This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



James Diandre Pilot,


Filed June 9, 1998

Affirmed in part; vacated in part

Willis, Judge

Hennepin County District Court

File No. 96040844

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 M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Appellant James Pilot challenges his convictions of first-degree attempted murder and first-degree criminal sexual conduct on grounds of prosecutorial misconduct, improper denial of a continuance, and improper admission of evidence. He also appeals his sentencing on the grounds that both offenses arose from a single behavioral incident and that the court abused its discretion in imposing a triple upward departure in sentencing for criminal sexual conduct. We vacate the sentence for attempted murder and affirm as to all other issues.


On May 11, 1996, H.T. was raped and severely beaten in her townhouse in Hopkins. H.T. testified that at approximately 4:00 a.m., she was awakened by appellant James Pilot banging on her front door. Pilot told H.T. that he was looking for Karine Michael, Pilot's girlfriend and H.T.'s friend. H.T. agreed to let Pilot in to use her phone. H.T. testified that after Pilot entered her townhouse, he chased H.T. up the stairs, pushed her down, covered her mouth, and punched her in the face. Pilot then removed H.T.'s pants and underwear and penetrated her.

H.T. testified that after Pilot raped her, she attempted to get away, but he pushed her down the stairs. At the bottom of the stairs, Pilot sat on H.T., grabbed her by the hair and pounded her head into the floor. Pilot choked H.T. with his hands, tied her pants around her neck, and continued to pound H.T.'s head into the floor until she lost consciousness.

H.T.'s neighbor called 911 after being awakened by a loud thump coming from H.T.'s townhouse. Hopkins police found H.T. lying at the bottom of the stairs with her pants tied around her neck. She was not breathing. Upon her arrival at the Hennepin County Medical Center, the doctors determined that H.T. had suffered blunt trauma to the brain and asphyxiation by strangulation. She had hemorrhaging in her eyes, a fractured skull, a large laceration on her forehead, and internal bleeding from a kidney. She was in a coma for five days.

Based on information obtained from H.T.'s family members, on May 11, two police detectives visited the apartment shared by Pilot and Michael. Pilot was not at home, but Michael informed the detectives that Pilot had been at work the previous night. She said that when Pilot returned home from work he was wearing black jeans, a green nylon jacket, and black Nike Air shoes. A detective testified that Pilot later told her that he had reported to work, but his employer did not need him; an employee of the temporary agency that had placed Pilot in his position told the detective that Pilot had not reported to work at all that week.

On May 12, Pilot was arrested on an unrelated outstanding warrant. The next day, the detective telephoned Michael and asked her if they could search the apartment she shared with Pilot. Michael consented to the search. Police also applied for and were issued a warrant to search the residence for bloodstained clothing. As a result of the search, the detectives seized Pilot's black Nike Air shoes, a pair of black jeans, and Pilot's black and green nylon jacket. Blood was found on the underside of one of the jacket sleeves, on the jeans, and on one shoe. Forensic analysis determined that the blood on the jacket and the jeans could not have come from Pilot or Michael, but could have come from H.T., and that the blood patterning on the clothing was consistent with the facts of the crime. Testing showed that the blood on the jacket matched H.T.'s DNA profile.

Pilot was charged with attempted murder in the first degree, attempted murder in the second degree, and criminal sexual conduct in the first degree. When H.T. regained consciousness during the week following the crime, she identified Pilot as the perpetrator. At the omnibus hearing, the district court denied Pilot's motion to suppress the evidence seized pursuant to the search warrant. A jury found Pilot guilty of attempted murder in the first degree and criminal sexual conduct in the first degree. Pilot moved for a new trial based on alleged prosecutorial misconduct in failing to provide Pilot with discoverable documents; the district court denied the motion.

The district court sentenced Pilot to 270 months in prison for criminal sexual conduct in the first degree, more than triple the presumptive sentence, and 180 months in prison for attempted murder in the first degree. The attempted murder sentence was to be served consecutively to the criminal sexual conduct sentence, but it was stayed for 20 years following Pilot's release from prison on the condition that he have no contact with the victim or her family. Pilot appeals; we vacate the sentence for attempted murder and affirm as to all other issues.


I. Prosecutorial Misconduct

Pilot contends that the prosecutor committed prejudicial misconduct when he repeatedly asked Pilot whether state witnesses were lying. But Pilot concedes that he failed to object to the questioning during the trial. Defendants who fail to object at trial to the prosecutor's questions or seek cautionary instructions generally forfeit their right to have the issue considered on appeal. State v. Lory, 559 N.W.2d 425, 430 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). We can reverse the district court if the prosecutor's questions were plain error that seriously affected substantial rights and if it is likely that the improper questions played a substantial part in influencing the jury's decision. Id. But the defendant will not be entitled to a new trial if this court finds that the misconduct was harmless beyond a reasonable doubt. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).

The Minnesota Supreme Court has held that asking a defendant during cross-examination whether state witnesses were lying does not constitute prosecutorial misconduct. State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). The court in McDaniel concluded that defense counsel there initiated the line of questioning by asking the defendant to comment on the testimony of state witnesses, thereby inviting the prosecutor's cross-examination. Id. Here, Pilot's counsel asked him during direct examination whether H.T.'s testimony was true. During cross-examination, the prosecutor asked Pilot whether H.T., a detective, and another state witness were lying. Under McDaniel, the prosecutor's questions regarding H.T.'s veracity did not constitute prosecutorial misconduct because Pilot's counsel initiated this line of questioning and therefore invited the prosecutor's cross-examination of Pilot on this subject. But the issue with regard to the other state witnesses falls outside the facts of McDaniel.

There is no published Minnesota case law addressing whether a prosecutor commits misconduct when he asks a defendant if witnesses were lying and defense counsel did not initiate that line of questioning. But we do not have to decide the issue in this case because we conclude that if there was misconduct, it was harmless beyond a reasonable doubt. The evidence against Pilot was strong. The victim, who knows Pilot, identified him as the perpetrator. Tests indicated that blood found on clothing worn by Pilot the night H.T. was raped could have come from H.T. but not from Pilot or his girlfriend. The pattern of the blood stains on Pilot's clothing was consistent with the pattern of blood stains at the scene of the crime, and there is evidence that Pilot lied about his whereabouts on the night H.T. was raped. We therefore conclude that Pilot is not entitled to a new trial based on the prosecutor's cross-examination.

II. Sentencing

A. Single Behavioral Incident or Multiple Offenses

Pilot contends that the district court erred in sentencing him for both criminal sexual conduct in the first degree and attempted murder in the first degree because the offenses were part of the same behavioral incident. "[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * * ." Minn. Stat. § 609.035, subd. 1 (Supp. 1997). In seeking to impose multiple sentences, the state has the burden of proving that the defendant's conduct constitutes multiple crimes that are not part of a single behavioral incident. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983). Because the question of whether two offenses were part of a single behavioral incident involves a fact determination, we will reverse a district court's findings on this issue only where they are clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

In determining whether section 609.035 bars punishment for multiple offenses, this court must ascertain whether the offenses were divisible conduct. Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980). This determination turns on the facts and circumstances of each case. State v. Krech, 312 Minn. 461, 466, 252 N.W.2d 269, 273 (1977). We must focus on (1) whether the conduct giving rise to the multiple charges occurred at the same time and place and (2) whether the conduct involved was motivated by an effort to obtain a single criminal objective. State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983).

In its sentencing memorandum in this case, the state asked the district court to impose a sentence for the criminal sexual conduct or, in the alternative, impose a sentence for the attempted murder, based on which offense the court considered more serious. The district court determined sua sponte that Pilot's conduct constituted two offenses that were not part of a single behavioral incident.

In this case, the rape and attempted murder occurred in the same place, were nearly contemporaneous, and appear to have been motivated by the same criminal objective. Both crimes were committed in H.T.'s townhouse, although the rape occurred at the top of the stairs and the attempted murder occurred at the bottom of the stairs. There was no significant break in time between the commission of the rape and the attempted murder, and because H.T. was acquainted with Pilot, the likely motive for the attempted murder was to prevent apprehension for the rape. Compare State v. Bookwalter, 541 N.W.2d 290, 295-96 (Minn. 1995) (finding more than one behavioral incident where defendant raped victim in her van, then drove her to another location and, as afterthought, attempted to kill her) with State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994) (finding single behavioral incident where defendant attempted to kill undercover police officer when attempted robbery went awry because defendant's objective was to get away with robbery). We conclude that the district court's determination that the rape and the attempted murder were not part of a single behavioral incident was clearly erroneous, and we therefore vacate the sentence for attempted murder.

B. Upward Departure

Pilot argues that the court's upward departure from the presumptive sentence for his conviction of first-degree criminal sexual conduct was unjustified because there were no aggravating circumstances present here. The district court has the discretion to decide whether to depart from the sentencing guidelines, and its decision will not be reversed absent a clear abuse of that discretion. State v. Dokken, 487 N.W.2d 914, 916 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). In determining whether to depart in sentencing, a district court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Generally, the court should limit an upward departure to double the length of the presumptive sentence, but this limit is not absolute. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). Moreover, where a defendant is convicted of the type of criminal sexual conduct involved in this case and the district court determines that an upward departure is justified, the court must impose "at least twice the presumptive sentence." Minn. Stat. § 609.346, subd. 4 (1996).

Among the factors that may justify an upward departure in criminal sexual conduct cases are invasion of the victim's zone of privacy, the presence of children during the crime, and gratuitous violence resulting in permanent injury. See State v. Davis, 546 N.W.2d 30, 36 (Minn. App. 1996) (zone of privacy), review denied (Minn. May 21, 1996); State v. Hayes, 456 N.W.2d 275, 277-78 (Minn. App. 1990) (extent of injury), review denied (Minn. July 13, 1990); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) (presence of victim's child in different room in apartment), review denied (Minn. Oct. 13, 1989).

Pilot invaded H.T.'s zone of privacy by raping her in her own home, and H.T.'s two-year-old daughter was sleeping in the family room at the time. In addition, Pilot's beating left H.T. with severe permanent injuries. Particularly in view of the statutory directive to impose a double departure for even a single aggravating factor, we conclude that, given the multiple aggravating circumstances in this case, imposition of a more than triple departure was not an abuse of discretion. Cf. Hayes, 456 N.W.2d at 277-78 (affirming triple departure in criminal sexual conduct case with multiple aggravating factors including invasion of home and gratuitous, permanent injury).

III. Pro Se Claims

In his pro se supplemental brief, Pilot contends that evidence seized pursuant to the search warrant should have been suppressed because the affidavit in support of the warrant omitted important information and therefore failed to provide probable cause. We do not need to address this issue because Michael, Pilot's roommate, consented to the search of their apartment. The Minnesota Supreme Court has established that neither probable cause nor a warrant is necessary when a search is conducted pursuant to consent. State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985). Consent need not come from the defendant but may be given by a third party who possesses "common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)). Because Pilot's roommate consented to the police officer's request to search the apartment, and Pilot does not allege that the consent was in any way defective, the search was valid and the evidence seized during the search was properly admitted at trial.

Pilot also contends that the prosecutor committed prejudicial misconduct by failing to provide Pilot with a report regarding seminal fluid taken from the victim and by providing Pilot with 500 to 600 pages of H.T.'s hospital records at the start of the trial. The decision to grant a new trial because of prosecutorial misconduct rests within the district court's discretion and will be reversed only where the misconduct, in light of the entire record, appears to be so inexcusable and prejudicial that the defendant's right to a fair trial was denied. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

The prosecutor claims that he in fact provided Pilot with the document regarding seminal fluid and that he provided Pilot with the hospital records as soon as he received them. It is not possible to determine these factual issues from the record, but we conclude that even if the facts are as Pilot alleges, he was not prejudiced. The preliminary testing of the seminal fluid by the Hennepin County Medical Center found no DNA other than H.T.'s, and the fluid was degraded as a result of those tests, making further testing impossible. Therefore, even if the prosecutor did commit misconduct by withholding this evidence, it did not prejudice Pilot because there is nothing in the record to suggest that the evidence had exculpatory value.

The district court found that the hospital records concerned H.T.'s physical therapy, which occurred months after the offense. Again, we conclude that even if there was prosecutorial misconduct, it was harmless because the district court did not clearly err in determining that the documents had no relevance to the trial, and in any event the prosecutor did not use the documents at trial.

Finally, Pilot contends that the district court erred when it denied his request for a continuance after he received H.T.'s hospital records on the day of trial. A district court has the discretion to grant or deny a continuance, and a conviction will not be reversed based on denial of a motion for continuance absent a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). Here, the district court granted Pilot a one-half day recess to review the records and determine whether they contained anything relevant. The district court told Pilot that if he could demonstrate that he would be prejudiced if he was not granted a further continuance, the court would reconsider the motion. The record supports the district court's determination that Pilot showed no evidence of prejudice, and we therefore conclude that the district court did not abuse its discretion in denying Pilot's motion.

Affirmed in part; vacated in part.