This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-627

 

State of Minnesota,

Respondent,

 

vs.

 

Cory Daniel Boogaard,

Appellant.

 

Filed March 4, 2003

Reversed and remanded

Randall, Judge

 

Renville County District Court

File No. K6-01-332

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

David Torgelson, Renville County Attorney, Fred Inman, Assistant County Attorney, Commerce Building, P.O. Box D, Olivia, MN 56277 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant).

 

Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant Cory Daniel Boogaard was convicted of third-degree criminal sexual conduct in violation of Minn. Stat. 609.344, subd. 1(b), and acquitted of third-degree criminal sexual conduct in violation of Minn. Stat. 609.344, subd. 1(c). Appellant was sentenced to 23 months in prison. The court stayed execution of sentence and, as a condition of probation, imposed a one-year jail sentence. Appellant challenges his conviction, arguing that the trial court committed plain error in failing to instruct the jury on the defense of mistake of age where appellant testified that he believed the 14-year-old victim with whom he admitted having sex was, in fact, 16 years old. Appellant also argues that he was denied effective assistance of counsel because his attorney failed to request this instruction despite having given pretrial notice of the defense. Because the court committed plain error in failing to instruct the jury that mistake of age was a defense, we reverse and remand.

FACTS

On May 6, 2001, Buffalo police officer Patrick Geiken was dispatched to Buffalo Lake Nursing Home to investigate a report of sexual assault. Geiken spoke with M.M., a nursing home employee, and H.M., her 14-year-old daughter. H.M. told Geiken that appellant raped her in the front seat of a car while appellant's friend, Nathan Rosenau, drove the car.

In a subsequent statement to investigator Frank Berg, H.M. said that she originally met appellant on February 15, 2001, at a junior high school Valentine's Day dance. According to H.M., appellant came by her house to visit her the following day and she saw him again on prom night. H.M. told Berg that on May 5, 2001, she and her boyfriend went to a party in Hector, Minnesota, stayed for a short while, and left at 7:30 p.m. H.M. stated that she decided to return to the party later that evening, and at 1:00 a.m. she received a phone call from Rosenau stating that he was outside her house to drive her to the party. According to H.M., when she entered Rosenau's car, appellant was sitting in the back seat, and the passenger bucket seat was in the recline position. Appellant climbed into the front seat where he took off her clothes and raped her. Appellant was arrested on May 6, 2001, and gave a statement to the police admitting that he had sex with H.M., but insisting that it was consensual.

Appellant was charged with third-degree criminal sexual conduct in violation of Minn. Stat. 609.344, subds. 1(b), (c) (2000). Before trial, defense gave notice of two defenses: mistake of age and consent.

At trial, appellant's mother testified that after the Valentine's Day school dance she overheard H.M. and a friend discussing appellant and stating that he was 21 years old. When appellant later visited H.M.'s house to see her, H.M.'s mother asked him why he was visiting a 14-year-old girl.

The defense at trial presented witnesses who testified that H.M. lied about her age and represented herself to be at least 16 years of age. One witness testified that she was with H.M. at the Valentine's Day school dance and that she heard H.M. tell appellant that she was 16 years old. Defense witnesses also testified that H.M. told different versions of the alleged rape.

At the close of evidence, the district court instructed the jury on the elements of the crimes, but did not give the affirmative defense of mistake of age as to the statutory rape charge. The jury acquitted appellant of one count of third-degree criminal sexual conduct involving force or coercion, but found appellant guilty of statutory rape. This appeal follows.

D E C I S I O N

Appellant contends that the district court committed plain error when it failed to instruct the jury on the affirmative defense of mistake of age even though defense counsel failed to request the jury instruction, which affected appellant's right to a fair trial. We agree. Respondent conceded in a letter to this court dated November 12, 2002, that appellant is entitled to a new trial.

The judiciary appreciates the state's candor displayed in this case. The Attorney General's office stated:

Respondent State of Minnesota will not be filing a formal brief in this appeal. Respondent concedes that appellant is entitled to a new trial because the absence of a jury trial instruction on the affirmative defense of mistake of age was plain error, which, in the circumstances of this case, denied appellant the right to a fair trial. See Sate v. Crowbreast, 629 N.W.2d 433, 437 (Minn. 2001) (recognizing that even where there was no objection to jury instructions at trial, the appellate court has discretion to consider a claim of error on appeal if there was plain error affecting substantial rights or an error of fundamental law in the jury instructions); see also Minn. R. Crim. P. 26.03, subd. 18(3); State v. Nunn, 351 N.W.2d 16, 19 (Minn. Ct. App. 1984) (holding in the alternative that a jury instruction tantamount to a directed verdict is reversible error even in the absence of an objection).

 

Although appellant did not object to the instructions at trial, this court has discretion to consider appellant's claim if there is "plain error affecting substantial rights." State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted); Minn. R. Crim. P. 31.02. The three-prong test for plain error requires that, "before an appellate court reviews an unobjected-to error, there must be (1) error, (2) that is plain, and (3) the error must affect substantial rights." Griller, 583 N.W.2d at 740 (citations omitted). If these three prongs are met, this court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings. Id.

We conclude that it was error for the court to omit the jury instruction that mistake of age was a defense even though the defense failed to request this instruction at trial. Minn. Stat. 609.344, subd. 1(b) (2002) states that mistake of age is an affirmative defense if the "actor believes the complainant to be 16 years of age or older," which should have alerted the court to include it in the jury instructions. Further, the court should have included the defense because counsel notified the court before trial that it would request a mistake of age instruction and also because witnesses testified at trial that H.M. told appellant and others that she was 16 years old.

Because we conclude that it was error for the court to omit the instruction, we must decide if the error was plain. An error is "plain" if it was "clear" or "obvious." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993); State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002). Because Minn. Stat. 609.344, subd. 1(b), specifically provides for the affirmative defense of mistake of age and because the defense gave pretrial notice of the defense, we conclude that it was plain error for the court to omit the instructions.

The court's failure to give the instruction affected appellant's substantial right to a fair trial. An error affects substantial rights if the error is prejudicial, that is, if there is a reasonable likelihood that the error substantially affected the verdict. State v. Smith, 582 N.W.2d 894, 896 (Minn. 1998); Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). If the jury had been given the instruction, they may have acquitted appellant of statutory rape because of the testimony of appellant and others that H.M. lied about her age. Because the jury was never given the instruction, they were unaware of the law governing this issue.

Because we reverse and remand on this issue, we do not reach appellant's issue of ineffective assistance of counsel.

Reversed and remanded.