State of Minnesota v. Jonathon Michael Honeycutt ( 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This opinion will be unpublished and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
A15-1429
State of Minnesota,
Respondent,
vs.
Jonathon Michael Honeycutt,
Appellant.
Filed June 13, 2016
Affirmed
Rodenberg, Judge
Ramsey County District Court
File No. 62-CR-15-486
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Mark J. Miller, Minneapolis, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Jonathon Michael Honeycutt appeals his conviction for first-degree
criminal sexual conduct. Because our review of the record does not support his claims of
evidentiary errors by the district court and prosecutorial misconduct, we affirm.
DECISION
As noted in our earlier unpublished opinion, State v. Honeycutt, A15-1456, 2016
WL 281425, at *1 (Minn. App. Jan. 25, 2016), appellant was found guilty of first-degree
criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (2010), for having
sexual contact with a then-13-year-old girl, A. The state appealed the sentence, and we
reversed and remanded the district court’s downward durational sentencing departure.
Honeycutt, 2016 WL 281425, at *1. In this appeal from the judgment of conviction,
appellant argues that the district court abused its discretion in several evidentiary rulings,
that the prosecutor committed misconduct during closing arguments, and that the
cumulative effect of these errors deprived him of a fair trial.
I. Evidentiary rulings
Appellant argues that the district court erred by (1) admitting A.’s journal entries
as exhibits, (2) permitting A. to testify about having sent appellant a Facebook message
to which A. received no response, and (3) excluding evidence that A. made sexual abuse
claims against other individuals. “Evidentiary rulings rest within the sound discretion of
the [district] court and will not be reversed absent a clear abuse of discretion.” State v.
Carridine, 812 N.W.2d 130, 141 (Minn. 2012) (quotation omitted). On appeal, appellant
has the burden to establish that the district court abused its discretion and that he was
thereby prejudiced. State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013). Even if the
district court erred in admitting evidence, the reviewing court determines “whether there
is a reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).
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A. Journal entries
Appellant argues that the district court abused its discretion by admitting A.’s
journal entries as exhibits for the jury’s review. He maintains that the entries should
properly have been considered hearsay evidence admissible only under Minn. R. Evid.
803(5).
Hearsay is defined as an out-of-court statement offered in evidence to prove the
truth of the matter asserted. Minn. R. Evid. 801(c); State v. Manthey, 711 N.W.2d 498,
504 (Minn. 2006). The rules of evidence bar the admission of hearsay evidence, with
recognized exceptions. See Minn. R. Evid. 802 (barring admission of hearsay), 803
(listing exceptions to the hearsay rule), 804 (same).
Appellant did not argue to the district court that the journal entries were hearsay.
In fact, appellant agreed that the entries were prior consistent statements, defined by
Minn. R. Evid. 801 as non-hearsay, but he argued that the entries should not be admitted
as exhibits because they were also recorded recollections. Appellant cited no legal
authority to the district court to support this assertion, nor does he cite any on appeal.
Neither does appellant explain why the district court ought to have considered one of the
hearsay exceptions, Minn. R. Evid. 803(5) (concerning recorded recollections), as
bearing on the admissibility of non-hearsay evidence.
Assuming, without deciding, that appellant properly preserved this issue for appeal
by arguing that the journal entries should not have gone to the jury room, we see no abuse
of the district court’s discretion in admitting the journal entries into evidence. They were
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prior consistent statements, as appellant agreed in district court, and were therefore non-
hearsay by definition. The exhibits were properly marked and received and, under Minn.
R. Crim. P. 26.03, subd. 20(1), were required to be available in the jury room.
B. Facebook message
Appellant argues that the district court erred in permitting A. to testify that she
sent a Facebook message to appellant to which she received no response. Appellant did
not object to A. “say[ing] she wrote a Facebook message and she felt really upset” and
therefore failed to raise this objection to the district court.
Even if not properly preserved, we may review an alleged evidentiary error for
plain error. State v. Dao Xiong, 829 N.W.2d 391, 395 (Minn. 2013). Appellant must
demonstrate “(1) an error, (2) that the error is plain, and (3) that the plain error affects
substantial rights.” Id. Whether a district court errs when admitting or excluding
evidence under the first plain-error element turns on whether it abused its discretion. See
State v. Jenkins, 782 N.W.2d 211, 230-31 (Minn. 2010) (concluding in context of plain-
error review that “the district court did not abuse its discretion or commit any error when
it granted the State’s motion to exclude the evidence on relevance grounds”); see also
State v. Hayes, 826 N.W.2d 799, 808 (Minn. 2013) (declining to “consider the remaining
[elements] of the plain-error test” after concluding that “the district court did not abuse its
discretion in admitting the challenged testimony”).
Appellant confuses the admission of testimony about a Facebook message with
admission of the Facebook message itself. The district court properly sustained
appellant’s objection to the admission of the Facebook message, because it could not be
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authenticated. But it did not intervene to prohibit A. from testifying that she sent
appellant a Facebook message. This unobjected-to testimony was no more improper than
a witness testifying that he or she left a voicemail or sent a letter. See, e.g., State v. Hurd,
763 N.W.2d 17, 23 (Minn. 2009) (noting that two of that defendant’s cellmates testified
about an incriminating conversation with the defendant); State v. Welch, 675 N.W.2d
615, 619-20 (Minn. 2004) (holding that the district court’s finding, based on a witness’s
testimony, that the initial conversation between the witness and the defendant contained a
“sexual overtone” was supported by the evidence). We see no error, and certainly none is
plain here.
C. Application of the rape-shield statute
Appellant argues that, although A.’s allegations of sexual abuse by others were
properly excluded under the rape-shield statute, Minn. Stat. § 609.347 (2014), the district
court should have allowed evidence that A. was “dating like a normal girl” in order that
he might vindicate his right to present a complete defense. See State v. Friend, 493
N.W.2d 540, 545 (Minn. 1992) (stating that “[i]n certain cases the due process clause, the
right to confront accusers, or the right to present evidence will require [the] admission of
evidence otherwise excluded by the rape shield law”). Appellant maintains that he was
denied the right to cross-examine A. But appellant merely moved, before trial, to admit
A.’s statements as prior inconsistent allegations of sexual abuse, and he advanced no
alternative-perpetrator defense.
At trial, appellant specifically disavowed any “intention of discussing anything
sexual” concerning A.’s dating practices, arguing that he only sought to establish that she
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was “dating like a normal girl.” Appellant made no offer of proof, and does not specify
on appeal what evidence he believes was prejudicially excluded. See Minn. R. Evid.
103(a)(2) (providing that “[i]n case the ruling is one excluding evidence, the substance of
the evidence was made known to the court by offer or was apparent from the context
within which questions were asked); State v. Bjornson, 378 N.W.2d 4, 10 (Minn. App.
1985) (rejecting an appellant’s claim that district court erred in restricting cross-
examination of a witness where defense counsel did not make an offer of proof), review
denied (Minn. Jan. 17, 1986). Appellant has not demonstrated any error in the district
court’s application of the rape-shield law. And, in the absence of any offer of proof
concerning the evidence he claims should have been admitted, he cannot demonstrate any
prejudice.
II. Prosecutorial misconduct
Appellant argues that he is entitled to a new trial because the prosecutor
committed prejudicial misconduct. Specifically, he argues that the prosecutor vouched
for the credibility of the victim and another witness during his closing argument.
Appellant acknowledges that he did not object to either incident of alleged misconduct
during trial.
A defendant who fails to object to alleged prosecutorial misconduct ordinarily
forfeits the right to appellate review of the purported misconduct. State v. Ture, 353
N.W.2d 502, 516 (Minn. 1984). We have discretion to review unobjected-to
prosecutorial misconduct if plain error is shown. Minn. R. Crim. P. 31.02; State v.
Ramey, 721 N.W.2d 294, 299 (Minn. 2006). To establish plain error based on a claim of
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prosecutorial misconduct, the prosecutor’s unobjected-to act must constitute error, the
error must be plain, and the error must affect the defendant’s substantial rights. Ramey,
721 N.W.2d at 302. The burden rests with the defendant to demonstrate error that is
plain. Id.
Appellant argues that “the prosecutor in closing argument repeatedly vouched for
the credibility of his witnesses.” Impermissible vouching occurs “when the government
implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or
expresses a personal opinion as to a witness’s credibility.” State v. Lopez-Rios, 669
N.W.2d 603, 614 (Minn. 2003) (quotations omitted). “But the state may argue that
particular witnesses were or were not credible.” Id. To determine whether a prosecutor’s
statement constitutes improper vouching, we consider the closing argument as a whole.
State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012), review denied (Minn. Mar. 19,
2013).
Appellant identifies three statements made by the prosecutor during closing
argument that he asserts constitute improper vouching: (1) “[A.] was honest;” (2) “[C.,
A’s brother] is a boy that may not be capable of a lie;” and (3) “If you believe [A.], you
have no reasonable doubt.” Considered in isolation, these statements might appear to
vouch for a witness’s credibility. See State v. Swanson, 707 N.W.2d 645, 656 (Minn.
2006) (stating that arguments that a witness was “very believable” appear to vouch for
that witness’s credibility). But when read in proper context, as a portion of the state’s
“discussion of factors affecting the credibility of the witnesses,” the arguments are not
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plainly erroneous. Id.; see also Ramey, 721 N.W.2d at 299 (applying the plain-error
standard to unobjected-to prosecutorial misconduct).
Here, these isolated statements were part of the prosecutor’s marshalling of the
evidence in a 26-page summation. The prosecutor did not guarantee or imply any
personal endorsement of any witness’s credibility, refer to facts outside of the record, or
express a “personal opinion” about credibility. Lopez-Rios, 669 N.W.2d at 614. The
prosecutor argued that the state’s witnesses were credible. Plain error has not been
demonstrated.
III. Cumulative effect
Appellant argues that the aggregation of the alleged errors and misconduct
demonstrates that he did not receive a fair trial. A defendant is deprived of a
procedurally fair trial when “the number of errors and the seriousness of some of them”
render us “unable to determine whether the jury based its verdict on the admissible
evidence and the reasonable inferences derived therefrom.” State v. Mayhorn, 720
N.W.2d 776, 792 (Minn. 2006). “Cumulative error exists when the cumulative effect of
the . . . errors and indiscretions, none of which alone might have been enough to tip the
scales, operate to the defendant’s prejudice by producing a biased jury.” State v. Penkaty,
708 N.W.2d 185, 200 (Minn. 2006) (alteration in original) (quotation omitted).
Appellant has failed to demonstrate error. Therefore, there are no errors to
accumulate. Appellant received a fair trial.
Affirmed.
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