may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Reginald Christopher Smith,
Filed July 27, 1999
Benton County District Court
File No. K597977
Michael Jesse, Benton County Attorney, 615 Highway 23, Foley, MN 56329 (for respondent)
Joseph S. Friedberg, Commerce at the Crossings, Suite 205, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Alfredo Parrish, 2910 Grand Avenue, Des Moines, IA 50312 (for appellant)
Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
In an appeal from conviction and sentencing for first-degree criminal sexual conduct, Reginald Smith raises issues of prosecutorial misconduct, ineffective assistance of counsel, insufficiency of evidence, and the district court's refusal to depart downward in sentencing. The evidence is sufficient to support the conviction, the prosecutor's statement was not plain error, Smith did not receive ineffective assistance of counsel, and the district court did not abuse its discretion in sentencing. We affirm.
A jury convicted Reginald Smith of first and third-degree criminal sexual conduct for his actions following a social event with co-workers. The complainant testified that after drinking, playing cards, and socializing until the early morning, the complainant left with the group in a van, intending to go home. Smith asked her if she wanted to go home with him, but she declined. She fell asleep in the van and remembers waking up to Smith assisting her from the vehicle. She believed she was being dropped at her home, but as the van pulled away, she realized she was at Smith's apartment.
Inside Smith's apartment, she attempted to call a cab, but Smith hung up the phone. When Smith went to the kitchen to prepare some food, she fell asleep on the couch. She awoke to find her pants halfway down and Smith on top of her. She told Smith "no," but he restrained her arms and raped her. She indicated that she needed to use the bathroom, which was near the back door. As she attempted to leave, Smith forcibly prevented her. She next remembers being in Smith's bedroom, where Smith forced her to assume a sexual pose and then raped her two more times. When she cried and screamed, Smith threatened to penetrate her anally if she was not quiet.
After Smith fell asleep, the complainant left the apartment and ran to the police station. Finding the station locked, she went to a store and the attendant called the police. A police officer arrived and brought her to the station and then to the hospital. She testified that she received multiple bruises and experienced muscle soreness as a result of the attacks.
Smith disputed the complainant's testimony. He acknowledged that he and the complainant had sex, but testified that it was consensual. He further testified that the complainant had a motive to fabricate because he had threatened to tell co-workers that she had a sexually transmitted disease.
During closing argument, the prosecutor told the jury that "Minnesota law states that a victim's testimony in a sexual assault case need not be corroborated." The prosecutor then listed events that she argued were corroboration. Smith did not object to the prosecutor's statement.
Smith appeals his conviction and sentence, contending (1) the prosecutor's statement constituted plain error entitling him to a new trial; (2) he was denied effective assistance of counsel at trial; (3) the evidence was insufficient to support his conviction; and (4) the district court abused its discretion by refusing to depart downward from the presumptive sentence under the Minnesota Sentencing Guidelines.
Minnesota law provides that a sexual assault victim's testimony need not be corroborated. Minn. Stat. § 609.347, subd. 1 (1998). We have previously indicated, however, that the absence of a corroboration requirement is not properly a subject for jury instructions because corroboration is an evidentiary, rather than a substantive, issue. State v. Williams, 363 N.W.2d 911, 914 (Minn. App. 1985), review denied (Minn. May 1, 1985).
Smith did not object to the prosecutor's statement at trial. Ordinarily, failure to object waives the right to contest the statement on appeal. See State v. Erickson, 403 N.W.2d 281, 286 (Minn. App. 1987) (failure to object to district court's inclusion in jury instruction of statement that sexual assault victim's testimony need not be corroborated "forfeits the issue for appeal purposes"), review denied (Minn. Apr. 29, 1987). But if the prosecutor's arguments amount to plain error affecting substantial rights, appellate review is extended despite the lack of objection. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997); Minn. R. Crim. P. 31.02.
The prosecutor's statement, although inappropriate for a general jury instructon, is an accurate statement of law and does not constitute plain error requiring a new trial. In Williams we held that the instruction, using the same language and over defense objection, was not reversible error when the instructions were considered as a whole. 363 N.W.2d at 914; see also State v. Trimble, 371 N.W.2d 921, 927 (Minn. App. 1985) (same), review denied (Minn. Oct. 11, 1985). The prosecutor's closing argument in Smith's trial amounts to nine and one-half transcript pages. With the exception of the challenged statement, all the prosecutor's remarks are confined to a discussion of the evidence that was presented at trial. The statement was not objected to, and there is no indication the prosecutor injected the statement intending to circumvent the jury instruction prohibition. As in Williams and Trimble, the prosecutor's statement is neither plain error nor significant when viewed in the context of the entire argument.
To support an ineffective-assistance-of-counsel claim, a defendant must affirmatively demonstrate that his counsel's representation "fell below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quoting Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987)); see Strickland v. Washington, 446 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984) (establishing test). Smith argues he was denied effective assistance because his attorney failed to object to the prosecutor's closing argument statement that a sexual assault victim's testimony need not be corroborated and failed to vigorously cross-examine the victim. Neither of the asserted errors provides a basis for finding that Smith's representation "fell below an objective standard of reasonableness."
First, Smith alleges that his attorney failed to object, request a limiting instruction, or move for a mistrial in response to what he characterizes as a "misstatement of the law." But as we have previously observed, the prosecutor's remark was a correct statement of the law. See Minn. Stat. § 609.347, subd. 1. Counsel's failure to object to the statement does not support a finding of objectively unreasonable representation. Cf. State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988) (claim for ineffective assistance of counsel, based on attorney's failure to object to composition of jury when party could not demonstrate purposeful discrimination, was insupportable).
Second, Smith contends his attorney failed to vigorously cross-examine the complainant. Specifically, Smith argues his attorney failed to challenge her testimony that the first assault occurred on a "couch," in light of Smith's testimony that he does not own a couch. The transcript demonstrates that Smith's attorney did conduct a vigorous cross-examination. Counsel's failure to question the complainant about one detail of her testimony is not ineffective assistance of counsel and may have been weighed against other considerations of effective cross-examination. State v. Best, 370 N.W.2d 691, 695-96 (Minn. App. 1985) (failure to cross-examine sexual assault victim about a particular passage of her testimony could have been reasonable trial tactic and does not constitute ineffective assistance); see also Buchanan, 431 N.W.2d at 553 (noting choice of trial tactics generally will not serve as basis for finding ineffective assistance); State v. Irwin, 379 N.W.2d 110, 115 (Minn. App. 1985) (cross-examination style generally implicates trial tactics and failure to carry out in a particular manner does not constitute ineffective assistance of counsel), review denied (Minn. Jan. 23, 1986). Smith's attorney used the complainant's statement in closing argument to demonstrate the inconsistencies in testimony.
Smith makes other generalized claims that the defense attorney's cross-examination of witnesses was "superficial at best" and permissive of non-responsive, contradictory, and inconsistent testimony. The trial transcript does not support this allegation. Smith's attorney thoroughly cross-examined the complainant, the hospital nurse, and the investigating officers. The manner in which the attorney conducted the examination did not fall below an objective standard of reasonableness. See Irwin, 397 N.W.2d at 115.
When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). We view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).
Smith argues the evidence was insufficient to convict him because the prosecution's case rested almost exclusively on the victim's testimony. A conviction, however, can rest upon the testimony of a single credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Determination of the weight and credibility of a witness's testimony is for the jury, not the reviewing court, State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988), and there is no need in criminal sexual conduct cases for corroboration of the victim's testimony, Minn. Stat. § 609.347, subd. 1; State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993). The complainant testified that Smith threatened and used force to accomplish sexual penetration and that she suffered bodily injury in the form of bruising and sore muscles. See Minn. Stat. § 609.342, subd. 1(e) (1998) (listing elements of first-degree criminal sexual conduct). The jury's verdict of guilty indicates it found the complainant's testimony credible and disbelieved Smith's testimony. We will not disturb that determination on review.
The decision to depart from the Sentencing Guidelines rests within the district court's discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), partially overruled on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996). But the district courts must apply the presumptive guidelines' sentence unless the individual case involves "substantial and compelling" circumstances. Minn. Sent. Guidelines II.D. Only in a rare case will a reviewing court reverse a district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even when grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).
The district court sentenced Smith to serve the presumptive sentence under the guidelines. When the presumptive sentence is imposed, specific findings are not required. State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). Smith requested a downward dispositional departure. A defendant's amenability to treatment in a probationary setting is relevant to a determination whether to depart dispositionally from the guidelines' presumptive sentence. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). Numerous factors, including remorse and attitude in court, are relevant to a determination of whether a defendant is suited to treatment in a probationary setting. Id. The presentencing investigation report noted, and the prosecutor reiterated at sentencing, that Smith admitted, after the trial was over, that he was guilty of the offense, that he knew the complainant had not consented to sex with him, and that he had lied at trial. The district court did not abuse its discretion by refusing to grant a downward dispositional departure.