This opinion will be unpublished and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
Durrell Calvin Caldwell,
Filed August 22, 2006
Affirmed in part, reversed in part, and remanded
St. Louis County District Court
File No. K6-04-300907
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan L. Mitchell,
John M. Stuart, State Public Defender, Jane E. Rydholm,
Assistant State Public Defender,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*
Appellant challenges his convictions of first-degree criminal sexual conduct, arguing that the district court erred (a) in determining that appellant was competent to stand trial; (b) in denying appellant’s motion for a change of venue; and (c) in admitting certain evidence during trial. Appellant also asserts that the prosecutor committed misconduct denying appellant the right to fair trial and that the district court abused its discretion in sentencing appellant to a double upward departure. We affirm in part, reverse in part, and remand for resentencing.
June 2003, the police responded to an emergency call that T.J., a female
The state filed a juvenile delinquency petition charging appellant with sexual assault in violation of Minn. Stat. § 609.324, subd. 1(c), and moved to certify appellant for adult prosecution. In July 2003, at the initial hearing on the motion for certification, appellant’s attorney moved for an order directing a mental examination of appellant’s competency under Minn. R. Juv. P. 20.01 and 20.02. The court granted the motion, ordered a rule 20 evaluation, and stayed the motion for certification pending the resolution of the competency issue.
2004, the district court held a competency hearing. Dr. Anita Schlank, who testified at the
hearing, submitted a report, which stated that:
“[Appellant] does appear to have a basic understanding of the charges
against him and the legal process, and has demonstrated that he is capable of
providing information to his attorney that might be helpful for his defense in
this case.” Dr. Marty Beyer, who had previously
conducted a “developmental assessment” of appellant in 2002 related to two previous
sexual-assault charges brought against him, also testified. In that circumstance, appellant
pleaded guilty to two counts of sexual assault in
Following the hearing, the district court found that appellant was competent because he was capable of adequately participating with counsel to make the appropriate decisions relative to his defense. The district court noted that appellant’s I.Q. in the low-to-mid 70 range was “borderline,” but that in his two years at Mesabi, appellant had made “substantial progress” in maturity and social development.
Appellant was certified to stand trial as an adult on three counts of sexual assault in violation of Minn. Stat. §§ 609.342, subd. 1(c) (2002) (complainant has reasonable fear of imminent great bodily harm) (count one), 609.342, subd. 1(e)(i) (2002) (defendant causes personal injury and uses force/coercion) (count two), and 609.342, subd. 1(e)(ii) (2002) (count three) (defendant causes personal injury and knows or has reason to know the victim is physically helpless). Appellant pleaded not guilty to the charges.
Before trial, appellant
moved for a change of venue, arguing that “[i]n a community racially and
ethically as homogeneous as that surrounding Hibbing, the trial of a
transplanted African-American man for sexually assaulting a local Caucasian
girl would be unavoidably biased, and as such, [appellant] will not receive a
fair and impartial trial on the merits.”
Appellant requested that the venue be transferred to
trial, T.J. testified that after she escorted appellant to his locker at the
Emergency room nurse Mary Leinon testified that T.J. was hysterical, crying, and hyperventilating. Dr. Neil Hoyal testified that T.J. was upset, anxious, crying, and visibly shaken. Dr. Hoyal found bruises on the left side of appellant’s neck consistent with her neck having been in a choke-hold. Police Investigator Joseph Zebro spoke with T.J. at the hospital, noted her various injuries and photographed them. A sexual-assault examination performed on T.J. revealed semen that matched appellant’s DNA profile.
During trial, the state
moved to introduce evidence of appellant’s two prior sexual-assault convictions
Appellant testified that in the locker room, T.J. put her hands around his neck and began kissing him. He backed away from her, but he eventually succumbed to her advances, and the two had consensual sex. When appellant told her that he had hepatitis, she began yelling and crying. He explained that earlier in the day, T.J. was “wrestling” with him during a water fight, which may have caused injuries to her neck.
The jury found appellant guilty of all three counts. Appellant was sentenced to 288 months, a double durational departure. This appeal follows.
D E C I S I O N
contends that the district court erred in determining that appellant was
competent to stand trial. On appeal, we
independently review the record to decide whether the trial court gave “proper
weight” to the evidence. In re Welfare of D.D.N., 582 N.W.2d
278, 281 (Minn. App. 1998) (citing Drope v. Missouri, 420
the Fifth and Fourteenth Amendment Due Process Clauses, a criminal defendant
may not be tried and convicted unless the defendant is legally competent.”
State v. Camacho, 561 N.W.2d 160, 171 (
the district court concluded that Dr. Schlank’s testimony was more persuasive. See,
e.g., State v. Mills, 562 N.W.2d 276, 282 (
Respondent argues that the district court’s competency determination should be upheld based on appellant’s clear and detailed testimony at trial. Evidence of the defendant’s demeanor and behavior at trial is relevant to determining competency. Camacho, 561 N.W.2d at 172; see also Mills, 562 N.W.2d at 283 (noting that the trial record indicates the appellant had a good relationship with defense counsel and did not engage in disruptive or inappropriate behavior during testimony). Here, appellant testified at trial, was responsive to the questions asked, and gave a detailed description of the sexual encounter that supported his consent defense. Based on our independent review of the record, the district court did not abuse its discretion.
argues that the district court abused its discretion in denying appellant’s
motion for a change of venue. We will not reverse a district
court’s denial of a motion for change of venue absent a clear abuse of discretion
and actual prejudice to the defendant. State v. Berkovitz, 705 N.W.2d 399, 408 (
argues that he was prejudiced because there is “ample evidence that the
community was prejudiced against African-Americans and this must have
influenced the jury.” But appellant does
not show any actual prejudice on the part of jurors who served in his
trial. See Berkovitz, 705
N.W.2d at 408 (actual prejudice to appellant must be shown to overturn the
district court’s decision not to grant a change in venue);
see alsoState v. Jones, 647 N.W.2d 540, 544 (Minn. App. 2002) (holding that the denial of a change of venue to a county with a greater percentage of minorities does not violate a minority defendant’s due process rights absent a showing of actual prejudice), rev’d on other grounds, 659 N.W.2d 748 (Minn. 2003). Because appellant has not shown that he suffered actual prejudice resulting from the venue of his trial, the district court did not abuse its discretion.
that the district court abused its discretion in various evidentiary
rulings. “Evidentiary rulings rest
within the sound discretion of the [district] court and will not be reversed
absent a clear abuse of discretion. On
appeal, appellant has the burden of establishing that the [district] court
abused its discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
Appellant argues that the testimony of Nurse Leinon and Dr. Hoyal constituted improper vouching. Nurse Leinon and Dr. Hoyal were allowed to testify, over appellant’s objection, that T.J.’s injuries, emotional state, and what she told them happened, were consistent with force being used against her.
“Vouching” occurs when a witness testifies that another witness is
telling the truth or that the witness believes one witness over the other.
argues that appellant has waived his vouching argument by failing to raise it
before the district court. Failure to
object to the admission of evidence generally constitutes waiver of the right
to appeal on that basis. State v.
Bauer, 598 N.W.2d 352, 363 (
witness testified that T.J. was telling the truth when she stated that
appellant raped her. Cf. Maurer,
491 N.W.2d at 662 (holding that witnesses’ opinions that complainant appeared “sincere”
when she said she had been raped was vouching).
Instead, the testimony merely concluded that certain factors were
consistent with force being used against T.J.
Such testimony does not constitute vouching. See,
e.g., State v.
B. Expert Testimony
Appellant next argues that the district court abused its discretion in allowing Dr. Hoyal, Nurse Leinon, and police investigator Zebro to provide opinion testimony that T.J. had been sexually assaulted. Appellant also argues that Dr. Hoyal testified in response to the question of why T.J. was at the emergency room, that “[S]he had been sexually assaulted.”
is admissible if it will assist the jury in understanding the evidence or in
determining a fact in issue.
Here, Dr. Hoyal, Nurse Leinon, and police investigator Zebro testified that, based on the physical evidence, her injuries were consistent with force being used against T.J. And police investigator Zebro testified that T.J.’s injuries and emotional state were consistent with forced sex. The opinion evidence was arguably helpful to assist the jury in determining the credibility of T.J.’s claim that she had been raped. And Dr. Hoyal’s testimony that the reason T.J. came to the emergency room was that “she had been sexually assaulted” was provided at the beginning of his direct examination to explain how he became involved in her treatment. On this record, the district court did not abuse its discretion.
relies on State v. Saldana, 324 N.W.2d 227, 230 n.5 (
C. Spreigl Evidence
that the district court abused its discretion in admitting Spreigl evidence of his prior sexual-assault convictions in
The district court concluded
that the evidence was relevant and material to determine modus operandi. Evidence of prior sexual assaults may
be relevant to show modus operandi and lack of consent. See
State v. DeBaere, 356 N.W.2d 301, 305 (
Appellant argues that the
previous sexual assaults were not sufficiently probative because they were
separated by three years. But the
Minnesota Supreme Court has “never held that there must be a close temporal
relationship between the charged offense and the other crime.” State v.
Wermerskirchen, 497 N.W.2d 235, 242 n.3 (
Appellant argues that the Spreigl evidence was unduly prejudicial because
of the graphic detail given by the prior victims and police detective Dennis
Williams. But this detail was necessary
to prove modus operandi, and the prejudicial effect of the testimony was
minimized when the district court cautioned the jury three separate times not
to convict him based on his prior crimes.
See, e.g., State v. Waukazo, 374 N.W.2d 563, 565 (
Appellant argues that the
prosecutor engaged in misconduct during closing argument. This court will reverse a conviction due to
prosecutorial misconduct at trial if the misconduct, “when considered in light of the whole trial, impaired the
defendant’s right to a fair trial.” State
v. Powers, 654 N.W.2d 667, 678 (
The prosecutor has “considerable
latitude” in closing argument and is not required to make a “colorless argument.” State
v. Smith, 541 N.W.2d 584, 589 (
Appellant alleges that the
prosecutor’s “used sarcasm to demean and belittle” appellant’s version of the
events as a “date,” “good time,” “beautiful time,” “affair,” and “wonderful
relationship.” But appellant did not
object to these comments during trial. Generally,
a party waives any challenge to the alleged misconduct on appeal by failing to
object or seek a cautionary instruction. State v. Ture, 353 N.W.2d 502, 516 (
Appellant also argues that the prosecutor’s comment, which was allowed over objection, that the water fight was “much ado about nothing” and that appellant “made it sound like the gun fight at the O.K. Corral” was improper. Here, the prosecutor made this comment in anticipation of appellant’s argument that a water fight that occurred prior to the incident caused the injuries to T.J.’s neck. It is permissible for a prosecutor to anticipate a defendant’s argument. Whittaker, 568 N.W.2d at 451.
Appellant argues that the prosecutor committed misconduct
by stating, over appellant’s objection: “The Defendant is raising the issue of
consent. What else can he raise in this
particular case? He can’t say it didn’t
happen.” But the prosecutor was merely
pointing out that appellant’s only argument was that the sex was consensual. Cf.
State v. Salitros, 499 N.W.2d
815, 818 (
Appellant argues that the prosecutor impermissibly vouched for T.J.’s credibility in arguing, over the defense’s objection, that T.J. “has to be the greatest actress in the entire world or she was a person who was sexually assaulted.” But the prosecutor merely used the testimony of T.J.’s emotional state to argue that her testimony was credible.
Appellant next argues that the prosecutor improperly vouched for his own truthfulness in stating, over the defense’s objection: “Now in this particular case we have the Defendant who is telling you that he is the one telling you the truth and that there was [a] whole case of liars that came in here.” But the prosecutor merely pointed out that appellant was the sole witness claiming that the sex was consensual and did not vouch for the truth of any particular prosecution witness or his own wisdom in charging the case. Considering the whole of the prosecutor’s closing argument, the prosecutor’s comments did not impair appellant’s right to a fair trial.
Appellant contends that the district court erred
in sentencing appellant to an upward durational departure because the departure
violated appellant’s Sixth Amendment right to a jury trial under Blakely v.
Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004). The appeal
of appellant’s sentence under the Minnesota Sentencing Guidelines presents a
constitutional issue, which this court reviews de novo. State v. Robinson, 699 N.W.2d 790, 800
the United States Supreme Court held that the greatest sentence a district
court can impose is “the maximum sentence solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” 542
In sentencing appellant on count one, the district court departed from the presumptive 144-month sentence to a 288-month sentence based on T.J.’s “particular vulnerability” and the “particular cruelty” of the sexual assault. But the jury did not make findings as to these factors. Therefore, the district court erred in imposing the departure.
But the state argues that the jury in essence made the
necessary findings to enhance appellant’s sentence by convicting appellant of
counts two and three. See
Minn. Stat. §§ 609.342, subd. 1(e)(i) (sexual assault based on “coercion”),
609.342, subd. 1(e)(ii) (2002) (sexual assault based on “helplessness” of the
victim). But the Minnesota Supreme Court
recently held that elements of a lesser-included offense cannot form the basis
for an upward departure. State v. Osborne, 715 N.W.2d 436, 447 (
Here, as in Osborne, appellant was not sentenced for his conviction of the lesser-included offenses. See id. And the lesser-included offenses did not encompass the findings required to support an upward departure as to count one, namely, that the sexual assault was against a victim who was “particularly vulnerable” or that the offense was “particularly cruel.” Therefore, we reverse and remand for resentencing in accordance with the requirements of Blakely and Shattuck.
For the purposes of remand, we observe that the legislature has recently enacted significant new provisions for aggravated sentencing departures, including sentencing juries and bifurcated trials and that “these changes apply both prospectively and to resentencing hearings.” Shattuck, 704 N.W.2d at 148 n.17. Minnesota Statutes now provide for bifurcated proceedings or the impaneling of a resentencing jury to determine whether aggravating factors support an aggravated departure consistent with Blakely. See Minn. Stat. § 244.10, subd. 5(c) (Supp. 2005). Hence, the legislature has now provided for bifurcated trials, with sentencing juries, on remand.
Appellant also argues that the district court erred by imposing a ten-year conditional-release term on his sentence. Because we remand for resentencing, appellant’s conditional-release term must be based on whether a jury finds factors justifying a mandatory departure under Minn. Stat. § 609.109, subds. 6, 7 (2002). Accordingly, we remand for determination of appellant’s conditional-release term based on the outcome of appellant’s sentencing on remand.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
The state contends the “plain error” standard applies to appellant’s arguments
about prosecutorial misconduct to which appellant did not object during
trial. Appellant, in his reply brief,
contends that the misconduct should be reviewed to determine if its effect on
the jury was “harmless beyond a reasonable doubt [and] if the verdict actually
rendered was surely unattributable to the error.” State
v. Thompson, 578 N.W.2d 734, 743 (
 For purposes of this decision, counts two and three are the lesser-included offenses.
note that the Minnesota Supreme Court is currently considering issues posed by
application of Minn. Stat. § 244.10,
subd. 5(c), to resentencings. See Hankerson
v. State, No. A06-168, accelerated
review granted (