This opinion will be unpublished and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

C4-99-2167

 

 

State of Minnesota,

Respondent,

 

vs.

 

Larry Michael Adams, a/k/a Larry Michael Haller,

Appellant.

 

 

Filed December 5, 2000

Affirmed

Schumacher, Judge

 

Dakota County District Court

File No. K6982654

 

 

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

 

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

 

Phyllis J. Kirwin, Special Assistant Public Defender, 6401 University Avenue Northeast, Suite 201, Fridley, MN 55432 (for appellant)

 

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.


U N P U B L I S H E D†† O P I N I O N

SCHUMACHER, Judge

Appellant Larry Michael Adams, a/k/a Larry Michael Haller, challenges his conviction for criminal sexual conduct in the first degree, claiming the evidence was insufficient to support the conviction, the trial court erred in sentencing, there was jury misconduct, and that he is entitled to a new trial because of ineffective assistance of counsel.† We affirm.†

FACTS

††††††††††† Karen Casale is a friend of the complainant, C.C. and his family.† On October 1, 1998, she reported to the Hastings police that C.C. told her that his stepfather, Adams, made him play with Adams's penis until "some white stuff came out." C.C. had been living in Adamsís home during the time of the alleged abuse.† C.C. is a nine-year-old boy with an I.Q. of 46.† During an initial interview with a police investigator, C.C. denied that abuse occurred.† Nearly a week later, the police interviewed C.C. a second time. During the second interview, C.C. said that Adams had forced him to "suck on his pee-pee" and threatened to ground him unless he complied.† Based on these allegations, Adams was arrested and charged with criminal sexual conduct in the first degree.†

Adams was released on the condition that he have no contact with C.C. and that he refrain from drinking alcoholic beverages.† Adams violated the conditions of his release on two separate occasions, once by making contact with C.C and once by drinking alcoholic beverages.

††††††††††† In late November, C.C.ís mother brought C.C. to the office of the Dakota County attorney.† C.C.ís mother claimed that C.C. had recanted his allegations of abuse.† When interviewed in private, however, C.C. stated that he wanted Adams to return home because his family was in need of financial support that Adams had provided.

††††††††††† At trial, C.C. testified consistently with his prior allegations that Adams had sexually abused him.† In addition, other witnesses testified that C.C. had made statements to the effect that the abuse had occurred, and an expert witness testified that C.C. had below-normal intellectual capacity.† The jury found Adams guilty of criminal sexual conduct in the first degree.

††††††††††† Following the verdict, a psychologist evaluated Adams and issued a report suggesting that Adams would be a good candidate for community treatment and supervision.† Upon discovering that Adams failed to reveal that he twice violated the conditions of his release, however, the psychologist retracted this recommendation.† At sentencing, the district court found that Adams was not amenable to community treatment because he had violated conditions of release and had denied wrongdoing.† The district court sentenced Adams to a term of 147 months in prison, a 50% upward durational departure from the presumptive sentence of 98 months.† In imposing the upward departure, the district court cited the following aggravating factors: C.C. is uniquely vulnerable due to his limited mental capacity and lack of communication skills; and Adams abused his relationship of authority and trust.

D E C I S I O N

1.†††††††† In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.† State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).† We must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.† State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).† We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.† State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).† Inconsistencies in testimony and conflicts in evidence do not necessarily render the testimony and evidence false and are not bases for reversal.† State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).† This may be especially true when a crime victim is recounting a traumatic or stressful event.† Id.

In the instant case, the jury heard testimony from C.C. and other witnesses indicating that Adams had committed the unlawful sexual acts.† The jury heard the testimony, determined the credibility of the witnesses, and resolved the matter in returning a verdict of guilty.† Our review of the record indicates to us that there was sufficient evidence for the jury to reach the verdict that it did.

2. ††††††† Although the trial court generally applies the presumptive sentence under the Minnesota Sentencing Guidelines, the court has discretion to depart when the offense involves aggravating or mitigating circumstances.† State v. Jackson, 596 N.W.2d 262, 266 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).† The decision to depart from the sentencing guidelines rests within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion.† State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Adams asserts that in sentencing, the trial court ignored mitigating factors and thereby abused its discretion in failing to grant Adams a downward dispositional departure.† The mere fact that a mitigating factor is present in a particular case, however, does "not obligate the court to place defendant on probation or impose a shorter term than the presumptive term."† State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).† Only in a "rare case" would the trial court's refusal to depart warrant reversal.† State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).† This is not such a case.† The district court did not abuse its discretion in declining to grant a downward dispositional departure.

Adams also argues the trial court abused its discretion by imposing a 50% upward durational departure.† We have upheld a trial court's decision to impose a double durational departure where aggravating circumstances included, among others, that the defendant had known the victim for many years and must have known that the victim was mentally retarded so as to be vulnerable.† State v. Douglas, 501 N.W.2d 694, 698 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).† The supreme court has upheld a double durational departure based on aggravating factors that included, in part, that the defendant knew or should have known that the victim had below-normal mental capacity and that the defendant violated a position of trust.† State v. Campbell, 367 N.W.2d 454, 460-61 (Minn. 1985).† Similarly, C.C.'s reduced mental capacity and trust relationship with Adams support the district court's decision to impose a 50% upward durational departure.

3.†††††††† In his pro se supplemental brief, Adams claims that he was denied the effective assistance of counsel because (1) his attorney did not spend enough time with him prior to trial, (2) his attorney was still working on notes the day of trial, and (3) Adams was not permitted to take the stand in his own defense.† The amount of time an attorney spends on a case is not determinative of ineffective assistance of counsel.† State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997).† "It is within the trial counsel's discretion to forgo investigation of leads not reasonably likely to produce favorable evidence." Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).† Finally, the record reflects that Adams voluntarily chose not to testify.† No denial of effective assistance of counsel exists where the defendant voluntarily chooses not to testify in his own behalf.† Id. at 712-13.†

4.†††††††† In his pro se supplemental brief, Adams also claims jury misconduct because one of the jurors was sleeping during the trial.† There exists no record of a sleeping juror or that the issue was raised before the trial court.† Even if the record reflected a sleeping juror, however, a defendant waives the right to raise the issue of misconduct when the defendant does not promptly bring the issue to the attention of the court.† State v. Yant, 376 N.W.2d 487, 491 (Minn. App. 1985), review denied (Minn. Jan. 17, 1986).† Furthermore, Adams has failed to demonstrate that any prejudice resulted from the alleged misconduct.† See State v. Henderson, 355 N.W.2d 484, 486 (Minn. App. 1984).

Affirmed.