This opinion will be unpublished and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 August 31, 2004
Hennepin County District Court
File No. 02101945
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN 55487 (for respondent)
Appellant challenges his convictions of first-degree criminal sexual conduct and kidnapping, along with the resulting sentence imposed. He argues that (1) the district court erroneously admitted for impeachment purposes evidence of his 1994 first-degree assault conviction, (2) the state committed prejudicial misconduct by misstating the evidence and inflaming the jury’s prejudice, and (3) the district court abused its discretion by imposing consecutive sentences resulting in an upward durational departure. We affirm in part and remand.
Appellant Reggie Griffin was convicted of first-degree criminal sexual conduct (causing fear of great bodily harm), Minn. Stat. § 609.342, subd. 1(c) (2002); kidnapping to facilitate a felony or flight thereafter, Minn. Stat. § 609.325, subd. 1(2) (2002); and kidnapping resulting in great bodily harm or terrorizing the victim, Minn. Stat. § 609.325, subd. 1(3) (2002).
Late in the evening of December 14, 2002, V.B. was experiencing severe high blood sugar as a result of her diabetes. To obtain urgent care, V.B. took the bus to a hospital in downtown Minneapolis. When V.B. disembarked, she saw Griffin near the bus stop smoking a cigarette and asked him to share one.
According to V.B., Griffin gave her a cigarette but then grabbed her by the throat. Griffin told V.B., “[W]alk or I will kill you,” and they walked approximately two blocks to a semi-sheltered area. Over the course of the night and early morning of December 15, Griffin struck V.B. several times and engaged in vaginal and anal intercourse. Griffin refused to let V.B. leave or seek medical treatment. At dawn they walked back toward the hospital; Griffin boarded a bus, and V.B. sought medical attention. The sexual assault and kidnapping spanned approximately seven hours.
Prior to sentencing, the state moved for an upward durational departure from the sentencing guidelines, which the district court granted. In support of the departure, the district court found that the crime involved particular cruelty because of the cold conditions, the vulnerability of the victim, and the length of confinement. The district court sentenced Griffin to 144 months’ imprisonment for the first-degree criminal sexual conduct and 21 months’ imprisonment for the kidnapping, to be served consecutively, for a total sentence of 165 months. This appeal followed.
Griffin first argues that the district court improperly admitted for impeachment purposes his 1994 conviction of first-degree assault. In his pro se brief, Griffin argues that the district court’s error is compounded by its failure to address the rationale for this decision on the record. See State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (finding that district court’s failure to record its analysis was error), review denied (Minn. Dec. 11, 2001). We review the district court’s evidentiary ruling for an abuse of discretion. State v. James, 638 N.W.2d 205, 211 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002). If our review establishes that the admission of the prior conviction was not an abuse of discretion, the district court’s failure to state its rationale is harmless error. Id.
A prior felony conviction may be used to attack the credibility of a witness if “the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1). When a prior felony conviction is used to attack the credibility of a criminal defendant, the following five factors are considered to weigh probative value against prejudicial effect: (1) the impeachment value of the conviction; (2) the lapse of time since the conviction; (3) the similarity between the prior conviction and the charged offenses; (4) the importance of the accused’s testimony; and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).
The impeachment value of a prior conviction depends on how the conviction reflects the accused’s truthfulness. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). Although a prior conviction involving violence has less bearing on an accused’s truthfulness than some other offenses, it still demonstrates a “lack of trustworthiness . . . evinced by [an] abiding and repeated contempt for laws which [the accused] is legally and morally bound to obey . . . .” State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quoting State v. Duke, 100 N.H. 292, 293 (1956)).
A lapse in time reduces the probative value of a prior conviction. Bettin, 295 N.W.2d at 546. But even after eight or nine years, a prior conviction still may be admissible for impeachment. See, e.g.,State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993); State v. Abbott, 356 N.W.2d 677, 679 (Minn. 1984).
If the prior conviction is similar to the charged crime, there is a danger that the jury will improperly rely on the prior conviction to find that the accused has a propensity to commit the charged offense. Bettin, 295 N.W.2d at 546; see also Minn. R. Evid. 404(b). But offense similarity does not preclude impeachment. See, e.g.,Bettin, 295 N.W.2d at 546 (holding that prior sexual assault convictions are often used for impeachment in subsequent sexual assault prosecutions); State v. Whiteside, 400 N.W.2d 140, 144-45 (Minn. App. 1987) (same), review denied (Minn. Mar. 18, 1987). Instructing the jury that the prior conviction may be used only for evaluating truthfulness reduces the danger of prejudice. Brouillette, 286 N.W.2d at 708.
When weighing the importance of an accused’s testimony, the primary consideration is whether admission of the prior conviction will deter the accused from testifying or otherwise prevent the accused’s theory of the case from being presented to the jury. Bettin, 295 N.W.2d at 546.
Credibility necessarily is at issue when the jury is required to choose between different witnesses’ versions of events. Id. When the defense theory suggests that the victim fabricated allegations and offers a contrary version of events, a prior conviction is highly probative of the accused’s truthfulness. See, e.g., Jackson v. State, 447 N.W.2d 430, 434 (Minn. App. 1989); Whiteside, 400 N.W.2d at 145.
Here, Griffin’s 1994 conviction, though somewhat remote, demonstrates significant disregard for the law and thus is probative of his truthfulness. Although the details of the prior conviction are not part of the record and are not provided to the jury when a conviction is used to impeach, there is no basis to infer that the prior conviction involved a sexual assault. Furthermore, the jury was instructed to use the prior conviction only to evaluate truthfulness and not as evidence of guilt. See10 Minnesota Practice, CRIMJIG 3.15 (1999). The introduction of the prior conviction neither prevented Griffin’s testimony nor impaired presentation of his theory of the case. Most importantly, because Griffin maintained that V.B. fabricated her allegations, credibility was a critical issue.
Taken together, these factors establish that the probative value of the prior conviction outweighs its prejudicial effect. Cf.Gassler, 505 N.W.2d at 67 (allowing nine-year-old aggravated robbery conviction in murder prosecution); Bettin, 295 N.W.2d at 546 (allowing four-year-old rape conviction in first-degree criminal sexual conduct prosecution). Because the district court did not abuse its discretion in admitting for impeachment purposes Griffin’s 1994 conviction of first-degree assault, we conclude that the failure to provide a rationale for this evidentiary ruling was harmless error.
Griffin next argues that the prosecutor committed several instances of misconduct during closing argument. Griffin claims that the prosecutor misstated evidence by describing V.B. as a “vulnerable adult” and mischaracterized the effect of DNA evidence. He further contends that the state appealed to the jury’s prejudice by demeaning the defense theory, preying on the jury’s fear of crime, and suggesting that it was unduly stressful for V.B. to confront Griffin in court.
Prosecutorial misconduct may occur when a prosecutor mischaracterizes evidence or makes arguments unsupported by the record. See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citing 1 ABA Standards for Criminal Justice, The Prosecution Function § 3-5.8(a) (2d ed. 1979)); State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979). Conversely, misconduct does not occur when a prosecutor draws reasonable inferences from evidence in the record. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). When arguing the evidence, the prosecutor is not constrained to deliver a “colorless argument.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).
Griffin first contends that the state characterized V.B. as a “vulnerable adult” without any evidentiary support on the record. In part, Griffin suggests that, because he was not charged with assaulting a vulnerable adult, use of this term was improper. See Minn. Stat. § 609.232, subd. 11 (2002) (defining “vulnerable adult” based on inpatient residency or other lifestyle impairments).
V.B. had diabetes and was suffering from severe high blood sugar on the night of the offense. Because of these conditions, V.B. was on her way to the hospital when assaulted. These facts permit a reasonable inference that V.B. was properly described as a “vulnerable adult” according to the term’s ordinary meaning. Thus, it was not misconduct for the prosecutor to describe V.B. in this way.
Griffin also contends that the prosecutor mischaracterized the DNA evidence. In support of this claim, Griffin refers to that portion of closing arguments when the prosecutor said,
[Griffin] needs you to believe . . . that she consented to the sex act. And why? Well, because that’s really the only option that the DNA evidence gives him. The DNA evidence proves that there was sperm found in [V.B.], and that that is the defendant’s sperm. That’s really the only option. . . . The DNA evidence proves that.
Here, the DNA evidence establishes a high statistical likelihood that sperm recovered from V.B. was Griffin’s. Griffin also admits that he had sex with V.B. on the night of the incident. Thus, the state’s argument is based on reasonable inferences drawn from the DNA evidence introduced at trial. Therefore, this aspect of the closing argument does not constitute prosecutorial misconduct.
Another form of misconduct occurs when a prosecutor distracts the jury from deciding proof beyond a reasonable doubt by appealing to passion or prejudice. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). Such misconduct includes arguments that improperly disparage the theory of defense. State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000). But it is not misconduct when, based on the probative force of evidence introduced at trial, the prosecutor argues that the defense theory is not plausibly supported by the evidence. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997); Gassler, 505 N.W.2d at 69.
Griffin suggests that the prosecutor’s argument about the DNA evidence improperly disparaged his consent defense. This argument appeared in the context of a lengthy rebuttal of Griffin’s consent defense during which the prosecutor consistently relied on the evidence for support. Because the prosecutor did not resort to the sort of insults that improperly disparage the defense, Griffin’s claim of misconduct based on the state’s DNA argument fails. Cf. Johnson, 616 N.W.2d at 730.
An improper appeal to prejudice also occurs when a prosecutor asks the jury to “protect society” or otherwise consider the impact of a crime on the community. State v. Hoppe, 641 N.W.2d 315, 320 (Minn. App. 2002), review denied (Minn. May 14, 2002); see also State v. Clark, 296 N.W.2d 372, 377 (Minn. 1980). Such argument tends to divert the jury’s attention from evidence against the defendant and instead suggests that the defendant is a suitable candidate for punishment. See State v. Lewis, 547 N.W.2d 360, 364 (Minn. 1996).
In support of his claim, Griffin points to the following argument by the state:
[I]t should not be either that we live in a world where a sick woman can’t get on a city bus and go downtown to get medical treatment at 11:30 at night without having to fear of being raped and kidnapped. . . . But it is that kind of a world, and that’s what happened here.
In State v. Peterson, we concluded that the following argument was prosecutorial misconduct:
Don’t look away from the sad reality of child abuse in terms of deciding whether this was proven. We talked about the fact that this happens in our society and that most of us are uncomfortable with that, but it happened here and you can’t turn your back on these children.
530 N.W.2d 843, 848 (Minn. App. 1995). Because the argument here similarly invites the jury to consider the crime’s impact on the community rather than determine whether the state has met its burden of proof, we conclude that the prosecutor committed misconduct.
A prosecutor may also appeal to prejudice by attempting to elicit sympathy for the victim. See State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982). It is improper for the prosecutor to suggest that, because the victim is required to testify against a perpetrator, there is “further victimization of the victim.” State v. McNeil, 658 N.W.2d 228, 235 (Minn. App. 2003) (“To come in here and put her through this, shamed her for never telling anyone, [victimized her] all over again.”) Such argument attacks a defendant for exercising the fundamental constitutional right to confront witnesses at a public trial. Id.; see also Minn. Const. art. I, § 6.
Here, the prosecutor argued in relevant part:
It was probably also obvious to you that testifying was not particularly easy for [V.B.]. That was a difficult experience. . . .
Add to that the stress of having to re-live what was probably the most horrific night of her life. . . . Add to that the fact that she has to do this in front of him, who she hasn’t seen since [the incident]. Add to that, the fact that that very morning . . . she had been discharged from the hospital to come down here and testify.
This argument does not address the guilt or innocence of the accused, only the trauma that V.B. suffered as a result of testifying. The prosecutor also referred to V.B.’s recent discharge from hospitalization, a matter not introduced into evidence or discussed elsewhere in the record. Because the prosecutor categorically elicited sympathy for the victim, we find that this argument also constitutes prosecutorial misconduct.
To determine the effect of prosecutorial misconduct, we do not examine it in isolation but in the context of the parties’ arguments and the entire trial. State v. Powers, 654 N.W.2d 667, 678-79 (Minn. 2003). The effect of misconduct is mitigated when defense counsel uses arguments to respond to misconduct, State v. McDaniel, 534 N.W.2d 290, 294 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995), or when the district court instructs the jury not to rely on arguments of counsel as evidence, State v. Ture, 353 N.W.2d 502, 516-17 (Minn. 1984). Strong evidence for conviction also mitigates the effect of misconduct on the verdict. See State v. Roman Nose, 667 N.W.2d 386, 403 (Minn. 2003)(finding that, where strong evidence established murder, the verdict was “surely unattributable” to two brief instances of misconduct).
This case involves two relatively brief instances of misconduct. At the beginning of his closing argument, Griffin’s counsel responded in part to the prosecutor’s improper argument by saying, “Do not convict . . . because you feel sympathy or feel bad about [V.B.’s] health problems.” The district court also instructed the jury not to rely on arguments of counsel as evidence. See 10 Minnesota Practice, CRIMJIG 3.11 (1999). There also is strong evidence for conviction based on the DNA evidence, V.B.’s consistent accounts, and the abandonment of her property at the site of the incident.
There are two standards of review for prosecutorial misconduct. In cases of more serious misconduct, a new trial is required unless the error is harmless beyond a reasonable doubt. Roman Nose, 667 N.W.2d at 401. In cases of less serious misconduct, a new trial is required only if the error was likely to have affected the verdict. Id. Given the strength of the evidence for conviction and the actions of the district court and defense counsel to mitigate the effect of the misconduct, we conclude that the prosecutor’s misconduct did not influence the verdict. Cf. McNeil, 658 N.W.2d at 235-36 (affirming where, in prosecution for criminal sexual conduct, misconduct included vouching for a witness and eliciting sympathy for the victim). Notwithstanding that the prosecutor’s misconduct is of concern, reversal for a new trial is not warranted.
Griffin next challenges the district court’s decision to impose consecutive sentences for his convictions of first-degree criminal sexual conduct and kidnapping. At the outset, the state counters that, because the district court had permissive authority to impose consecutive sentences, it was not necessary for the district court to state factors for upward departure. Under Minn. Sent. Guidelines II.F., if an offender is convicted of multiple offenses committed concurrently, then it is presumed that the offenses are sentenced concurrently. State v. Crocker, 409 N.W.2d 840, 845 (Minn. 1987). Ordinarily a district court cannot impose consecutive sentences without aggravating factors justifying an upward departure. But under limited circumstances, consecutive sentencing is available regardless of whether there are such factors. Minn. Sent. Guidelines II.F.; see also State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).
Permissive consecutive sentencing is not available unless the presumptive disposition for all the offenses is execution of a prison term. Minn. Sent. Guidelines II.F. (“Consecutive sentences are permissive . . . only when the presumptive disposition for the current offense(s) is commitment to the Commissioner . . . .”). The presumptive sentences for Griffin’s convictions are as follows: 144 months executed for first-degree criminal sexual conduct; 21 months stayed for kidnapping with release in a safe place. Minn. Sent. Guidelines II.C, IV., V. Because the presumptive disposition for the latter offense is a stay of imprisonment, permissive consecutive sentencing is not available.
The sentence imposed constitutes an upward departure based on aggravating factors found by the district court, utilizing a preponderance-of-the-evidence standard. As such, the sentence at issue here requires consideration of whether the upward departure is unconstitutional in light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), which was decided two weeks after this case was submitted.
Here, the district court based its departure on a finding that Griffin treated V.B. with particular cruelty during the offenses, an aggravating factor recognized by the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines II.D.2.b.(2). Particular cruelty has been found based on exposure to severe cold, State v. Hamilton, 348 N.W.2d 112, 115 (Minn. App. 1984), review denied (Minn. July 26, 1984); the duration of the assault, State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996); and denial of access to needed medical care, State v. Traylor, 641 N.W.2d 335, 342 (Minn. App. 2002), reversed on other grounds, 656 N.W.2d 885 (Minn. 2003).
In cases of consecutive sentencing, the district court must also take care that the upward departure does not unfairly exaggerate the criminality of the defendant’s conduct. Minn. Sent. Guid. cmt. II.F.01; State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993). The instant case involves an aggregate sentence of 165 months, an upward departure of approximately 15 percent from the presumptive sentence of 144 months. Compared to other instances of restraint for purposes of criminal sexual conduct, the district court’s sentence here does not unfairly exaggerate the criminality of appellant’s offenses. Cf. State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999) (finding that multiple penetrations of vulnerable victim in her home justified more than double presumptive sentence), review denied (Minn. Aug. 25, 1999). We, nevertheless, remand for consideration of whether resentencing is warranted in light of the Blakely decision.
Griffin raises several additional issues in his pro se supplemental brief. Having carefully reviewed all the claims Griffin raises, we conclude that they are without merit.
Affirmed in part and remanded.
 With Griffin’s criminal history score of two, the presumptive sentence for kidnapping with release in a safe place would ordinarily be 33 months stayed. See Minn. Sent. Guidelines IV., V. But when consecutive sentencing is not presumed, as here, the presumptive sentence is based on a criminal history score of zero. See Minn. Sent. Guidelines II.F. (“For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score . . . shall be used in determining the presumptive duration.”).