may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
DeAndre Ramone Robinson,
Filed April 14, 1998
Hennepin County District Court
File No. 96014087
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.
Appellant DeAndre Ramone Robinson was convicted of two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (1996). He was sentenced to concurrent terms of 134 and 300 months. Robinson challenges the trial court's exclusion of defense evidence, its upward departure on one count, and argues that the evidence is not sufficient to support the conviction. We affirm.
The state presented evidence that sperm was identified on the panties that were taken from M.R.N. when she had a sexual assault exam the day after the February 8, 1996 incident. An expert witness testified that DNA testing showed a mixture of fluids consistent with DNA samples taken from Robinson and M.R.N. The witness also testified there was a possibility that the panties contained biological material from another individual as well as Robinson and M.R.N.
The defense had not filed a pretrial motion to be allowed to present evidence of M.R.N.'s alleged prior sexual conduct. But after M.R.N. testified that she had changed her clothes before going to the hospital for the sexual assault exam, defense counsel sought to question M.R.N. about prior sexual conduct. The trial court allowed questioning of M.R.N. in chambers. M.R.N. stated she had not changed her underpants, only her outer clothing. The trial court denied Robinson's motion to question M.R.N. about her prior sexual conduct with her boyfriend.
The sexual assault exam showed that M.R.N. had an abrasion, as well as general tenderness, that was consistent with forcible sexual intercourse. The state also presented testimony from a child protection worker that Robinson had called her, admitting intercourse but claiming it was consensual.
The jury found Robinson guilty on both counts. The trial court sentenced him to 134 months on Count I, the count charging the February 8, 1996 offense, and to a concurrent 300 months on Count II, the count charging the 1995 offense, an upward departure from the presumptive sentence of 158 months.
Robinson did not file a pretrial motion to present prior sexual conduct evidence, as required by both the rape shield statute and the evidentiary rule. See Minn. Stat. § 609.347, subd. 4(a) (1996); Minn. R. Evid. 412(1)(B). Although both the rule and the statute allow untimely notice if good cause is shown, M.R.N.'s brief and ambiguous statement on the stand that she had changed her "clothes" did not provide good cause. Robinson had pretrial notice that the BCA had identified DNA from a person other than M.R.N. or Robinson on M.R.N.'s underwear. This evidence necessarily raised the possibility that M.R.N. had had sex with a person other than Robinson, and gave the defense grounds to file a motion to allow such evidence.
Even if Robinson had provided pretrial notice, the trial court's exclusion of the evidence would not have been an abuse of discretion. The prior sexual conduct evidence had little probative value. The state sought to show only that some of the DNA material came from Robinson. The third person, therefore, could have provided the other DNA material but presumably was not an alternative source for the DNA material that allegedly came from Robinson. The evidence that Robinson sought to elicit, that M.R.N. had sex with her boyfriend, would only have tended to identify the third person, it would not have exonerated Robinson.
Even if error occurred in excluding evidence of M.R.N.'s prior sexual conduct, the error was harmless beyond a reasonable doubt. See generally State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (exclusion of defense evidence in violation of constitutional right is harmless if, assuming the damaging potential of the excluded evidence were fully realized, a reviewing court can nevertheless say the error was harmless beyond a reasonable doubt). As discussed above, the excluded evidence had no significant exculpatory value. Moreover, the state presented abundant evidence to support the allegations, and, despite the ruling, defense counsel repeatedly insinuated in closing argument that M.R.N. did have prior sexual experience, a fact the jury could have deduced from the BCA testimony. We conclude that any error was harmless beyond a reasonable doubt.
2. Robinson argues that the evidence is insufficient to support his conviction. In reviewing a claim of insufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict, assuming that the jury believed the state's witnesses and disbelieved contrary evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). This court is limited to determining, under the facts in the record and any legitimate inferences to be drawn from the facts, whether a jury could reasonably find the defendant guilty. Id.
Robinson's argument that the evidence is insufficient rests largely on a challenge to the credibility of M.R.N., based partly on the inconsistencies in her testimony. But assessing the credibility of a witness is within the exclusive province of the jury. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (jury to determine weight and credibility of testimony of witnesses). Inconsistencies in testimony do not necessarily constitute grounds for reversal. Id.
M.R.N.'s testimony was corroborated by the DNA evidence, by evidence of physical injury, by testimony that Robinson admitted the offense, and by the evidence of M.R.N.'s prompt reporting of the February 8 incident. The evidence is more than sufficient to support the conviction.
3. Robinson argues that the trial court abused its discretion in departing upwards on Count II to a duration of 300 months, a nearly-double departure from the presumptive sentence of 158 months. The trial court's decision to depart will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The trial court has discretion to upwardly depart if substantial and compelling aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).
The state concedes that some of the trial court's grounds for departing on Count II, which was the earlier-occurring offense in the fall or winter of 1995, actually relate to the conduct involved in Count I, the February 8, 1996 assault. The victim's age, however, was properly considered because it indicates a particular vulnerability beyond that strictly necessary to satisfy the statutory element. See, e.g., State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (holding that although age is element of offense, it could be considered in connection with other facts justifying upward departure), review denied (Minn. Feb. 28, 1990). Moreover, Robinson's previous sex offenses support the durational departure. See generally Minn. Sent. Guidelines II.D.2.b. (3) (aggravating factor exists if current conviction is for criminal sexual conduct and defendant has prior felony conviction for criminal sexual conduct). The supreme court has held that a prior conviction for victim injury may by itself support a double upward departure. State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989). Therefore, we conclude the trial court did not abuse its discretion in departing upwards on Count II.