STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Antonio Darrail Burton,
Filed August 3, 1999
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 96089251
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and Parker, Judge.[*]
A jury convicted Antonio Darrail Burton on multiple counts of first-degree criminal sexual conduct, first-degree aggravated robbery, and first-degree burglary for breaking into the apartment of three women, holding them at knifepoint, raping two of them, and taking their possessions. The trial court sentenced Burton to an aggregate sentence of 464 months. On appeal from conviction and sentencing, Burton argues: (1) the evidence is insufficient to sustain the conviction; (2) the trial court abused its discretion in evidentiary rulings; (3) he was denied a fair trial due to the trial court's refusal to excuse a venire member for cause, prosecutorial misconduct, and ineffective assistance of counsel; and (4) the trial court abused its discretion in sentencing him. We affirm in part, reverse in part, and remand.
Burton argues insufficient evidence existed to support his conviction because the DNA evidence was unreliable. But the record demonstrates: (1) Burton and his co-defendants broke into the apartment of three women; (2) the men forced the women out of their beds at knifepoint and made them lie together on the floor; (3) one man covered the women's heads with a comforter; (4) the man then anally and vaginally raped one of the women while she was on her hands and knees, and twice anally raped a woman who cried out that she was a virgin; (5) BCA testing and separate re-testing implicated Burton as the source of DNA on a vest taken from one woman's bedroom and discarded in a recycling bin; (6) Burton told a third party that he had sex with the women, and detailed that he had sex with one woman on a comforter while she was on her hands and knees and he had sex with another woman who was a virgin; and (7) Burton was stopped by police in the car he stole from one of the women. Given these facts, the evidence is sufficient to establish, beyond a reasonable doubt, that Burton was guilty of first-degree criminal sexual conduct. See State v. Bliss, 457 N.W.2d 385, 390-91 (Minn. 1990) (concluding in all cases, jury determines credibility and weight given to testimony of individual witnesses); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (stating credibility of, conflicts in, and inconsistencies in testimony are exclusive function of jury).
Burton argues the trial court abused its discretion by admitting testimony of his nonverbal reactions while his co-defendants and a third party discussed the crime. But the record demonstrates: (1) the third party asked Burton if the women let him have sex with them and then take their stuff, and Burton started laughing, and (2) Burton's co-defendants called him stupid either for raping the women or for discussing the crime, and Burton did not respond. Under these circumstances, we cannot say the trial court abused its discretion in admitting the adoptive statements. See State v. Flores, ___ N.W.2d ___, ___, 1999 WL 395891, at *7 (Minn. June 17, 1999) (concluding defendant who actively participated in discussion of crime and did not indicate he disagreed or denied another's statement adopted admission); State v. Rediker, 214 Minn. 470, 480, 8 N.W.2d 527, 532 (1943) (concluding unresponsiveness to accusations made directly to defendant are admissible adoptive admissions and jury determines whether circumstances are such that defendant would have denied them had he been innocent).
As to his pro se claims of ineffective assistance of counsel and prosecutorial misconduct, Burton failed to explain or identify any facts to support these allegations. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (concluding issues not briefed on appeal are waived). After a careful review of the record, we conclude those claims are without merit.
First, the trial court doubled the presumptive sentences for Burton's convictions of first-degree burglary against the first woman, first-degree criminal sexual conduct against the second woman, and first-degree criminal sexual conduct against the third woman. The trial court discussed, and the record reflects, that: (1) the women were wakened at knife point in their apartment by four men who threatened to kill them; (2) two of the women were repeatedly raped; (3) the women were forced to lie together during the rapes, and hear and feel the rapes of their roommates; and (4) Burton's co-defendants were present during the rapes. Given these facts, the trial court did not abuse its discretion by doubling the presumptive sentences for Burton. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (concluding multiple penetration and threats to kill victims were aggravating circumstances justifying upward durational departure); State v. Back, 341 N.W.2d 273, 277 (Minn. 1983) (noting invasion of victim's zone of privacy supports upward durational departure).
Second, the trial court imposed consecutive sentences for Burton's convictions of first-degree burglary, first-degree aggravated robbery against the first woman, first-degree criminal sexual conduct against the second woman, and first-degree criminal sexual conduct against the third woman. Because the crimes involved multiple victims and aggravating factors, the trial court did not abuse its discretion in imposing consecutive sentences. See Minn. Sent. Guidelines II.F (stating "[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other"); State v. Cermak, 365 N.W.2d 238, 239 n.1 (Minn. 1985) (concluding consecutive sentencing was permitted without departing because there were five different victims); State v. Butterfield, 555 N.W.2d 526, 533 (Minn. App. 1996) (concluding severe aggravating circumstances such as multiple penetration, threats to kill victim, and degradation of victim justified consecutive sentences), review denied (Minn. Dec. 17, 1996).
And third, the trial court sentenced Burton for first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996) and first-degree burglary in violation of Minn. Stat. § 609.582, subd 1(c) (1996). But a defendant cannot be convicted and punished twice for the same offense based on the same act or course of conduct. See Minn. Stat. §§ 609.035, subd. 1 (1996) (stating when conduct constitutes more than one offense, defendant can be punished only for one offense), 609.04, subd. 1 (1996) (stating defendant may be convicted for crime charged or included offense, but not both); State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986) (concluding burglarious entry of one dwelling justifies only one burglary conviction). Because Burton was adjudicated on two counts of first-degree burglary in violation of Minn. Stat. § 609.04, subd. 1, one of the adjudicated burglary convictions must be vacated. See Walker v. State, 394 N.W.2d 192, 198 (Minn. App. 1986) (vacating two burglary convictions when defendant had three adjudicated convictions for first-degree burglary), review denied (Minn. Nov. 26, 1986). Accordingly, we remand to the trial court for resentencing Burton on one of the two first-degree burglary convictions. See State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975) (stating trial court cannot "increase the penalty for any of the offenses on which it will sentence").
Affirmed in part, reversed in part, and remanded.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.