This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1017

 

State of Minnesota,
Respondent,

vs.

Michael Allen Holmes,
Appellant.

 

Filed August 2, 2005

Reversed and remanded

Peterson, Judge

 

Olmsted County District Court

File No. K0024371

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN  55904 (for respondent)

 

James McGeeney, McGeeney Law Office, 18 Third Street Southwest, Suite 303, Rochester, MN  55902 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from convictions of and sentences for first-degree criminal sexual conduct and terroristic threats, appellant argues that the district court abused its discretion by denying his motion to exclude expert testimony that was not disclosed until after voir dire began or to grant him a continuance so that he could obtain an expert to review the newly disclosed evidence.  Appellant also argues that the upward durational sentencing departure imposed by the district court violated his right to a jury trial.  Because we conclude that the district court abused its discretion by denying appellant’s request for a continuance, we reverse and remand for a new trial.

FACTS

            In November 2002, appellant Michael Allen Holmes was asked to leave the halfway house where he was living.  Appellant attempted to reach his girlfriend, S.C., by telephone and left a message for S.C.  After S.C. arrived home at about 2:30 in the morning, she returned appellant’s call.  Appellant asked if he could come over, and S.C. said that he could.  S.C. left the door unlocked for appellant.

According to S.C., appellant entered her bedroom and began taking off his clothes. S.C. told appellant that she was tired and did not want to have sex.  S.C. testified that appellant held her down on the bed, removed her clothing, and forced her to have sex with him.  S.C. testified that she scratched appellant on the neck and kicked at him, but she did not try to wake up her mother or brother.  S.C. also testified that appellant threatened to harm her if she was ever with another man and that she would not live to see her children grow up.

            S.C. tried to call a friend, J. A., but appellant grabbed the phone away from her.  Eventually, appellant let S.C. call J.A., and S.C. asked J.A. to come to her house.  When J.A. arrived, S.C. was in the kitchen putting on her shoes and coat, and she was crying.  S.C. did not tell J.A. what had happened, but she asked J.A. to tell appellant to get out of the house.  S.C. then left the house.

J.A found appellant in S.C.’s bedroom and told him that S.C. wanted him to leave.  J.A. testified that appellant threatened to kill J.A. and S.C.’s mother if S.C. came back with the police.  When S.C. returned, she and J.A. got into J.A.’s car and drove around for a few minutes before returning to S.C.’s house.  S.C. was concerned about appellant being in her house with her family.  S.C. and J.A. found appellant standing in the driveway.  S.C. got out of the car, walked around appellant, and locked the door of the house.  As S.C. walked back to J.A.’s car, appellant grabbed her coat and arm, and they engaged in a 30-minute conversation during which S.C. told appellant that she did not want to see him anymore.

J.A., who was still in her car, rolled down a window and encouraged S.C. to get in the car.  Appellant threatened S.C. that if she got in the car, he would beat her and throw her into the Mississippi River.  S.C. got into the car, and appellant chased after her, grabbed onto the frame of the car, and tried to hit S.C.  S.C. and J.A. reported the incident to the police.  The officers who responded to the call indicated that they were dispatched on a disorderly conduct complaint.  Initially, there was no mention of a sexual assault, but S.C. eventually told the officers about the assault.

Susan Crawley, a registered nurse, conducted a physical and rape-kit[1] examination of S.C., and photographs were taken of S.C.’s injuries.  Appellant was charged with two counts of first-degree criminal sexual conduct and two counts of terroristic threats, and the charges went to trial.

After voir dire began, but before a jury was selected, the state disclosed that (1) Crawley was a sexual-assault nurse examiner (SANE nurse) who received specialized training in forensic nursing relating to the examination of sexual-assault victims, and (2) Crawley would testify that (a) the photos taken during Crawley’s examination of S.C. showed tears, rather than abrasions, in S.C.’s vaginal area, and (b) Crawley had never seen this type of injury in a consensual-sex investigation.  Appellant moved to prevent Crawley from testifying that the photographs showed injuries in the form of tears and that Crawley had never seen this type of injury in a consensual-sex investigation.  Alternatively, appellant sought a continuance to allow the defense time to obtain an expert to rebut Crawley’s testimony.

The state opposed appellant’s motion, arguing that (1) its position had always been that the photographs showed an injury; (2) it had just learned the night before that Crawley was a SANE nurse; (3) it promptly told appellant that Crawley was going to testify that the injuries were tears; (4) it had not violated any discovery rules; (5) Crawley had always been available to the defense; and (6) a continuance was not necessary because the information “has basically been available to the defense all along.”

The district court denied appellant’s motion for a continuance.  The court stated that jury selection was not yet completed, and the trial was expected to go on for three or four days, and possibly a week, which gave the defense some time to work on getting an expert.  The court also determined that the prosecution had not violated the discovery rules and there was no unfair prejudice because the prosecution disclosed the new information as soon as it learned about it, and the information had been available to the defense.  The court also noted that appellant had made a demand for a speedy trial.

At trial, Crawley testified that she had received training to become a SANE nurse and explained that the job of a SANE nurse is to “receive the victim when they come to the hospital, do a medical history on them, do just a physical on them to see how they’re doing physically and then we do evidence collection.”  Crawley testified that when examining S.C., she observed three bruises on the left side of S.C.’s neck, a bruise on her upper left shoulder, a bruise on her upper left thigh, a hickey on her right collarbone, scrapes on her upper left arm, and a scratch on her left lower back.  Crawley also testified that she observed tears and abrasions in the vaginal and perineum area.  Referring to a photograph taken during her examination of S.C., Crawley described three injuries in the vaginal area as tears, about three-fourths of an inch long.  Referring to another photograph taken during the examination, Crawley described each of the tears and referred to one as a laceration.  Crawley also testified that she had been an OB/GYN nurse for 26 years and that in those 26 years, she had never had anyone present to her with the types of injuries shown in the examination photographs who had told her that the injuries were the result of consensual sex.    

Appellant’s defense theory was that he had consensual sex with S.C.  Appellant testified that the scratches on his body were from a fight that he was in earlier in the evening, and he denied threatening S.C. and J.A..

The jury found appellant guilty of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002), and two counts of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2002).  At sentencing, the district court found the terroristic threat against S.C. to be an aggravating factor and sentenced appellant to 360 months on the first-degree criminal-sexual-conduct count.  The court determined that the threats against J.A. were threats against a second victim and imposed a consecutive sentence of twelve months and one day on the terroristic-threats count.  This appeal is from the convictions and sentences.

D E C I S I O N

Appellant argues that the district court abused its discretion by denying his request for a continuance to seek an expert to counter Crawley’s testimony.  Appellant contends that denying him a continuance prejudiced his right to a fair trial.

Whether to grant or deny a continuance is within the sound discretion of the district court, and its decision will not be reversed unless it has abused its discretion.  State v. Sanders, 598 N.W.2d 650, 654 (Minn. 1999).  “On review, we look to the circumstances surrounding the requested continuance and whether the denial was so prejudicial in the preparation of an adequate defense as to materially affect the outcome of the trial.”  Id. (quotations omitted).

Citing State v. Lindsey, the state argues that because there was no discovery violation, appellant was not entitled to a continuance as a sanction.  284 N.W.2d 368, 373 (Minn. 1979) (setting forth standard of review of sanctions for discovery violations).  But appellant does not claim only that he was entitled to a continuance as a sanction for a discovery violation; he also argues that he requested a continuance to obtain an expert to rebut Crawley’s testimony and that the district court abused its discretion by denying his request.

The state also argues that appellant should have anticipated Crawley’s testimony because appellant was charged with violating Minn. Stat. § 609.342, subd. 1(e)(i) (2002), which required the state to prove that appellant caused personal injury to S.C.  See 10 Minnesota Practice, CRIMJIG 12.01, .03 (1999) (delineating elements of first-degree criminal sexual conduct).  The state contends that whether the injuries are described as tears or abrasions is immaterial because both are injuries, and the new information in  Crawley’s testimony was minor.

We disagree.  To prove that appellant violated Minn. Stat. § 609.342, subd. 1(e)(i), the state did not just need to prove that appellant caused personal injury to S.C.; it also needed to prove that appellant used force or coercion to accomplish sexual penetration.  Crawley’s testimony that the injuries were tears, rather than abrasions, and that she had never seen injuries of this type that were claimed to be the result of consensual sex went directly to whether appellant had consensual sex with S.C. or used force to accomplish sexual penetration.  Crawley’s testimony directly undermined appellant’s defense theory that he had consensual sex with S.C.  See State v. Moore, 493 N.W.2d 606, 609 (Minn. App. 1992) (holding that district court abused its discretion in not ordering new trial because undisclosed oral statement of rape victim was prejudicial to defendant’s tactical decision to assert consent defense), review denied (Minn. Feb. 12, 1993).

Furthermore, although the examination photographs had been disclosed to appellant, whether the injuries shown in the photographs are tears, rather than abrasions, and whether the injuries are consistent with or inconsistent with consensual sex are not issues that a jury could determine without the aid of expert testimony.  Crawley’s testimony about the photographs gave the photographs meaning that they would not have had without her testimony.  Because of the nature of Crawley’s testimony, appellant needed to consult an expert to confirm or rebut Crawley’s opinion about what the photographs revealed about S.C.’s injuries.  Without an opportunity to consult with his own expert, appellant could not properly evaluate Crawley’s opinion about the injuries shown in the photographs.

Appellant argues that his position is similar to the defendant in State v. Scharfencamp, 416 N.W.2d 825 (Minn. App. 1987).  We agree.  In Scharfencamp, a nurse testified in the defendant’s implied-consent license-revocation proceeding that she had stored defendant’s blood sample in a brown-stoppered vial from hospital supply, rather than a gray-stoppered Bureau of Criminal Apprehension (BCA) vial.  Id. at 826.  The defendant later obtained expert testimony from a BCA analyst that the gray-stoppered BCA vials contain chemicals unique to blood-alcohol testing.  Id. At trial in the DWI prosecution, the defendant learned that the nurse would testify, contrary to her previous testimony, that she had stored the defendant’s blood in a gray-stoppered vial.  Id. The defendant reasserted his statutory right to demand the presence of a BCA analyst, which he had previously waived in reliance on the nurse’s testimony.  Id. at 826-27.  When the state could not produce a BCA analyst, the defendant moved for a continuance, and the district court denied the motion.   Id. at 826.  This court reversed the district court and remanded for a new trial because the last-minute change in the testimony of a critical prosecution witness left the defendant no time to adjust his trial strategy.  Id. at 827.  Though Scharfencamp involved a statutory right to subpoena testimony, the fundamental issue was the same as the issue presented in the present case:  whether the denial of the continuance “prejudiced the defendant by materially affecting the outcome of the trial.”  Id. at 826-27 (quotation omitted).

The state argues that because appellant had more than a year to speak to experts and chose not to do so, and because appellant has not identified an expert who could contradict Crawley’s testimony, any error was harmless beyond a reasonable doubt.  But these arguments do not address whether denying appellant’s request for a continuance was so prejudicial in the preparation of an adequate defense as to materially affect the outcome of the trial.  Appellant could have consulted an expert and pursued a different strategy when preparing his defense, but he reasonably relied on the state’s previous disclosures to prepare a defense against the case that the state was preparing.  When Crawley’s testimony was disclosed, the state’s case changed, and appellant needed to consult with an expert to determine whether Crawley’s testimony could be rebutted and how appellant’s defense needed to be changed to deal with Crawley’s testimony.  

The district court’s comment on the record that because the trial was expected to continue for three or four days, there would be time for appellant to consult with an expert without a continuance, indicates that the district court recognized that appellant needed to consult with an expert.  But when appellant’s counsel’s time was already taken up with the trial that was underway, it was not reasonable to conclude that three or four days was sufficient time to find and consult with an expert.  We, therefore, conclude that the district court abused its discretion when it denied appellant’s request for a continuance.

The state argues that a continuance was not feasible because appellant demanded a speedy trial.  The state’s argument is without merit.  While a defendant in Minnesota must be tried within 60 days of demanding a trial, it is axiomatic that a defendant may temporarily waive his speedy-trial demand.  Minn. R. Crim. P. 11.10; State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).  A district court does not abuse its discretion by delaying a trial beyond the 60-day limit when the record, as here, supports a finding of good cause.  McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989).  

In light of our decision that the district court abused its discretion by denying appellant’s request for a continuance, it is not necessary for us to address appellant’s other arguments.

Reversed and remanded.