This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Nathan Joseph Crandall,
Hennepin County District Court
File No. 01066172
Mike Hatch, State Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Phyllis J. Kirwin, Special Assistant Public Defender, 1418 Brookshire Court, New Brighton, MN 55112 (for appellant)
Considered and decided by, Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree criminal sexual conduct, appellant argues the district court abused its discretion by admitting appellant’s prior convictions under section 634.20 (domestic abuse evidence) without conducting a Spreigl analysis. Appellant also argues that the court abused its discretion in failing to give a cautionary Spreigl instruction when the evidence was admitted. Finally, appellant argues that the court abused its discretion in failing to depart downward from the statutory mandatory minimum sentence to the presumptive sentence under the guidelines for someone with appellant’s criminal history score. Because appellant has failed to show either plain error or an abuse of the district court’s discretion, we affirm.
Appellant was charged with one count of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(c) (2000). The victim, S.E., alleged that appellant told her that, unless she had sex with him, he would kill himself and “was going to take [S.E.] with him.” S.E. testified that she was in fear of imminent bodily harm during the incident and struggled with appellant during the act, repeatedly saying no. Appellant testified that S.E. consented to intercourse and that it was only after intercourse that S.E. said she had not wanted to have sex and only did so because she was afraid of what he would do otherwise.
Appellant and S.E. have had a rocky relationship for some time. They began dating in 1996, while both were in high school. After about two and a half years, S.E. testified that she became aware of appellant’s drug problem. S.E. testified that when appellant was sober, he would live with her for weeks at a time and then leave. There were two incidents where appellant attempted to forcibly take money from S.E. The police were called in both incidents.
In the first incident, occurring on August 27, 2000, S.E. tried to call the police and appellant “pulled the phone out of the wall.” She then tried the other phone and appellant pulled that phone out of the wall as well. Despite appellant’s efforts, one of the calls got through to the 911 operator, who dispatched police to the scene. In the second incident, occurring on December 22, 2000, appellant “unplugged the phone from the wall and disconnected the battery in [S.E.’s] cell phone.” Appellant testified that during these incidents, S.E. was trying to call a drug treatment center to check him in and then he “unplugged” or “hung-up” the phone to prevent her from doing so. Despite this testimony, appellant admitted that he knew S.E. was trying to call 911 in a conversation with officers that was recorded and transcribed. Based on these incidents, he was twice convicted of interference with a 911 call. In addition, S.E. obtained an order for protection and a no contact order against appellant. After appellant returned from a drug treatment program in Wisconsin, S.E. withdrew the order for protection.
On August 8, 2000, S.E. testified that, after having a long discussion about having no more contact with each other, “[appellant] said that he would leave me alone and we wouldn’t have any contact if we could just spend a nice evening as friends together.” They agreed to watch a movie together at S.E.’s home. Id. Shortly after the movie started, S.E. testified that appellant began touching her sexually and she told him to stop. She testified that appellant then said “I’m going to kill myself tonight and I’m going to be with you one last time before I do.” Next, S.E. testified that he attempted to penetrate her, but failed to do so, then performed oral sex on her, and afterwards forcibly penetrated her. After intercourse, S.E. testified that appellant grabbed a knife that she did not know was by the bed, handed her the knife and said that she should kill him. S.E. testified that, because she did not wish to do so, so she threw the knife in the closet and shut the closet door. Appellant then left the room, got some kool-aid from the kitchen, and began taking pills in the bathroom. S.E. called 911 and told the 911 operator that appellant had attempted suicide and that she had been raped.
The district court admitted evidence of appellant’s prior convictions and also allowed S.E.’s to testify about appellant’s conduct that led to those convictions. The court ruled the prior convictions were evidence within the meaning of Minn. Stat. § 634.20 (2002) and admissible under this statute.
Appellant argues he was denied a fair trial when the district court allowed S.E. to testify about the conduct that resulted in appellant’s prior convictions and also admitted evidence that appellant was convicted once of violating a no-contact order and twice of interfering with a 911 call as a result of his conduct, without conducting a Spreigl analysis. He asserts that because the only issues in this case were (1) S.E.’s consent, and (2) whether S.E. was in imminent fear of bodily harm. Thus, appellant argues that the evidence of his prior crimes was not substantially similar to the charged offense. Further, appellant argues that because S.E. had already testified about his conduct on these occasions, admitting evidence of the convictions was “needless presentation of cumulative evidence, of no probative value, and highly prejudicial.” Finally, appellant maintains that all relationship evidence must pass a Spreigl test, regardless of whether it is also falls under Minn. Stat. § 634.20 (2002).
Minn. Stat. § 634.20 states:
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. “Similar prior conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection * * *; violation of a harassment restraining order * * *.
Minn. Stat. § 634.20 (2002) (emphasis added). “Domestic abuse” includes:
(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, within the meaning of section 609.713, subdivision 1, or criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, or 609.345.
Minn. Stat. § 518B.01, subd. 2 (2002). Thus, criminal sexual conduct is included in the definition of domestic abuse and S.E. is, consequently, the victim of domestic abuse. As we stated in State v. Waino:
Under Minn. Stat. § 634.20, evidence of similar prior conduct by the defendant against the victim of domestic abuse is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. Applying the statute to the facts in this case involves two inquiries. First, is the challenged testimony evidence of similar prior conduct? Second, is its probative value substantially outweighed by the danger of unfair prejudice?
State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (emphasis added). There, we considered evidence of prior threats towards, and beatings of, the victim by the accused in an assault case. In affirming the district courts admission of this evidence we concluded:
The evidence of similar prior conduct by [the accused] against [the victim] explains the context in which the charged assault occurred and its prejudicial effect is mitigated by the trial court’s cautionary instruction to the jury.
Id. at 579.
In dictum, the Minnesota Supreme Court discussed the legislature’s intent regarding Minn. Stat. § 634.20, stating:
We note that the legislature has expressed an intent to remove evidence of “similar prior conduct” in domestic abuse (non-homicide) prosecutions from the “clear and convincing” standard of Rule 404(b). See Minn. Stat. § 634.20 (1996).
State v. Cross, 577 N.W.2d 721, 726 n.2 (Minn. 1998).
Here, the district court noted the prior incidents, “show the context of [appellant’s and S.E.’s] relationship,” which was relevant to the question of whether the sexual contact was consensual. The district court’s actions show that it was aware of its responsibility to exclude unfairly prejudicial evidence. The court excluded other incidents between appellant and S.E. because
even 634.20 is subject to 403. And, these become cumulative. And, while they are probative to some degree—when they’re piled on this way, the prejudicial value begins to outweigh it. * * * The July 1st, the December 22, 2000, and the August 27, 2000, the July 12, 2001, and July 14,  are all coming in, as well as some other suicide attempts. And, I think that fairly represents to the jury the purposes behind the statute, which is to show the context of the relationship.
The record shows that the district court understood the law and its responsibility to exclude unduly prejudicial evidence. The record shows that the judge applied this test to each item of evidence presented, admitting some, excluding others. The issue that is less clear is whether Minn. Stat. § 634.20 evidence, to be admitted, must be shown by a preponderance of the evidence, or the higher standard of clear and convincing, that being the historical standard for traditional Spreigl evidence. We do not dispute that Minn. Stat. § 634.20 evidence of prior relationship conduct between the accused and the victim enjoys a status more favored than traditional Spreigl “prior bad acts,” but appellant argues convincingly that even Minn. Stat. § 634.20 evidence must be shown by the state to be clear and convincing before it can be admitted.
In our case, we need not reach the
issue of whether Minn. Stat. § 634.20 lowers the burden a proof from clear and
convincing. We are persuaded by the
logic of State v. Yang, No.
C4-02-754 (Minn. App. Apr. 15, 2003) that the Minnesota Supreme Court retains
the primary responsibility for regulating the introduction of evidence, and
that it is still somewhat of an open question whether prior relationship
conduct admitted under Minn. Stat. § 634.20 only need meet the low burden of
preponderance of the evidence. We need
not decide the issue here and await further direction from the supreme court. On our facts, the trial court did not abuse its discretion in admitting the evidence under either standard.
Here, whether the evidence was classic Spreigl or § 634.20, or whether the burden of proof is clear and convincing, or by a preponderance of the evidence, the record supports the district court. For instance, to admit Spreigl evidence, the court must find three things: (1) clear and convincing evidence that the defendant participated in the Spreigl acts; (2) the evidence is relevant and material; and (3) that the probative value is not outweighed by its potential for unfair prejudice. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).
Here, the first criterion was met. The prior bad acts committed by appellant resulted in convictions, which establish that he committed the acts beyond a reasonable doubt. That satisfies the clear and convincing evidence requirement. The second criterion, relevance and materiality, was met. The district court found the prior incidents related to the charged offense because it provided “context” to determine whether the sexual act was consensual. As cited previously, the district court acknowledged the third criterion, weighing the probative value against unfair prejudice, and determined some incidents were admissible, while others were not. The court specifically excluded evidence of appellant’s drug use and theft unless the defense opened the door. The district court also gave the jury a limiting instruction to guard against the risk of convicting appellant as punishment for prior acts. We conclude appellant failed to show any error by the district court.
Pursuant to an agreement between the parties, the court read the following stipulation to the jury at the end of the state’s case-in-chief:
Ladies and gentlemen, there is a factual stipulation entered into by both parties to this matter. Defendant was convicted of the offense of interference with a 911 call in connection with an incident occurring on August 27, 2000. Defendant was also convicted of interference with a 911 call in connection with an incident occurring on December 22, 2000. Defendant was convicted of violation of a no contact order in connection with an incident occurring on July 1, 2001. This stipulation is evidence in the same way that testimony and exhibits is (sic) evidence in this case.
During its final charge to the jury, the court gave this limiting instruction regarding use of the evidence:
The State has introduced evidence of other crimes occurring * * * before the charged incident. This evidence was admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charge in this complaint. The defendant is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of any prior occurrence. To do so might result in unjust double punishment.
Appellant was given the opportunity to object to these jury instructions, but chose not to do so. Appellant did object to another portion of the instruction when asked if there were any objections, but did not object to this language.
Appellant argues the district court committed plain error by stating that “[t]his stipulation is evidence in the same way that testimony and exhibits is (sic) evidence in this case.” In addition, he argues that the court should have given a limiting instruction, even though he did not request one. Further, appellant argues that, because he believes the evidence was inadmissible in the first place, the court should have given a curative instruction and stricken the stipulation from the record.
“An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). The court has the discretion to consider plain error on appeal, even when not objected to at trial. Minn. R. Crim. P. 31.02. Plain error is established by satisfying a three-prong test; the there must be (1) an error; (2) that is plain; (3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 1549 (1997)). The third prong of this test “requires that the error have a significant effect on the verdict.” Id. at 741. Failure to give a limiting instruction sua sponte is not ordinarily reversible error; to obtain a reversal, one must show plain error and also prove that the outcome of the case was affected by the district court’s failure to strike or provide an instruction. State v. Vick, 632 N.W.2d 676, 687 (Minn. 2001).
Since we determined that admission of the evidence was proper under Minn. Stat § 634.20, appellant cannot show error. Appellant’s complaint is that the court misstated the law regarding the stipulation, but we find no such misstatement occurred. Stipulated evidence “has the same force and effect, and must be given the same weight by the triers of the facts, as testimony orally added.” Southdale Center, Inc. v. Lewis, 260 Minn. 430, 434, 110 N.W.2d 857, 860 (1961). Parties should enter into stipulations carefully. Doing so is giving your word. This is the record and you waive any objections to it later. This is as it should be; no one is forced into a stipulation, it is always voluntary.
The district court sentenced appellant to a 144-month prison term after he was convicted of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(c) (2000). This is the presumptive sentence in the statute. Id. The district court denied appellant’s motion for a downward-durational departure, concluding that there were no substantial and compelling circumstances warranting a downward departure.
Appellant argues that the district court abused its discretion by denying his motion for a downward durational departure. He asserts that there are compelling circumstances to warrant such a departure. He argues that it is inequitable to sentence him to the presumptive sentence of 144 months contained in the statute because: (1) no weapons were used; (2) “there were no injuries to the victim;” and (3) he only has a criminal history score of two. Appellant argues that by not sentencing him to the 110-month term under the Sentencing Guidelines, the district court abused its discretion.
A district court does not have discretion to depart upward until aggravating circumstances are found. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Only then does the judge have discretion to depart from the guidelines. State v. Garcia, 302 N.W.2d 643, 646 (Minn. 1981). The sentencing guidelines are presumed appropriate for every case, and only in the “rare case” will this court reverse imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The “mitigating factors” cited by appellant to support his argument for a lower sentence are insufficient to show an abuse of discretion by the district court, when it did not grant his request. Appellant maintained contact with S.E. despite the court’s order and has threatened men in S.E.’s life. It is disingenuous to argue, as appellant does, that because he injured appellant only psychologically, and did not use a weapon, he is entitled to a downward-durational departure. The legislature set the statutory mandatory minimum sentence at 144 months. The sentencing guidelines, relied upon by appellant, state that when there is a statutory minimum, the presumptive sentence is that statutory minimum unless the sentence in the guidelines grid is longer. The district court’s sentence was not an abuse of discretion and was proper.