This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Larry Loving,

Filed July 13, 1999
Crippen, Judge

Ramsey County District Court
File No. KX974013

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Larry Loving challenges his conviction for third-degree criminal sexual conduct on the grounds that he was not able to present evidence aimed at impeaching the complainant. We affirm.


In early September 1997, the victim, S.D., then 16 years old, had run away from a foster home. At the apartment of acquaintances, she met appellant Larry Loving and was left by others in appellant’s company later in the evening. S.D. claims that she and appellant began drinking beer, which appellant quickly turned into a drinking game. S.D. testified that she drank about six beers and some peach schnapps and that she quickly became drunk enough to be unable to walk or talk and was in a semi-awake state.

S.D. testified that appellant had intercourse with her while she was in this condition. She testified that she said, "Don’t" as the assault was occurring. S.D. then testified that the next thing that she remembers is waking up the next morning with appellant next to her. Maurice Brawley, whose girlfriend rented the apartment where these events occurred, called the police on S.D.’s behalf.

Appellant was charged with third-degree criminal sexual assault under Minn. Stat. § 609.344, subd. 1(d) (1996), which requires that "the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless[.]" The jury returned a guilty verdict, and the trial court subsequently sentenced appellant to imprisonment for 88 months.


1. Dr. Borchardt’s proposed testimony

At trial, appellant proposed to introduce the testimony of Carrie Borchardt, M.D., a child and adolescent psychiatrist who treated S.D. in 1994. If permitted, Dr. Borchardt would have testified that while under inpatient care S.D. reported that she was kidnapped and raped, that it was later believed that S.D. had fabricated this incident, and that Dr. Borchardt was not able to rule out a diagnosis of factitious disorder.[1] Appellant argues that the exclusion of this evidence deprived him of his right to present a defense and confront witnesses and was, therefore, reversible error.

Appellant contends that his right to present a defense and confront witnesses rises above any prescriptions of Minn. R. Evid. 608 or 412 and Minn. Stat. § 609.347 (1996). See State v. Caswell, 320 N.W.2d 417 (1982) (determining that evidence tending to show a predisposition to fabricate a rape charge should be admitted unless its potential for unfair prejudice substantially outweighs its probative value); see also State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (criminal defendants have the right to be treated with fundamental fairness and "afforded a meaningful opportunity to present a complete defense") (citation omitted); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974) (noting that the sixth amendment right to confront witnesses extends to state criminal defendants). But evidentiary rulings generally rest within the trial court’s discretion, State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998), and this court will not reverse a court’s evidentiary ruling absent a clear abuse of discretion. State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998).

Here, the trial court excluded this evidence because it was very prejudicial and not probative. Appellant’s rights to a defense and confrontation do not enlarge his rights to offer non-probative evidence. See State v. Carpenter, 459 N.W.2d 121, 126 (Minn. 1990) (noting that the accused does not have an unfettered right to offer testimony that is inadmissible under standard rules of evidence). The trial court did not abuse its discretion under general relevancy standards. See Minn. R. Evid. 403; State v. Harris, 521 N.W.2d 348, 351-52 (Minn. 1994) ("even relevant evidence may be inadmissible where its probative value is substantially outweighed by its potential to cause unfair prejudice, to confuse the issues, or to mislead the jury").

2. Impeachment evidence

Appellant also alleges that the trial court erred in not permitting him to introduce evidence that one of Maurice Brawley’s jobs was to find women to work as exotic dancers. Appellant contends such evidence would have shown the jury Brawley’s potential to lie as a witness because of his ulterior motives concerning the victim. But because this construction of the evidence is so attenuated, the relevancy of Brawley’s motives for impeachment purposes is not at all evident. We cannot conclude that the trial court erred in excluding the evidence.

3. Jury separation

We agree with appellant that the trial court erred in applying the rule regarding jury separation during deliberations. But in addition to showing that the rule has been violated, a defendant must also submit evidence that raises a presumption of prejudice arising from the violation of the rule. See State v. Sanders, 376 N.W.2d 196, 206 (Minn. 1985) ("mere separation of the jury in violation of Minn. R. Crim. P. 26.03, subd. 5, without more, does not raise a presumption of prejudice"). Appellant concedes that there is no evidence of jury tampering or other impropriety associated with the separation during deliberation that occurred in this case.

4. Pro se brief

Finally, appellant argues several additional issues in his pro se brief, none of which has merit. First, he argues that there were various inconsistencies in S.D.’s testimony that were never illuminated. The jury heard the testimony, inconsistencies and all, and made a determination that appellant had committed the crime. See State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984) ("[R]esolution of conflicting testimony is the exclusive function of the jury because it has the opportunity to observe the demeanor of witnesses and weigh their credibility."). Second, he argues that because certain jurors had suffered sexual abuse and were therefore biased against him, the jury was prejudiced. Nothing in the record supports this assertion. Third, he argues that he was denied his right to a speedy trial, but the trial commenced less than 30 days after his speedy trial demand. See Minn. R. Crim. P. 11.10 (providing that upon demand, a trial shall be commenced within 60 days from the date of the demand unless good cause is shown); see also Barker v. Wingo, 407 U.S. 514, 530 92 S. Ct. 2182, 2192 (1972) (establishing a balancing approach to determine if a person has been denied the constitutional right to a speedy trial).


[1] Described by Dr. Borchardt as "a psychiatric diagnosis which means that a person fabricates symptoms * * * to get medical care."