This opinion will be unpublished and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
State of Minnesota,
Filed August 24, 2004
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. 62-K4-03-1439
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Shumaker, Judge.
Appellant challenges his conviction and sentence for first-degree criminal sexual conduct, arguing that the district court (1) committed plain error in failing to give a specific-unanimity instruction; (2) abused its discretion in admitting evidence of prior bad acts and erred in failing to instruct the jury regarding the evidence; and (3) violated due process of law by imposing a double departure. In a pro se supplemental brief, appellant argues that his trial counsel was ineffective and that his sentence was unjust. We affirm in part, reverse in part, and remand.
In early August 2002, appellant Harold Juenke babysat his three step-grandchildren, including ten-year-old J.S., at appellant’s apartment in St. Paul. After the children returned home to Cannon Falls, J.S. reported to his mother and grandmother that appellant had sucked on J.S.’s penis. J.S.’s mother contacted Goodhue County Social Services. A social worker conducted a Corner House interview with J.S. The social worker also contacted the St. Paul Police Department, and an officer subsequently interviewed appellant about J.S.’s allegations. During the interview, appellant denied any improper contact with J.S.
Appellant was charged with one count of first-degree criminal sexual conduct that occurred “[o]n or about the 14th day of August 2002.” The complaint was later amended to change the offense date to “[b]etween 05/01/2002 and 08/09/2002.” Following a trial, the jury found appellant guilty. The state moved for an upward durational sentencing departure; appellant moved for a downward dispositional sentencing departure or, in the alternative, a downward durational departure. At the sentencing hearing, the district court found factors to support an upward durational departure, including J.S.’s age, that J.S. was in appellant’s care and custody, that appellant was in a position of trust, that multiple incidents happened over a period of time, and that appellant had committed similar conduct in the past. The district court sentenced appellant to a double durational departure of 288 months. Appellant now challenges his conviction and sentence.
1. Unanimous Verdict Jury Instruction
Appellant argues that the district court should have “specifically instruct[ed] the jury that it had to agree on which of the alleged acts appellant committed.” Because appellant neither objected to the unanimity instruction given by the district court nor requested a specific unanimity instruction, we review the district court’s instruction for plain error. See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (failure to object results in review only for plain error). The plain error standard requires reviewing courts to examine (1) whether there was error, (2) whether the error was plain, and (3) whether the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998).
Appellant was charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1 (2000), which states:
A person who engages in sexual penetration with another person . . . is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.
“Sexual penetration” is defined as “(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse; or (2) any intrusion however slight into the genital or anal openings . . . of the complainant’s body by any part of the actor’s body . . . .” Minn. Stat. § 609.341, subd. 12 (2000).
At trial, J.S. testified that appellant would remove J.S.’s clothes, make J.S. sit on appellant’s stomach, and suck on J.S.’s penis. He also testified that appellant had done this numerous times during the summer. The jury heard a recording of the social worker’s interview with J.S., in which J.S. stated that appellant would suck on J.S.’s penis almost every time J.S. went to stay at appellant’s apartment. J.S. also told the social worker that appellant had placed his finger into J.S.’s anus on more than one occasion, but could not tell the social worker how many times.
Criminal defendants have the constitutional right to a unanimous verdict. Burns v. State, 621 N.W.2d 55, 61 (Minn. App. 2001), review denied (Minn. 21 Feb. 2001). Juries must unanimously agree on whether a defendant committed the act or acts that constitute an element of the crime charged. See State v. Stempf, 627 N.W.2d 352, 359 (Minn. App. 2001). But unanimity is not required as to the “alternative means or ways” in which the offense can be committed. State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), review denied (Minn. 20 Jan. 1988).
In Stempf, the state introduced evidence of two separate instances where Stempf possessed methamphetamine, but Stempf was charged with only one count of possession. Stempf, 627 N.W.2d at 354. This court held that, because the state did not specify which act constituted the crime, the lack of a specific unanimity instruction denied Stempf his right to a unanimous verdict. Id. at 358. Appellant argues that, because the state’s evidence included acts of both digital penetration and fellatio, Stempf applies and the jury should have been instructed to unanimously decide which act constituted the crime. But Stempf is distinguishable. Stempf was charged with one count of possession, which required the state to prove when possession occurred. See 10A Minnesota Practice, CRIMJIG 20.36 (1999) (“the defendant’s act took place on (or about) [a specific date]”). In cases involving sexual abuse, specific dates of offenses need not be charged or proven. State v. Poole, 489 N.W.2d 537, 543 (Minn. App. 1992), aff’d, 499 N.W.2d 31 (Minn. 1993). In his testimony, J.S. could not assign specific dates to the various acts of sexual penetration. Because he could not do so, the digital penetration and fellatio were just alternative ways of committing the charged offense, not distinct acts that the jury could reasonably decide separately.
We conclude that the district court’s failure to give sua sponte a specific unanimity instruction was not plain error.
2. Prior Bad Acts Evidence
Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990). On appeal, the appellant bears the burden of establishing that the district court abused its discretion and that appellant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).
Generally, evidence of prior bad acts may not be used to establish a defendant’s character for committing those acts, but such evidence may be admissible to demonstrate the defendant’s motive and intent. State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997). Evidence of prior domestic abuse may be admitted under Minn. Stat. § 634.20 (2000):
Evidence of similar prior 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.
During trial, the state presented evidence that appellant had been involved in prior incidents of sexual misconduct involving three young boys who were then living with him; two of the boys testified at trial. Appellant argues that the district court abused its discretion in admitting evidence of his prior sexual misconduct because the probative value of the evidence was substantially outweighed by the unfair prejudice.
Appellant claims that the evidence of his prior sexual misconduct was unduly prejudicial because 20 years had passed between the two incidents and the evidence shed no light on appellant’s contemporary behaviors. But there are numerous similarities between the two incidents: the prior charges involved three boys who were living with appellant, including his son. The charge here involves appellant’s former step-grandson who stayed overnight at appellant’s apartment. All of the victims were young boys: the two victims who testified at trial were ages five and seven at the time of the incidents; J.S. was ten at the time of the incidents. Like J.S., the victims also reported oral and anal sex. After considering the evidence, the district court determined that the probative value was not substantially outweighed by any potential for unfair prejudice. The district court did not allow counsel to refer to the prior conduct during opening statements and the district court gave a cautionary instruction whenever the evidence was presented to the jury. We conclude that the district court did not abuse its discretion by admitting the evidence.
Appellant also claims that the district court abused its discretion by refusing to give his requested instruction concerning the evidence of his prior bad acts. The refusal to give a requested instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). Before the testimony of the two prior victims and before the admission of exhibits concerning appellant’s prior conviction, the district court gave a cautionary instruction modeled after CRIMJIG 2.01 and 3.16:
[E]vidence pertaining to matters that occurred on or about December 17, 1983 is being offered for a limited purpose to assist you in determining whether the defendant committed the acts that he is charged with in this complaint. The defendant is not being tried on those matters pertaining to December 17, 1983 matters and you are not allowed to convict the defendant on the basis of the occurrence in December of 1983.
Appellant argues that the district court’s instruction was improper because it failed to instruct the jury as to the specific purpose for which it could use the prior bad act evidence, citing State v. DeYoung, 672 N.W.2d 208, 212 (Minn. App. 2003) (defendant who requests an instruction limiting the jury’s use of prior bad acts evidence is entitled to such an instruction). Appellant’s requested instruction stated that the evidence could only be used in the jury’s determination of whether the defendant acted with intent. But here, the state argued, and the district court agreed, that the evidence was being offered also to show modus operandi and lack of mistake. See Ture v. State, 681 N.W.2d 9, 18-19 (Minn. 2004) (no abuse of discretion when requested instruction was an incomplete statement of the limited purposes for which the evidence was admitted). We conclude that the district court did not abuse its discretion by instructing the jury regarding the evidence of appellant’s prior bad acts.
3. Sentencing Departure
Appellant argues that the district court violated the 6th and 14th Amendments to the U.S. Constitution when it sentenced appellant to a double durational departure of 288 months. After briefing in this appeal was completed, the United States Supreme Court issued an opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court applied the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), which states that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Blakely, 124 S. Ct. at 2536. Under Blakely, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 2537. Therefore, any sentencing departures that are based on the judge’s findings, rather than those of the jury, are invalid under the Sixth Amendment. Id. at 2538.
Appellant cited Blakely in correspondence to this court, but the parties have not briefed the Blakely’s application to the instant case. Neither appellant nor respondent requested supplemental briefing, but both parties discussed at oral argument the application of Blakely. We conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue. See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in the district court). Accordingly, we remand to the district court to determine the application of Blakely to appellant’s sentence.
4. Pro Se Issues
Appellant argues in his pro se supplemental brief that he was not allowed to call witnesses on his behalf. He also argues that during trial, an escorting guard told other individuals about appellant’s charges and trial and that he was “jumped” and threatened by another prisoner as a result. Appellant claims that he told his attorney about the incident, but that his attorney did not say anything to the district court. These arguments may amount to a claim of ineffective assistance of counsel, which is best addressed in a postconviction proceeding. See Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995) (ineffective assistance of trial counsel claim is better addressed in postconviction hearing where the record can be developed as to why trial counsel did or did not do certain things). Accordingly, we preserve this possible claim for appellant to assert in a petition for postconviction relief.
Finally, appellant argues that, because another individual received a lesser sentence for an arguably more serious sexual offense involving children, appellant’s sentence should also be reduced. Sentences imposed in other cases have no direct application to appellant’s sentence. Sentences are set by the legislature and determined by the sentencing judge for each particular case based on general principles of proportionality. See State v. Kier, 678 N.W.2d 672, 676-77 (Minn. App. 2004) (sentences are controlled by statutory mandates and the sentencing guidelines). Particular sentences imposed in other cases are not binding on a sentencing court.
Affirmed in part, reversed in part, and remanded.
 Evidence of other crimes or bad acts is generally characterized as “Spreigl evidence.” State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (citing State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)). It is undisputed that, because the evidence was admitted under Minn. Stat. § 634.20, a Spreigl analysis is unnecessary.