IN COURT OF APPEALS
Filed July 25, 2006
Pope County District Court
File No. K8-04-246
Mike Hatch, Attorney General,
John B. Galus, Assistant Attorney General, 1800
Charles C. Glasrud, Special Assistant Pope County Attorney, 109 East 6th Street, P.O. Box 66, Morris, MN 56267 (for respondent)
Robert J. Fowler, Fowler Law Firm, L.L.C., 3210 Rice Street, Little Canada, MN 55126 (for appellant and for amicus Minnesota Fraternal Order of Police)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*
S Y L L A B U S
The definition of “position of authority” in Minn. Stat. § 609.341, subd. 10 (2002), that is incorporated into Minn. Stat. § 609.344, subd. 1(e) (2002), as an element of third-degree criminal sexual conduct is not unconstitutionally vague, because it provides reasonably certain notice that, for purposes of criminal-sexual-conduct prohibitions, an on-duty police officer is in a position of authority over a seventeen-year-old child.
O P I N I O N
Scott Mogler challenges the constitutionality of the phrase “position of authority,” as used in Minn. Stat. § 609.344, subd. 1(e) (2002), and defined in Minn. Stat. § 609.341, subd. 10 (2002). He also appeals the district court’s evidentiary rulings, venue determination, jury instructions, and imposition of the guidelines sentence; challenges the sufficiency of the evidence to support his conviction of third-degree criminal sexual conduct; and alleges prosecutorial misconduct. Because the definition of “position of authority” that is incorporated into Minn. Stat. § 609.344, subd. 1(e), is not unconstitutionally vague, the evidence supports the conviction, the prosecutor’s comments were not misconduct, and the district court did not err or abuse its discretion, we affirm the conviction and sentence.
F A C T S
In the summer of 2004, Scott Mogler
was a police officer employed by the city of
Mogler let RL ride in his squad car, and they exchanged cell-phone numbers and phone calls. On July 4, 2004, Mogler and RL arranged to meet at the beach. Mogler drove to the beach in his squad car. He was on duty and wearing his uniform, including a badge and service weapon. After meeting at the beach, Mogler drove RL in the squad car to the city-council building, which also serves as the police station. Mogler and RL had sexual intercourse in a conference room at the police station. A few days later Mogler and RL agreed to meet again. Mogler drove his squad car to the prearranged meeting place. He was on duty and in full uniform. Mogler and RL had sexual intercourse in RL’s car.
RL testified that, before the first incident of sexual intercourse, she had joked around with Mogler and told him she was older than her true age. Mogler, who was thirty-one in the summer of 2004, told RL that he knew she was only seventeen because he had conducted a background check on her.
RL’s father learned of the incidents and, on July 7, 2004, notified the Pope County Sheriff’s office. Her father said that he believed one of the incidents occurred in Mogler’s squad car. The sheriff notified Starbuck’s police chief, Hal Henning. In deference to a request from RL’s family, Henning agreed to delay the investigation for a day or two, but to preserve any potential evidence in Mogler’s squad car, he arranged to trade vehicles with Mogler. Henning testified that, when he informed Mogler of the trade, Mogler became “very nervous” and asked to discuss something with Henning. Mogler inquired whether he was in trouble with the sheriff’s office. Henning said he was not aware of any problems, and Mogler then said that he had “f----d up” and that his career was over. When asked what he had done, Mogler said he had “messed around” with a girl while on duty. He told Henning that he had thought she was nineteen years old but then acknowledged that he knew she was only seventeen.
Following this conversation, Henning advised a deputy to contact RL. RL confirmed the sexual nature of their relationship, and the deputy then arrested Mogler. Henning and the deputy accompanied Mogler to his home to allow him to change out of his uniform. While at his house, Mogler awakened his wife and told her that he was going to jail because he had been “messing around with an underage girl.”
The state charged Mogler with two counts of third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(e) (2002). Mogler moved to dismiss the charges, to suppress the statements he made to his wife and Henning, and to change venue because of pretrial publicity.
The district court denied the motions and, following a trial, a jury convicted Mogler of both counts. In May 2005 the district court sentenced Mogler to eighteen months in prison on the first count and twenty-three months on the second count, to be served concurrently. The court stayed execution of the sentences, ordered Mogler to serve six months in jail, placed him on probation for a period of up to five years, and imposed a $3,000 fine.
In this appeal from conviction and sentencing, Mogler raises eight issues. The Minnesota Fraternal Order of Police, the local chapter of a national organization of police officers, has submitted an amicus brief in support of Mogler’s appeal, addressing the interpretation of “position of authority.”
I S S U E S
I. Is “position of authority,” as used in Minn. Stat. § 609.344, subd. 1(e) (2002), and defined in Minn. Stat. § 609.341, subd. 10 (2002), unconstitutionally vague?
II. Did the district court err by denying a motion to suppress statements made by the defendant to his public employer and statements made to his wife in the presence of two officers while in custody?
III. Did the district court err by denying a motion for change of venue based on pretrial publicity?
IV. Did the district court abuse its discretion by limiting the defendant’s cross-examination of the minor?
V. Did the county attorney engage in prosecutorial misconduct during closing arguments?
VI. Did the district court abuse its discretion by excluding part of the definition of “position of authority” in Minn. Stat. § 609.341, subd. 10, from the jury instructions?
VII. Is the evidence sufficient to support the jury’s finding that an on-duty police officer was in a position of authority over a minor with whom he had a sexual relationship?
VIII. Did the district court abuse its discretion by failing to account for mitigating factors at sentencing?
A N A L Y S I S
The third-degree criminal-sexual-conduct statute prohibits sexual penetration involving a minor who is at least sixteen years old but younger than eighteen and a person who is more than forty-eight months older than the minor and is in a position of authority over the minor. Minn. Stat. § 609.344, subd. 1(e) (2002).
“Position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act. For the purposes of subdivision 11 [of section 609.341], “position of authority” includes a psychotherapist.
Mogler argues that the definition of “position of authority” is so broad that the state could consider anyone to be in a position of authority, or, alternatively, that the definition does not clearly provide fair warning that it includes a police officer. We disagree.
statute defining “position of authority” lists three examples of persons in a
position of authority: a parent; a person charged with the responsibilities of
the parent; and a person charged with any duty or responsibility for the health,
welfare, or supervision of the child.
Mogler attaches significance to the last sentence of the definition of “position of authority,” which states, “For the purposes of subdivision 11 [of section 609.341], ‘position of authority’ includes a psychotherapist.” He argues that the specific reference to a psychotherapist, by inference, excludes police officers from the definition. This argument is unpersuasive for two reasons. First, Minn. Stat. § 609.341, subd. 11 (2002), defines sexual contact as used in sections 609.343 and 609.345, which relate to second- and fourth-degree criminal sexual conduct. It does not apply to Mogler’s charge of third-degree criminal sexual conduct under Minn. Stat. § 609.344. Second, the statutory definition of “position of authority” is prefaced with an express statement that it “includes but is not limited to” the specific examples listed. See State v. Larson, 520 N.W.2d 456, 461 (Minn. App. 1994) (stating that position-of-authority definition “does not contain an exclusive list of persons in position of authority”), review denied (Minn. Oct. 14, 1994).
The coordinate elements of Minn. Stat. § 609.344, subd 1(e), narrow the scope of the statute and provide warning of the conduct it proscribes. Section 609.344 limits the scope of the statute by restricting it to specific age groups. The statute applies only when the minor is sixteen or seventeen years old and the offender is more than forty-eight months older and is in a position of authority. The statute also requires that the person be in a position of authority “over” the minor. Mogler argues that the jury’s request that the district court further clarify this standard establishes vagueness. We disagree. “Over” is a common preposition that connotes relativity. See American Heritage Dictionary 1252 (defining “over” as “[i]n or at a position above or higher than” and “[i]n a position to rule or control”). Minn. Stat. § 609.344, subd. 1(e), plainly requires that the offender be in a position of authority relative to the position of the minor.
final arguments on the issue of vagueness relate to a statutory change and to
his contention that police do not function in a position of authority at all
times. In 1998 the
Although Mogler argues that Minn. Stat. § 609.341, subd. 10, cannot be read to create a rule that a police officer is always in a position of authority, he acknowledges that an officer could be in a position of authority over a minor if the minor is in custody or is suspected of a crime. This concession undercuts his constitutional argument and suggests that his central assertion is not the vagueness of the statute but the insufficiency of the evidence. We acknowledge that hypothetical situations may exist in which application of section 609.344, subdivision 1(e), would present a closer question; on these facts, however, we do not reach the issue of whether a police officer is always in a position of authority. Mogler has not argued that his conduct is protected by the First Amendment and consequently his vagueness challenge is limited to whether it lacks sufficient specificity as to his own behavior, not to a hypothetical situation. See Christie, 506 N.W.2d at 301 (stating that vagueness challenge that does not implicate First Amendment is reviewed in light of applicable facts).
In its amicus brief the Minnesota Fraternal Order of Police raises three arguments addressing the meaning of “position of authority.” The organization first suggests that the public-duty doctrine, which states that police officers owe a duty to the public rather than an individual, limits the definition of position of authority. This argument is not supported by the cases cited as authority because they relate to civil liability for police officers, not criminal liability for a police officer’s direct act.
organization next suggests that a determination that a police officer is always
in a position of authority will establish dangerous precedent because it will
infringe on the ability of younger police officers to have sexual relationships
with another young person who would be able to legally consent except for the
prohibition in Minn. Stat. § 609.344, subd. 1(e). Without accepting or rejecting the validity
of this expressed concern, we emphasize that our rejection of Mogler’s
vagueness challenge is based on the facts of this case, not on the principle
that an officer is always in a position of authority. Mogler was on duty and in uniform when he
interacted with RL, and his job involved interacting with community
residents. To the extent that the
organization’s argument is directed at the statute itself, that challenge is
properly addressed to the legislature, not the judiciary.
the organization points to Lawrence v.
Because the term “position of authority” in Minn. Stat. § 609.344, subd. 1(e), is neither so broad that an ordinary person could not understand what conduct it proscribes nor so narrow that it cannot include a police officer, we hold that the statute is not unconstitutionally vague.
a pretrial hearing at which a defendant seeks to suppress a confession on the
basis that his statements were involuntary, the state must prove by a fair
preponderance of the evidence that the statements were voluntary. State
v. Thaggard, 527 N.W.2d 804, 807 (
argues that his statements to Henning are protected by Garrity v.
statement to his wife at their home is also admissible. Mogler, accompanied by Henning and another
deputy, awakened his wife and told her
that he had “messed around” with a minor.
Although he was in custody, the statements were not elicited by the
officers, and the district court did not err by allowing Henning to testify to
the statement. See Miranda v. Arizona, 384
district court’s denial of a motion to change venue based on pretrial publicity
will result in a new trial only if the defendant shows that the publicity had
an effect on “the minds of the specific jurors involved in the case.” State
v. Berkovitz, 705 N.W.2d 399, 408 (
The district court did not abuse its discretion by denying Mogler’s motion to change venue. To support his claim of prejudicial pretrial publicity, Mogler provided the district court with copies of three local newspaper articles, referred to one additional article, and stated that two television news stations had mentioned the case. The articles do not, however, demonstrate a level of publicity indicating that the mind of any juror was affected by the publicity. Although Mogler contends on appeal that several jurors acknowledged that they had heard about the case before the trial began, Mogler did not provide voir dire transcripts to permit an assessment of whether the publicity affected the impartiality of specific jurors. See Minn. R. Civ. App. P. 110.02, subd. 1 (stating that appellant has duty to order relevant transcripts for appeal).
evidence is generally admissible unless specifically excluded by applicable
The district court sustained the state’s objections to Mogler’s cross-examination questions to RL on whether she felt comfortable with how her relationship with Mogler was progressing, whether Mogler coerced her to have sex, whether she believed he was in a position of authority over her, whether she believed Mogler was acting as a parent when she was with him, and whether she was in control of her decision-making when she and Mogler had sex in her vehicle.
district court did not abuse its discretion by sustaining the state’s
objections. Because consent and use of
authority are not relevant for purposes of Minn. Stat. § 609.344, subd.
1(e), the objections to questions relating to those issues were properly
sustained. Questions that seek to
solicit answers to ultimate fact issues are also impermissible; the district
court properly sustained objections to questions on RL’s belief about whether Mogler
acted as a parent or her belief about his “position of authority.” See
State v. MacLennan, 702 N.W.2d 219, 234 (
Furthermore, Mogler has not demonstrated prejudice from the exclusion of these questions. The court allowed defense counsel to ask RL whether Mogler ever threatened her with arrest or suggested that she was suspected of a crime. The court also allowed testimony that RL contacted Mogler after their first sexual encounter with the intent of having sex again, and that she did not feel she received special treatment from Mogler. Mogler was therefore able to question RL on facts relevant to whether he was in a position of authority over RL. The district court did not abuse its discretion by sustaining the state’s objections.
reviewing a claim of prosecutorial misconduct, we first examine the challenged
conduct to determine whether any error occurred. State
v. Ford, 539 N.W.2d 214, 228 (
asserts that the county attorney committed prosecutorial misconduct in closing
argument by saying that a police officer is always in a position of
authority. We first note that Mogler did
not object to the statements that he now contests. Although Mogler made a pretrial motion to
preclude the state from arguing that a police officer is always in a position
of authority, and the court denied it, he did not renew his objection during
the closing argument to provide the court an opportunity to cure any erroneous
statements. When a party has failed to
object, we may review the claim depending on the gravity of the error. See
State v. Powers, 654 N.W.2d 667, 678 (
prosecutor’s statements do not constitute prosecutorial misconduct. Taken
as a whole, the prosecutor’s closing argument indicates that he advocated the
state’s view that Mogler, as a police officer, was in a position of authority,
not that settled law establishes that a police officer is always in a position
of authority. See State v.
N.W.2d 602, 607 (
courts have considerable latitude in selecting the language for jury
instructions. State v. Baird, 654 N.W.2d 105, 113 (
The district court instructed the jury by reading Minn. Stat. § 609.344, subd. 1(e), and then stating each element of third-degree criminal sexual conduct. The instructions included the definition of “position of authority” in Minn. Stat. § 609.341, subd. 10, but, over Mogler’s objection, excluded the sentence, “For the purposes of subdivision 11 [of section 609.341], ‘position of authority’ includes a psychotherapist.” Wediscern no error in omitting the requested instruction. Subdivision 11 applies only to second- and fourth-degree criminal sexual conduct, not to Mogler’s charge of third-degree criminal sexual conduct. Consequently, the provision was not relevant to Mogler’s charge, and the district court did not abuse its discretion by declining to include it in the instruction.
considering a claim of insufficient evidence, we carefully examine the record
to determine whether the evidence, when viewed in the light most favorable to
the conviction, is sufficient to support the jury’s verdict. State
v. Webb, 440 N.W.2d 426, 430 (
A review of the record establishes that the evidence is sufficient to support the jury’s verdict. Mogler met RL through his employment as a police officer assigned to perform community policing. Mogler developed his relationship with RL by letting her ride in his squad car. Mogler was on duty and in uniform during both incidents of sexual intercourse. The first incident took place in a conference room at the police station. Although RL testified that she acted voluntarily in her relationship with Mogler, consent is not a defense to third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1(e). The jury could reasonably conclude that, for purposes of the third-degree criminal sexual-conduct prohibition, Mogler was in a position of authority over RL.
district court must order the presumptive sentence provided in the sentencing
guidelines unless the case involves “substantial and compelling circumstances”
to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (
The district court did not abuse its discretion in sentencing Mogler. The court imposed the presumptive sentences of eighteen and twenty-three months on the two counts. Mogler correctly notes that the court-imposed fine exceeded the presentencing investigation’s recommendation for a $1,200 fine. But the report also recommended up to fifteen years’ probation, and, although the court imposed a higher fine, the court ordered only five years of probation. Further, the sentence is not unduly harsh because the fine is within the prescribed statutory range, and the court was required to impose jail time as a condition of probation. See Minn. Stat. § 609.344, subds. 2-3 (2002) (authorizing fine up to $30,000 for third-degree criminal sexual conduct and requiring time in jail or workhouse if sentence is stayed).
D E C I S I O N
“Position of authority,” as defined by Minn. Stat. § 609.341, subd. 10 (2002), and incorporated into Minn. Stat. § 609.344, subd. 1(e), is not unconstitutionally vague. The evidence is sufficient to support the jury’s determination that Mogler was in a position of authority; the district court did not abuse its discretion in making its evidentiary rulings, denying Mogler’s motion for change of venue, choosing the jury instructions, or sentencing Mogler; and Mogler’s claim of prosecutorial misconduct is unsupported by the record.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.