This opinion will be unpublished and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

A03-1721

 

 

Troy Anthony Dunlap, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 20, 2004

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 00107809

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.


 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            On appeal from an order denying his petition for postconviction relief, appellant Troy Anthony Dunlap argues that his misrepresentation to S.M., a prostitute, that he was a police officer in order to have sex with her was not “coercion” and therefore was not sufficient to support his conviction of third-degree criminal sexual conduct.  Appellant also argues, pro se, that (1) he never told S.M. that he was a police officer; (2) S.M. was not credible; (3) his Sixth Amendment rights were violated; (4) he was coerced into giving a police statement; and (5) he was denied a speedy trial.  Because the evidence in the record was sufficient to support the conviction of third-degree criminal sexual conduct, and the pro se claims are without merit, we affirm.

D E C I S I O N

 

I.

 

Sufficiency of the Evidence

 

Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  This court affords great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

In denying Dunlap’s petition for postconviction relief, the district court found that “it was wholly reasonable for the jury to have concluded, based on the testimony admitted at trial, that [Dunlap]’s action constituted criminal sexual conduct in the third degree.”  Under Minnesota law, “[a] person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor uses force or coercion to accomplish the penetration.”  Minn. Stat. § 609.344, subd. 1(c) (1998). 

Dunlap argues that there was insufficient evidence to prove that he coerced S.M. into having sex because there is no evidence that he threatened physical injury or confinement or that she resisted having sexual intercourse.  However, neither specific threats nor resistance by the victim is required in order to prove coercion.  Minn. Stat. § 609.341, subd. 14, .347, subd. 2 (1998).  Rather, “coercion” is established when the actor’s words or the circumstances surrounding the incident “cause the complainant reasonably to fear that the actor will inflict bodily harm, or hold in confinement, the complainant . . ., or force the complainant to submit to sexual penetration or contact.”  Minn. Stat. § 609.341, subd. 14.

Here, S.M. testified that she was willing to have sex with Dunlap for $40 and went to the back seat of the van upon his request, but that when he showed her his badge, identified himself as a police officer, took out his handcuffs, and told her she was under arrest, she begged him to let her go.  S.M. began to cry, and when Dunlap asked her what she would do if he let her go, S.M. told him she would never prostitute again.  According to S.M.’s testimony, Dunlap replied, “Well, that’s not good enough, and indicated he was going to have sex with her.  S.M. further testified that at that point she wondered if he would shoot her if she tried to run away.  Nevertheless, S.M. tried to get out by moving to the front of the van, but Dunlap pulled her to the back seat, removed his holster, and unzipped his pants.  Dunlap then proceeded to have sex with S.M., and she testified that she was too scared to resist the sexual assault because she “figured he was a crazy cop [and] most cops are not supposed to act that way.” 

In light of this evidence, a jury could have reasonably concluded that Dunlap’s words and the circumstances surrounding the incident caused S.M. to reasonably fear that Dunlap would inflict bodily harm, that she was confined to the van, or that he was going to force her to have sex, and that therefore S.M. was coerced into having sexual intercourse.  Thus, we conclude that the evidence in the record was sufficient to support the postconviction court’s finding that “it was wholly reasonable for the jury to have concluded . . . that [Dunlap’s] action constituted criminal sexual conduct in the third degree.”  

While Dunlap also challenges certain findings made by the postconviction court, after a thorough review of the record we find that the record supports the court’s findings.

II.

Pro Se Arguments

            Dunlap also raises, for the first time on appeal, several claims in his pro se supplemental brief.  This court generally declines to consider matters not argued and considered at the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  However, in criminal cases, this court may consider issues raised for the first time in pro se supplemental briefs.  See Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995).  Having done so, we find no merit to Dunlap’s claims.

First, Dunlap claims that he never told S.M. that he was a police officer, and that S.M. was not credible because she made inconsistent statements.  These claims, however, are issues of credibility reserved for the jury, not this court.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Next, Dunlap claims that his Sixth Amendment rights were violated when S.M. was allowed to identify him from photo lineup without the presence of his attorney. Because the photo lineup occurred before Dunlap was formally charged, there was no violation.  See State v. Hyvare, 354 N.W.2d 835, 836 (1984) (stating that the Sixth Amendment to the United States Constitution normally requires that the defendant’s attorney be present at lineups, but that this right does not attach until the defendant has been formally charged).  Third, Dunlap claims that he was coerced into giving a police statement.  The evidence in the record, however, does not support this claim.  Finally, Dunlap claims that he was denied a timely trial because he was tried almost a year after he entered his not guilty plea.  See Minn. R. Crim. P. 11.10 (providing that a defendant must be tried within 60 days of entering a plea and requesting a speedy trial).  A review of the record, however, reveals that the defense and the prosecution filed a joint motion for a continuance shortly after Dunlap entered his plea.  The defense also filed a motion to sever the trial[1] and another motion for a continuance.  Thus, we find that Dunlap was primarily responsible for any delay in the trial.  See State v. Windish, 590 N.W.2d 311, 316 (Minn. 1999) (stating that any delays attributable to the defendant are weighed against him).

            Affirmed.

 

 



[1] Initially, Dunlap was on trial for two separate offenses, including the one leading to this appeal.  Because the offenses were similar, the defense moved the court to sever the trial.  The motion was granted and as a result, the present case was tried second.