This opinion will be unpublished and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

C1-01-880

 

Thomas Troy Payette,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 2, 2002

Affirmed as modified

Harten, Judge

 

Anoka County District Court

File No. K0-00-5697

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Ave. SE, Suite 600, Minneapolis MN 55414-3230 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

 

Robert M.A. Johnson, Anoka County Attorney, Anoka County Courthouse, 325 East Main Street, Anoka MN, 55303-2489 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges his two first-degree criminal sexual conduct convictions.  He argues that there was insufficient evidence to support the convictions because the victim’s testimony was contradicted by physical evidence, that the district court erred in instructing the jury on appellant’s right not to testify without obtaining appellant’s consent, that the prosecutor committed misconduct, and that the district court erred when it sentenced him to ten, rather than five, years of conditional release.  We affirm as modified. 

F A C T S

 

            Appellant Thomas Troy Payette married Michelle Payette in early 2000 after living with her and her son and daughter for 13 years.  Her daughter, N.M.L., alleges that appellant began sexually abusing her before she was six years old.  She testified that this abuse consisted of appellant inserting his fingers into her vagina, attempting anal intercourse, forcing her to perform oral sex on him, and performing oral sex on her. 

            N.M.L. testified that the final instance of abuse occurred on 9 July 2000, when she was 14.  N.M.L. said she awoke around 4:00 a.m. to find appellant standing over her.  He covered her mouth with duct tape and held a sharp object, which appellant later told her was a letter opener, against her throat.  Appellant ordered N.M.L. off the bed and handcuffed her to the bedpost.  N.M.L. testified that she unsuccessfully attempted to free herself from the handcuffs.  Appellant removed the handcuffs, put his hands up her shirt and down her pants, and performed oral sex on her.  He then forced her to perform oral sex on him.  She testified that he ejaculated on her chest.  Appellant cleaned up using tissues and threw them into the bathroom garbage.  N.M.L. testified that, after appellant left, she also wiped herself with her shirt.

            The next day, N.M.L. went to her best friend’s home.  She told her friend and her friend’s mother that appellant had sexually abused her.  The mother called Child Protection Services and N.M.L. gave a detailed account of the abuse to a social worker.  The mother then took N.M.L. to a hospital for an examination.  The examination revealed no physical injuries and no evidence of semen on N.M.L.’s chest. 

            At the hospital, N.M.L. gave a statement to an Anoka County sheriff’s detective who requested local police to go to the family’s apartment and arrest appellant.  Later, the police found and seized a letter opener, handcuffs, duct tape, tissues, and the clothes N.M.L. had been wearing.  Testing of the clothes revealed no semen.  The police performed a “[c]ursory examination” of the tissues found in the bathroom garbage and found no evidence of semen.

Appellant was charged with two counts of first-degree criminal sexual conduct for engaging in sexual penetration with another person while armed with a dangerous weapon and for committing multiple acts of sexual abuse over an extended period of time.  See Minn. Stat. § 609.342, subd. 1(d), (h)(iii) (2000).

At trial, the prosecutor asked Michelle Payette about the frequency of the couple’s sex practices and their use of handcuffs during sex.  She also asked about some marijuana found by police at appellant’s apartment.  Appellant’s counsel did not object to the questions or responses, but the district court on its own initiative stopped the questioning. The district court denied appellant’s associated motion for a mistrial on the grounds of prosecutorial misconduct for asking the marijuana question.  But the district court gave a cautionary instruction on the marijuana statements and directed the prosecutor not to ask any more questions concerning sex practices.

Appellant did not testify at trial.  The district court instructed the jury on appellant’s right not to testify even though there was no record of appellant requesting or consenting to this instruction.  The jury found appellant guilty of both charges.  The district court sentenced appellant to two consecutive 86-month prison terms followed by a 10-year conditional release term.  This appeal followed.

D E C I S I O N

1.         Sufficiency of the Evidence

            In considering a claim of insufficient evidence, our 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 their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that 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).  Also, the reviewing court 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).   

            In a sexual abuse case, a conviction can rest upon the testimony of a single credible witness.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  But absence of corroborating evidence may “require a holding that the evidence at trial was insufficient to sustain the conviction.”  Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995) (citation omitted).

            N.M.L testified to the abuse at trial.  She had previously given consistent, detailed accounts of the abuse to her friend, her friend’s mother, the child protection agency, the hospital staff, and the police.  It is undisputed that appellant had sufficient opportunity to commit these offenses.  Caselaw holds that such evidence is sufficient to support a conviction for criminal sexual conduct.  See, e.g., State v. Burns, 524 N.W.2d 516, 521 (Minn. App. 1994) (evidence was sufficient to support conviction when victim gave detailed consistent accounts and defendant had opportunity to commit the alleged acts), review denied (Minn. Jan. 13, 1995); State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993) (evidence did not need to be corroborated when victim’s account was positive and consistent).  Moreover, the prosecution presented corroborating evidence.  Police found handcuffs, a letter opener, and duct tape and tissues in the trash at the family’s apartment.  These items support N.M.L.’s account of what happened on 9 July.   

            As appellant notes, there was no semen found on N.M.L., the clothes she was wearing that night, or the tissue in the trash, and N.M.L. showed no signs of a physical struggle.  But N.M.L. did not claim any physical injuries; she claimed only a sore wrist.  The sexual assault exam occurred more than six hours after the alleged assault and N.M.L. testified that appellant wiped up with tissue.  Finally, the tissues found at the apartment were given only a cursory examination. 

It is the duty of the jury to evaluate the credibility of witnesses and determine the weight of all of the evidence.  See Burns, 524 N.W.2d at 521.  The jury believed N.M.L.  We conclude that the jury’s verdict was sufficiently supported by the evidence.

2.         Alleged Prosecutorial Misconduct

            A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only

when the alleged misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.

 

State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citation omitted).  Any misconduct must be viewed in the context of the whole trial.  State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1999).

            Appellant argues that three of the prosecutor’s questions (two relating to sex and one relating to marijuana) compelled a mistrial.  Appellant did not object to the prosecutor’s questions and sought a mistrial only on the marijuana question.   See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (the failure to object weighs heavily against a decision to reverse).  The district court gave the jury a cautionary instruction that it should not consider this evidence.  See id. (courts should consider whether the trial court gave a curative instruction).  These questions were only a small part of the trial.  See id. (improper argument by the prosecution was found only in a small part of the closing argument).

Assuming (without deciding) that the prosecutor committed lesser misconduct in asking the three questions, we conclude that the misconduct did not play a substantial part in influencing the jury to convict.  See id. (stating test for less serious misconduct).  Accordingly, the district court did not err in denying appellant’s motion for a new trial.

3.       Jury Instructions

A trial judge ordinarily should obtain a criminal defendant’s permission before giving an instruction on a defendant’s right not to testify.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  A record should be made regarding the defendant’s choice.  Id.  A silent record indicates that a request had not been made.  See State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  Here, without having appellant’s permission, the district court erroneously instructed the jury on appellant’s right not to testify.

            This error, however, does not require reversal if it was harmless.  See State v. Kuhnau, 622 N.W.2d 552, 558 (Minn. 2001) (applying harmless error analysis to errors in jury instructions).  Whereas the instruction may have unnecessarily underscored appellant’s decision not to testify and deny the allegations, Duncan, 608 N.W.2d at 558, this effect by itself does not constitute reversible error.  See id.  (a similar error “when considered individually, was harmless”).  Obviously, the district court should have obtained appellant’s consent.   Nevertheless, we conclude that it was unlikely that the right not to testify instruction substantially affected the jury’s decision; it was therefore harmless.  But we emphasize that trial courts should be vigilant to avoid giving such a jury instruction without the defendant’s express consent.

4.         Sentencing

            Appellant claims that the district court erred in imposing ten years’ conditional release.  Under Minnesota law,

            [w]hen a court sentences a person to prison for a violation of 609.342 * * * , the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release * * * for five years * * *.  If a person was convicted for a violation of one of those sections a second or subsequent time, * * * the person shall be placed on conditional release for ten years.

 

Minn. Stat. §609.109, subd. 7 (a) (2000).   

            Whether or not appellant’s sentence was incorrect depends on the meaning of “a second or subsequent time.”  Appellant’s claim involves the district court’s interpretation of the applicable sentencing law, a question we review de novo.  State v. Ronquist, 600 N.W.2d 444, 447 (Minn. 1999).

            Minnesota law defines a second or subsequent violation or offense to mean that “prior to the commission of the violation or offense, the actor has been adjudicated guilty of a specified similar violation or offense.”  Minn. Stat. § 609.02, subd. 11 (2000).  And, we have also stated that the “length of the conditional release period [under section 609.109, subd. 7] depends upon the number * * * of prior convictions.”  State v. Cook, 617 N.W.2d 417, 419 (Minn. 2000), review denied (Minn. Nov. 21, 2000).   

            Because appellant had not been “adjudicated guilty” of a similar specified offense before the commission of the other offense, he did not have a prior conviction at the time of sentencing.  He was not convicted of a second or subsequent violation and should have been sentenced to five, rather than ten, years of conditional release.  Accordingly, we modify the sentence to impose five years’ conditional release in place of the ten years imposed by the district court.

            Affirmed as modified.