This opinion will be unpublished and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

#C2-96-449

State of Minnesota,

Respondent,

vs.

Corky Joe Maurer,

Appellant.

Filed December 31, 1996

Affirmed.

Harten, Judge

Redwood County District Court

File No. K4-95-357

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

Robert D. Tiffany, Redwood County Attorney, P. O. Box 130, Redwood Falls, MN 56283 (for Respondent)

John Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, E-1314 First National Bank Bldg., 332 Minnesota St., St. Paul, MN 55101 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

HARTEN, Judge

This appeal is from a judgment of conviction and sentence for fourth-degree criminal sexual conduct. Minn. Stat. § 609.345, subd. 1(c) (1996). Appellant Corky Joe Maurer challenges the composition of the jury venire, the admission of impeachment evidence, the instruction to the jury, and the sufficiency of the evidence. He also argues that the prosecutor committed prejudicial misconduct and that the district court abused its discretion in departing from the presumptive sentence. We affirm.

FACTS

Maurer was charged with two counts of fourth-degree criminal sexual conduct and one count of terroristic threats for sexually touching and threatening L.J. during two separate incidents on August 11, 1995.

Before trial, the district court ruled that if Maurer testified he could be impeached by a 1991 Iowa conviction for sexual misconduct. Defense counsel objected to the jury venire, noting that only seven out of the 35 members were male. Counsel stated that he objected if men were being excused because it was harvest time, but the district court overruled the objection. Defense counsel reiterated his objection when, of the 21 prospective jurors called, only five were men. After voir dire and the exercise of peremptory challenges and excusals for cause, five of the 13 jurors (including one alternate) were male.

L.J. testified that Maurer, whom she had only known for a few days, had grabbed her in early July and began kissing her. She told him to leave her alone. L.J. testified that when she went to Maurer's house on August 11 with her infant son, Maurer grabbed her, pulled her onto his lap as he sat on the couch, and forced her to touch his penis. Later the same day, after she had asked Maurer for a ride home, and after he had fixed her window, he came into the bedroom, grabbed her, and started kissing her, placing his hands under her shirt and then under her shorts. When L.J. said she had to go to the bathroom, Maurer followed her there. After that incident, Maurer raised his fist and told L.J. to keep secret what had happened between them. L.J. reported the two incidents to the police that night.

Maurer denied any sexual contact with L.J. He admitted that he had pleaded guilty in 1991 to an Iowa offense involving sexual misconduct.

The state requested a jury instruction that corroborative evidence was not required. Defense counsel argued that this was a legal issue that should not go to the jury. The district court gave a shortened version of the state's requested instruction.

The jury found Maurer guilty of both counts of fourth-degree criminal sexual conduct and of terroristic threats. The district court sentenced Maurer on only one of the fourth-degree criminal sexual conduct charges, concluding that the other two offenses were part of the same behavioral incident. The district court imposed an executed sentence of 72 months, a double departure from the presumptive sentence, citing as an aggravating factor the presence of L.J.'s child during the offense.

D E C I S I O N

1. Jury Composition. Maurer argues that his Sixth Amendment right to a fair cross-section of the community on the jury venire panel was violated by the court administrator excluding male prospective jurors who were farmers from serving on the jury panel, even though they had not claimed hardship or requested an exemption.

The Sixth Amendment does not guarantee a criminal defendant a jury of a particular composition, or one that mirrors the community, but it does give him a right to a jury venire representing a fair cross-section of the community. State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994) (citing Duren v. Missouri, 439 U.S. 357, 364-67, 99 S. Ct. 664, 668-70 (1979)). In order to make a prima facie showing of a violation of this right, the defendant must show

that the group allegedly excluded is a"distinctive" group in the community, that the group in question was not fairly represented in the venire, and that the underrepresentation was the result of a "systematic" exclusion of the group in question from the jury selection process.

Id. (citation omitted).

Post-trial affidavits established that male farmers were excluded from the panel of prospective jurors during the harvest season without any individual request or claim of hardship. See generally Minn. R. Gen. Pract. 810(a), (b)(2) (qualified prospective juror may not be excused automatically but may be excused for hardship upon request). The better district court practice would be to comply with the rule. This systematic exclusion, however, was not of a "distinctive" group. Nor was there any evidence of systematic exclusion of males generally, who are a "distinctive" group. Therefore, Maurer has not made a prima facie showing of a denial of his Sixth Amendment right to a fair cross-section of the community on the jury panel.

2. Impeachment. Maurer argues that the district court abused its discretion by allowing the state to use for impeachment purposes his 1991 Iowa conviction for a sexual offense. The district court's decision to admit a prior conviction for impeachment purposes will be sustained absent an abuse of discretion. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).

The district court did not articulate on the record its analysis under the five-part balancing test laid out in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). While noting that the district court should express on the record its exercise of discretion in applying the Jones test, we have upheld the admission of impeachment evidence despite the district court's failure to do so. State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991). The Iowa conviction was only four years old at the time of trial and it was for a sexual offense similar to that in the instant case. The supreme court has upheld the admission for impeachment purposes of offenses similar to the charged offense even if they do not have great impeachment value and even if credibility is the central issue in the case. See, e.g., State v. Brouillette, 286 N.W.2d 702, 707-08 (Minn. 1979) (sexual offense conviction properly admitted in sexual misconduct case).

Maurer argues that the district court improperly failed to give a cautionary instruction when admitting evidence of the prior offense. But defense counsel specifically waived such an instruction proposed by the district court shortly after the evidence was admitted. Defense counsel chose to rely on the cautionary instruction that was given in the final instructions. Maurer has not shown an abuse of discretion in allowing impeachment by prior conviction.

3. Corroboration. Maurer argues that the district court abused its discretion in instructing the jury that corroboration of the victim's testimony was not required. The state concedes that the giving of this instruction was error. See State v. Erickson, 403 N.W.2d 281, 286 (Minn. App. 1987) (jury instructions should not include statement that victim's testimony, in prosecution for criminal sexual conduct, need not be corroborated), review denied (Minn. Apr. 29, 1987); State v. Williams, 363 N.W.2d 911, 914 (Minn. App. 1985) (lack of corroboration is evidentiary matter that should not be included in instructions), review denied (Minn. May 1, 1985). But, as the state points out, in both Erickson and Williams, the giving of the instruction was held not to be reversible error. See also State v. Trimble, 371 N.W.2d 921, 927 (Minn. App. 1985) (not reversible error to give lack-of-corroboration instruction), review denied (Minn. Oct. 11, 1985).

The district court instructed the jury that "corroboration of [L.J.]'s testimony is not required to show a lack of consent." We find no possibility that Maurer was prejudiced by this instruction. It is unlikely that the jury would have expected corroborative evidence on the issue of consent, as distinguished from corroboration of the sexual contact itself, particularly because Maurer claimed fabrication, not lack of consent. Moreover, defense counsel extensively cross-examined L.J. on inconsistencies in her testimony and on details of her private life, including her mental health and drug use. The issue of L.J.'s credibility greatly overshadowed any issue of corroboration.

4. Sufficiency of the Evidence. Maurer argues that the evidence is insufficient to support the conviction. But his argument largely relies on assertions about the credibility of L.J.'s testimony and the inconsistencies in her story. In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the state, assuming that the jury believed the state's witnesses and discredited contrary evidence. State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988). The jury determines the credibility and weight to be given the testimony of witnesses. Id.

Maurer argues that there was insufficient evidence as a matter of law to show force or coercion. There is sufficient evidence of coercion, however, where the perpetrator creates an atmosphere of fear. State v. Gamez, 494 N.W.2d 84, 87 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993). In the first incident, Maurer grabbed L.J. and pulled her onto his lap. He then grabbed her child and held the child. In the second incident, Maurer also pulled L.J. onto his lap, undid her bra, and went so far as to follow her into the bathroom. These actions certainly created an atmosphere of fear. There is sufficient evidence that Maurer employed both coercion and force in accomplishing the sexual contact.

5. Prosecutor Misconduct. Maurer contends that the prosecutor committed prejudicial misconduct during the trial. Maurer did not object during the prosecutor's closing argument, but he did bring a post-trial motion seeking a new trial based on prosecutorial misconduct, among other grounds. The district court denied the motion. Where the district court has been presented with the issue of prosecutorial misconduct, we recognize the discretion of the district court judge, who is in the best position to assess the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

Id. (citing State v. Collins, 276 Minn. 459, 477, 150 N.W.2d 850, 862 (1967), cert. denied, 390 U.S. 960, 88 S. Ct. 1058 (1968)).

Only four of Maurer's claims of prosecutorial misconduct merit discussion. First, we find no merit in Maurer's claim that the police officer's near-reference to Maurer's invocation of the right to counsel was prosecutorial misconduct. The prosecutor did not elicit any reference to the invocation of the right to counsel, the witness' response was interrupted before the damaging words got out, and the district court ordered stricken the entire response.

Maurer also challenges the prosecutor's references to L. J.'s troubled background, her prefacing several comments with "I think," and her reference to defense counsel's failure to present evidence he had referred to in his opening statement.

A prosecutor may not in closing argument make comments designed to influence and inflame the passions of the jury. State v. Walsh, 495 N.W.2d 602, 606 (Minn. 1993). But defense counsel was allowed to question L.J. extensively about her background, including two prior rapes, a suicide attempt, her medical history including prescribed medications, and her use of marijuana. The prosecutor's references to L.J.'s troubled background were not improper attempts to elicit sympathy, but proper comments on that background and a response anticipating defense counsel's likely arguments. Moreover, defense counsel did not object and in fact responded in his closing argument See State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (where defense counsel does not object to statement made during prosecutor's closing argument, defense waves right to have issue considered on appeal).

A prosecutor may not inject his or her personal belief or opinion into the proceeding. See State v. Eling, 355 N.W.2d 286, 294 (Minn. 1984) (prosecutor may not inject personal belief as to credibility of witness or guilt of defendant). The prosecutor's apparent expressions of opinion ("I think"), however, were merely colloquial phrasings of how she urged the jury to view the evidence, not attempts to place her personal opinion before the jury.

A prosecutor may not refer to the failure of the defense to produce certain evidence, so as to suggest that the defense bears a burden of proof. See, e.g., State v. Fields, 306 Minn. 521, 522, 237 N.W.2d 634, 634 (1976) (prosecutor may not comment on defendant's failure to call corroborating witnesses). The prosecutor here did not attempt to shift the burden of proof, but only identified gaps in the evidence that defense counsel had indicated in his opening statement that he would cover. Some of these arguments were merely minor distinctions that could not have suggested to the jury that the defense failed to meet some burden of proof.

6. Sentencing Departure. Maurer argues that the district court abused its discretion in imposing a double durational departure from the presumptive sentence of 36 months. The district court has broad discretion in sentencing, and its decision to depart will not be reversed absent a clear abuse of discretion. State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993).

The district court cited the presence of L.J.'s child in the room during the first incident to support the double departure. See, e.g., State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (presence of children properly considered as an aggravating factor), review denied (Minn. Jan. 16, 1992). Maurer's argument that the child factor was misused here is without merit. Maurer not only committed the offense in the presence of the child, but also picked up the child during the offense and used the child as a means of incapacitating L.J. from any forceful resistance to him. This was an egregious case of commission of an offense in the presence of a child. Moreover, as the state points out, the departure is also supported by Maurer's prior criminal sexual conduct conviction. See Minn. Sent. Guidelines II.D.2.b(3) (aggravating factor exists if defendant convicted of criminal sexual conduct and has prior felony conviction for criminal sexual conduct).

7. Supplemental Pro Se Claims. Maurer has filed a supplemental pro se brief arguing that the prosecutor committed prejudicial misconduct, that the prosecutor violated discovery rules, and that L.J.'s credibility is so suspect as to deprive the verdict of sufficient support.

Maurer's claims of prosecutorial misconduct duplicate those discussed above. Maurer's claim of discovery violations refers in part to an allegedly untimely disclosure of Spreigl evidence that was never admitted at trial and therefore could not be prejudicial. The other claim refers to reports of the women's shelter advocate who interviewed L.J. after her report to police. But nothing in the record shows that the prosecutor was aware of these reports.

Maurer's challenge to L.J.'s credibility is adequately addressed by the discussion above on the sufficiency of the evidence. This court cannot substitute its judgment of a witness' credibility for that of the jury.

Affirmed.