This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed June 28, 2005
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. 02073502
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and,
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
On appeal from his conviction of criminal sexual conduct and his sentence, appellant contends that the district court erred in evidentiary rulings, that his attorney provided ineffective assistance, and that his sentence was unconstitutional under the Blakely rule. Because we find no reversible error, we affirm.
On the evening of July 23, 2002, two women, M.L.P. and
C.N., were celebrating C.N.’s birthday at a
When the women arrived at Eck’s residence, they found that no one else was going to attend the party and they decided they would leave. Eck then offered the women a drug known as GHB. M.L.P. had tried the drug previously and enjoyed it, so she accepted the offer. C.N. also accepted. Both women ingested GHB.
Shortly after taking the drug, M.L.P. felt lethargic, eventually could not move, and then she passed out. After she took the drug, C.N. went outside to smoke but began to feel sick, and Eck helped her back inside.
M.L.P. was already asleep on a bed, and Eck threw C.N. on the bed next to her. C.N. tried to scream and kick but was unable to do so. Eck told her to be quiet and he removed her shirt. She then passed out.
About five hours later, M.L.P. woke up and found Eck masturbating himself with M.L.P.’s hand. Eck told her that she had urinated on herself, and, because she could not move, Eck carried her to the bathroom. He returned her to the bed next to C.N. where she again passed out.
The next time M.L.P. awakened, she discovered Eck having sexual intercourse with her. She objected, saying that she had a boyfriend and that she wanted him to stop. He stopped, and M.L.P. fell asleep again next to C.N.
C.N. woke up during the night feeling nauseated, and Eck helped her to the bathroom where she vomited. Eck escorted her back to the bed, where she fell asleep. C.N. woke up again later, and Eck took her to the bathroom where she again vomited. She asked Eck to leave so that she could change her tampon. When she did so, she noticed that her tampon was inserted sideways and that her pants “were not on correctly.”
Both women woke up at about 6:20 a.m. and left Eck’s residence an hour later. C.N. went home, felt ill throughout the day, and noticed soreness in her vagina and anal region.
Later in the day, M.L.P. concluded that she had been raped and called C.N. Both women reported the incident to the police.
Eventually, the state charged Eck with criminal sexual conduct and controlled-substance crime. Eck pleaded not guilty and had a jury trial.
During the trial, the district court precluded Eck from offering evidence of his past sexual involvement with M.L.P.; allowed certain testimony that Eck claimed contained improper opinions and constituted “vouching”; allowed evidence that Eck contends was improper Spreigl evidence; and refused to give a “voluntary intoxication” jury instruction. Eck claims that these errors, together with his counsel’s ineffective assistance and the insufficiency of the evidence, require reversal of his conviction. He also claims that the court imposed an unconstitutional sentence upon him.
D E C I S I O N
Jury Instruction on Voluntary Intoxication
claims that the district court erred when it refused to give a jury instruction
on voluntary intoxication. The refusal
to give a requested jury instruction lies within the district court’s
discretion and will not be reversed absent an abuse of that discretion. State
v. Cole, 542 N.W.2d 43, 50 (
To be entitled to a jury
instruction on voluntary intoxication, (1) the defendant must be charged with a
specific-intent crime; (2) there must be evidence sufficient to support a jury
finding, by a preponderance of the evidence, that the defendant was
intoxicated; and (3) the defendant must offer intoxication as an explanation
for his actions. State v. Torres, 632 N.W.2d 609, 616 (
The first requirement is met; Eck is charged with specific-intent crimes. But Eck fails to satisfy the remaining two requirements. To satisfy the second requirement, there must be a preponderance of evidence that would support a jury finding of intoxication. The only evidence Eck cites to prove his intoxication is the testimony of M.L.P. on cross-examination that she saw Eck take a drink from a shot glass. But M.L.P. never observed that Eck put GHB into the glass. Additionally, the evidence shows that Eck did not experience the same effects as the women had after they ingested the drug. While the women were unconscious and unable to move, Eck appeared to function normally and was able to carry the women to the bathroom at times during the night and was still able to have sexual intercourse. There is no direct or circumstantial evidence that Eck was intoxicated at any point during his encounter with M.L.P. and C.N. at his residence. The district court did not abuse its discretion in denying the requested jury instruction.
Past Sexual Involvement with M.L.P.
After the state moved in limine to preclude Eck from inquiring into M.L.P.’s previous sexual conduct, Eck made an untimely request to the court to be allowed to cross-examine M.L.P. about her past sexual history with him. The court denied the request because it was untimely.
When consent by the victim is asserted as a defense to certain sex crimes, the accused may introduce evidence of the victim’s previous sexual conduct with the accused, but the accused must make a motion and offer of proof, within three business days prior to trial, setting out with particularity the evidence to be offered. Minn. Stat. § 609.347, subd. 4(a) (2002). If the court finds the offer of proof sufficient, it shall order a hearing at which the accused may make a full presentation of the offer. Minn. Stat. § 609.347, subd. 4(b) (2002). For the evidence to be admissible, the court must conclude that the evidence is sufficient to support a finding that the facts in the offer of proof are true. Minn. Stat. § 609.347, subd. 3 (2002).
The district court precluded Eck’s offer because it was made on the day of trial. Although the rule specifies the time limit for such an offer of proof, that limit is not absolute because the rule provides that the motion may be made at a later time “for good cause shown.” Minn. Stat. § 609.347, subd. 4(a).
But even had the court allowed Eck to show cause for the untimely motion, ultimately the evidence would not have been admissible. Eck did not initiate this issue but rather requested permission to present the evidence of his sexual relationship with M.L.P. in response to the state’s motion to preclude such evidence. Eck’s sole evidence of the past sexual conduct of M.L.P. was M.L.P.’s own statement to the police that she was with Eck once in 2001, was very drunk and could not remember what happened, but that she believed she had sex with him. This vague reference of what M.L.P. might have done on a remote prior occasion when she was very drunk would not support a finding that it was true that she had sex with Eck and thus would not meet the standard in Minn. Stat. § 609.347, subd. 3.
Despite the court’s ruling, Eck was permitted to assert a defense of consent and to cross-examine M.L.P. about his past relationship with her.
Because Eck’s motion was untimely and because ultimately the evidence that was the subject of his motion would not have been admissible, the court did not err in precluding evidence of M.L.P.’s past sexual conduct.
Ineffective Assistance of Counsel
claims, in the alternative, that because his counsel failed to follow the
guidelines of timely filing of motions, he was deprived of his right of
effective counsel. A defendant must
affirmatively prove that his counsel’s representation fell below an objective
standard of reasonableness and that there is a reasonable possibility that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. Gates v. State, 398 N.W.2d 558, 561 (
Eck claims that his counsel’s errors deprived him of a right to present a defense and that the errors led to his conviction. Technical deficiencies existed with Eck’s early motions, including untimely filing and lack of notice to the state. But there were substantive problems with the evidence as well. Eck did not provide sufficient evidence to support an intoxication defense, and the evidence of his prior sexual encounter with M.L.P. was questionable and unsure. Therefore, it is unlikely that the errors by counsel were the sole reason Eck was convicted; and because he must show that but for the counsel’s errors the result would have been different, Eck’s claim of ineffective assistance of counsel fails.
Expert Witness Opinion and Vouching Testimony
argues that the district court erred in allowing vouching testimony and
improper expert opinion on matters within the province of the jury. The decision to admit expert testimony is
within the district court’s discretion and will not be reversed absent an
apparent error. State v. Grecinger, 569 N.W.2d 189, 194 (
basic consideration in admitting expert testimony is whether the testimony will
assist the jury in resolving factual questions.
In this case, Dr. Smith testified about what the drug GHB is and the effects it has on a person. Eck conceded that experience with GHB was beyond the knowledge of the average juror and that Dr. Smith could provide testimony on what the drug is and its effects. But he argues that Dr. Smith was permitted to testify about the victim’s ability to consent. The language Eck cites for this argument is taken from Dr. Smith’s general statement about the effects of GHB on people and not specifically about whether M.L.P. or C.N. could consent while under the influence of GHB. General expert testimony about the effects of a particular synthetic drug are helpful to the fact-finder and do not represent an opinion on a mixed question of fact and law. See id. at 195 (stating that testimony on battered-woman syndrome helpful because not widely understood and explanatory of questioned actions).
Eck also argues that Dr. Smith’s testimony vouched for C.N.’s credibility. But C.N. was cross-examined about her failure to remember the incident, failure to immediately report the incident, and failure to obtain a medical examination. The credibility of a witness can be supported by evidence in the form of an opinion when the character of that witness has been attacked in that respect. See id. at 193. Here, Dr. Smith’s testimony was given to help explain the actions of C.N. and show that the actions were consistent with others who have taken GHB. Therefore, Eck fails to show that the testimony offered by Dr. Smith was inappropriate, and the district court did not err in allowing the testimony.
argues that the district court erred in admitting prejudicial Spreigl evidence. Evidence of other crimes, wrongs, or acts is
characterized as “Spreigl evidence.”
State v. Kennedy, 585 N.W.2d 385, 389 (
In support of his Spreigl argument, Eck cites a reference in a letter he wrote to his former girlfriend that she has some fear of him. The district court ruled that this was not Spreigl evidence. We agree.
Although Spreigl evidence is not limited to past criminal conduct, it pertains to crimes or wrongs or acts. Eck does not refer to any act but rather to his own supposition of his former girlfriend’s state of mind. He does not point to any particular incident or conduct that might cause such fear. His Spreigl argument fails.
Cumulative Effect of Errors
Eck argues that the cumulative effect
of all of the alleged trial errors resulted in denying him his right to a fair
trial. He is entitled to a new trial if
the errors, when taken cumulatively, had the effect of denying appellant a fair
trial. State v. Keeton, 589 N.W.2d 85, 91 (
He argues that, in this case, the “errors were numerous and the state’s case was weak.” He claims that the district court’s decisions effectively foreclosed two different defenses and that the errors interfered with the truth-finding process. But as noted above, the district court did not err in the rulings and determinations it made. Therefore, because there was no error, his claim for a new trial under the cumulative-error theory fails.
Insufficient Evidence to Convict for C.N.’s Assault
Eck claims that insufficient evidence existed to support
the jury’s conviction for the assault against C.N. In considering a claim of insufficient
evidence, this court’s review is limited to a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the jurors to reach the
verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (
was convicted of third-degree criminal sexual conduct under Minn. Stat.
§ 609.344, subds. 1(d), 2 (2002).
Third-degree criminal sexual conduct occurs when an individual engages
in sexual penetration with another when “the actor knows or has reason to know
that the complainant is mentally impaired, mentally incapacitated, or
C.N. recalls Eck aggressively throwing her onto the bed and taking off her shirt. C.N. claims that upon waking up the next morning she noticed her tampon was not in correctly, testifying that it was in “sideways.” C.N. stated that, when she woke up, she was only wearing her pants and her bra; her shirt had been removed; and that, while her pants were on and buttoned, they were on wrong, specifically, they were not pulled up over her hips and they were “completely twisted around and not hanging where they should be.” Finally, C.N. stated that later in the day she noticed soreness in her anal, inner thigh, and vaginal regions. C.N did not report these observations to the police initially because she was uncertain whether she had been assaulted.
A criminal charge may be proved by circumstantial evidence. Webb, 440 N.W.2d at 430. Eck’s intention to sexually assault M.L.P. and C.N. is supported in part by M.L.P.’s direct observation that he had intercourse with her. Although C.N. was unconscious for most of the evening, the evidence shows that Eck removed her shirt, that her tampon was inserted incorrectly, that her pants were on wrong, and that she had soreness in two areas in which sexual penetration ordinarily can occur. From all this evidence, a jury could reasonably infer that Eck had sexual penetration with C.N. while she was under the influence of GHB. Therefore, the evidence was sufficient to support Eck’s conviction as to C.N.
Sentence Reduction due to Blakely
Finally, Eck argues that because a jury did not determine
whether he had a custody-status point, his sentence should be reduced to the
presumptive sentence without a custody-status point under the Supreme Court’s
decision in Blakely v. Washington,
542 U.S. ___, 124 S. Ct. 2531 (2004). But
this court has held that there is no need for a jury to make a custody-status-point
determination. State v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004), review granted (
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
Review was granted in this case pending the decision of State v. Allen, No. A04-127, pet. for rev. granted (Nov. 16, 2004). Oral arguments were heard on April 13, 2005.