This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1551

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory W. Weston,

Appellant.

 

Filed June 19, 2001

Affirmed

Gordon W. Shumaker, Judge

 

Aitkin County District Court

File No. K998715

 

 

 

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

 

Bradley Rhodes, Aitkin County Attorney, Courthouse West Annex, 209 Second Street Northwest, Aitkin, MN 56431 (for respondent)

 

John M. Stuart, State Public Defender, Roy Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Gregory Weston challenges his conviction of third-degree criminal sexual conduct, arguing that (1) the evidence was insufficient to support finding that appellant had a “significant relationship” with the victim; (2) the prosecutor committed prejudicial misconduct during closing argument; (3) the district court abused its discretion in denying his request for a continuance and to reopen the case; and (4) he was denied the effective assistance of counsel.  We affirm.

FACTS

 

A jury found appellant Gregory Wendell Weston guilty of criminal sexual conduct against 17-year-old K.O.

In the fall of 1998, K.O. moved from Minneapolis to a trailer home behind her mother’s house in Aitkin.  Her mother lived in the house with K.O.’s brother and Weston.  When the weather began to get colder, K.O. moved into the house.  Because both bedrooms were occupied, she slept on the couch in the living room.

At about midnight on October 1, K.O. returned home from work. Weston and a friend were present in the house.  K.O. spoke briefly to Weston and then went to sleep on a blanket on the living room floor.  After 1:00 a.m., K.O. woke up to find Weston lying on top of her and sexually penetrating her.  Her boxer shorts and panties had been removed.  She lay still and pretended to be asleep.  When Weston finished he spoke to K.O. briefly and then went upstairs.

When K.O.’s mother, Sue Oliver, and brother came home, K.O. talked to them for about 45 minutes but did not mention the incident with Weston.  K.O. did not think her mother would believe her because K.O. had previously accused Weston of sexually assaulting her and then she recanted.  She decided that she would need “evidence.”

On October 2, K.O. saw a chiropractor, attended school, and then went to a hospital after school where she told a nurse practitioner of the sexual assault.  The nurse practitioner examined her and found no signs of vaginal injury, but found a “creamy white discharge” in K.O.’s vagina.  Ultimately, testing showed the presence of human semen on vaginal swabs taken from K.O. that matched Weston’s DNA profile.

At trial, Oliver testified for Weston.  She related that K.O.’s boyfriend visited K.O. in the trailer, and she told K.O. to change the sheets.  K.O. refused and this angered Weston.  His response was to ejaculate into a tissue and to throw it at K.O., saying, “If you like it so much, have some in here.”  Oliver testified that this was not unusual for Weston and that he had recently done the same thing to her.

After the defense rested its case, defense counsel moved to reopen and to continue the trial so that he could consider presenting evidence of two prior occasions on which K.O. accused other men of sexually assaulting her.  Counsel had learned of one allegation two or three days previously and of the other just moments before his motion.  Counsel alternatively moved for a mistrial.  The district court denied the motions.

During his final argument, the prosecutor stated that K.O. was eating her meals and taking her showers in the house and that she kept her clothing there.  He also stated that Weston threw the tissue at K.O. after telling her to get the laundry done.  Defense counsel objected to both statements as not reflecting facts in evidence and he moved for a mistrial.  The court denied the motion but gave a curative instruction that, as to the prosecutor’s first statement, “no such facts were presented on the record.”

The jury found Weston guilty of criminal sexual conduct in the third degree, a crime that requires proof that the actor and the victim had a “significant relationship.”  Minn. Stat. § 609.341, subd. 15(3) (1998).  Weston appeals.

D E C I S I O N

1.         Sufficiency of Evidence

            Weston argues that the evidence was insufficient to prove beyond a reasonable doubt the statutory requirement that he had a significant relationship with K.O.  Our review of sufficiency of the evidence is limited to a

painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

 

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980)).  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 offenses.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            To establish the offense of which Weston was convicted, the state had to prove that Weston and K.O. had a significant relationship.  A significant relationship exists when the actor is “an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.”  Minn. Stat. § 609.341, subd. 15 (3) (1998).

Weston contends that the state failed to prove that K.O. “resided” with Weston. “To reside means to ‘live, dwell, abide, sojourn, stay, remain, lodge * * * [or] have a settled abode for a time.’”  State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996) (quoting Black’s Law Dictionary 1308 (6th ed. 1990)), review denied (Minn. June 19, 1996)   “A dwelling is any ‘place of residence.’”  Id. (quotation omitted).  In Sebasky, we held that the frequent but discontinuous overnight stays by two boys in the defendant’s home met the statutory requirement of residing “intermittently.”

As of October 1, K.O. had slept at the house for about seven nights.  Upon this evidence it was reasonable for the jury to conclude that K.O. resided with Weston by staying in the dwelling in which he resided.  The statute does not specify a minimum time as a precondition to the establishment of residency.  And even if K.O. contemporaneously used the trailer home for some purposes, the evidence supported a conclusion that K.O. resided at least intermittently in the house with Weston and others.  Thus, the evidence was sufficient to establish that Weston had a significant relationship with K.O. as of October 2, 1998.

2.         Prosecutorial Misconduct

            Weston next alleges that the prosecutor misstated the evidence in his final argument and therefore he is entitled to a new trial.  The district 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) (quotation omitted).  In reviewing allegations of prosecutorial misconduct during closing argument, the appellate court considers

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).

            After defense counsel objected to the prosecutor’s suggestion that there was evidence of K.O.’s residency in the house, the court gave the following curative instruction

Ladies and Gentlemen of the jury, during his final argument [the prosecutor] referred to [K.O.] eating, showering, and leaving her clothing and other things at the defendant’s residence.  Although [the prosecutor] may argue that certain facts of record may infer the possibility of such, no such facts were presented on the record.

 

When a district court gives a curative instruction, as it did in this case, it is generally considered to offset or ameliorate the impropriety.  See, e.g., State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

            The challenged statement was a small part of a closing argument that covered 15 pages of transcript.  The reference was isolated, did not permeate the entire closing argument, and was not sufficiently egregious to constitute prejudicial misconduct.  Even if the prosecutor’s statement could be construed as misconduct, viewing the record as a whole, we find that the statement did not impair Weston’s constitutional right to a fair trial.  The court did not abuse its discretion in denying the motion for a mistrial.

3.         Continuance and Reopening

Weston moved to reopen his case and to continue the trial so that he could investigate the possibility that K.O. had made prior false allegations of sexual assault.  The court noted that the case had been pending for 18 months and that Weston’s offer of proof did “not merit the request for continuance or mistrial.”

Rulings on motions to reopen or to continue a case are discretionary with the district court and will not be reversed absent a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987); State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985).

Evidence of prior false allegations of sexual assault would be relevant to an assessment of K.O.’s credibility.  But defense counsel failed to show why discovery of that evidence was not possible prior to the resting of his case-in-chief.  In fact, he acknowledged having information as to one allegedly false statement two or three days before he rested his case.  The district court did not abuse its discretion by denying counsel’s motions at the stage the proceedings had reached.

Even if the court’s rulings were erroneous, we must still determine whether the error was so prejudicial as to have materially affected the outcome of the case.  State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984).  A nurse took swabs of a discharge in K.O.’s vagina and in her panties.  The swabs contained semen.  The semen matched Weston’s DNA profile.  A forensic scientist testified that “this DNA profile from those two sources would not be expected to occur more than once among unrelated individuals in the world population.”

Weston’s only explanation of the presence of his semen in K.O.’s vagina came through the hearsay testimony of K.O.’s mother.  Her explanation that Weston threw a semen-filled tissue at K.O. who then managed to get the semen into her vagina was a tale that the jury reasonably could have found to be preposterous.  Thus, even, if Weston had shown that K.O. made prior false allegations of sexual abuse, the DNA evidence remains without plausible contradiction.  If there was any error in the district court’s denials of the motions to reopen and to continue the trial or grant a mistrial it was not prejudicial to the outcome of the case.

4.         Ineffective Assistance of Counsel

Weston argues that his trial counsel’s representation was ineffective because (1) even though he was aware of the fact that K.O. made allegations of sexual abuse against her father in 1995, he waited until after the defense rested its case before requesting discovery of potentially exculpatory evidence; and (2) he failed to request an in camera review of K.O.’s social service records. 

"Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal."  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000); see also State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (stating "the preferred method for raising a claim of ineffective assistance of counsel is in a postconviction proceeding before direct appeal.”).

But, where further development of the record is not required to assess appellant’s claim, appellate courts will review the claim on direct appeal.  See State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999) (addressing an ineffective-assistance claim in a direct appeal when the record was clear).  Here, the record is adequate for this court to assess Weston’s claim.

Minnesota has adopted the federal standard for ineffective assistance of counsel, which requires a defendant to prove (1) that counsel's representation "fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  There is a strong presumption that counsel's performance falls within a wide range of reasonable professional assistance.  Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).

As we have explained, even had defense counsel made timely discovery of the alleged prior allegations, there is no reasonable probability that the outcome of the case would have been different.  Thus, Weston has not shown ineffective assistance of counsel.

            Affirmed.