This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jon Ernest Hopson,
Filed September 26, 2000
Hennepin County District Court
File No. 98126965
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Jon Ernest Hopson appeals from his conviction of fourth-degree criminal sexual conduct, arguing that the district court abused its discretion in ruling that his prior conviction of second-degree criminal sexual conduct was admissible for purposes of impeachment. Hopson also argues that because the prosecutor committed prejudicial misconduct during her closing argument, the district court erred in denying his motion for a new trial. Finally, Hopson argues that the sentence imposed, a greater-than-triple upward departure from the presumptive sentence, was not supported by severe aggravating circumstances. We affirm as modified.
On November 21, 1998, Anita Taylor’s 15-year-old daughter, A.D., arrived to spend the weekend at Taylor’s apartment, where Taylor was recovering from surgery. A.D. lived with her father and stepmother, but occasionally spent weekends with her mother. Appellant Jon Ernest Hopson lived in the apartment with Taylor. During the evening, Taylor became ill, and Hopson and A.D. took her to an emergency room where she was given a shot of morphine. All three returned to the apartment, and Taylor fell asleep on a bed in the living room.
A.D. testified that she was wearing a basketball jersey, boxer shorts, and underpants when she fell asleep in the bedroom. She was awakened by the touch of a hand on her thigh. Although it was dark, she could see Hopson standing next to the bed, and she turned away from him, pretending to be asleep. Hopson touched A.D.’s breasts over her basketball jersey and touched her genital area between her boxer shorts and underpants. Hopson whispered, “I’ve got $40 for you,” but A.D. did not respond. Hopson told A.D. that he knew she was awake but that he would stop what he was doing if that was what she wanted. She nodded her head, indicating yes, and he left. A.D. again fell asleep but awakened a second time to see Hopson standing next to the bed, holding his penis and masturbating. She rolled over and pretended to be asleep, and Hopson left the room. A.D. later awakened to see Hopson standing near the doorway, staring into the room.
At trial, Taylor testified that Hopson was asleep in the living room all night and that she had awakened several times during the night to check on A.D. But Sergeant Calvin Pulphus testified that Taylor had told him in a telephone interview that due to the medication she had been given, she did not remember what happened that night.
Hopson was charged with one count of fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(b) (1998). Before trial, the state moved to introduce evidence of a prior felony conviction of second-degree criminal sexual conduct for the purpose of impeaching Hopson’s testimony. The district court granted the state’s motion, and Hopson chose not to testify at trial. Following a jury trial, Hopson was found guilty of fourth-degree criminal sexual conduct. The district court sentenced Hopson to an executed prison term of 120 months, a greater-than-triple upward departure from the presumptive sentence of 36 months. This appeal follows.
1. Impeachment by Prior Conviction
Hopson argues that the district court violated his right to testify in his own defense by erroneously ruling that the state could introduce evidence of his previous conviction of second-degree criminal sexual conduct for the purpose of impeachment. The district court ruled that, “[b]ased on the court’s understanding of the issues presented in this case, and the law governing the admissibility of prior convictions,” Hopson’s prior conviction would be admissible for that purpose.
A defendant’s prior conviction is admissible to impeach his testimony if the crime was punishable by imprisonment in excess of one year and “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect” or if the crime involved dishonesty or false statement. Minn. R. Evid. 609(a). For a crime not involving dishonesty or false statement, evidence of the prior conviction is admissible only if a period of ten years or less has elapsed since the date of conviction or release from confinement, whichever is later, unless the court finds the conviction subject to an exception that is not relevant here. Minn. R. Evid. 609(b). A district court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear-abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).
We first consider whether Hopson’s conviction of second-degree criminal sexual conduct is stale for impeachment purposes under rule 609(b). The current incident occurred on November 22, 1998. See id. at 585 (holding that date of charged offense is appropriate end point for ten-year period that determines whether conviction is stale under rule 609(b)). Hopson was previously charged with two counts of first-degree criminal sexual conduct on November 30, 1988. On April 25, 1989, he pleaded guilty to second-degree criminal sexual conduct, and on August 18, 1989, the court sentenced him to 24 months in prison. Because the period between release from confinement and commission of the current offense is less than ten years, Hopson’s conviction of second-degree criminal sexual conduct is not stale for impeachment purposes.
Because Hopson’s conviction is not stale under rule 609(b), we must next determine whether the district court abused its discretion in allowing the use of the 1988 conviction for impeachment purposes under rule 609(a). A conviction of second-degree criminal sexual conduct is not probative of truthfulness. Therefore, we must determine whether the probative value of the earlier conviction “outweighed the risk of unfair prejudice arising from its similarity to the current crime.” Id. at 586. In making this determination, we consider:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
Id. (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978) (the Jones factors)).
The district court “should demonstrate on the record that it has exercised the discretion accorded by Minn. R. Evid. 609(a)(1) after considering and balancing the [Jones] factors.” State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991). Because the district court here did not specifically record its consideration of the Jones factors, we must perform that analysis. See id. (finding harmless error where district court failed to specifically apply Jones factors on the record but where Jones factors were met and convictions would have been admissible).
A. Impeachment Value of Prior Crime
In considering the first factor, the supreme court has stated that convictions not directly involving veracity are not necessarily devoid of any impeachment value. State v. Heidelberger, 353 N.W.2d 582, 589 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). Additionally, “impeachment by prior crime aids the jury by allowing it ‘to see the “whole person” and thus to judge better the truth of his testimony.’” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citations omitted). Further, “[l]ack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey.” State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (citation omitted). Accordingly, we conclude that Hopson’s previous conviction of second-degree criminal sexual conduct has impeachment value.
B. Subsequent History
The second Jones factor is also satisfied because, although Hopson’s 1988 conviction is not recent, his subsequent convictions of fifth-degree controlled substance crime (1991), disorderly conduct (1995), and indecent exposure (1995), as well as driving violations and a trespassing conviction, show “a pattern of lawlessness that indicates that ‘the [prior] offense had not lost any relevance by the passage of time.’” Ihnot, 575 N.W.2d at 586 (citation omitted).
C. Similarity of Past Crime and Charged Crime
We also find that the third Jones factor is satisfied because where an appellant’s
prior conviction and the current charge are both criminal sexual conduct crimes, the facts underlying each charge [must be] sufficiently different to minimize any prejudicial effect of admission of the earlier conviction.
Id. Ihnot involved the admissibility of a prior conviction of third-degree criminal sexual conduct based upon acts of sexual penetration of a 14-year-old adolescent girl in a prosecution of first-degree criminal sexual contact with a girl 5 to 7 years old at the time of the sexual contact; the supreme court found these facts sufficiently different to make the prior conviction admissible. Id. at 583-84. Here, the pre-sentence investigation report indicates that Hopson’s prior conviction of second-degree criminal sexual conduct followed his assault of his girlfriend, whom he then forced to engage in oral, vaginal, and anal sex. Thus, the facts of the two incidents are sufficiently different to minimize any potential prejudicial effect.
D., E. Importance of Defendant’s Testimony and Centrality of Credibility Issue
Again relying on Ihnot, we conclude that the fourth and fifth Jones factors are also satisfied.
Because Ihnot did not make an offer of proof as to what his testimony would have been had he testified, this court is left to assume that the thrust of his testimony would have been to deny the allegations of criminal sexual conduct. That being the case, the fourth and fifth Jones factors are also satisfied, in that, had Ihnot chosen to testify, credibility would have been the central issue in this case. On this point, we have said previously: “the general view is that if the defendant’s credibility is the central issue in the case[;] that is, if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.”
Id. at 587 (footnote omitted) (quoting State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980)). Because only Hopson and A.D. could testify to the occurrence of the sexual contact, Hopson’s credibility would have been a central issue. Additionally, Hopson did not make an offer of proof as to the substance of his testimony, and Taylor testified that he was asleep in the living room all night.
Based on our consideration of the Jones factors, we conclude that the probative value of Hopson’s 1998 conviction of second-degree criminal sexual conduct outweighed its prejudicial effect, and thus the district court did not abuse its discretion in ruling the conviction admissible for impeachment purposes.
Finally, we must consider whether the district court’s evidentiary ruling deprived Hopson of his constitutional right to testify, as protected by both the Fourteenth Amendment Due Process Clause of the Federal Constitution and Minnesota law. See Ihnot, 575 N.W.2d at 587 (citation omitted). The supreme court has “addressed the relationship between a ruling on impeachment evidence and the right to testify.” Id. In Gassler, the
appellant was not kept from testifying; he made a decision not to testify based on the evidence that would have been admitted had he taken the stand. Appellant argues that the court’s ruling effectively left him no choice. However, defendants often make decisions not to testify based on the potential damage that prior convictions could inflict on their credibility. The mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense. At a minimum, in order to prevail on this argument, appellant would have to show that the trial court abused its discretion in ruling that the probative value of the impeachment evidence outweighed its prejudicial effect; it is only when a trial court has abused its discretion * * * that a defendant’s right to testify may be infringed by the threat of impeachment evidence.
Id. (quoting Gassler, 505 N.W.2d at 67-68) (alteration in original).
Because we found no abuse of discretion in the district court’s ruling that the evidence was admissible for impeachment purposes, we conclude that the ruling did not deprive Hopson of his constitutional right to testify on his own behalf.
2. Prosecutorial Misconduct
Hopson argues that he was denied his constitutional right to a fair trial because the prosecutor (1) improperly argued during closing argument that A.D. “did what we teach our children to do,” when no such evidence was offered at trial; (2) claimed that the defense witness “lied through her teeth”; and (3) argued that the jury should not reward perjury. The district court noted but did not rule on Hopson’s objections to these statements and denied his motion for a new trial.
In reviewing a claim of prosecutorial misconduct, “[t]he trial court’s decision to deny a new trial based on prosecutorial misconduct will not be reversed unless the misconduct appears to be ‘so serious and prejudicial that defendant’s right to a fair trial was denied.’” State v. Dillon, 529 N.W.2d 387, 392 (Minn. App. 1995) (citation omitted). In reviewing allegations of prosecutorial misconduct during closing argument, we review “the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (citation omitted). “Even if an argument is in some respects out-of-bounds, it is normally regarded as harmless error unless the misconduct played a substantial part in influencing the jury to convict the defendant.” Id. (citation omitted).
Hopson argues that the prosecutor improperly argued that A.D. “did what we teach our children to do” under such circumstances, although no evidence had been introduced to serve as a foundation for the statement. He likens this asserted error to the prosecutor’s references to the “James Porter School of Sex Education” in State v. Porter, 526 N.W.2d 359 (Minn. 1995), where the supreme court found prosecutorial misconduct warranting a new trial. Id. at 366. But in Porter, the supreme court found misconduct because the statements “could only have been intended to inflame the jury’s passions and prejudices,” and the reference was made seven times during closing argument. Id. at 363-64. Here, the prosecutor stated that
[A.D.] in this case did what we teach our children to do when they’re sexually assaulted. From the time they’re little, the programs they have in school, they teach them to tell someone right away, to tell someone they trust and that someone that they know will do something about it. That’s exactly what she did.
We view this statement as similar to the jury instruction calling for the jurors to rely on their own experience in reaching a decision, rather than a statement that would inflame the jury’s passions or prejudices.
Additionally, Hopson’s counsel responded during closing argument by arguing that
[the prosecutor] wants to talk about what children do when they’re sexually abused, what they’ve been taught. Are children taught to tell their friends or are they taught to tell a responsible adult? That’s the question you should ask yourselves when you go back into the jury room.
“When determining the severity of a prosecutor’s conduct, the conduct of defense counsel in response to the alleged improprieties is considered.” State v. McDaniel, 534 N.W.2d 290, 294 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). A prosecutor’s comments have been held not to constitute misconduct where “defense counsel addressed the allegedly improper remarks * * * in summation.” Id. (citation omitted). In addition, the district court here instructed the jury that “what the attorneys say is not evidence in this case,” and that, “your verdict must be based solely upon the evidence presented in court during the trial and the law as I state it to you in these instructions.” This court has held that a similar instruction lessened the effect of any error. See State v. Bright, 471 N.W.2d 708, 712 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).
Hopson also argues that the prosecutor improperly disparaged Taylor and improperly interjected personal opinion into final argument by stating:
Ask if you want to reward somebody coming in here and perjuring themselves in court by letting this man go.
* * * *
That is not reasonable doubt. The Judge will tell you what reasonable doubt is. It’s based on reason and common sense. It doesn’t mean beyond all shadow of a doubt or all possibility of a doubt. And it certainly doesn’t mean someone coming in and lying through their teeth and asking you to acquit a man based on those lies, which is what this woman is asking you to do.
Although a prosecutor “may not throw onto the scales of credibility the weight of his own personal opinion,” a prosecutor may “point to circumstances which cast doubt on a witness’[s] veracity.” State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). In cases where the prosecutor has expressed a personal opinion of the guilt of the accused or the veracity of witnesses, the supreme court has held such statements to be harmless where the district court “cautioned the jury that it should consider only the evidence and that counsel’s final argument statements were not evidence, where the evidence of guilt was adequate, and where the prosecutor’s argument was otherwise proper.” Id. at 517 (citations omitted). Here, the district court also instructed the jury on the factors to be considered in determining the credibility and weight to be given a witness’s testimony, pursuant to CRIMJIG 3.12. Further, where a prosecutor stated in closing argument that a defendant lied in his testimony, the supreme court concluded that an argument with repeated references to perjury “could affect the jury’s ability to weigh the evidence dispassionately” but was
at worst, a statement on the borderline between proper and improper comment and it clearly was not so serious and prejudicial a misstatement as to deny defendant his right to a fair trial.
State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation and citation omitted).
Again relying on Porter, where the supreme court determined that prosecutorial misconduct “permeated the entire closing argument,” Hopson argues that the accumulation of prosecutorial errors here rises to the level of serious misconduct. See Porter, 526 N.W.2d at 365. But the Porter court concluded that the prosecutor had improperly
appealed to the passions and prejudices of the jury, argued the consequences of the jury’s verdict, bolstered the credibility of the state’s expert witness, distorted the state’s burden of proof, and committed misconduct by alluding to Porter’s failure to contradict certain testimony.
Id. The court stated that the evidence against Porter was not overwhelming and “came down to the credibility of the witnesses,” as it did here, but the Porter jury deliberated for three days before reaching a verdict, the case was subject to extensive negative pre-trial publicity, and the trial court’s curative instruction failed to address all of the misconduct. Id. The prosecutor’s statements that Hopson challenges were only a small part of a closing argument that covered 15 pages of transcript. Also, the jury in this case retired at 11:24 a.m. and returned its verdict at 2:42 p.m., there was no evidence presented of negative pre-trial publicity, and the district court’s jury instructions appear to have addressed all alleged misconduct.
Accordingly, we conclude that the prosecutor’s comments during closing argument did not constitute misconduct; therefore, the district court did not err in denying Hopson’s motion for a new trial.
Hopson argues that he is entitled to a reduced sentence because the district court imposed a greater-than-triple upward departure from the presumptive sentence despite the absence of severe aggravating circumstances. The district court noted that the presumptive sentence for a severity-level-IV offense for a defendant with a criminal history score of two, as Hopson had, was 36 months, but the court sentenced Hopson to the maximum statutory period of ten years.
A reviewing court affords the district court great discretion in the imposition of sentences and cannot simply substitute its judgment for that of the district court. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). Accordingly, a district court’s decision to depart from the presumptive sentence as specified in the sentencing guidelines is reviewed under an abuse-of-discretion standard. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). But “a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” Spain, 590 N.W.2d at 88 (citation omitted). The aggravating circumstances justifying an upward durational departure from the presumptive sentence must appear in the record. Id. In determining whether these factors exist in a specific case, the sentencing court “should consider whether the defendant’s conduct was ‘significantly more or less serious than that typically involved in the commission of the crime in question.’” Id. at 88-89 (citation omitted).
“When a sentencing court departs from the presumptive sentence, it must still strive to determine a sentence that is proportional to the severity of the offense.” Id. at 89 (citing Minn. Sent. Guidelines II.D). “[G]enerally in a case in which an upward departure in sentence length is justified, the upper limit will be double the presumptive sentence length.” State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). Circumstances justifying a departure that more than doubles a presumptive sentence are rare. Id. But where severe aggravating factors are present, “a departure of up to the statutory maximum may be appropriate.” State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000) (citations omitted).
The district court based its decision to impose the statutory maximum sentence on the reports and recommendations of Court Services, prior psychological and psychiatric evaluations, reports of failed chemical-dependency and sex-offender treatment, and Hopson’s prior conviction of second-degree criminal sexual conduct. At sentencing, the district court stated:
[I]t is clear that you have a lengthy history of perverse behavior, unsuccessful attempts at treatment. You are clearly a danger to the community, a significant risk to re-offend. There is no likelihood of amenability to treatment as you have been determined to be repeatedly in the past unamenable to sex offender treatment and unable to successfully participate in and complete any chemical dependency treatment. You have a lengthy criminal history score, which includes sexual assaults, assaults, weapons violation and numerous drug violations.
This statement indicates that, in deciding to depart durationally from the sentencing guidelines, the district court may have improperly considered Hopson’s unamenability to treatment and potential for future violence.
As a general rule, the offender-related factor of particular unamenability to treatment * * * may not be used to support an upward durational departure. On the other hand, offense-related aggravating factors may be used to support * * * an upward durational departure.
State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). But even if improper reasons are given to support a departure, we will affirm if the evidence in the record provides sufficient support for the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). Accordingly, we must determine whether the record supports a finding of such severe aggravating circumstances that a greater-than-triple upward departure would not be disproportionate to the severity of the offense.
A prior conviction of felony criminal sexual conduct is an aggravating factor that may be used as a reason for an upward departure. Minn. Sent. Guidelines II.D.2.b.(3). The guidelines also provide that an aggravating factor exists if “[t]he victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.” Minn. Sent. Guidelines II.D.2.b.(1). A.D. was 15 at the time of the offense. The age of the victim is a statutory factor of fourth-degree criminal sexual conduct. See Minn. Stat. § 609.345, subd. 1(b) (requiring that complainant be at least 13 but less than 16 years of age and actor be more than 48 months older). But “[a]lthough the legislature has considered the age of the victim in distinguishing sex offenses by degree,” a district court may consider age in connection with other factors “in determining if the conduct underlying the offense was sufficiently different from the typical conduct so as to justify an upward departure.” State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (citations omitted), review denied (Minn. Feb. 28, 1990). Additionally, A.D.’s vulnerability was increased because she was asleep when Hopson began to touch her. See id.
Hopson’s invasion of A.D.’s “zone of privacy” is another aggravating factor. See State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). This court has stated that “violation of the victim’s zone of privacy * * * encompasses the fact that the violator deliberately trespassed in a place where the victim felt particularly safe.” Id. Although A.D. had lived with her father most of her life, she occasionally spent weekends at her mother’s apartment, and it is reasonable to assume that A.D. felt safe sleeping there.
Finally, when deciding whether to depart durationally, the district court should not analyze the egregiousness of the act itself but rather should compare the act committed with other acts constituting the same offense. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).
We conclude that the severity of the aggravating factors present here falls short of the level necessary to justify the imposition of the statutory maximum sentence. Also, because no weapons were used, no physical injury was caused, no threats were made, no touching occurred beneath the victim’s underclothes, and Hopson left the room when A.D. indicated that she wished for him to stop, we conclude that a ten-year sentence is disproportional to the severity of Hopson’s conduct. The aggravating factors present and Hopson’s prior conviction of second-degree criminal sexual conduct support a double upward departure, but not more. Accordingly, the district court abused its discretion in imposing the statutory maximum sentence, and we therefore modify the sentence to 72 months, a double upward departure from the presumptive sentence under the sentencing guidelines.
Affirmed as modified.
 See State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 789 (Minn. 1999) (appellant with prior conviction of criminal sexual conduct sentenced to 36 months imprisonment for kissing victim on lips and touching buttocks), cert. denied, 120 S. Ct. 517 (1999); Jackson v. State, 447 N.W.2d 430, 432 (Minn. App. 1989) (appellant with prior conviction of intrafamilial sexual abuse sentenced to 36 months in prison for unbuttoning victim’s shirt, unfastening bra, rubbing lotion on breasts and stomach, and putting hand in victim’s underwear).