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STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Craig Alan Hanson,
Filed April 15, 1997
St. Louis County District Court
File No. K795300681
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Craig Alan Hanson challenges his judgment of conviction for first degree criminal sexual conduct, and his sentence, arguing that: (1) the evidence was insufficient to support his conviction, pointing to problems with eyewitness identification; (2) the trial court erred by instructing the jury that no inference could be drawn from his failure to testify even though he did not request that instruction; and (3) the trial court abused its discretion in imposing a mandatory 30-year sentence consecutively rather than concurrently. We affirm.
In the early morning hours of April 19, 1995, a man broke into 20-year-old A.G.'s ground floor apartment while she and her three-year-old daughter were sleeping in the daughter's bed. The assailant raped A.G. repeatedly and remained in the apartment for about four hours, smoking and talking to the victim.
In March 1995, appellant Crag Alan Hanson, who lived at the same apartment complex as the victim, was arrested for a raping another woman who lived on the ground floor of the same apartment complex. A.G. requested a line-up, was shown a photographic line-up with six people, and picked appellant's photo. Appellant was charged with two alternate counts of first degree criminal sexual conduct.
At trial, the state was allowed to present evidence of three sexual assaults appellant committed--one in Duluth and the other two (the same victim twice) against a mentally retarded woman in the same apartment complex where A.G. lived. The jury found appellant guilty as charged and he was sentenced to 30 years consecutive to the two 30-year sentences in the case involving the mentally retarded woman. This appeal followed.
D E C I S I O N
I. Sufficiency of the Evidence
Hanson argues that the evidence was not sufficient to sustain his conviction. When there is a challenge to the sufficiency of the evidence, this court's review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Hanson argues that there are problems with the victim's eyewitness identification. The supreme court has indicated that the following factors are relevant in evaluating an eyewitness identification: (1) the witness's opportunity to see the defendant at the time the crime was committed; (2) the length of time the assailant was in the witness's view; (3) the stress the witness was under at the time of the crime; (4) the lapse of time between the crime and the witness's identification; and (5) the effect of the police procedures as either testing the witness's identification or simply reinforcing the witness's initial identification of the defendant as the one who committed the crime. See State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969).
Hanson argues that the victim's identification was unreliable because: (1) she qualified the out-of-court identification "with a question mark"; (2) the assault took place in the middle of the night when there was no light in the apartment; (3) the victim was under stress at the time of the assault; (4) she was unable to provide a detailed description of the attacker to the police; (5) although she later emphasized Hanson's "unique face structure" and "his exacting lips" as features that helped her identify him, she did not mention these features in her initial description to the police; and (6) although she claimed at trial that she later realized that her estimates of the attacker's height and weight were inaccurate, she did not report these inaccuracies to the police.
He also argues that the corroborating evidence was not reliable: the comments made during the assault "could have been a deliberate ploy by the real assailant, who would have also known about his prior conviction, to cast suspicion upon appellant"; the fact that Hanson and the assailant both smoked Old Gold cigarettes and had hairless chests were simply "odd similarities"; and the other crimes were not signature crimes. Hanson also argues that "[rapists] often smoke; and given the limited number of brands of cigarettes and the increasing number of rapists, more than one rapist will often smoke the same brand."
We conclude that the following evidence, viewed in a light most favorable to the state, was sufficient to sustain appellant's conviction: (1) the victim identified appellant in the photographic line-up; (2) the victim identified appellant at trial; (3) although the apartment was dark, the attack took place over four hours, there was more light as it got closer to dawn, and she was able to see him when he lit a cigarette; (4) the victim observed that appellant had a white stomach and chest and no chest hair; (5) the attacker's comments were consistent with appellant being the attacker; (6) appellant and the attacker both smoked Old Gold cigarettes; and (7) the Spreigl evidence regarding appellant's other attacks, including two attacks at the same apartment complex.
II. Jury Instruction on Hanson's Failure to Testify
Hanson argues that he should be granted a new trial because the trial court gave a jury instruction, CRIMJIG 3.17, on his privilege not to testify even though he did not request one.
After questioning Hanson regarding his decision not to testify, the court stated that "the jury will get an instruction that you do not have to testify," and Hanson did not object. After giving the instructions, the district court asked defense counsel if he had any objections to the jury instructions and he said, "No objections, Your Honor."
The Minnesota Supreme Court has stated that "a trial judge ordinarily should obtain a criminal defendant's permission before giving CRIMJIG 3.17." State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). However, we conclude that, even though the district court did not get Hanson's explicit permission before giving the instruction, a new trial is not warranted in this case. See id. ("It does not follow, of course, that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction * * *").
III. Consecutive 30-year Sentence
Hanson was subject to a mandatory 30-year sentence because: (1) he had a prior conviction for criminal sexual conduct from 1985, and (2) the trial court found that there were aggravating circumstances that would provide grounds for an upward departure under the sentencing guidelines. See Minn. Stat. § 609.346, subd. 2b (1994). He contends that the trial court clearly abused its discretion by imposing a consecutive, rather than a concurrent, 30-year sentence. He claims that imposing a consecutive sentence exaggerates the criminality of his conduct.
Hanson notes that the sentencing guidelines indicate that "consecutive sentences should be limited to more severe offenses." Minn. Sent. Guidelines II.F.01 (comment). He argues that because this crime "was not one of the more severe offenses to have ever occurred," the consecutive sentence was an abuse of discretion.
The state notes that consecutive sentences are permissible and may be given without departure for a "current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not expired or been discharged." Minn. Sent. Guidelines II.F. Because of appellant's conviction in the case involving the mentally retarded woman, he falls into this category. And as the state properly notes, consecutive sentencing is allowed when there are multiple victims. See Bangert v. State, 282 N.W.2d 540, 546-47 (Minn. 1979). Thus, we conclude that the district court did not abuse its discretion by imposing a consecutive, rather than a concurrent, 30-year sentence.
[ ]1 See State v. Hanson, No. C7-96-1161 (Minn. App. 1997).