This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-490

State of Minnesota,
Respondent,

vs.

Alex Diamond Cassidy,
a/k/a Samuel Alexander Spraggins,
Appellant.

Filed February 15, 2000
Affirmed
Mulally, Judge[*]

Hennepin County District Court
File No. 98068584

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy J. Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

On July 9, 1998, appellant Samuel Alexander Spraggins[1] had sexual penetration with K.A.O. While K.A.O. claims that he was raped, Spraggins contends that the penetration was consensual. Spraggins appeals from the trial courtís judgment of conviction under Minn. Stat. ß 609.344, subd. 1(b), (c) (1998). Because the trial court did not: (1) violate Spragginsís due process right to present a defense when it excluded evidence of DNA from an alleged third donor, or (2) abuse its discretion when it instructed the jury that Spraggins had the burden of proving, by a preponderance of the evidence, his mistaken belief of K.A.O.ís age, we affirm.

D E C I S I O N

I.

Spraggins argues that the trial court violated his due-process right to present a defense when it excluded evidence of DNA from a third donor on K.A.O.ís shirt. On appeal, the reviewing court will not reverse evidentiary rulings absent an abuse of discretion. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). An error in the exclusion of evidence is grounds for a new trial if the evidence might reasonably have changed the trialís outcome had it been admitted. Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).

Spraggins attempted to introduce the third donor evidence as proof that on July 9, 1998, K.A.O. was sexually active with someone in addition to Spraggins. Spraggins contends that such evidence would support his claim that he paid K.A.O. for sex, suggesting that K.A.O. consented to having sexual penetration. The trial court relied on Minn. R. Evid. 412 in excluding the third-donor DNA evidence but allowed evidence of Spragginsís and K.A.O.ís DNA in other stains found on K.A.O.ís shirt. Minn. R. Evid. 412 prohibits the introduction of evidence of the victimís previous sexual conduct except under the following circumstances:

(A) When consent of the victim is a defense in the case,
(i) evidence of the victimís previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent;
(ii) evidence of the victimís previous sexual conduct with the accused; or
(B) When the prosecutionís case includes evidence of semen,* * * evidence of specific instances of the victimís previous sexual conduct, to show the source of the semen, pregnancy or disease.

Spraggins failed to introduce evidence of specific incidents of K.A.O.ís previous sexual conduct and the trial court concluded that the evidence was not admissible under the exceptions to rule 412.[2] Minn. R. Evid. 412 (B). Nevertheless, Spraggins argues that precisely because the DNA evidence is not evidence of specific instances of sexual conduct, the trial court should not have relied on rule 412. This claim is without merit. Because the purpose of rule 412 is to exclude evidence of the victimís prior sexual conduct in rape cases, which is exactly what Spraggins attempted to do here, the trial court properly relied on rule 412 in determining whether to exclude the third-donor DNA evidence. The fact that the DNA evidence was not evidence of specific instances of sexual conduct does not make the trial courtís reliance on rule 412 erroneous. Instead, it further supports the trial courtís conclusion that the evidence did not fall within the exceptions and was therefore, inadmissible.

Moreover, the trial court found that the evidence was only marginally relevant. The state forensic scientist, Stacy Bennett, ruled out sperm cells as the source of the DNA from the third donor. While Bennett could not conclusively rule out semen as the source, she speculated that the source of the third party DNA was likely to be skin cells. The source of the third-donor DNA evidence was therefore unidentifiable.

Spraggins maintains that part of his due process rights is to present his version of the facts so that the jury can decide where the truth lies. However, given the uncertainty of the source of the third-donor DNA, the evidence would result in mere speculation about K.A.O.ís sexual behavior, and would not establish prior sexual behavior. Such inconclusive evidence will do nothing more than confuse the issues in the case, and it mandates exclusion. Minn. R. Evid. 403.

Because the trial court did not abuse its discretion in excluding the third donor DNA evidence under rule 412, we affirm its decision as to this issue.

II.

Next, Spraggins argues that the trial court erred in instructing the jury that he had the burden of proving he was mistaken about K.A.O.ís age, an affirmative defense under Minn. Stat ß 609.344, subd. 1(b) (1998). While a party is entitled to a jury instruction on the party's theory of the case if there is evidence to support it, the court need not give the requested instruction if the substance of the request is contained in the court's charge. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989) (citations omitted). The courtís refusal to give a requested jury instruction lies within the discretion of the trial court, and no error results if no abuse of discretion is shown. Id.

At the conclusion of trial, Spragginsís attorney asked the court to give the jury an instruction that did not use the statutory language requiring Spraggins to prove by a preponderance of the evidence that he was mistaken about K.A.O.ís age. The trial court denied Spragginsís request and instructed the jury that

whoever engages in sexual penetration with another person under the age of 16, and who is more than 24 months older than that person, is guilty of criminal sexual conduct in the third degree, unless the defendant proves by a preponderance of the evidence that he believed the person to be 16 years of age or older.

Spraggins suggests that the trial court abused its discretion in giving the jury this instruction. Spraggins argues that his belief about K.A.O.ís age is implicitly an element of the crime, and therefore, due process requires the state to bear the burden of disproving his mistaken belief of K.A.O.ís age.

The state, under the guise of creating an affirmative defense, may not require the defendant to prove the absence of an element of the offense. Mullaney v. Wilbur, 421 U.S. 684, 690, 704, 95 S. Ct. 1881, 1885, 1892 (1975). For example, a defendant, if forced to bear the burden of proof of a fact that negates intent, in effect must assume a burden the state would otherwise have to bear. State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983) (holding that because duress negates scienter required for robbery, defense could not be required to prove duress; rather, when duress is alleged, state must disprove it).

The legislature has, however, specifically defined the "intent" relevant to sexual penetration as "not requir[ing] proof of knowledge of the age of a minor even though age is a material element in the crime in question." Minn. Stat. ß 609.02, subd. 9(6) (1998). Thus, although mistake of age is a permitted defense, the crime of third degree criminal sexual conduct itself requires no specific intent with respect to the complainant's age. The victimís age is simply a circumstance that must accompany the sexual conduct for it to be criminal. This is in accord with the "nearly unanimous view" that mistake of age is not an inherent defense to a charge of statutory rape. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law ß 5.1, at 582 (1986). To require Spraggins to prove that he believed the victim was older than sixteen does not relieve the state of any burden of proof it normally bears and, therefore, does not violate due process. Cf. State v. Morse, 281 Minn. 378, 380, 385, 161 N.W.2d 699, 701, 703 (1968) (rejecting 43-year-old appellant's claim that trial court should have instructed jury that state had to prove he knew victim was only 15 years old).

In a tangential argument, Spraggins claims that in labeling a mistaken belief about the victimís age as an "affirmative defense," the legislature violated due-process guarantees. As previously discussed, mistaken belief about the victimís age is not an element of the claim and has properly been designated as an "affirmative defense." Most importantly, this proceeding is not the proper forum to address this issue. Therefore, this court need not address Spraggins complaint as to possible violations by the legislature.

Because the trial court did not abuse its discretion in instructing the jury that Spraggins had the burden of proving that he was mistaken about the victimís age, we affirm the trial courtís decision as to this issue.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In 1992, appellant Samuel Alexander Spraggins legally changed his name to Alex Diamond Cassidy. The complaint lists both names, but appellant was referred to as "Samuel Spraggins" in the presence of the jury and throughout the trial. However, at the sentencing hearing the court imposed Spraggins's sentence using the name "Alex Diamond Cassidy." In addition, the warrant of commitment to the Department of Corrections refers to "Alex Diamond Cassidy." Because on appeal the parties referred to appellant as "Samuel Spraggins" and it was the name used at trial, this court will refer to appellant as "Spraggins."

[2] However, even if Spraggins had been able to introduce specific incidents of sexual conduct, the evidence could only have been used as an affirmative defense to the charges under Minn. Stat. ß 609.344, subd. 1(c) (1998), and Minn. Stat. ߆609.342, subd. 1(c) (1998), where consent by the victim is allowed as a defense. Spraggins could not assert this affirmative defense under Minn. Stat. ߆609.344, subd. 1(b) (1998), because there, consent by the victim is not a defense.