IN COURT OF APPEALS
Alonzo Christopher Hill,
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
James T. Diamond Jr., Special Assistant State Public Defender, 2250 Fifth Street Towers, 100 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,[*] and Norton, Judge.*
Alonzo Hill appeals his convictions for first degree and third degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(c); 609.344, subd. 1(c). We conclude that the trial court's exclusion of Hill's statement to police was not error and the evidence is sufficient to support the convictions. Because third degree criminal sexual conduct is based on the same conduct and is a lesser included offense of first degree, we vacate the conviction for third degree and affirm the conviction for first degree criminal sexual conduct.
Police arrested Hill about a mile from the apartment. His clothing, a "brown puffy jacket" and white pants, matched H.R.'s description. Hill voluntarily provided a statement in which he explained that, after having sex with another woman, he saw H.R. driving down the street and motioned her to pull over. He said that he had a conversation with H.R. that led to consensual sex.
At trial, the prosecutor opposed the admission of Hill's statement to police. Defense counsel was permitted to elicit from Hill that he had given a statement to police that was consistent with his trial testimony. In closing argument, defense pointed out that Hill's statement was taped but the state "didn't want you to hear it." The court sustained the prosecutor's objection to the comment.
The jury found Hill guilty of first degree and third degree criminal sexual conduct, but acquitted him of kidnapping. The trial court sentenced Hill to 110 months for the first degree criminal sexual conduct. The court also adjudicated Hill guilty of third degree criminal sexual conduct, but imposed no sentence on that count. Hill appeals both convictions, asserting that (1) the court erred in excluding his taped statement; (2) the evidence is insufficient to support the convictions; and (3) the third degree conviction should be vacated as a lesser included offense.
A defendant should not be allowed to introduce his prior statement without taking the stand because the statement would be self-serving hearsay, allowing the defendant to present his version of the facts without being cross-examined. State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977). Once the defendant takes the stand, however,
he can testify that he did make a statement to the police which is in their possession and that the basic import of the statement is consistent with his present testimony.
Hill testified in accordance with Taylor, and without objection from the prosecutor, that he had made a prior consistent statement to the police. The trial court did not prevent Hill from introducing the prior statement into evidence because defense counsel did not offer it for admission after Hill testified. Error cannot be predicated on the exclusion of evidence that the defense did not offer to introduce. State v. Torkelson, 404 N.W.2d 352, 356 (Minn. App. 1987), review denied (Minn. June 25, 1987); cf. United States v. Van Dyke, 14 F.3d 415, 421 (8th Cir. 1994) (finding error in exclusion of defendant's prior consistent statement that defense attempted to introduce).
Hill argues that the trial court improperly prevented him from arguing the prior consistent statement, the prosecution's election not to present it, "and any significance it may have" in his closing argument. See Taylor, 258 N.W.2d at 622 (allowing defense to argue that unintroduced taped statement exists and its significance). The trial court sustained the prosecutor's objection when defense counsel, in reference to Hill's statement to the police, stated, "They taped it. They didn't want you to hear it."
Assuming that Taylor's reference to "significance" pertains to the prosecutor's election not to offer the prior consistent statement, not just the significance of the statement itself, we find no prejudice that resulted from the district court's ruling. The jury was aware that Hill had given a prior consistent statement to police. In order for the verdict to have been influenced by the excluded argument, the jury would have to have speculated that the prior consistent statement was highly damaging to the state's case. But since the statement was Hill's own, the defense surely would have presented such exculpatory assertions through Hill's live testimony. Furthermore, the cruder terminology in the prior statement and Hill's references to drugs would more likely have prejudiced the defense.
Hill's argument is directed at the credibility of H.R.'s testimony and absence of direct corroboration. A conviction for criminal sexual conduct, however, may rest on uncorroborated testimony of the victim. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). Moreover, it would be an invasion of the jury's fact-finding province to evaluate and determine the credibility of witnesses. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (holding that credibility determinations are within the sole province of the factfinder).
We also reject Hill's argument that the jury's not-guilty verdict on the kidnapping charge was so logically inconsistent with the guilty verdicts that it demonstrates the insufficiency of the evidence. A minimal confinement or removal of the victim, as required for kidnapping, is often "completely incidental" to criminal sexual conduct. State v. Crocker, 409 N.W.2d 840, 845 (Minn. 1987). The jury, particularly when there is no evidence of physical force, may well find insufficient evidence of confinement or removal while finding the state has proved "force or coercion" or reasonable fear of imminent great bodily harm, as required for the criminal sexual conduct charges.
Affirmed in part and vacated in part.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.