This opinion will be unpublished and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
Steven Cortney Smith,
Filed September 24, 2002
Robert H. Schumacher, Judge
File No. K7002909
Susan Gaertner Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Toni M. Lee, Certified Student Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Steven Courtney Smith asserts that his criminal-sexual-misconduct conviction was the result of prosecutorial misconduct. He also claims the district court erred in applying an upward departure from the sentencing guidelines. Respondent State of Minnesota has brought a motion to strike Smith's reply brief, claiming that the brief relies on facts outside the record. We affirm and grant the motion to strike.
Smith was convicted of criminal sexual misconduct against K.K., the 12 year-old daughter of his girlfriend. Smith was living with his girlfriend and her family, including K.K., for most of 1999. During that summer, Smith was involved in sexual contact with K.K., including vaginal, anal, and oral penetration. Smith threatened K.K. that he would get her in trouble if she told her mother about the sexual conduct.
K.K.'s mother learned about the abuse in April of 2000 through an adult friend, and the police were contacted.
On September 12, 2000, a complaint was filed charging Smith with criminal sexual conduct in the first degree, a violation of Minn. Stat. § 609.342, subd. 1(g) and subd. 2. A jury convicted Smith of criminal sexual conduct in the first degree. The district court sentenced Smith to 129 months, an upward departure of one and one-half times.
1. Smith asserts that his conviction resulted from prosecutorial misconduct, claiming that the prosecutor belittled the defense theory and inflamed the passions of the jury against Smith during her closing argument. He also claims that the prosecutor asked improper leading questions during the direct examination of K.K.
A denial of a new-trial motion based on prosecutorial misconduct will be reversed only,
when the 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) (citations omitted). Smith failed to object to the prosecutor's statements during closing arguments and to all but two of the prosecutor's claimed leading questions. Defense counsel has a duty to object to improper statements during closing arguments and seek a curative instruction. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). A defendant who fails to object or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).
It is impermissible for the prosecutor to inflame the passions and prejudices of the jury against the defendant. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). It is inappropriate for a prosecutor "to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury." State v. Richardson, 514 N.W.2d 573, 577 (Minn. App. 1994)(quoting A.B.A. Standards for Criminal Justice, Standard 3-5.8 (2d ed. 1980). An attorney may argue all reasonable inferences from evidence in the record, but may not intentionally misstate the evidence or mislead the jury as to the inferences it may draw. Salitros, 499 N.W.2d at 817.
Smith claims that statements made by the prosecutor during closing arguments regarding K.K.'s physical examination and regarding the effects Smith's conduct had on K.K. resulted in prosecutorial misconduct. He also claims that during her closing argument, the prosecutor told the jury to disregard the court's instructions. Smith had a duty to object to these statements to preserve the issue on appeal, which he failed to do. We may reverse a conviction despite the defendant's failure to object or seek a curative instruction if the prosecutor's remarks were unduly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). In reviewing the statements made by the prosecution, this court must examine the closing argument as a whole. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). After reviewing the statements cited by Smith, as well as reviewing the record as a whole, we find that Smith was not unduly prejudiced by the prosecutor's statements.
Smith also argues that the prosecutor committed misconduct by using leading questions to elicit information from K.K on direct examination. Smith objected to leading questions twice during K.K.'s testimony. Both times the court sustained the objections, and the prosecutor moved on to other questions. To warrant a reversal of his conviction, misconduct by trial counsel must be severe, have an impact on the jury, and clearly result in prejudice. Bradley v. Hubbard Broadcasting Inc., 471 N.W.2d 670, 676 (Minn. App. 1991) (citing Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974) review denied (Minn. Aug. 2, 1991). Smith is unable to demonstrate any prejudice that occurred from the two improper questions.
2. Smith claims in his reply brief that the prosecutor in this case has been accused of prosecutorial misconduct before. Smith claims that the same prosecutor committed similar conduct in another sexual misconduct trial. That case was briefed to this court, but was dismissed by stipulation. Smith claims that the prior allegation shows a pattern of prosecutorial misconduct. The state has brought a motion to strike Smith's reply brief because it relies on facts outside the record in naming other cases, which have not been adjudicated.
An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). This court "will strike documents included in a party's brief that are not part of the appellate record." Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993). Smith did not raise this issue below. We decline therefore to address the issue in this court. The state's motion to strike Smith's reply brief is granted.
3. "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). When a district court departs [from the sentencing guidelines], substantial and compelling reasons justifying the departure. Spain, 590 N.W.2d at 88.
The district court concluded that the aggravating factors supporting an upward departure in this case included:
the multiple forms of penetration; the multiple occasions of penetration; the vulnerable victim, not based on her age, which is part of the charge, but based on the fact that she was asleep the first time this occurred; and what appears to this Court to be careful planning and manipulation as to the times and places of the sexual abuse so that it would not be discovered by the other family members. What is particularly of note to this Court is the length to which the victim went in order to avoid the abuse when school started that fall and not be home at certain times when her mother wasn't home.
Each of these factors is sufficient to justify an upward departure. Multiple forms of penetration is a factor that supports an upward durational departure. Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984). In addition, multiple incidents of abuse will support an upward departure. Kilcoyne v. State, 344 N.W.2d 394, 397 (Minn. 1984). There was evidence in the record that K.K. was penetrated several times in a variety of ways. Another factor that supports an upward departure is the particular vulnerability of the victim. State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000). There was evidence presented that the victim was asleep when Smith first began assaulting her. Careful planning and manipulation of sexual abuse so that other family member will not discover it will also support an upward departure. State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983). In this case, there was evidence that Smith only assaulted K.K. when her mother was not at home. There was also evidence that he threatened her not to tell anyone about the abuse. Finally, the victim's attempts to stop the abuse may be considered when determining the seriousness of the abuse. Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996). Evidence showed that when K.K. went back to school in September she would go to great lengths to not be home alone with Smith. Taken together, all these factors show that the crime was more serious than a typical sexual misconduct, and the district court did not abuse its discretion in implementing an upward departure.
Affirmed and motion to strike granted.