This opinion will be unpublished and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
Jason Sidney Stender,
Filed December 19, 2000
Affirmed as modified
Carver County District Court
File No. K7981689
Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Michael A. Fahey, Carver County Attorney, Peter B. Ivy, Assistant County Attorney, Carver County Courthouse, 600 East Fourth St., Chaska, MN 55318 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Ave. Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.
Appellant Jason Sidney Stender was convicted of multiple counts of third-degree criminal sexual conduct, furnishing alcohol to a person under 21 years of age, and contributing to the delinquency of a minor. He was sentenced to two consecutive terms of imprisonment on two third-degree criminal sexual conduct convictions, arising from incidents occurring on September 29 and October 18, 1998. On appeal, he argues that the evidence is insufficient to support his conviction on the October 18 incident and that the prosecutor committed misconduct by arguing facts not in evidence.
Because the victim’s testimony was sufficient to prove that appellant coerced her to submit unwillingly to intercourse and because the prosecutor’s comments, when taken in context and considered with the entire record, constituted a reasonable inference from evidence that was admitted and did not necessarily prejudice appellant, we affirm appellant’s convictions. Because the parties agree that the trial court erred by (1) using a criminal history score of one, rather than zero, when it imposed a permissive consecutive sentence; and (2) imposing a ten-year period of conditional release, rather than a five-year period, we modify appellant’s sentence accordingly.
When a challenge is raised to the sufficiency of the evidence, this court views the evidence in the “light most favorable to the verdict” and assumes that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (citations omitted). The jury is in the best position to evaluate witness credibility. Id. at 373. We will affirm if “there was sufficient evidence for [the] jury to reasonably conclude that no reasonable doubt existed” as to appellant’s guilt. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).
Appellant argues that his conviction arising out of the alleged October 18 incident cannot be sustained because there is no evidence that he used force or coercion against the victim. He claims that the victim did not testify that he held her down or restrained her, nor did she testify that he attempted to inflict harm on her person.
The state did not need to show that the victim resisted appellant in order to prove that he used force or coercion to accomplish penetration, however. See Minn. Stat. § 609.347, subd. 2 (1998) (in criminal sexual conduct prosecution “there is no need to show the victim resisted the accused”). In addition, third-degree criminal sexual conduct is defined as sexual penetration or contact accomplished with “force or coercion.” Minn. Stat. § 609.344, subd. 1(c) (1998). “Coercion” only requires that the state prove appellant, by words or circumstances, forced the victim to submit unwillingly to penetration or intercourse. Minn. Stat. § 609.341, subd. 14 (1998).
In this case, the evidence and testimony showed that 23-year-old appellant deliberately and repeatedly supplied the chemically dependent 14-year-old victim with alcohol and marijuana and that on October 18 he took advantage of her intoxicated state. The victim herself testified that on October 18, appellant invited her to his apartment, gave her alcohol and marijuana, took off her clothes, and had intercourse with her even though she told him no and tried to push him away several times. The jury was entirely free to find the victim’s testimony credible and to disbelieve appellant’s testimony that he did not even see the victim on October 18. Viewing the evidence in the light most favorable to the verdict, the jury could reasonably conclude that appellant was guilty of third-degree criminal sexual conduct for his actions on October 18.
Appellant argues that misconduct occurred when the prosecutor referred to evidence that had been excluded by the trial court. At trial, the court permitted the state to play portions of statements made by appellant during telephone conversations from jail that the court believed demonstrated an attempt by appellant to influence or tamper with potential witnesses. The court ruled that other portions of those conversations were inadmissible, including statements appellant made to his mother regarding the results of the victim’s physical exam on October 23 and whether “anything of mine” was found in her.
During cross-examination, however, the prosecutor asked appellant if he was concerned about the results of that physical exam and about whether any evidence was found. When appellant answered, “No,” the prosecutor asked him whether he had a conversation with his mother in which he asked “Did they find anything of mine in her.” Appellant responded “Yes, Sir. That would be because I didn’t understand how you were going to, there was nothing there, why I was still in jail, seeing as you didn’t find anything because there was nothing there.”
Later, in chambers, the trial court stated:
I have overruled the [defense] objection and allowed the testimony [did they find anything of mine in her?] in. And I agree that the statement can be taken [as] what evidence do they have rather than as to whether he was inquisitive about if they were to find something or not. So I think it is true it can be argued either way.
In support of his new trial motion, appellant argued that the prosecutor disobeyed the court’s order prohibiting introduction of the statement. The trial court disagreed and concluded that the prosecutor’s reference to appellant’s conversation with his mother “took the form of an attempt to impeach [appellant’s] previous testimony.”
Appellant does not now challenge the trial court’s ruling regarding the prosecutor’s comments during cross-examination. Rather, appellant challenges statements made by the prosecutor during his closing argument, in which he stated:
[Appellant] claims that he wasn’t concerned about the results of the forensic exam, yet to his mother on October 25th he says * * * did they find anything of mine in her. His mother [said], no, not after that many days. Well, that is the only thing that I can see that they are going to have to get me with. He was concerned. He kept control even out of the Carver County jail.
(Emphasis added.) Appellant argues that the prosecutor referred to facts not in evidence, because the statement by his mother and his response were not admitted at trial.
The prosecutor’s statements may be viewed as reasonable inferences from evidence that was admitted at trial during cross-examination of appellant. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (recognizing that prosecutor may draw reasonable inferences from evidence produced at trial). As noted, appellant did object to the prosecutor’s cross-examination at trial and again in his new trial motion; the trial court allowed the questioning, which was included in a line of other questions attempting to impeach appellant’s credibility.
Even if the prosecutor inappropriately referred to evidence not in the record, we cannot conclude that appellant was denied a fair trial. The prosecutor’s statements were limited and his argument as a whole was not inflammatory or prejudicial. In addition, the jury was given the standard instruction that “the arguments or other remarks of an attorney are not evidence” and that the jury “should disregard [any statement that differs from your recollection of the evidence] and rely solely on your own memory.” See 10 Minnesota Practice, CRIMJIG 3.11 (1990). When the record is considered as a whole and the prosecutor’s statements are taken in context, we cannot conclude that these few statements substantially influenced the jury to convict appellant. See id. at 28 (even where prosecutor based comments in closing argument on facts not in record, “in light of strength of evidence against” defendant, “error would not have impacted jury’s decision and was therefore harmless”).
The parties agree that the trial court erred by (1) using a criminal history score of one, rather than zero, when it imposed a permissive consecutive sentence; and (2) imposing a ten-year period of conditional release, rather than a five-year period, because appellant’s conviction on the second count was not a “second or subsequent offense.” See Minn. Sent. Guidelines II.F. (when imposing permissive consecutive sentences, “[f]or each offense sentenced consecutive to another offense(s),” zero criminal history score “shall be used in determining presumptive duration”); Minn. Stat. § 609.109, subd. 7(a) (1998) (if defendant convicted of criminal sexual conduct a “second or subsequent time,” period of conditional release increases from five to ten years); Minn. Stat. § 609.02, subd. 11 (1998) (“‘second or subsequent offense’ means that prior to the commission of the violation or offense, the actor has been adjudicated guilty of a specified similar violation or offense”). Thus, appellant’s sentence on the second conviction should be reduced from 64 months to 48 months, for an aggregate term of 102 months in prison, rather than 118 months in prison. In addition, his period of conditional release should be reduced from ten to five years.
Affirmed as modified.
 The trial court sentenced appellant to a period of 54 months on count one, criminal sexual conduct in the third degree occurring on September 29, 1998 with force or coercion, and to 64 months on count three, criminal sexual conduct in the third degree occurring on October 18, 1998, with force or coercion.