This opinion will be unpublished and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
Shawn Martin Cox,
Stearns County District Court
File No. K8-03-2263
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (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 Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
Appellant challenges his conviction of third-degree criminal sexual conduct, arguing that (1) the prosecutor committed prejudicial misconduct during closing argument; (2) the evidence is insufficient to support the conviction; and (3) the district court erred in denying his motion for a downward dispositional departure. We affirm.
On May 18, 2003, T.C. and her boyfriend moved in with appellant Shawn Cox at his residence in St. Cloud. After staying up late, they went to bed around 2:30 a.m. the next morning. Cox had agreed to wake up T.C.’s boyfriend at 3:30 a.m. for work. When Cox came in to do so, T.C. was asleep; she did not hear her boyfriend leave for work.
Between 4:00 a.m. and 4:30 a.m., T.C. awoke to someone rolling off the bed. Hearing loud, heavy breathing, she called out for her boyfriend. She then noticed that her pants were down around her knees, and she felt something inside of her vagina. After pulling the object out, she realized it was a vibrator with an attached remote control. T.C. then found Cox on the floor at the foot of her bed. He was rocking back and forth in the fetal position and breathing irregularly. T.C. immediately fled the house and called for help.
Later that day, T.C. and her boyfriend met with St. Cloud police officer Jeffrey Oxton. To aid in the investigation, they agreed to call Cox and record their telephone conversations with him. During the conversations, Cox initially denied touching T.C. But he claimed that, if he did touch her, he did not remember, perhaps because he was either sleepwalking or intoxicated. Cox told T.C., “If you say I did, I had to of. But, honestly, I don’t remember it.” On the evening of May 19, the St. Cloud police executed a search warrant at Cox’s home and recovered an off-white, egg-shaped vibrator from the drawer of Cox’s nightstand. Cox was charged with third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subd. 1(d) (2002).
The case proceeded to trial. T.C. identified Cox as the person she found in her room on the morning of the offense. She also identified the vibrator seized during a search of Cox’s home as the one used to commit the sexual assault. A lab report from the Bureau of Criminal Apprehension established that T.C.’s DNA was found on the vibrator. Cox admitted that he owned several vibrators but denied inserting one in T.C. Cox testified that, after getting up at 3:30 a.m. to wake T.C.’s boyfriend, he checked the weather, returned to bed, and did not leave his room again until 6:00 a.m. Cox did not assert a sleepwalking defense.
During closing argument, the prosecutor stated that it was undisputed that the conduct at issue took place in Stearns County and that the parties agreed on venue. Cox’s counsel did not object to this statement.
The jury found Cox guilty of third-degree criminal sexual conduct. At the sentencing hearing, Cox moved for a downward dispositional departure, which the state opposed. The district court denied Cox’s motion and imposed the presumptive guideline sentence of 48 months’ imprisonment. This appeal followed.
Cox argues that the prosecutor committed prejudicial misconduct during closing argument when the prosecutor referred to an “undisputed element” of the offense. Cox contends that this characterization impermissibly shifted the burden of proof. But Cox did not object to this statement at trial.
Failure to object at trial ordinarily constitutes a waiver of the right to raise the issue on appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). But we may consider the claimed error on appeal if the error was plain and if it affected the defendant’s substantial rights. Id.; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (setting out plain-error test). If this standard is met, “we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of the proceedings.’” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)) (alteration in text).
Misstatement of the burden of proof is “highly improper and would, if demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). The Minnesota Supreme Court has cautioned against characterizing the state’s evidence as undisputed because such characterization could erroneously suggest to the jury that the defendant has an obligation to testify or call witnesses. See State v. Schneider, 311 Minn. 566, 567, 249 N.W.2d 720, 722 (1977); State v. Jensen, 308 Minn. 377, 379, 242 N.W.2d 109, 111-12 (1976). Repeatedly referring to evidence as undisputed can constitute error, particularly when the defendant does not testify at trial. See State v. Streeter, 377 N.W.2d 498, 501-03 (Minn. App. 1985) (holding that the prosecutor’s closing argument deprived the defendant of a fair trial when the state characterized the evidence as “undisputed” or “uncontradicted” at least eight times, focusing on defendant’s failure to testify). A single reference, although unwise, is not likely error because it does not suggest that the defendant had any obligation to call witnesses. State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977).
Here, the prosecutor told the jury: “We have one undisputed element met here, and that is Stearns County.” The prosecutor referred to venue as undisputed only in this one statement. Cox testified at trial, and the prosecutor made no attempt to build a theme around Cox’s failure to introduce evidence of improper venue. In light of these circumstances, we conclude that this statement was not suggestive of Cox’s need to call witnesses to dispute this element. Because the prosecutor’s statement did not improperly shift the burden, it was not misconduct.
Cox also contends that the prosecutor’s statements mischaracterized the facts. Statements made by a prosecutor that are unsupported by the record also may constitute prejudicial misconduct. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997). When considering whether this is so, we view the prosecutor’s closing argument “as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).
While discussing the venue element during closing argument, the prosecutor stated, “No one disagrees that what happened happened at 801 11th Avenue North.” Cox maintains this statement improperly implies that Cox does not dispute T.C.’s allegations of criminal sexual conduct. We disagree. When viewed in context, the prosecutor’s statement merely indicated that the witnesses agreed as to the location of the alleged events, not to the events themselves. The prosecutor’s comment is an accurate characterization of the record. T.C. testified that the alleged offense occurred at Cox’s home. Cox denied the allegations, but he testified that his home was in St. Cloud. And Officer Whitson testified that Cox lived in Stearns County. There was no evidence that contradicted the location of the alleged offense. Although the prosecutor’s statement as to the location could have been clearer, we conclude that, when taken in its proper context, this statement is supported by the record.
Because the record does not support a determination of plain error, we need not address whether the prosecutor’s actions “played a substantial part in influencing the jury to convict.” State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). It is nevertheless noteworthy that the district court minimized any prejudice by correctly instructing the jury on the burden of proof and reminding the jury of its obligation to apply the law as given by the court. Because we conclude that the verdict is not attributable to prosecutorial misconduct, reversal on this ground is not warranted.
Cox next argues that the evidence is insufficient to support his conviction because the evidence supports a rational sleepwalking theory inconsistent with guilt. Cox neither gave notice of this defense, as required by Minn. R. Crim. P. 9.02, subd. (1)(3)(a), nor argued this defense to the jury. Rather, he raises this defense theory for the first time on appeal, leading us to conclude that it is waived. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (stating that issues raised for the first time on appeal are waived).
“The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to . . . mental illness or deficiency . . . or intoxication.” Minn. R. Crim. P. 9.02, subd. 1(3)(a). The list of defenses in rule 9.02 is not exhaustive; thus, if an accused intends to raise any defense other than not guilty, the obligation to notify the prosecution arises. State v. Lee, 491 N.W.2d 895, 899 (Minn. 1992). Permitting a defendant to add a defense at the end of trial or raise it for the first time on appeal would be prejudicial to the prosecution. See id.
Minnesota courts have not addressed whether sleepwalking or automatism is subject to the notice provisions of rule 9.02. Some foreign jurisdictions have analogized automatism to insanity, a defense listed under rule 9.02. See, e.g., Tibbs v. Commonwealth, 128 S.W. 871, 874 (Ky. 1910) (sleepwalking embraced in plea of insanity); Loven v. State, 831 S.W.2d 387, 391 (Tex. Ct. App. 1992) (finding unconsciousness due to epileptic seizure is a valid insanity defense); Bradley v. State, 277 S.W. 147, 149 (Tex. Crim. App. 1925) (sleepwalking is a species of insanity). Other jurisdictions classify sleepwalking or other forms of automatism as an unconsciousness defense. See, e.g., Lewis v. State, 27 S.E.2d 659, 665 (Ga. 1943) (sleepwalking as an unconsciousness defense); State v. Bush, 595 S.E.2d 715, 722 (N.C. Ct. App. 2004) (sleep as an unconsciousness defense).
Minnesota has not specifically recognized an unconsciousness defense; and for purposes of our analysis, we need not decide whether it should be recognized as a defense. But automatism is similar to intoxication, a defense requiring notice under rule 9.02. Both sleepwalking and intoxication are temporary states that affect one’s mental and physical condition. See McClain v. State, 678 N.E.2d 104, 109 (Ind. 1997) (analogizing sleep-related automatism to intoxication). Like intoxication, automatism could negate one’s ability to form the requisite criminal intent or to act voluntarily. Like intoxication, and unlike insanity, “automatism may also be manifest in a person with a perfectly healthy mind.” Fulcher v. State, 633 P.2d 142, 145 (Wyo. 1981). Although sleep-related automatism is not listed in rule 9.02, it is sufficiently analogous to intoxication and differs sufficiently from a not-guilty defense such that notice of the defense is required under rule 9.02.
Pretrial notice is particularly important when a defendant intends to raise a sleepwalking theory because of the likely need to locate and present expert testimony to rebut the defense. Here, by arguing sleepwalking for the first time on appeal, the state was deprived of any opportunity to develop a record and prepare a response to the claim. Notably, Cox did not acquire the basis for this defense theory at the last minute. Months before trial, the state provided Cox and his counsel with Cox’s tape-recorded statements containing the meager evidence in the record regarding sleepwalking—namely, three references in the tape-recorded telephone conversations between Cox and T.C.
Cox argues that he has not raised a sleepwalking defense. Rather, he contends that, because sleepwalking provides a rational theory inconsistent with the jury’s determination of guilt, his conviction is based on insufficient circumstantial evidence. The effect of Cox’s sleepwalking claim is that of asserting a defense, regardless of whether he labels it as such. In the absence of Cox providing adequate pretrial notice and raising the issue before the jury, Cox has waived the assertion of this defense on appeal. See Garza, 632 N.W.2d at 637 (issues raised for the first time on appeal are waived).
When considered on the merits, Cox’s argument also is unavailing. Our review of an insufficient-evidence claim is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Where the conviction is based on circumstantial evidence, the circumstances proved must be consistent with the defendant’s guilt and inconsistent with any other reasonable hypothesis. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996).
To convict Cox of third-degree criminal sexual conduct, the state had to prove that Cox (1) sexually penetrated T.C. and (2) knew or had reason to know that T.C. was physically helpless when the penetration occurred. See Minn. Stat. § 609.344, subd. 1(d) (2002). “Physically helpless” includes being “asleep or not conscious.” Minn. Stat. § 609.341, subd. 9(a) (2002). Viewing the evidence in the light most favorable to the conviction, the circumstances proved are clearly consistent with Cox’s guilt and sufficient to enable the jury to so conclude. The record establishes that: (1) Cox entered the bedroom where T.C. was sleeping at 3:30 a.m., a time and place that gave him reason to know that T.C. was asleep; (2) T.C. awoke with a vibrator inside her and saw Cox, the only other person in the house at the time, curled up at the foot of her bed; (3) neither T.C. nor her boyfriend used a vibrator that night; and (4) Cox admitted he owned the vibrator used to penetrate T.C., which the police later found in his nightstand drawer with T.C.’s DNA on it.
Cox contends that the evidence is not inconsistent with a rational sleepwalking theory. But when the record is considered as a whole, Cox’s theory does not support a rational hypothesis that he was sleepwalking. Cox testified that he awoke at 3:30 a.m., woke up T.C.’s boyfriend, checked the weather, and reset his alarm. The only reference to sleepwalking presented to the jury was embedded in the tape-recorded telephone conversation between T.C., her boyfriend, and Cox. During the conversation, Cox posed the notion that he might be a sleepwalker only after T.C.’s boyfriend proposed the idea. During most of the tape-recorded conversation, Cox asserted that he was too intoxicated to remember what transpired that evening. Because sleepwalking is not a reasonable possibility on this record, reversal is not warranted. See State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).
Cox finally argues that this case should be remanded for resentencing because the district court abused its discretion by declining to depart dispositionally and impose a sentence of probation.
The to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court is not compelled to depart downward simply because arguments for departure exist. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
A district court may impose probation rather than an executed sentence if the district court determines that the defendant is particularly amenable to probation. State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). Whether an offender is amenable to probation depends on the offender’s ability to comply with probation conditions and to benefit from rehabilitation. State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003). Relevant factors for consideration include the defendant’s age, prior record, signs of remorse, and familial support. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Casting blame on others and failure to recognize the harm inflicted weigh against the decision to depart dispositionally and impose probation. See State v. Dietz, 344 N.W.2d 386, 388 (Minn. 1984).
Cox argues that the district court should have given more weight to his past successful performance on probation. Although successful completion of probation may show an ability to comply with the conditions, it also shows that rehabilitation efforts were not effective when, as here, the instant offense is committed one month after probation has ended.
In denying Cox’s motion, the district court cited Cox’s two prior misdemeanor offenses and concluded that Cox was not amenable to probation. The district court was well within its discretion in denying Cox’s motion for a downward dispositional departure. Accordingly, Cox’s challenge to his sentence fails.