This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed July 3, 2006
Stearns County District Court
File No. CX-04-5644
Mike Hatch, Attorney General, Kelly Moller, Amy V. Kvalseth,
Assistant Attorneys General, 1800
Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56302 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.
Appellant challenges his convictions of third-degree criminal sexual conduct and first-degree burglary, arguing that the evidence is insufficient to support the convictions and that the district court erred by denying his request for substitute counsel without holding a hearing. Because the evidence is sufficient to support the convictions and because the district court did not abuse its discretion in denying appellant’s request for substitute counsel, we affirm.
Appellant Raymond Moseley and A.M. were friends; appellant wanted to date A.M., but she rebuffed his advances. On December 28, 2004, appellant, A.M., and A.M.’s friend gathered on appellant’s driveway to fix the brakes of A.M.’s van. They worked on the brakes in the afternoon and evening, stopping after dark when they got too cold to continue. They were drinking while working on the van.
testified that she left appellant’s home around 9:00-10:00 p.m. and went across
the street to
A.M. subsequently retrieved nine messages that appellant had left on her cell phone during the course of that evening, two of which were left after the assault. A transcription of one of the messages indicates that appellant stated, “I’m sittin’ there finger bangin’ you when you’re passed out. When you’re sittin’ naked next to Bruce.” After retrieving the messages, A.M. called the police. She declined to go to the hospital for a sexual-assault examination.
Appellant claims that he went to the house where A.M. was staying because he became worried about her when she did not return to his house that evening to pick up groceries. He claims that someone yelled, “Come in,” after he knocked on the door. When he entered, there were two men in the living room; appellant claims that one was passed out, but that the other nodded when appellant greeted him. Appellant entered the bedroom where A. M. was sleeping and saw her son sleeping in a recliner; he also saw the single bed where A.M. was lying naked from the waist down next to her boyfriend. Appellant maintains that he shook A.M.’s shoulder to wake her, said something to her, and left after she woke and yelled at him to leave. Appellant denies ever touching A.M.’s genital area. He testified that he was hurt and angry to find A.M. in bed with her boyfriend and that he left the messages “to make her feel cheap and dirty.” He told the police that he did not mean that he actually touched A.M., but that he might have because she was so drunk.
Of the five males (including A.M.’s 14-year old son) staying at the house where A.M. stayed in the early hours of December 29, none saw appellant in the house, nor did they hear A.M. or appellant yelling. Each of the five men testified that he had not given appellant permission to come in that evening and that he had not heard anyone else tell appellant to come in.
Appellant was charged with one count of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (amended to subd. 1(a)) (2004), and one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.244, subd. 1(d) (2004). The district court appointed a public defender for appellant; appellant appeared with counsel and pleaded not guilty to both crimes. Shortly thereafter, appellant wrote to the district court and requested new counsel, claiming that he had not yet seen or spoken to his attorney. Appellant appeared with his counsel at a pretrial settlement conference but did not raise the issue at that time. The district court apparently never ruled on appellant’s request.
A jury convicted appellant of the charged crimes. The district court denied appellant’s motion for a new trial. This appeal follows.
argues that there was insufficient evidence presented at trial to support his
convictions. 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, was sufficient to allow the jurors to reach the
verdict that they did. State v. Webb,
440 N.W.2d 426, 430 (
criminal sexual conduct occurs when a person sexually penetrates another who
the actor knows to be physically helpless.
burglary occurs when a person enters an occupied dwelling without consent and
commits a crime therein.
weight and credibility of the conflicting testimony in this case was for the
jury to determine.
court will grant an indigent’s request for substitute counsel only if
exceptional circumstances exist and the demand is timely and reasonably made.” State v.
Appellant asserts that “the court must inquire thoroughly into the facts underlying the defendant’s dissatisfaction with his attorney” when evaluating a request for substitute counsel. There is no indication that the district court here was required to inquire further into appellant’s petition for substitute counsel, as the petition clearly articulated the bases for his request—bases that were either patently false or insufficient to require the district court to appoint substitute counsel.
In his February 3 request for substitute counsel, appellant claimed that he had not yet seen or spoken to his attorney, but he admitted that he had communicated with counsel about bail. Appellant’s claim that he had not had any contact with his attorney was patently false. The record shows that counsel for appellant contacted the court in January and communicated that appellant had decided to request speedy omnibus, pretrial, and settlement-conference hearings after originally waiving that right during his first appearance. And appellant appeared, with counsel, at his omnibus hearing on January 21, where counsel stated that he had “discussed omnibus issues with Mr. Moseley.” Finally, while not a dispositive fact, appellant failed to note any dissatisfaction with counsel at that time.
Appellant’s other complaint about counsel concerned his attorney’s alleged 14-day delay in requesting a bail survey. Even if true, that delay does not constitute exceptional circumstances for the purpose of appointing substitute counsel.
essentially argues that this court should recognize a per se rule requiring
district courts to hold a hearing or otherwise make inquiries whenever a
defendant requests substitution of counsel.
But there is no such requirement in