This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Fredrick Mack,


Filed August 31, 1999


Peterson, Judge

Winona County District Court

File No. K398132

Mike Hatch, Attorney General, Nancy Bode, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Charles MacLean, Winona County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant 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.[*]



In this appeal from a conviction of third-degree criminal sexual conduct, appellant Fredrick Mack argues that the trial court erred by admitting evidence regarding his probationary status and by refusing to give his requested jury instruction on the defense of consent. We affirm.


Mack and the victim met one evening when Mack stopped at the convenience store where the victim was working. They spoke for a few minutes and, at Mack's request, the victim gave him her phone number. Later that evening, Mack called the victim and invited her to go to a party with him. The victim could not go because her child was with her, but she agreed that Mack could come to her apartment. The victim testified that during the phone conversation, she informed Mack that if he came over, she was not interested in a relationship with him.

The victim testified that when Mack arrived at her apartment, she smelled alcohol and realized that Mack had been drinking. She testified that they talked about their interests and past relationships and that she repeated that she wanted only friendship from Mack and was not interested in a physical relationship. Mack asked to spend the night at the victim's apartment. The victim testified that she told Mack that he could sleep on the couch or on the spare bed in her son's room. Mack testified that the victim never said or indicated that she was not interested in having a physical relationship with him and that, on the contrary, she acted like she was interested in having a relationship with him.

The victim testified that after closing up the apartment for the night and putting on her pajamas, she got into her bed and discovered Mack there. She testified that Mack said that he wanted to hold her and she allowed him to do so because she understood the need to be held. According to the victim, they talked for awhile, and then Mack reached for her breasts. The victim testified that she again repeated that she did not want to have a physical relationship with Mack and moved away from him to the opposite side of the bed.

The victim testified as follows about how the sexual assault occurred. She thought Mack had fallen asleep because he was breathing deeply and not moving and then suddenly he was on top of her. She told Mack that he would have to leave, but he continued lying on her, holding her down. The victim escaped into the hallway and screamed, but Mack grabbed her by the throat, started choking her, and dragged her back into her bedroom. She was unable to breathe for a few seconds while Mack was choking her. After Mack threatened to kill her, she decreased her efforts to resist and cooperated by taking off her clothes because she took the threat seriously. Mack then sexually assaulted the victim and, afterwards, allowed her to get dressed and use the bathroom with the door open, admitted that he had raped her and apologized for doing so, and got dressed and left after having the victim call a cab for him.

A neighbor testified that he was awakened by loud screams coming from the victim's apartment at about 3:00 a.m. The record shows that the sexual assault occurred at about that time.

After Mack left, the victim called her mother and brother, and they both came to her apartment. The victim's mother called police, who came to the victim's apartment, interviewed the victim, her mother, and her brother, and brought the victim to the hospital. One of the responding officers testified that the victim was curled up in a ball on the couch with her knees pulled up to her chest and her arms around her knees and that she was in an extreme emotional state, crying, sobbing, and shaking. Other responding officers described her as crying and shaking and very upset and excited.

An officer brought the victim and her mother to a hospital where Dr. Benjamin Johnson examined the victim. Johnson observed tenderness and redness on the right side, front and back, of the victim's neck and redness on the left side of her neck. The redness was in the center of the victim's neck. The victim's genital area was tender but did not exhibit any external vulvar bleeding, swelling, or skin tears. Johnson testified that the victim's physical condition, including the injury to her neck, was consistent with her statement of how the sexual assault occurred.

In a statement Mack gave to police investigator James Lanik about one month after the victim was sexually assaulted, Mack denied knowing the victim. He denied talking to her at the convenience store or calling her later. He claimed that he never went to the neighborhood where she lived. While giving his statement to Lanik, Mack made several references to his probationary status.

About one week after giving the statement to Lanik, Mack told his probation officer, Matt Hudson, that he was not in Winona when the victim was sexually assaulted. Mack claimed that he had been in Mankato at that time and that he had witnesses to verify his claim.

Mack was charged with two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. Mack moved to have all references to his probationary status redacted from his statement to Lanik. The trial court granted the motion as to those references that it concluded were elicited by Lanik. The trial court concluded that Mack volunteered the following references to his probationary status and admitted them into evidence: In explaining why he was nervous, Mack stated that he had been trying to get off probation all his life; when Lanik said he thought Mack could be more honest, Mack stated that he would admit to the judge and his probation officer that the majority of the information in the police report was accurate; in contesting the truth of the statement that he had been drinking the night of the assault, Mack stated that his probation officer would verify that Mack did not drink; and, when Lanik asked how he could contact Mack, Mack stated that he normally saw his probation officer once a month and that Lanik could contact Mack's probation officer.

At trial, Mack admitted having sexual relations with the victim but claimed that the victim consented. Mack denied that the victim ever told him to stop and also denied applying any manner of physical or verbal force or coercion. He testified that the victim did not scream or yell for help or make any physical efforts to resist him. Mack testified that the victim became upset when he said he was leaving and accused him of using her and promising to marry her and father her son just to get her to have sex with him. Mack admitted drinking three beers during the evening the assault occurred.

Mack was acquitted of two counts of first-degree criminal sexual conduct and convicted of one count of third-degree criminal sexual conduct and sentenced to a presumptive 48-month prison term.


1. Mack argues that his conviction should be reversed because the district court erred by failing to redact all the references to his probationary status from his statement to Lanik. A defendant is not entitled to reversal of his conviction based on the erroneous admission of evidence unless the error was prejudicial. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

[T]he question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; to put it another way, if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.

Id. n.2.

Even if all the references to Mack's probationary status had been redacted from his statement to Lanik, Mack's statement to Lanik and his statement to Hudson about one week later significantly undercut the credibility of Mack's trial testimony. Mack's statements to Lanik and Hudson, in which he denied knowing the victim and claimed to have been out of town when the sexual assault occurred, were entirely inconsistent with his trial testimony. Also, in his statement to Lanik, Mack denied ever drinking any alcohol, and, at trial, he admitted drinking three beers the evening the sexual assault occurred. In contrast, there was strong evidence corroborating the victim's trial testimony. Corroborating evidence included the consistency of the victim's trial testimony with her earlier statements to police; the fact that her physical condition, including the injury to her neck, was consistent with her statement of how the sexual assault occurred; a neighbor's testimony that he was awakened by the sound of loud screams coming from the victim's apartment at about the time the sexual assault occurred; and police officers' testimony regarding the victim's emotional state following the sexual assault. In light of the inconsistency between Mack's trial testimony and his earlier statements and the evidence corroborating the victim's testimony, there is no reasonable possibility that the verdict might have been more favorable to Mack if all references to his probationary status had been excluded from evidence. Because any error in admitting the references to Mack's probationary status was not prejudicial, we need not determine the admissibility of the references.

2. Mack next contends that the district court erred in refusing to give the jury instruction he requested on consent. The trial court has discretion to refuse to give a requested jury instruction, and its decision will not be reversed absent an abuse of discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). A defendant is entitled to an instruction on his theory of the case when the facts and relevant law warrant it. State v. Daniels, 361 N.W.2d 819, 831-32 (Minn. 1985).

Based on a California case, People v. Burnham, 176 Cal. App. 3d 1134 (Cal. Ct. App. 1986), review denied (Cal. May 22, 1986), Mack requested that the trial court instruct the jury that it is a defense to a charge of criminal sexual conduct if Mack reasonably and in good faith believed that the victim consented to sexual intercourse. The trial court refused Mack's request and instructed the jury as follows:

[T]he sexual penetration must have occurred without the consent of [the victim]. * * * [The] term "consent" in this context means words or overt actions by a person indicating a freely-given present agreement to perform a particular sexual act with [Mack]. Consent does not require the existence of any prior or current social relationship between [Mack] and [the victim] or that [the victim] failed to resist a particular sexual act.

Under California law, actual consent is a defense to a criminal sexual conduct charge, and another defense is that the defendant had a reasonable and good faith belief that the victim consented. Burnham, 176 Cal. App. 3d at 1141-42. Under Minnesota law, the state has the burden of proving that the victim did not consent. Minn. Stat. §§ 609.344, subd. 1(c), 609.341, subd. 12 (1996). A defendant's state of mind is irrelevant to whether a victim consented, and Minnesota has not adopted as a defense to third-degree criminal sexual conduct a defendant's reasonable and good faith belief in the victim's consent. See Minn. Stat. §§ 609.344, subd. 1 (elements of third-degree criminal sexual conduct), 609.341, subd. 4(a) (1996) (definition of consent). The consent instruction given by the trial court used the language of the statutory definition of consent and was essentially identical to the recommended instruction. See 10 Minneosta Practice, CRIMJIG 12.02, 12.06 (1990) (explaining elements of criminal sexual conduct in the first and third degrees). The trial court did not err in refusing to give the consent instruction requested by Mack.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.