that he did not request a voluntary-
intoxication instruction. A defendant’s failure to propose specific jury instructions or to
object to instructions before they are given to the jury generally constitutes a forfeiture of
the right to appeal on that basis. See State v. White, 684 N.W.2d 500, 508 (Minn. 2004)
(“A defendant’s failure to propose specific jury instructions or to object to instructions
before they are given to the jury generally constitutes a waiver of the right to appeal.”).1
In State v. Hannon, noting that the record established that the defendant was likely
intoxicated on the day of the offense, the supreme court stated that “a trial court judge has
1
Appellate courts have “sometimes used the phrase ‘waived . . . appellate review’ when
discussing a defendant’s failure to object to an error in the district court.” State v. Beaulieu,
859 N.W.2d 275, 278 n.3 (Minn. 2015). Nevertheless, “forfeiture is the failure to make the
timely assertion of a right, [while] waiver is the intentional relinquishment or abandonment
of a known right.” Id. (quotation omitted).
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no obligation to instruct the jury, sua sponte, concerning the defense of intoxication.” 703
N.W.2d 498, 511–12 (Minn. 2005). Because Hannon did not request a voluntary-
intoxication instruction, the court concluded that he forfeited his right to assert error on
that point. Id. at 512. Similarly, in State v. Sutherlin, the supreme court concluded that the
district court did not err by not instructing the jury on intoxication because the defendant
“did not offer his intoxication as an explanation of his actions nor did he request an
instruction on intoxication.” 396 N.W.2d 238, 241 (Minn. 1986).
As in Hannon and Sutherlin, Mirkovich did not request an instruction on voluntary
intoxication. Because Mirkovich failed to request a voluntary-intoxication instruction
regarding the charge of second-degree assault, he has forfeited the argument on appeal.
Even if Mirkovich has not forfeited this argument, he has failed to demonstrate plain
error. To receive a requested instruction on voluntary intoxication, the defendant must,
among other things, “offer intoxication as an explanation for his actions.” State v. Torres,
632 N.W.2d 609, 616 (Minn. 2001); see also State v. Lopez, 587 N.W.2d 26, 28 & n.5
(Minn. 1998) (“Before the intoxication defense comes into play, a defendant must offer
intoxication as an explanation for his actions.”). Although the evidence is sufficient to
demonstrate that Mirkovich was intoxicated at the time of the offense, he did not offer his
intoxication as an explanation for his conduct. The district court therefore did not err by
not instructing the jury sua sponte on voluntary intoxication.
Impeachment by prior conviction
Mirkovich argues that the district court abused its discretion by ruling that if
Mirkovich testified, the state could impeach him with his prior felony conviction. “A
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district court’s ruling on the admissibility of prior convictions for impeachment of a
defendant is reviewed under a clear abuse of discretion standard.” State v. Swanson, 707
N.W.2d 645, 654 (Minn. 2006). Evidence of a felony conviction is admissible to attack a
witness’s credibility if the district court determines that the probative value of the evidence
outweighs its prejudicial effect. Minn. R. Evid. 609(a). In determining whether to allow a
defendant’s impeachment by a prior conviction, the district court must consider:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use of
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.
State v. Jones, 271 N.W.2d 534, 537–38 (Minn. 1978). On appeal, Mirkovich challenges
the order in which the district court considered the Jones factors and its analysis of the third
Jones factor—the similarity of the past crime with the charged crime. Mirkovich offers no
legal support for his argument that the court abused its discretion by the order in which it
considered the Jones factors.
As to the third Jones factor, Mirkovich was convicted of felony terroristic threats in
February 2012 as a result of stabbing S.K. in the foot with a samurai sword. Mirkovich
argued to the district court that the conviction was not admissible for impeachment
purposes because of its similarity to the charged offense. The record reflects that the district
court agreed that the prior conviction was similar to the charged offense and resolved the
potential prejudice by permitting impeachment by the prior conviction as an unspecified
felony.
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Mirkovich appears to argue that even an unspecified prior conviction is inadmissible
for impeachment purposes if the nature of the conviction is overly similar to the charged
offense. We reject Mirkovich’s argument. In State v. Hill, the supreme court held:
If a court finds that the prejudicial effect of disclosing the
nature of a felony conviction outweighs its probative value,
then it may still allow a party to impeach a witness with an
unspecified felony conviction if the use of the unspecified
conviction satisfies the balancing test of Rule 609(a)(1).
801 N.W.2d 646, 652–53 (Minn. 2011). Here, Mirkovich’s prior felony had probative
value. The district court did not abuse its discretion by ruling that the state could impeach
Mirkovich with evidence of his prior conviction, informing the jury only of the existence
of an unspecified felony conviction. The court therefore did not violate Mirkovich’s right
to testify in his defense. See State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (“[I]t is
only when a trial court has abused its discretion under Rule 609(a)(2) that a defendant’s
right to testify may be infringed by the threat of impeachment evidence.”).
Pro se argument
In a one-paragraph pro se supplemental brief, Mirkovich appears to argue that the
district court erred by admitting S.K.’s testimony. Mirkovich asserts that S.K. had been
drinking on the day of the incident and that she “[c]ommitted [p]erjury,” presumably when
she testified that she had not been drinking on the day of the incident. “The credibility of
witnesses and the weight to be given their testimony are determinations to be made by the
factfinder.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (quotation omitted).
And “[e]videntiary rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of
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establishing that the trial court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).
Mirkovich has not sustained this burden.
Affirmed.
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