This opinion will be unpublished and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

C6-96-230

State of Minnesota,

Respondent,

vs.

Jeffrey Michael Murdent,

Appellant.

Filed January 14, 1996

Affirmed

Peterson, Judge

Stearns County District Court

File No. KX951732

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

Roger Van Heel, Stearns County Attorney, 725 Courthouse Square, St. Cloud, MN 56302 (for Respondent)

John M. Stuart, Minnesota State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

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

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

PETERSON, Judge

Appellant Jeffrey Michael Murdent argues that his convictions for first-degree criminal sexual conduct should be reversed because (1) the prosecutor committed misconduct during trial; (2) the district court erred in admitting evidence of his third-degree assault conviction; and (3) his counsel at trial was ineffective. Appellant also argues that the district court abused its discretion in sentencing. We affirm.

FACTS

Appellant was married to Monica Murdent (Murdent). Murdent had a daughter, G.S., from a previous relationship. G.S. was born on August 22, 1987. Appellant and Murdent had a son, J.M., born on November 28, 1988. Appellant was charged with two counts of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(h)(iii)(1994), and one count of third-degree assault pursuant to Minn. Stat. § 609.223, subd. 1 (1994).

Appellant pleaded guilty to the third-degree assault charge. The incident on which this charge was based occurred in January 1995. Murdent testified that appellant was yelling at J.M. and then appellant called for her because "his [J.M.'s] insides are hanging out." Murdent testified that when she saw J.M., his pants were pulled down around his legs and the insides of his scrotum were hanging out. Appellant told Murdent that his fingernail must have gotten caught on J.M. At the guilty plea hearing, appellant admitted that he grabbed J.M.'s penis and tore his scrotum. In explaining his conduct, appellant testified that he was upset that J.M. was playing with dolls and scolded him.

Appellant pleaded not guilty to both counts of first-degree criminal sexual conduct. At a jury trial, J.M. testified that appellant (1) touched or poked his penis when he was napping; (2) flicked his private parts after appellant told him to take off his clothes and lie on the couch; and (3) made him touch appellant's private parts and massage parts of appellant's body including his butt, tummy, hair, legs, and feet. J.M. stated that appellant would put things in J.M.'s butt including a soap bottle, medicine, tools, and appellant's penis. J.M. also testified that appellant had J.M. put his mouth on appellant's penis and suck it and that appellant put his mouth on J.M's penis.

G.S. testified at trial that appellant had her take off her clothes and stand in a closet wearing a ski mask while appellant touched her vagina. G.S. described an incident where appellant covered her eyes, put something in her mouth, and asked if she knew what it was. G.S. thought it was a banana. G.S. also stated that appellant made her massage him while he was undressed and that appellant would put medicine in her butt and vagina. She testified that appellant put an object with a cord in her vagina.

Appellant denied sexually abusing the children. He denied the occurrence of all the sexual acts described by the children and stated that Murdent had threatened to deny him visitation with the children.

The jury found appellant guilty of both counts of first-degree criminal sexual conduct. Appellant's attorney moved for a new trial, arguing that the evidence did support the verdict. Appellant pro se moved for a new trial, arguing ineffective assistance of counsel. The court denied both motions and sentenced appellant to consecutive terms of 244 months and 172 months (double durational departures) for the criminal sexual conduct convictions and to a concurrent term of 48 months (guidelines sentence) for the assault conviction.

D E C I S I O N

1. Prosecutorial Misconduct

On a claim of prosecutorial misconduct, we "determine if there was improper conduct and, if so, whether it was serious." State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). We review the alleged misconduct in light of the entire record. Id.

A. Cross Examination of Appellant

Appellant argues that during cross-examination, the prosecutor asked him several inflammatory and argumentative questions designed to elicit an expression from appellant that the state's witnesses lied. The only example of such a question cited by appellant was one in which the prosecutor asked whether appellant was "seriously claiming [he was] never alone with those two children anytime in 1991 or 1992 when [he] might have flicked [J.M.'s] penis once; [he] never had the opportunity to do that?"

"Courts have generally allowed a wide range of inquiry on cross-examination." Id. This is particularly true where the credibility of the defendant and the complainant are critical. Id. A prosecutor is allowed to explore discrepancies in the testimony. Id.

Here, the credibility of appellant and the children were critical. Defense counsel stated during opening argument that the defense theory of the case was that appellant was the victim of a vicious and continuing lie nurtured by G.S.'s grandmother and joined in by Murdent to obtain custody of J.M. Appellant's basic contention at trial was that no inappropriate sexual conduct occurred and the children's stories were fabrications. Given the context in which the prosecutor asked the question cited by appellant and other questions regarding whether appellant recalled the testimony of the children, we conclude that the questions were not misconduct because they did nothing more than focus on discrepancies between appellant's testimony and the testimony of the children and other witnesses.

B. Closing Argument

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 (Minn. 1996).

In closing arguments, counsel has the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.

Id.

Appellant argues that the prosecutor committed misconduct in her closing argument by attacking appellant's counsel, appellant's credibility, and the credibility of appellant's witnesses. These arguments are meritless. The transcript of the prosecutor's closing argument demonstrates that the argument was confined to proper comment on the evidence presented at trial and inferences to be drawn from the evidence. Contrary to appellant's description of the argument, nothing in the argument can be fairly characterized as inflammatory or excessively passionate. The prosecutor did not commit misconduct in her closing argument.

C. Testimony of Murdent

Appellant pro se argues that the prosecutor committed misconduct in failing to correct the allegedly perjured testimony of Murdent. Appellant included in his pro se appendix a copy of the document that he contends demonstrates the testimony was perjured. This document, however, was not part of the record at trial.

An appellate court may not base its decision on matters outside the record on appeal, and matters not produced and received in evidence below may not be considered.

State v. Larson, 520 N.W.2d 456, 464 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994) (quoting Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 847 (Minn. App. 1986), review denied (Minn. June 30, 1986)). Because appellant's claim rests wholly upon a document that was not produced and received in evidence below, we will not consider the claim on appeal.

2. Evidence of Appellant's Third-Degree Assault

Appellant pro se argues that the district court erred in admitting evidence of his third-degree assault conviction during his trial for first-degree criminal sexual conduct. Appellant claims that the prejudicial effect of the testimony and photographs regarding the third-degree assault substantially outweighed its probative value.

Decisions regarding the admission of evidence rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.

State v. Sebasky, 547 N.W.2d 93, 97 (Minn. App. 1996), review denied (Minn. June 19, 1996). Evidence of past bad acts is admissible to show preparation, plan, and intent. Id. The evidence must be: (1) relevant and material to the state's case; (2) clear and convincing; and (3) more probative than its potential for unfair prejudice.

Id.

Evidence regarding the third-degree assault was relevant and material to the state's case because the circumstances surrounding the assault, like the circumstances that prompted the criminal sexual conduct charges, involved sexual contact as a form of punishment. Evidence of the assault was clear and convincing; appellant pleaded guilty to the offense. Finally, evidence of the assault was highly probative because it demonstrated that an injury to J.M.'s genitalia that was consistent with allegations of sexual contact as a form of punishment occurred close in time to the alleged criminal sexual conduct. The highly probative nature of the evidence outweighed its potential for unfair prejudice. In addition, the district court instructed the jury:

[Appellant] is not being tried for and may not be convicted of any crime other than the crime charged in the Complaint. You are instructed specifically that you are not to convict [appellant] of criminal sexual conduct on the basis of the assault on [J.M.]. To do so might result in unjust double punishment.

This instruction reduced further any potential that the evidence would be used improperly. See State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996) (district court minimized prejudicial effect of other-crime evidence by giving cautionary instructions).

3. Effective Assistance of Counsel

Appellant pro se argues that he was denied effective assistance of counsel because his counsel did not present evidence that appellant had to repeatedly apply medicine on the children's buttocks because of their improper hygiene; present evidence that G.S.'s grandmother and Murdent were motivated to charge appellant with sexual abuse; effectively examine Michelle Kedrowski; call additional witnesses; and challenge the testimony of Mindy Mitnick.

An attorney provides effective representation by exercising "'the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances.'" Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (quoting Morgan v. State, 384 N.W.2d 458, 460 (Minn. 1986)). The defendant bears the burden of proving his attorney did not provide effective representation "and a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "Trial tactics, however, are not to be confused with competence." Morgan, 384 N.W.2d at 460.

"Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight. Counsel must, after all, have the flexibility to represent a client to the fullest extent possible."

Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986)).

Appellant's claims of ineffective counsel concern matters of trial tactics regarding which witnesses to call and what information to present to the jury. These tactics will not be reviewed by this court, and thus appellant's claim of ineffective counsel fails.

4. Upward Durational Departure

Appellant argues that the district court abused its discretion by imposing a double durational departure sentence for each first-degree criminal sexual conduct conviction.

The decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). A district court has the discretion to depart from the presumptive term when substantial and compelling circumstances exist. Smith, 541 N.W.2d at 589. When deciding whether to depart, the district court determines whether the defendant's conduct was more or less serious than the conduct typically involved in the commission of the crime. Id.

The district court's durational departures were based on a finding that multiple forms and acts of penetration were committed and particular cruelty was used in perpetrating the offense. Multiple penetrations alone will justify a double, but not greater, durational departure. State v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987). Not only did appellant subject the children to oral, anal, and vaginal penetration of his penis, he also penetrated the children with foreign objects. These multiple forms of penetration justify the double durational departures.

In addition, an aggravated departure is justified when the victim was treated with particular cruelty. Minn. Sent. Guidelines II.D.2.b(2). Appellant threatened the children and forced them to submit to sexual penetration while blindfolded or wearing a mask. This conduct constitutes particular cruelty warranting an upward durational departure.

Appellant argues that multiple forms of penetration could not be treated as an aggravating factor because multiple acts of penetration was an element of the first-degree criminal sexual conduct offenses for which the sentences were imposed. We disagree. The district court cannot make an element of the offense a reason for departure. Sebasky, 547 N.W.2d at 101. But multiple forms of penetration was not an element of the offenses for which appellant was sentenced.

Minn. Stat. § 609.342, subd. 1 (h)(iii)(1994) provides:

A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age * * * is guilty of criminal sexual contact in the first degree if any of the following circumstances exists:

* * * *

(h) the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual penetration, and:

* * * *

(iii) the sexual abuse involved multiple acts committed over an extended period of time.

The plain language of Minn. Stat. § 609, 342, subd. 1(h)(iii) requires only a single act of penetration, which can obviously be accomplished by a single form of pentration. Contrary to appellant's claim, the offense is committed when there are multiple acts of sexual abuse, not multiple forms of sexual penetration.

Affirmed.