This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-404

State of Minnesota,

Respondent,

vs.

Alexander Juarez,

Appellant.

Filed December 10, 1996

Affirmed

Foley, Judge

[*]

Hennepin County District Court

File No. 95-029506

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Jean Burdorf, Special Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Parker, Presiding Judge, Willis, Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

This appeal is from judgments of conviction and sentences for attempted first-degree criminal sexual conduct and third-degree criminal sexual conduct. Minn. Stat. SSSS 609.17, 609.342, subd. 1(a), 609.344, subd. 1(e) (1994). Appellant, who was sentenced to consecutive terms of 86 months and 36 months, argues that the trial court abused its discretion in admitting evidence, in excluding defense evidence, and in sentencing him to an upward departure, and that the prosecutor committed prejudicial misconduct. We affirm.

FACTS

Appellant Alexander Juarez was charged with first-degree criminal sexual conduct against his 11-year-old foster son, J.S., third-degree criminal sexual conduct against 16-year-old C.C., a resident at St. Joseph's Home for Children, where Juarez worked, and with soliciting two other juvenile residents at St. Joseph's to engage in prostitution.

At the Rasmussen hearing, defense counsel asked that Juarez's statement to police be suppressed because in it Juarez had asked for an attorney. After reviewing the tape of the statement, the trial court ruled that the taped statement would be played for the jury up to and including Juarez's first reference to an attorney, when he said, "I'm gonna have to get a lawyer next." At the Rasmussen hearing, the court also indicated it would grant the state's motion in limine to exclude any questioning of J.S. about his prior sexual abuse by his father. The court noted that the defense had not provided notice of its intent to seek to use such evidence, as required by the rape shield law.

Both J.S. and C.C. testified at trial, describing the acts alleged in the complaint. Other juveniles, also residents of St. Joseph's, testified for the state, including the two boys Juarez allegedly solicited to engage in prostitution.

Juarez testified in his own defense, denying the alleged offenses. After Juarez testified that police found nothing at his house when they executed a search warrant, and after he referred to his upstairs neighbor as having a girlfriend, the prosecutor sought a ruling that she could question Juarez about being homosexual and having a sexual relationship with Collins. The prosecutor also sought to introduce evidence that some of the property found in Juarez's basement had been identified as being stolen from St. Joseph's. The trial court ruled that the prosecutor could ask Juarez about the neighbor's sexual orientation, but not about Juarez's own. The court allowed questioning about the St. Joseph's property found in the basement, without describing it as "stolen."

In her closing argument, the prosecutor began by arguing that Juarez "thinks that the rules do not apply to him." She gave as examples Juarez giving cigarettes to St. Joseph's juvenile residents, his providing them with alcohol, and his contact with them, contrary to the rules, after they had left St. Joseph's. She argued that Juarez committed the charged offenses despite knowing there were laws against having sex with juveniles.

The jury acquitted Juarez of the first-degree criminal sexual conduct charge involving J.S., but convicted him of attempted first-degree criminal sexual conduct against J.S., of third-degree criminal sexual conduct against C.C., and of soliciting the other two juveniles. The trial court sentenced Juarez to 86 months for the attempted first-degree criminal sexual conduct, a double departure. The court imposed a 36-month sentence for third-degree criminal sexual conduct, also a double departure, and made the two sentences consecutive.

D E C I S I O N

I.

Juarez argues that the trial court abused its discretion, and violated his Miranda rights, by allowing that portion of his taped statement in which he expressed his need for an attorney to be played for the jury. We agree, but find this error to be harmless.

The issue is not whether Juarez legally invoked his right to counsel, but whether the jury could have inferred that he did and then drawn an adverse inference against him.

A defendant's choice to stop questioning by invoking his right to counsel may not be used against him at trial. State v. Roberts, 296 Minn. 347, 352, 208 N.W.2d 744, 747 (1973); State v. Okegbenro, 409 N.W.2d 1, 3 (Minn. App. 1987). Juarez did not unequivocally invoke his right to counsel when he stated he was "gonna have to get a lawyer next." Federal law now differs from Minnesota law on whether an equivocal reference to counsel suffices to invoke the right to counsel. See Davis v. United States, 114 S. Ct. 2350, 2355-56 (1994) (accused's request for counsel must be clear and unequivocal); cf. State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988) (even ambiguous reference to counsel requires police to cease questioning except to clarify accused's desire). It is not the legal effect of Juarez's ambiguous statement that is at issue, rather it is its prejudicial effect on the jury. From all the jury was allowed to hear, Juarez did invoke his right to counsel. The portion of his statement that was admitted at trial ended abruptly after Juarez stated he was going to need counsel.

The jury was not instructed, and could not have known, whether Juarez had legally invoked his right to counsel. They heard him mention his need for counsel, then the statement ended, leaving them "likely to infer * * * that defendant was concealing his guilt." Roberts, 296 Minn. at 353, 208 N.W.2d at 747.

For a constitutional error to be harmless, it must be harmless beyond a reasonable doubt. State v. Townsend, 546 N.W.2d 292, 297 (Minn. 1996). The weight of the evidence must be such that it justifies the verdict regardless of the erroneous admission. Id. The weight of the evidence of the sexual offense against C.C. was "so overwhelming as to lead a reasonable jury to arrive at the verdict even without the prejudicial evidence." Id. C.C.'s testimony was detailed and consistent, the circumstances of his first reporting the sexual conduct indicated reliability, and the state presented corroborating testimony from both J.S., who saw C.C. at Juarez's house, and J.M., who testified that Juarez told him he had sex with C.C.

The evidence of the sexual abuse against J.S. was not as strong. But Juarez's reference to an attorney came in the midst of questioning about C.C., after little had been said about J.S. The prejudicial inference the jury may have drawn did not likely carry over to the count involving J.S. The jury acquitted Juarez of first-degree criminal sexual conduct against J.S., indicating that they looked closely at the evidence and were not influenced by Juarez's statement to police referring to his need for counsel.

II.

Juarez argues that the trial court abused its discretion in ruling inadmissible defense evidence that J.S. had been sexually abused by his father before he came to live with Juarez. Juarez, however, failed to give pretrial notice, as required by the rape shield statute. Minn. Stat. § 609.347, subd. 4(a) (1994) (three business days notice required); see also Minn. R. Evid. 412(2)(A) (motion to be made prior to trial).

Juarez argues that the prior sexual abuse should have been admitted to show that J.S. had another source of knowledge about sex. But it was Juarez's own attorney who elicited J.S.'s statements that he didn't know much about sex before and had no familiarity with sex acts between men. The prosecutor did not elicit any such evidence and therefore did not "open the door" to evidence of other sources of knowledge.

III.

Juarez argues that the prosecutor committed prejudicial misconduct in presenting character evidence, primarily evidence suggesting Juarez was gay, and in arguing that evidence to the jury. The trial court had ruled, after direct examination of Juarez, that the prosecutor could ask Juarez whether his upstairs neighbor was homosexual, but not whether Juarez himself was homosexual. There had been testimony that Juarez had shown to C.C. a pornographic video involving homosexual acts, had engaged in anal intercourse with C.C., and had either propositioned or made sexual comments to at least three other boys residing at St. Joseph's.

Evidence of homosexuality may be properly introduced only if it is relevant to the charged crime. State v. Bates, 507 N.W.2d 847, 852 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993). But long before the prosecutor's questions insinuating that Juarez was homosexual, one of the juveniles, J.M., testified that Juarez had told him he was homosexual. There was no defense objection to this testimony. The inference raised by the prosecution's questions was cumulative to this evidence. Even assuming these questions were improper, they did not likely play a substantial part in influencing the jury to convict. See State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974) (harmless error test for misconduct that is not unusually serious).

Juarez's argument that the prosecutor engaged in a character attack in her final argument is without merit. The prosecutor's statement that Juarez thought the rules did not apply to him was a legitimate comment on the evidence, not an argument that the jury should convict him because he is the type of person who would commit the crime alleged. Cf. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994) (discussing improper character attack).

IV.

Juarez argues that the trial court abused its discretion in imposing double durational departures on both the attempted first-degree criminal sexual conduct and the third-degree criminal sexual conduct, and in sentencing them consecutively. A sentencing court has broad discretion in sentencing and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

The offense against C.C. required, as a statutory element, that Juarez use a position of authority over the victim. See Minn. Stat. § 609.344, subd. 1(e). But the durational departure is adequately supported by the particular vulnerability of C.C., who was a child from a troubled home, who had been abused in the past, and who, by the very fact that he was a resident of St. Joseph's, was known by Juarez to be a vulnerable youth. It is evident that Juarez exploited this vulnerability.

Juarez has no valid argument against the trial court's use of the abuse of authority factor in departing on the offense against J.S. Moreover, J.S. was an even more vulnerable victim than C.C., having been sexually abused by his father and being totally dependent on Juarez for his food and shelter.

Juarez's argument that these aggravating factors were already reflected in the consecutive nature of the sentences is without merit. Consecutive sentencing was permissive because there were two different victims. Minn. Sent. Guidelines II.F, cmt. II.F.06. There was no abuse of discretion in departing on both counts or in making the sentences consecutive.

V.

In a pro se supplemental brief, Juarez argues that he was denied effective assistance of counsel. A defendant claiming ineffective assistance must show that his counsel's performance "fell below an objective standard of reasonableness" and that, but for counsel's errors, there is a reasonable probability that the result would have been different. Gates v. State, 398 N..W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Juarez's claim that his attorney failed to investigate and prepare the case for trial is without merit. Furthermore, what evidence to present is a matter of trial strategy that is generally within the discretion of trial counsel. Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991). It was a reasonable defense strategy to forego the evidence Juarez now claims should have been presented. Moreover, defense counsel's failure to object to some matters, which is also a matter of strategy, was also reasonable because the grounds for the objections Juarez now proposes were either doubtful or without merit.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.