This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jeremiah Marquis Johnson,
Filed August 21, 2007
Ramsey County District Court
File No. K9-05-3529
Lori Swanson, Attorney General,
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Blvd. West, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public
Defender, Marie Wolf, Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of first-degree criminal sexual conduct and first-degree burglary, arguing that evidence was insufficient to support his convictions because the victim’s testimony was unreliable. Appellant also challenges the imposition of consecutive sentences for his convictions, arguing that it exaggerates the criminality of his conduct and was improper because the two offenses share a common element. Because the evidence is sufficient to support the convictions and the district court did not abuse its discretion by imposing permissive consecutive sentences, we affirm.
R.J. told police that he was in bed when he heard someone downstairs. A man entered R.J.’s bedroom and demanded money. The man pointed what appeared to be a gun at R.J. and threatened to kill him. The man took cash and a credit card from R.J.’s wallet, and also took car keys. At one point, the man held the gun to R.J.’s head and choked him. R.J. described the perpetrator and provided the license-plate number of the stolen car.
Later that night, police located appellant Jeremiah Marquis Johnson driving the stolen car and arrested him. Johnson fit the suspect’s description and possessed a “replica” or “toy” gun, as well as money, keys, and a wallet.
Police brought R.J. to the scene of the stop, where he positively identified Johnson as the person who entered his home and robbed him. Police allowed R.J. to leave with his car, but later discovered that Johnson had additional sets of R.J.’s keys. The officers immediately went back to R.J.’s home to return the keys.
When the police arrived back at R.J.’s home, R.J. stated that Johnson sexually assaulted him during the burglary. R.J. stated that Johnson demanded oral sex and that he felt so threatened that he “didn’t have any other choice but to cooperate.” R.J. maintained that he did not know Johnson and that he did not consent to Johnson entering his home and taking his money and car.
Johnson was charged with first-degree criminal sexual conduct, theft of a motor vehicle, and two counts of first-degree burglary. Johnson waived a jury trial and was tried before the district court.
R.J. testified to the facts above. Johnson also testified and contradicted much of R.J.’s testimony. Johnson stated that he knew R.J. from prior drug deals and that R.J. owed him money. Johnson also testified that R.J. allowed him to borrow the car on October 12, but that he kept it for much longer than they agreed. Johnson denied any knowledge of the replica gun found in his possession and denied forcing R.J. to perform oral sex.
Johnson’s ex-girlfriend also testified that Johnson and R.J. knew each other and that she saw Johnson go to R.J.’s house to collect money once before. She admitted that she never saw or met anyone who lived in R.J.’s home.
The district court found Johnson guilty of all charges and sentenced him to consecutive 50-month and 144-month terms for one burglary count and the criminal-sexual-conduct charge. The district court also executed a 13-month concurrent sentence for the motor-vehicle theft, but did not sentence appellant for the second burglary count. This appeal followed.
D E C I S I O N
Sufficiency of the Evidence
Johnson argues that the evidence was insufficient to support his convictions of burglary and criminal sexual conduct because Johnson’s testimony was not credible. He contends that Johnson’s testimony “was so unbelievable on so many different points that a reasonable fact-finder . . . could not have convicted him” of burglary or criminal sexual conduct.
In considering a claim of insufficient evidence, this
court gives a district court’s findings the same weight as a jury verdict and
will not set it aside unless clearly erroneous.
The record shows that R.J. and
Johnson presented conflicting testimony about the events on October 12, 2005,
and their prior relationship, if any.
The district court accepted R.J.’s testimony and rejected Johnson’s
testimony, and we will not disturb that credibility determination. Landa,
642 N.W.2d at 725. Furthermore, R.J.’s
testimony was not so outlandish or unbelievable to require us to reverse the
district court’s credibility determination.
Finally, R.J’s testimony alone was sufficient to prove the sexual assault
and did not require independent corroboration.
Johnson also challenges the district court’s imposition of consecutive sentences for his burglary and criminal-sexual-conduct convictions, arguing that the sentences exaggerate the criminality of his conduct and were improper because the two crimes are not “discrete” offenses.
will not reverse a district court’s decision to impose a consecutive sentence
unless there has been a clear abuse of discretion.” Neal v. State, 658 N.W.2d
536, 548 (
When a person’s conduct
constitutes more than one criminal offense, he may be punished for only one of
The Minnesota Sentencing
Guidelines provide for permissive, consecutive sentencing for multiple current
convictions of first-degree burglary and first-degree criminal sexual
The statutory exceptions to the prohibition against punishments for multiple offenses committed during the same behavioral incident apply in this case. Johnson was convicted of first-degree burglary, and under section 609.585, the district court could convict and sentence Johnson for the criminal-sexual-conduct offense committed during the burglary. Similarly, under section 609.035, subdivision 6, Johnson’s conviction of criminal sexual conduct allowed for conviction and sentencing for the burglary offense committed during the criminal sexual conduct. Therefore, although Johnson’s burglary and criminal-sexual-conduct offenses arose from the same behavioral incident, statutory exceptions apply that permit consecutive sentences for both convictions.
Johnson also argues that
consecutive sentencing was improper because the burglary and criminal-sexual-conduct
offenses share a common element and therefore are not “discrete” crimes.
Johnson’s burglary and
criminal-sexual-conduct convictions both required possession of a dangerous
weapon or an article used or fashioned in a manner to lead the victim to
reasonably believe it to be a dangerous weapon.