This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1484
State of Minnesota,
Respondent,
vs.
Jeremy Dean Zittel,
Appellant.
Filed August 11, 2014
Affirmed
Rodenberg, Judge
Dakota County District Court
File No. 19HA-CR-12-1155
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Stacy A. St. George, Assistant County
Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Stephanie A. Karri, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his conviction of second-degree assault with a dangerous weapon,
appellant Jeremy Dean Zittel argues that (1) the prosecutor committed misconduct during
her cross-examination of appellant and (2) the district court abused its discretion in
admitting inadmissible evidence. We affirm.
FACTS
Appellant and K.D. are the parents of a now-six-year-old daughter, B.Z. By
agreement, appellant had sole physical custody of B.Z. and he and K.D. shared legal
custody of the child. On April 1, 2012, appellant and K.D. had a dispute concerning K.D.
picking up B.Z. that evening. At the jury trial, K.D. testified that she arrived at
appellant’s house around 8:30 p.m. intending to pick up B.Z. but noticed that the lights
were off. She knocked on the door, but there was no answer. She then walked to her
vehicle to call appellant by cell phone and noticed B.Z. peeking through the blinds. K.D.
asked B.Z., “Where is your dad?” and B.Z. responded, “Daddy is here, daddy is here.”
B.Z. then opened the door. K.D. entered the home and noticed appellant seated in a
recliner. K.D. turned on the lights and said “hello.” Appellant did not respond. K.D.
testified that she was surprised by the messy condition of the residence “because that’s
where our daughter lives, and I felt that it was unacceptable for the home to look like
that, knowing what I knew, what the home used to look like, and it is never like that.”
Appellant then woke up, and K.D. testified that she asked him “‘what has
happened here, what the F has happened,’ and he basically told me to ‘get out’” of the
house. K.D. left the house and waited for B.Z. in her vehicle. Appellant and B.Z.
eventually stepped outside. Appellant handed K.D. a bag, which had a change of clothes
for B.Z., and told B.Z. “to go back inside and put some shoes on.” K.D. again confronted
appellant regarding the condition of the home. Appellant told her that it was none of her
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business and pulled a gun from behind his back. Appellant held the gun out in front of
him “angled down” and “briefly pointed it at [her] for probably about five seconds”
before angling it down again.
K.D. went back to her vehicle and called the police. Police officers arrested
appellant and found B.Z. asleep in her bedroom. The officers also located and
photographed appellant’s loaded pistol on his dining room table.
In contrast, appellant testified that he and K.D. had originally agreed on K.D.
picking up B.Z., but he changed his mind following “verbal altercations over the phone”
and told K.D. not to come by the house. Appellant put B.Z. to bed around 8:00 p.m. and
fell asleep in his recliner. He admitted that he had consumed “three or four shots or four
or five drinks” before K.D. arrived. Appellant awoke to find K.D. in the entryway of his
home. Feeling groggy, appellant asked K.D. what she was doing in his home. He
testified that he told her to leave and argued with her both inside and outside the home.
Appellant testified that B.Z. was asleep in bed the entire time. Appellant also testified
that he kept his pistol unloaded and in a case on top of his refrigerator. He denied taking
the gun out of the case and pointing it at K.D. He claimed to have “no idea” how the gun
ended up on his dining room table, although he testified that K.D. was herself familiar
with the gun, how to load it, and where it was kept.
The jury found appellant guilty of second-degree assault with a dangerous weapon
in violation of Minn. Stat. § 609.222, subd. 1 (2010). This appeal followed.
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DECISION
I.
Appellant argues that the prosecutor committed misconduct during appellant’s
cross-examination when she asked him whether he expected the jury to believe that either
the police or K.D. had placed the handgun where the police found it. Appellant had
testified on direct that K.D. knew that he kept his handgun on top of the refrigerator and
that he had shown K.D. how to use the handgun, including how to “put a bullet in the
chamber.” And appellant stated that he had “no idea” how the handgun got onto his
dining room table. The following exchange then occurred on cross-examination:
Q: Now, [appellant], you are claiming or you stated that you
didn’t put the weapon on the table, correct?
A: Correct.
Q: Is it your testimony, then, that you believe that the police
planted the weapon there?
[APPELLANT’S ATTORNEY]: Objection,
argumentative, relevancy.
THE COURT: Please approach.
....
THE COURT: You may proceed.
[PROSECUTOR]: Thank you.
Q: [Appellant], are you, then, claiming that the police planted
the weapon on the table?
A: No.
Q: So, then, you want us to believe that the victim came into
your house, found the weapon, loaded it, and put it on the
table all while you were sleeping in the recliner, correct?
[APPELLANT’S ATTORNEY]: Objection, badgering,
facts not in evidence.
THE COURT: Overruled.
A: Yes.
In her closing argument, the prosecutor mentioned appellant’s theory that K.D.
placed the handgun on his dining room table, calling it a “pretty incredible story.”
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Appellant’s attorney argued in closing that no one knew how long K.D. was in the home
before appellant woke up and that it was possible K.D. loaded the handgun and placed it
on the dining room table.
When a prosecutor’s questions are objected to at trial, we consider “whether the
district court abused its discretion in permitting the state to ask” the challenged questions.
State v. Morton, 701 N.W.2d 225, 234 (Minn. 2005). We will reverse a guilty verdict
only when the improper questions “impaired the defendant’s right to a fair trial.” Id. at
233.
The state argues that we should review the prosecutor’s questions for prosecutorial
error rather than prosecutorial misconduct. But the standard for reviewing prosecutorial
misconduct is “equally applicable to prosecutorial error.” State v. Leutschaft, 759
N.W.2d 414, 418 (Minn. App. 2009), review denied (Minn. Mar. 17, 2009). And, on
careful review of the entire record, we conclude that the prosecutor here committed
neither misconduct nor error.
Appellant testified that he did not put the handgun on his dining room table, and
his testimony before the objected-to questions suggested that K.D. could have done so
because she knew where he kept the handgun and she knew how to load it. The
prosecutor fairly cross-examined appellant regarding his theory of the case, given
appellant’s direct testimony suggesting that K.D. might have placed the handgun where
police found it. We do not agree with appellant’s assertion that the prosecutor misstated
the evidence during her questioning. See State v. Mayhorn, 720 N.W.2d 776, 788 (Minn.
2006) (“A prosecutor commits misconduct by intentionally misstating evidence.”). And
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the objected-to questions were not of the “were they lying” variety. The questions did
not reference K.D. or her testimony or ask whether appellant thought that K.D. was lying.
See State v. Pilot, 595 N.W.2d 511, 516 n.1 (Minn. 1999) (explaining that in an improper
“were they lying” question, a prosecutor first asks the defendant if he heard the earlier
testimony and if that testimony was accurate before then asking the defendant to
comment on the witness’s truthfulness); see Morton, 701 N.W.2d at 233, 235 (explaining
that the prosecutor improperly asked whether earlier witnesses were not telling the truth).
We also do not agree that the prosecutor “improperly shifted the burden of proof”
to appellant. Both the prosecutor and the district court properly explained to the jury that
the state had the burden of proof. See State v. McDonough, 631 N.W.2d 373, 389 n.2
(Minn. 2001) (“[A] prosecutor’s attempts to shift the burden of proof are often
nonprejudicial and harmless where, as here, the district court clearly and thoroughly
instructed the jury regarding the burden of proof.”). The prosecutor was challenging
appellant’s version of events during cross-examination and in summation. See State v.
MacLennan, 702 N.W.2d 219, 236 (Minn. 2005) (stating that the state “may specifically
argue that there is no merit to the [defendant’s] particular defense”).
We see no abuse of the district court’s discretion in its evidentiary rulings. See
Morton, 701 N.W.2d at 234. But, even assuming an abuse of discretion, any error was
harmless. See id. at 233 (“An error is harmless beyond a reasonable doubt only if the
verdict rendered was surely unattributable to the error.” (quotation omitted)). Appellant
answered the prosecutor’s question regarding K.D. in the affirmative. He wanted the jury
to believe that K.D. loaded the handgun and placed it on the dining room table. That was
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part of his theory of the case. Therefore, the jury’s verdict was unattributable to the
questions that appellant challenges on appeal.
II.
Appellant also argues that the district court abused its discretion in admitting 22
photographs of the inside of his home.1 “Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear abuse of
discretion. On appeal, the appellant has the burden of establishing that the [district] court
abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658
N.W.2d 201, 203 (Minn. 2003) (citations omitted). “The admission of photographs is a
matter left to the discretion of the [district court].” State v. Sullivan, 502 N.W.2d 200,
202 (Minn. 1993). “Photographs are admissible if they accurately portray anything that a
witness may describe in words, or the photographs are helpful as an aid to an oral
description of objects and conditions, provided they are relevant to some material issue.”
Morton, 701 N.W.2d at 237. Photographs are not rendered inadmissible if they
incidentally arouse the passion or prejudice of the jury. Sullivan, 502 N.W.2d at 202.
Appellant argues that the photographs of the inside of his house were not relevant
to the charge of second-degree assault. We disagree. “Relevant evidence” is “evidence
having 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. Photographs of a scene can assist a jury “in determining
1
The photographs depict the inside of the home including, as discussed below, two
photographs of the handgun on the table. Several other photographs show a cluttered and
dirty home.
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the elements of the alleged crime.” State v. Dame, 670 N.W.2d 261, 264 (Minn. 2003).
Here, the photographs depicted the scene of the alleged crime. Two of the photographs
also depicted the placement of the handgun on the dining room table. And the
photographs provided some circumstantial evidence of the state of appellant’s mental
health and his possible intoxication. They also allowed the jury to consider the context of
the disagreement between appellant and K.D. concerning the state of the house. The
photographs of appellant’s home were relevant and helpful to the jury. See State v.
Walen, 563 N.W.2d 742, 748 (Minn. 1997) (“The appropriate test regarding the
admissibility of photographs and other visual aids is relevance, in other words, whether
the photographs and other visual aids are helpful to the jury.”).
Appellant also argues that the photographs were improperly admitted because “the
prejudicial effect of the photographs substantially outweighed their probative value.”
Relevant evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.” Minn. R. Evid. 403. “‘[P]rejudice’ does not mean the
damage to the opponent’s case that results from the legitimate probative force of the
evidence; rather, it refers to the unfair advantage that results from the capacity of the
evidence to persuade by illegitimate means.” State v. Ferguson, 581 N.W.2d 824, 834
(Minn. 1998).
Here, the record regarding the prejudicial effect of the photographs is imperfect
because it does not establish whether the district court analyzed the prejudicial effect of
each photograph individually. See Dame, 670 N.W.2d at 264 (“In determining the
admissibility of photographs, the district court must consider the relevance of each
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photograph and must also weigh the probative value of that photograph against its
prejudicial effect.”); Sullivan, 502 N.W.2d at 203 (“[T]he fact that the [district] court
made individual determinations as to the appropriateness of the photos is sufficient to
show a proper exercise of discretion, and that the [district] court balanced their probative
value against their potential for creating unfair prejudice.”).
We conclude that the district court did not abuse its discretion in admitting the
photographs into evidence as not unfairly prejudicial to appellant. Appellant was charged
with second-degree assault with a dangerous weapon for allegedly pointing a firearm at
his ex-girlfriend. In providing photographic evidence of the context of the argument
between appellant and K.D., the photographs may have reflected poorly on appellant’s
housekeeping. But the record contains no suggestion that the photographs (some of
which were unobjected to) were unfairly prejudicial. Although the district court might
have sustained appellant’s objection to the volume of photographs, we see no abuse of
the district court’s discretion.
Moreover, even if the district court abused its discretion in admitting the
challenged photographs, which we conclude that it did not, introduction of the
photographs was harmless. See Amos, 658 N.W.2d at 203. Nothing in the record
suggests that the jury confused appellant’s housekeeping with the charged assault on
K.D. As noted, appellant raised no objection to several of the photographs showing the
home’s disorder. The jury did not reach its verdict based on the challenged photographs.
See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (“[I]f there is a reasonable
possibility that the verdict might have been more favorable to the defendant if the
9
evidence had not been admitted, then the error in admitting the evidence was prejudicial
error.”). Any error in admitting the additional photographs of the home as to which
appellant’s objections were overruled was undoubtedly harmless.
Affirmed.
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