This opinion will be unpublished and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
Michael Allen Holmes,
Filed August 2, 2005
Reversed and remanded
Olmsted County District Court
File No. K0024371
Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)
McGeeney, McGeeney Law Office,
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of and sentences for first-degree criminal sexual conduct and terroristic threats, appellant argues that the district court abused its discretion by denying his motion to exclude expert testimony that was not disclosed until after voir dire began or to grant him a continuance so that he could obtain an expert to review the newly disclosed evidence. Appellant also argues that the upward durational sentencing departure imposed by the district court violated his right to a jury trial. Because we conclude that the district court abused its discretion by denying appellant’s request for a continuance, we reverse and remand for a new trial.
In November 2002, appellant Michael Allen Holmes was asked to leave the halfway house where he was living. Appellant attempted to reach his girlfriend, S.C., by telephone and left a message for S.C. After S.C. arrived home at about 2:30 in the morning, she returned appellant’s call. Appellant asked if he could come over, and S.C. said that he could. S.C. left the door unlocked for appellant.
According to S.C., appellant entered her bedroom and began taking off his clothes. S.C. told appellant that she was tired and did not want to have sex. S.C. testified that appellant held her down on the bed, removed her clothing, and forced her to have sex with him. S.C. testified that she scratched appellant on the neck and kicked at him, but she did not try to wake up her mother or brother. S.C. also testified that appellant threatened to harm her if she was ever with another man and that she would not live to see her children grow up.
S.C. tried to call a friend, J. A., but appellant grabbed the phone away from her. Eventually, appellant let S.C. call J.A., and S.C. asked J.A. to come to her house. When J.A. arrived, S.C. was in the kitchen putting on her shoes and coat, and she was crying. S.C. did not tell J.A. what had happened, but she asked J.A. to tell appellant to get out of the house. S.C. then left the house.
J.A found appellant in S.C.’s bedroom and told him that S.C. wanted him to leave. J.A. testified that appellant threatened to kill J.A. and S.C.’s mother if S.C. came back with the police. When S.C. returned, she and J.A. got into J.A.’s car and drove around for a few minutes before returning to S.C.’s house. S.C. was concerned about appellant being in her house with her family. S.C. and J.A. found appellant standing in the driveway. S.C. got out of the car, walked around appellant, and locked the door of the house. As S.C. walked back to J.A.’s car, appellant grabbed her coat and arm, and they engaged in a 30-minute conversation during which S.C. told appellant that she did not want to see him anymore.
J.A., who was still
in her car, rolled down a window and encouraged S.C. to get in the car. Appellant threatened S.C. that if she got in
the car, he would beat her and throw her into the
Susan Crawley, a registered nurse, conducted a physical and rape-kit examination of S.C., and photographs were taken of S.C.’s injuries. Appellant was charged with two counts of first-degree criminal sexual conduct and two counts of terroristic threats, and the charges went to trial.
After voir dire began,
but before a jury was selected, the state disclosed that (1) Crawley was a
sexual-assault nurse examiner (SANE nurse) who received specialized training in
forensic nursing relating to the examination of sexual-assault victims, and (2) Crawley
would testify that (a) the photos taken during Crawley’s examination of S.C. showed
tears, rather than abrasions, in S.C.’s vaginal area, and (b) Crawley had never
seen this type of injury in a consensual-sex investigation. Appellant moved to prevent Crawley from
testifying that the photographs showed injuries in the form of tears and that
The state opposed appellant’s motion, arguing that (1) its position had always been that the photographs showed an injury; (2) it had just learned the night before that Crawley was a SANE nurse; (3) it promptly told appellant that Crawley was going to testify that the injuries were tears; (4) it had not violated any discovery rules; (5) Crawley had always been available to the defense; and (6) a continuance was not necessary because the information “has basically been available to the defense all along.”
The district court denied appellant’s motion for a continuance. The court stated that jury selection was not yet completed, and the trial was expected to go on for three or four days, and possibly a week, which gave the defense some time to work on getting an expert. The court also determined that the prosecution had not violated the discovery rules and there was no unfair prejudice because the prosecution disclosed the new information as soon as it learned about it, and the information had been available to the defense. The court also noted that appellant had made a demand for a speedy trial.
Crawley testified that she had received training to become a SANE nurse and
explained that the job of a SANE nurse is to “receive the victim when they come
to the hospital, do a medical history on them, do just a physical on them to
see how they’re doing physically and then we do evidence collection.” Crawley testified that when examining S.C.,
she observed three bruises on the left side of S.C.’s neck, a bruise on her
upper left shoulder, a bruise on her upper left thigh, a hickey on her right
collarbone, scrapes on her upper left arm, and a scratch on her left lower back.
Appellant’s defense theory was that he had consensual sex with S.C. Appellant testified that the scratches on his body were from a fight that he was in earlier in the evening, and he denied threatening S.C. and J.A..
The jury found appellant guilty of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002), and two counts of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2002). At sentencing, the district court found the terroristic threat against S.C. to be an aggravating factor and sentenced appellant to 360 months on the first-degree criminal-sexual-conduct count. The court determined that the threats against J.A. were threats against a second victim and imposed a consecutive sentence of twelve months and one day on the terroristic-threats count. This appeal is from the convictions and sentences.
D E C I S I O N
that the district court abused its discretion by denying his request for a
continuance to seek an expert to counter
Whether to grant
or deny a continuance is within the sound discretion of the district court, and
its decision will not be reversed unless it has abused its discretion. State
v. Sanders, 598 N.W.2d 650, 654 (
Citing State v. Lindsey, the state argues that because
there was no discovery violation, appellant was not entitled to a continuance
as a sanction. 284 N.W.2d 368, 373 (
The state also argues
that appellant should have anticipated
We disagree. To prove that appellant violated Minn. Stat. §
609.342, subd. 1(e)(i), the state did not just need to prove that appellant
caused personal injury to S.C.; it also needed to prove that appellant used
force or coercion to accomplish sexual penetration. Crawley’s testimony that the injuries were
tears, rather than abrasions, and that she had never seen injuries of this type
that were claimed to be the result of consensual sex went directly to whether
appellant had consensual sex with S.C. or used force to accomplish sexual
the examination photographs had been disclosed to appellant, whether the
injuries shown in the photographs are tears, rather than abrasions, and whether
the injuries are consistent with or inconsistent with consensual sex are not issues
that a jury could determine without the aid of expert testimony.
that his position is similar to the defendant in State v. Scharfencamp, 416 N.W.2d 825 (Minn. App. 1987). We agree.
In Scharfencamp, a nurse
testified in the defendant’s implied-consent license-revocation proceeding that
she had stored defendant’s blood sample in a brown-stoppered vial from hospital
supply, rather than a gray-stoppered Bureau of Criminal Apprehension (BCA)
The state argues
that because appellant had more than a year to speak to experts and chose not
to do so, and because appellant has not identified an expert who could
The district court’s comment on the record that because the trial was expected to continue for three or four days, there would be time for appellant to consult with an expert without a continuance, indicates that the district court recognized that appellant needed to consult with an expert. But when appellant’s counsel’s time was already taken up with the trial that was underway, it was not reasonable to conclude that three or four days was sufficient time to find and consult with an expert. We, therefore, conclude that the district court abused its discretion when it denied appellant’s request for a continuance.
The state argues
that a continuance was not feasible because appellant demanded a speedy trial. The state’s argument is without merit. While a defendant in
In light of our decision that the district court abused its discretion by denying appellant’s request for a continuance, it is not necessary for us to address appellant’s other arguments.
Reversed and remanded.
 A rape kit is a package that contains swabs, paper, and other items used to collect evidence from the body of a sexual-assault victim.