This opinion will be unpublished and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
Filed July 1, 2003
Mower County District Court
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Patrick Flanagan, Mower County Attorney, Courthouse, 201 First Street NE, Austin, MN 55912 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Aaron Marcus (certified student attorney), 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.
Appellant Ronald Edward Conner challenges his conviction of soliciting, inducing, or promoting prostitution, claiming that (1) the charge of promoting prostitution was not included in the complaint; (2) the evidence is legally insufficient to show solicitation or inducement; (3) the prosecutor committed prejudicial misconduct; and (4) Conner was denied the effective assistance of counsel. Because Conner had an opportunity to prepare a defense, did not object to the jury’s consideration of, and was not prejudiced by the promotion-of-prostitution charge, because the evidence is sufficient to sustain his conviction, because the prosecutor’s improper statements are not reversible error, and because defense counsel’s performance was competent, we affirm.
Candice Woodwick, a 19-year-old homeless person and friend of appellant Ronald Connor, stopped by Conner’s house. While visiting and drinking, Conner’s girlfriend told Woodwick that the court had taken away her daughter and that she was trying to get her back. Woodwick responded that she would do anything to help her raise money to get a good attorney. Conner then said that he was a pimp and that Woodwick could help raise money by becoming a prostitute.
Woodwick spent the night at Conner’s house. The following morning, Conner talked to her about “the stuff that we had talked about the night before, about how I would do anything for his girlfriend.” Conner told Woodwick that his pimp name was “The Big O” and that he wanted to take her to Arizona with him. He indicated that Woodwick could make $1,000 by becoming a prostitute, and that he would keep most of the money but would give Woodwick clothes and whatever else she needed. Conner asked Woodwick if she had ever had sex for money. Woodwick falsely said yes.
Later that day, Conner bought Woodwick two pairs of shoes, two pairs of pants, and two shirts. When they returned from shopping, Conner asked Woodwick to have sex with him. She refused. She then got scared and told Conner she had to go to a friend’s house but would be back in ten minutes. When she did not return, Conner went to look for her. Woodwick testified that Conner was mad because he thought she had lied to him, and that he did not want her to go anywhere because they were leaving for Arizona the next day.
That evening, friends picked up Woodwick at Conner’s house to go to a dance. Conner had told Woodwick that she could not go unless she returned the clothes and shoes. Woodwick told her friends that Conner was going to take her to Arizona to prostitute her and that she was scared. They then left for the dance while Conner was away from the house.
When Conner learned that Woodwick had left, he drove to the dance. Conner was angry and he was yelling that he wanted his shoes and clothes back. He told one of Woodwick’s friends that he was a pimp and that Woodwick knew what she was getting into. Woodwick went back to Conner’s house and returned the clothes but not the shoes.
When Conner saw Woodwick and her friends leave his house, he began chasing them in his car. The girls pulled into the police station, and Conner left. They then tried to go back to the dance, but Conner returned. They finally called the police, and Conner was arrested.
In a statement to police, Conner stated that the whole incident was a misunderstanding, that he bought Woodwick the clothes “out of the goodness of his heart,” and that Woodwick had said her boyfriend would pay him back. He denied telling Woodwick and her friends that he was a pimp.
Before trial, Conner and his girlfriend called Woodwick and asked her to tell Conner’s attorney that the whole incident was a misunderstanding, that she was scared, and that none of it happened. Later, Conner repeated the request.
The state charged Conner with soliciting or inducing prostitution. At trial, the district court instructed the jury that it could convict Conner of soliciting, inducing, or promoting prostitution. The jury found Conner guilty of “solicitation, inducement, or promotion of prostitution * * * in violation of [Minn. Stat. §] 609.322, subd. 1a(1).” The district court denied Conner’s new-trial motion and sentenced him to a 43-month executed term.
Conner first argues that his conviction must be reversed because the court erred in instructing the jury that it could convict him of promoting prostitution, a crime the complaint did not charge and the district court did not define. We disagree.
A reviewing court will reverse a conviction that is at variance with the complaint only if the variance deprived the defendant of the opportunity to prepare a defense. State v. DeVerney, 592 N.W.2d 837, 846-47 (Minn. 1999); State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997). A conviction is at variance with the complaint when the defendant is convicted of a crime that was not charged. See Gisege, 561 N.W.2d at 159 (providing that a defendant may not be convicted of a crime not charged). The purpose of restricting the prosecution to crimes charged is to provide defendants with notice and an opportunity to prepare a defense. Id. at 157.
In this case, it is clear that the conviction was at variance with the complaint. But because Conner has not established that he was deprived of the opportunity to prepare a defense to the promotion-of-prostitution charge, we are not compelled to reverse the conviction. Conner knew before trial that the state was alleging promotion of prostitution in addition to solicitation and inducement. At a pretrial hearing, for example, the court noted that Conner was charged with soliciting and promoting prostitution. Before voir dire and during preliminary jury instructions, the court told the jurors that the case involved a charge of soliciting or promoting prostitution. And in his opening statement, the prosecutor stated three times that Conner was charged with inducing, soliciting, or promoting prostitution. Conner thus had ample opportunity to prepare a defense before the state presented its case in chief.
During trial, Conner repeatedly acquiesced to the promotion charge by not objecting. Conner agreed with the court’s determination that to convict him, the state had to prove either intentional solicitation, inducement of prostitution, or intentional promotion of prostitution, and that the word “or” would be added to the pattern instruction. See 10 Minnesota Practice, CRIMJIG 12.62 (1999). And three times when the instructions came up, he did not object. Conner similarly did not object when the prosecutor discussed promotion of prostitution in his closing arguments. Indeed, Conner’s own counsel discussed the charge in his closing argument.
Finally, Conner has not identified any way in which he would have proceeded differently had he been formally charged with promoting prostitution. His defense to the charge of soliciting or inducing prostitution was that he was a “big talker” and that the whole incident was a misunderstanding. There is no basis to believe that Conner’s defense to a charge of promoting prostitution would have been different. Conner had the opportunity to develop his defense at trial, and the jury rejected that defense.
Thus, although Conner’s conviction was at variance with the complaint based on the foregoing analysis of the promotion charges, we do not reverse.
2. Failure to Define the Term “Promote”
The district court instructed the jury that it could convict Conner of soliciting, inducing, or promoting prostitution. But the court did not specifically define the term “promote.” Conner claims the district court erred.
A party may claim error in any portion of the charge only if the party objects to the charge before the jury retires to deliberate. Minn. R. Crim. P. 26.03, subd. 18(3). In the absence of an objection, an appellate court may review a jury instruction only if the instruction contains an error of fundamental law or materially prejudices a defendant’s substantial rights. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Conner did not object. Accordingly, the instruction constitutes reversible error only if it was plain error, i.e., if it contained an error of fundamental law or materially prejudiced Conner’s substantial rights. See id.
The statutory term “promote” has a specific meaning that differs from the term’s ordinary meaning. See Minn. Stat. § 609.321, subd. 7 (2000). The better practice, therefore, would have been to define the term rather than simply list it. See State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (stating that “it is desirable for the court to explain the elements of the offense rather than simply to read statutes”). But any error resulting from the court’s failure to define the term “promote” was not plain error because the instruction did not materially prejudice Conner.
First, the instruction listed all elements of the offense; it merely failed to define one. Cf. Kuhnau, 622 N.W.2d at 558-59 (holding that omission of element of substantive crime from conspiracy instruction was prejudicial). In addition, the instruction had no significant impact on the verdict because it did not affect Conner’s theory of the case. Cf. Id. at 557-58(holding that omission of element of substantive crime from conspiracy instruction required new trial because it affected theory of defense). From the outset, Conner’s theory of the case was that he was a “big talker” and that the incident either did not happen or was a misunderstanding. Conner had the opportunity to develop his defense at trial and to argue it to the jury. Had the jury believed Conner’s defense, it could have acquitted him of all charges, with or without the definition of the term “promote.” Most important, the evidence was more than sufficient to convict Conner of soliciting or inducing the prostitution of an individual, the alternative charge. The court’s failure to define the term “promote” is not, therefore, plain error.
The second issue is whether the evidence is sufficient to support the jury’s verdict. In reviewing the sufficiency of the evidence in criminal cases, a reviewing court
is limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.
State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995) (citation omitted). The court assumes that the jury believed the state’s witnesses and disbelieved any contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).
Under Minnesota law, whoever, while acting other than as a prostitute or a patron, intentionally “solicits or induces an individual to practice prostitution” is guilty of a felony. Minn. Stat. § 609.322, subd. 1a(1) (2000). The statute does not define the terms “solicit” or “induce.” But the ordinary meaning of these terms is clear. To solicit means “[t]o seek to obtain by persuasion, entreaty, or formal application” or “[t]o entice or incite to evil or illegal action.” The American Heritage Dictionary of the English Language 1715 (3d ed. 1992). To “induce” means “[t]o lead or move, as to a course of action, by influence or persuasion.” Id. at 921.
Conner argues that the terms “solicit” and “incite” imply some form of pressure or overt enticement, which the evidence does not establish. We reject this interpretation. This court has construed the term “solicit” in other contexts to imply “a reluctant or resistive listener * * * a listener in need of argument or reason.” State v. Koenig, 649 N.W.2d 484, 488 (Minn. App. 2002) (citation omitted) (defining “solicit” in context of statute prohibiting solicitation of child to engage in sexual conduct). Argument and persuasion do not imply pressure or overt enticement.
The record contains sufficient direct evidence from which the jury could reasonably have found that Conner tried to persuade Woodwick to practice prostitution and that she was a reluctant listener rather than a willing participant. Woodwick testified that Conner told her that he was a pimp, that he went by the name “The Big O,” and that he wanted to take her to Arizona where she could make $1,000 prostituting herself. Conner told Woodwick that he would keep most of the money but would take care of her financially. Woodwick’s friend testified that she heard Conner state that he was a pimp and that he wanted Woodwick to become a prostitute.
In addition to direct evidence, the record contains circumstantial evidence of Conner’s guilt. Woodwick was a homeless person. Conner gave her alcohol, allowed her to spend the night at his house, bought her clothes and shoes, and tried to control her by telling her where and when she could go. And after his arrest, he tried twice to convince Woodwick to contact his attorney and tell the attorney that the whole incident was a misunderstanding.
Contrary to Conner’s argument, his conduct went beyond merely “asking or negotiating.” Woodwick was a reluctant participant, and the record contains no evidence that she negotiated with Conner or indicated a willingness to engage in prostitution. On the contrary, Woodwick’s friend testified that Woodwick told her she was scared and did not want to go to Arizona with Conner.
The evidence is thus legally sufficient to support the jury’s finding that Conner solicited or induced Woodwick to engage in prostitution.
The third issue is whether the prosecutor committed prejudicial misconduct by commenting on Conner’s failure to call a witness, suggesting Conner had lied to police, and drawing unreasonable inferences from the record. Conner’s argument is unpersuasive.
Whether prosecutorial misconduct warrants a new trial is a matter within the district court’s broad discretion. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). An appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (citation omitted). In cases involving less-serious and less-prejudicial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).
But defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction in the district court. See State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001) (stating that “[w]here a defendant fails to object to a prosecutor’s statements or request curative instructions the defendant is deemed to have waived the right to appeal on the basis of those statements” (citation omitted)). Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
A. Failure to Call a Witness
Conner first argues that the prosecutor improperly shifted the burden of proof during his closing argument by noting that two witnesses who could have corroborated Conner’s story failed to testify. The prosecutor also implied that Conner had failed to call those witnesses because their testimony would have been unfavorable. Conner objected and the court gave curative instructions.
The prosecutor’s misconduct was not unduly prejudicial. The court instructed the jury that the state had the burden of proving the crimes charged beyond a reasonable doubt, that Conner did not have to prove his innocence, and that the state could have called Conner’s brother and sick friend if it had wanted to do so. See State v. Henderson, 620 N.W.2d 688, 703 (Minn. 2001) (prosecutor’s comment that defendant failed to produce alibi to support his theory of the case cured by instruction that defendant did not have to prove innocence). And the evidence of Conner’s guilt was strong. See State v. Dickson, 309 Minn. 463, 470, 244 N.W.2d 738, 742-43 (1976) (prosecutor’s comment regarding absence of unindicted accomplice was harmless beyond reasonable doubt in face of strong evidence of defendant’s guilt).
B. Commenting on Conner’s Credibility
Conner next argues that the prosecutor committed prejudicial misconduct by asking rhetorically, referring to Conner, “So why lie to the officer?” The prosecutor made the statement after telling the jury that Conner had told police that all he wanted was the clothes he bought Woodwick, even though he knew that his girlfriend had the clothes. Conner claims that the statement was inaccurate and injected the prosecutor’s personal opinion of Connor’s credibility.
Prosecutors may not inject their personal opinions on credibility issues into their closing arguments. State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000), review denied (Minn. May 16, 2000). An advocate may point to circumstances that cast doubt on a witness’s veracity, “but he may not throw onto the scales of credibility the weight of his own personal opinion.” Id. (citing State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984)). Here, the prosecutor crossed the line by opining that Conner had lied to the police. In addition, the state concedes that the prosecutor mischaracterized the evidence.
Nonetheless, the misconduct was harmless for several reasons. First, the court instructed the jury that the attorneys’ arguments and remarks were not evidence and should be disregarded if they conflicted with the jury’s recollection of the evidence. The court also instructed the jury that it was responsible for determining the believability of witnesses. The jurors heard the taped interview and could have come to their own conclusions about whether Conner lied.
Second, the comments were isolated and not representative of the entire argument. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice where remarks were isolated and not representative of closing argument viewed in its entirety); State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (stating that prosecutor’s argument must be evaluated as a whole). In the context of the entire argument, it is thus unlikely that the prosecutor’s comments had a substantial impact on the jury. And the prosecutor’s misconduct in this case is less serious than in other cases where the court found no reversible error. See, e.g., State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (concluding that prosecutor’s statement that defendant lied in his testimony was borderline between proper and improper conduct and did not require reversal); State v. Johnson, 359 N.W.2d 698, 702 (Minn. App. 1984) (concluding that prosecutor’s statement that defendant had alibi witnesses “get up and tell you what was obviously a total lie, total fabrications,” that “[e]verything connected with the defendant is a lie,” and that the jury would have “to believe the lies that he’s told” to find defendant not guilty did not require reversal).
Finally, the evidence that Conner solicited Woodwick to become a prostitute is strong. It is thus unlikely that the prosecutor’s remarks substantially influenced the jury to convict. See State v. Washington, 521 N.W.2d 35, 40-41 (Minn. 1994) (recognizing that where evidence against a defendant is strong, prosecutor’s improper comments are unlikely to have influenced the jury).
C. Drawing Improper Inferences from the Record
Lastly, Conner argues that the prosecutor drew an improper inference from the record and implied that Conner had lied. In making his argument, Connor refers to the prosecutor’s statement to the jury that Conner had not told the police about Woodwick’s boyfriend.
Although the prosecutor mischaracterized the evidence, the mischaracterization was not prejudicial. The jury had the opportunity to hear the evidence firsthand and was instructed that the prosecutor’s comments were not evidence. Given the strength of the state’s case against Conner, we conclude that the mischaracterization did not play a substantial part in the jury’s decision to convict.
The last issue is whether certain aspects of Conner’s legal representation were so flawed as to require reversal of his conviction.
To succeed on a claim of ineffective assistance of counsel, a defendant must affirmatively prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). In determining whether counsel’s performance fell below an objective standard of reasonableness, a reviewing court must consider whether counsel exercised the skill and diligence a reasonably competent attorney would exercise under similar circumstances. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).
As evidence of inadequate legal representation, Conner challenges his attorney’s failure to object to the portion of his taped statement alluding to a prior conviction and the resulting incarceration. In fact, the attorney objected at four points during trial, and the court partially sustained his objections. After the tape was played, however, it became apparent that a portion of the tape referring to a prior conviction and time Conner spent in jail had not been deleted. Counsel then asked that that portion of the tape not go to the jury. The prosecutor agreed that the tape should not be replayed or given to the jury. Before closing arguments, defense counsel asked that the prosecutor not be allowed to refer to Conner’s prior conviction or his incarceration. The court agreed.
Conner’s counsel’s conduct did not fall below an objective standard of reasonableness.