                        This opinion will be unpublished and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                       UNPUBLISHED OPINION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


                                             2
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.”


                                            4
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


                                              5
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


                                              6
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.

                                             7
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


                                             8
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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