This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


James Earl Patterson,


Filed April 24, 2007


Peterson, Judge


Hennepin County District Court

File No. 04043725


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Mike Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Lydia M. Villalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, 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 assault and attempted first- and second-degree criminal sexual conduct, appellant James Earl Patterson argues that (1) the evidence was insufficient to support the convictions because the complainant’s statements were too inconsistent and her credibility too doubtful; and (2) the district court committed plain error by giving a no-adverse-inference instruction without obtaining appellant’s consent.  We affirm.


            Shortly before 2:00 a.m. on April 6, 2004, D.S. heard bumping noises and a scream coming from the next apartment.  After then hearing a child cry, “Leave my mama alone,” D.S. called 911.

            Minneapolis Police Officer Jeremiah Kocher and a second officer responded to the 911 call.  When the officers arrived, they heard screaming and the victim asking for help.  After knocking on the door and identifying themselves as police, they heard the victim screaming, “Help, please don’t rape me.”  When the officers threatened to kick in the door, it was opened by a man who was later identified as appellant James Earl Patterson. 

            After appellant was removed from the premises, Kocher stayed at the apartment to interview the victim, who was crying and unable to speak.  The victim’s shirt was torn, and she was bleeding from the face.  She appeared to Kocher to be in a state of shock or terror.  After a while, the victim calmed down and described how appellant, who is the victim’s cousin and was spending the night at her apartment, had sexually assaulted her.  The victim was awakened by appellant crawling into bed with her and threatening to sexually assault her.  At some point, the victim ran out of the bedroom into the living room.  In the living room, appellant threw her onto the couch, punched her in the face repeatedly, and threatened her with a knife, holding her down and saying, “If you scream, I’ll cut your . . . throat.  And by the time the police . . . get here, you’ll be dead.”  Officers recovered a knife from the victim’s apartment.  Later that morning, the victim gave a statement to Minneapolis Police Sergeant Daniel Swalve.

            Appellant was charged with two counts of attempted criminal sexual conduct and one count of second-degree assault.  Family members pressured the victim not to testify against appellant.  One of appellant’s sisters offered the victim “money not to say what happened, using the excuse [that] . . . he was high.”  Another sister told the victim that she “shouldn’t go through with it because [she] knew [appellant] was high and he didn’t mean to do it.”  The victim’s mother told her not to go through with the case against appellant and told her to “hide out for awhile,” so she would not have to testify against appellant. 

            Trial was scheduled to begin in late June 2004.  During jury selection, the victim left the courthouse.  The trial was continued, but when the victim could not be located, the jury, which had not been sworn, was discharged, and the complaint was dismissed on July 6, 2004.  The charges against appellant were re-issued on July 12, 2004. 

            The victim was located, and in a statement made to a police sergeant and a child-protection worker in September 2004, the victim said that on the night of the incident, she had gotten into an argument and physical fight with a woman who had come to the victim’s apartment with appellant.    

            Trial on the re-issued charges began in March 2005.  The victim testified at trial that she had lied in her September 2004 statement due to pressure from appellant and other family members.  The victim’s trial testimony indicated that appellant tried to stab her with a knife in the bedroom rather than in the living room. 

            A jury found appellant guilty as charged.  The district court sentenced appellant for the attempted first-degree criminal sexual conduct offense to an executed term of 73 months in prison with a ten-year conditional-release term.  This direct appeal challenging the convictions followed.


1.         Appellant argues that his convictions must be reversed because inconsistencies between the victim’s trial testimony and out-of-court statements and other evidence tending to cast doubt on the victim’s credibility make the victim’s testimony incredible as a matter of law.

            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 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  In evaluating the reasonableness of the jury’s decision to convict, the court defers to the jury on the issues of witness credibility and the weight to be assigned each witness’s testimony.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

            Appellant cites inconsistencies between the victim’s trial testimony and her statements to Kocher and Swalve.  The victim’s statement to Kocher that appellant threw her onto the couch and punched her several times differed from her statement to Swalve and from her trial testimony, which did not indicate that appellant assaulted her on the couch.  The victim’s statement to Kocher that appellant held the knife to her when she was on the couch, although she was not sure when he had it, differed from her statement to Swalve and her trial testimony, both of which indicated that appellant had the knife in the bedroom. 

            Minnesota’s appellate courts have upheld sexual-assault convictions despite inconsistencies in the victim’s accounts of what happened.  See, e.g., State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (when victim’s accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (when child victim told officer that she had been sexually abused by defendant on five or more occasions but at trial testified to only three incidents, inconsistency between testimony and the prior statement was for jury to consider in weighing victim’s credibility).

            Appellant argues that the victim’s recantation of the allegations about appellant and the following evidence also tend to cast doubt on her credibility.  On April 22, 2004, the victim told a witness coordinator that she had been offered money to drop the charges but did not agree to do so; on March 24, 2005, the victim told the same person that she had accepted $250 from one of appellant’s sisters and agreed not to testify.  After the charges against appellant were dismissed in July 2004 and appellant was released from jail, he was a regular guest at the victim’s home.  In September 2004, appellant was present when police raided the victim’s apartment and cited her for a disorderly house.  The victim admitted using drugs.  At the time of trial, the victim’s children were in foster care; the victim needed to satisfy several requirements to get them back, and she understood that if she did not testify at appellant’s trial, she might not get her children back. 

            Witness credibility and the weight of the evidence are issues for the fact-finder to decide.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The inconsistencies between the victim’s trial testimony and her statements to Kocher and Swalve were only minor.  As to the other evidence noted by appellant, the reasons for the victim’s changing stories were disclosed to the jury, and it was the jury’s role to determine which story was credible.  See State v. Foreman, 680 N.W.2d 536, 538-39 (Minn. 2004) (rejecting argument that corroboration of victim’s testimony was required because victim had earlier recanted allegations against defendant); State v. Cichon, 458 N.W.2d 730, 735 (Minn. App. 1990) (stating that defendant’s claim that victim’s report of abuse was motivated by a custody hearing was an issue for the jury to consider in determining the weight and credibility of testimony), review denied (Minn. Sept. 28, 1990). 

            Also, the victim’s testimony and statements to police were corroborated by what D.S. heard before calling 911 and what the officers heard when standing outside the victim’s apartment and by the victim’s demeanor following the assault.  See State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (sexual-assault victim’s demeanor after assault corroborated her testimony), review denied (Minn. Mar. 16, 1990).  In addition, the victim’s statement to Kocher was consistent with her injuries and the knife found in her apartment.  The jury apparently believed the victim’s initial account of the sexual assault.  The evidence was sufficient to support appellant’s convictions.

2.         Both the United States and Minnesota Constitutions guarantee a criminal defendant’s right not to testify.  U.S. Const. amend. V; Minn. Const. art. 1, § 7.  “[F]ailure to testify shall not create any presumption against the defendant.”  Minn. Stat. § 611.11 (2004).  Thus, a district court should ordinarily obtain permission from a criminal defendant before instructing the jury not to draw any inference from the defendant’s decision not to testify.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  And if defense counsel requests a no-adverse-inference instruction, the court or the defendant’s counsel “should make a record of the defendant’s clear consent and insistence that the instruction be given.”  McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002).  Failure to obtain the defendant’s consent on the record is error.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).

            Without obtaining appellant’s personal consent, the district court instructed the jury to “not draw any inference from the fact that [appellant] has not testified in this case.”  Citing State v. Clifton, 701 N.W.2d 793, 798 (Minn. 2005), the state argues that appellant’s consent can be inferred.  In Clifton, the record showed that a conference between the defendant and his attorney resulted in including a proposed no-adverse-inference instruction in the final instructions, and the oral assent of both counsel to the final instructions was placed on the record before the instructions were given.  701 N.W.2d at 798.

            Here, comments by defense counsel indicate that counsel intended to discuss the no-adverse-inference instruction with appellant, but the record does not show that the intended discussion occurred.  Under these circumstances, consent cannot be inferred, so the district court erred in giving the no-adverse-inference instruction.

            But because appellant did not object to the instruction, this court reviews the error only if it is plain error that affected the defendant’s substantial rights.  Darris, 648 N.W.2d at 240 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  “[P]lain error is prejudicial when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.”  Id. The defendant bears the heavy burden of showing such a significant effect.  Griller, 583 N.W.2d at 741.

            Appellant has not satisfied this burden.  The supreme court has consistently held that giving the no-adverse-inference instruction without first obtaining the defendant’s consent, by itself, is not usually reversible error.  Darris, 648 N.W.2d at 240-41; State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); State v. Rosen, 280 Minn. 550, 550-51, 158 N.W.2d 202 (1968) (per curiam); see also Duncan, 608 N.W.2d at 558 (after noting that the no-adverse-inference instruction may have emphasized defendant’s failure to testify because the central issue in the case was the credibility of the victims’ statements, this court concluded that the error, by itself, was not reversible error).