This opinion will be unpublished and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

A05-110

 

State of Minnesota,

Respondent,

 

vs.

 

Lavelle Rossell Bible,

Appellant.

 

Filed May 9, 2006

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 04025457

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from his conviction of third- and fourth-degree criminal sexual conduct, appellant argues that (a) the trial court abused its discretion in denying his motion to sever charges because the offenses had separate alleged victims and were not part of the same behavioral incident; (b) because he was acquitted of the fifth-degree offense, joinder was prejudicial because the offense could not be admitted as Spreigl evidence; and (c) the court abused its discretion in admitting into evidence letters he wrote from jail when those letters were not disclosed before trial and were severely prejudicial.  Because the offenses were properly joined as part of the same behavioral incident, and because the letters were not unfairly prejudicial, we affirm.

FACTS

 

            Following a breakup with his girlfriend, then-33-year-old appellant, Lavelle Rossell Bible, moved into the home of his stepmother, Rebecca Medlock.  The residence was a three-level, three-bedroom townhome.  All three bedrooms were located on the upper level.  Also staying in the home were five other persons: Medlock’s then-14-year-old daughter, M.M.M.; M.M.M.’s baby son; two of Medlock’s sons; and M.M.M.’s adult godmother, J.J.

            On Friday, April 16, 2004, approximately one week after appellant moved in, he went out for the evening to a nightclub.  Between approximately 10 p.m. and 2:30 a.m. appellant was drinking alcohol and dancing.  Appellant returned to the townhome between 3 a.m. and 4 a.m. on Saturday.  Because appellant did not have a key, Medlock, who had been sleeping on the couch on the main level, let him in.  Appellant went upstairs.  J.J. was sleeping in the bed in Medlock’s room, with one of Medlock’s sons.  Medlock’s other son was sleeping in his room.  M.M.M. and her baby were sleeping in M.M.M.’s room.  Whether appellant entered the bedroom in which J.J. was sleeping was in dispute at trial.  It was undisputed that appellant entered M.M.M.’s room and lay down on her bed.

            At approximately 5 a.m., M.M.M. woke Medlock.  M.M.M. was screaming and upset, stating that appellant had been in her bed and had been touching her inappropriately.  At approximately 6 a.m., Medlock called 911; the police arrived at approximately 6:30 a.m.  Initially M.M.M. was reluctant to cooperate with the police, but eventually she told the police that she had woken with her boxer shorts and underwear pulled down and appellant had been touching the area of her buttocks and vagina.  At that time, M.M.M. said that she had not been penetrated.  While police were taking the report in the living room, appellant jumped out of an upper-level bedroom window and was apprehended a block from the home.

            A few days later, a police detective met with Medlock, M.M.M., and J.J.  At this meeting, M.M.M. indicated that appellant had slightly penetrated her anus and her vagina with his finger.  It was also at this interview that police learned of J.J.’s claim that appellant had also woken her on the morning of April 17, “rubbing his hand all over my ass” and asking her if she would give him a ride to work in the morning.

            On April 21, 2004, a complaint was filed charging appellant with fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(b) (2002), for conduct involving then-14-year-old M.M.M.  On July 28, 2004, an amended complaint was filed, adding the charges of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2002), for conduct involving M.M.M.; and fifth-degree criminal sexual conduct in violation of Minn. Stat. § 609.3451, subd. 1(1) (2002), for conduct involving J.J.

            On September 8, 2004—a week before the trial was to begin—appellant moved to sever the fifth-degree charge from the remaining charges.  The district court denied the motion.  A jury trial was held September 16–21, 2004.  On September 16, the state called M.M.M., Medlock, and J.J. to testify.  Sometime on September 16, Medlock provided the prosecutor—for the first time—with information regarding four letters written by appellant from jail.  The prosecutor promptly informed defense counsel of the possible new evidence.  Medlock provided the prosecutor with the letters; the prosecutor promptly provided the defense with copies.  On September 20, before the trial resumed, appellant’s attorney objected to the use of the letters as untimely and prejudicial.  After examining the letters, the district court determined that two of the letters were irrelevant and thus inadmissible; and redacted portions of the other two letters because they were unduly prejudicial.  The district court denied appellant’s motion to suppress the remaining parts of the two letters admitted into evidence.

            The un-redacted portions of the first letter, addressing M.M.M., stated:

I have written everybody except you because I can get in a lot of trouble for writing this letter, but I owe you an apology and an explanation more than anybody.  [M.M.M.], sometimes people make stupid decisions; they don’t think; they just act.  And when things are done, they see that they really messed up, but sometimes it’s to[o] late.  Every day I pray it’s not to[o] late.  Something you said weighs heavy on my heart.  I am supposed to be there to protect you and not the person harming you.  [M.M.M.], I can’t make up excuses for what happened because I really messed up, and I pray you will be able to forgive me.  I know it’s going to take a long time to gain your confidence after this I know I am going to be a better brother because it really caused me to look at myself.  I remember the day the studio called and I was so happy and proud that mom asked me to take you over there and look out for you.  [M.M.M.], I made a terrible decision, and I’m asking for your forgiveness.  [M.M.M.] I’m asking for you to forgive me and drop these charges.  Say it never happened so I can get out and down with you and Mom and talk about this.  See what I got to do to earn the right to call myself your brother again.

 

            The second letter, as read to the jury, stated:

Mom, I would write you every day if I could to apologize to you and [M.M.M.] because I know I really messed up, and I am truly sorry.  I know I just wrote you the other day, but you’re still on my heart.  Mom, my heart is so set on doing right in life, and I can’t do anything to take back what happened, even though every day I pray I could.  I do know this is making be a better person. Luke 7:37‑43.  Mom, I know I really messed up. Leviticus 18:9.  I’m sorry, Mom.  I don’t know how to explain or apologize enough.  I wish I could stand in the middle and get the crap beat out of me by Jack, Billy, Angel, Marcel, Butch, Fabian and [M.M.M.] th[a]n face these cages and guards.  I know I’m just really trying to explain that I’m really sorry for the mistake I made and really want to make it better.  I am apologizing completely, [M.M.M.], Mom and everybody.

 

Appellant maintained a standing objection to the use of the letters.  Appellant testified that the letters were merely apologies for having entered M.M.M.’s room, not admissions that he sexually assaulted her.  Appellant testified that he took the blame for having entered M.M.M.’s room, an act that set off the series of events and M.M.M.’s lies that culminated in his trial.  Appellant denied all of the charges against him.

            The jury ultimately found appellant guilty of the third- and fourth-degree offenses involving M.M.M. and not guilty of the fifth-degree charge involving J.J.  Appellant received a presumptive sentence of 53 months.  This appeal follows.

D E C I S I O N

I

Appellant argues that the district court abused its discretion by denying his motion to sever the charge of fifth-degree criminal sexual conduct against J.J. from the charges of third- and fourth-degree criminal sexual conduct committed against M.M.M.

            This court reviews the denial of a motion to sever under an abuse-of-discretion standard.  State v. Dick, 638 N.W.2d 486, 490 (Minn. App. 2002), review denied (Apr. 16, 2002).  The Minnesota Rules of Criminal Procedure expressly require the district court, upon motion, to sever offenses or charges if they are not related.  Minn. R. Crim. P. 17.03, subd. 3(1)(a).  For purposes of subdivision 3(1)(a), charges are related if they form part of “a single behavioral incident or course of conduct.”  State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999).  The determination of whether offenses arose from a single behavioral incident so as to permit their joinder for trial depends on the specific facts and circumstances of the case.  State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).  In determining whether multiple offenses are part of a single behavioral incident, courts traditionally focus on three factors: (1) the time of the offenses; (2) the geographic proximity of the offenses; and (3) whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective.  Profit, 591 N.W.2d at 458; Jackson, 615 N.W.2d at 394.

Appellant admits that the alleged offenses involving J.J. and M.M.M. occurred closely in time and within the same house.  But he argues that joinder was improper because the offenses were separate and distinct in that they could have been proven independently of one another; nor were they motivated by an effort to obtain a single criminal objective.  Thus, appellant argues, they did not satisfy the “third prong” of Profit.  Appellant mistakenly characterizes the Profit analysis as a three-prong test.  It is not.  Rather, Profit addresses three “factors” that courts should consider in determining whether offenses constitute a single behavioral incident.  Profit, 591 N.W.2d at 458.  A weakness in one factor does not dilute the strength of the others.

Appellant also argues that joinder was improper under State v. Butterfield, 555 N.W.2d 526 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).  In Butterfield,the defendant subjected the same victim to multiple incidents of violent sexual assaults occurring over a one-day period at three separate locations.  Id.  This court noted that it had previously “held that a defendant’s desire to satisfy his perverse sexual desires is too broad a motivation to justify application of the single behavioral incident rule.”  Id. (citing State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989)).  But this court did not say that a defendant’s sexual desire was not a motivation, only that it was too broad a motivation, by itself, to justify application of the rule.  Significantly, this court ultimately held that “[b]ecause the assaults in the park, the car, and the trailer had no unity of time, location, or purpose, they were separate behavioral incidents, and the district court did not err in imposing a sentence for each assault.”  Id.(emphasis added).

            In our view, this case is more analogous to State v. Dukes, 544 N.W.2d 13 (Minn. 1996).  In Dukes, the district court joined charges stemming from the murder of one victim with charges stemming from the attempted murder of a separate, unrelated victim.  Id. at 17.  In upholding the district court’s decision to join the charges, the Minnesota Supreme Court stated that “where the time between the two crimes was a matter of only a few minutes, the proximity was within one block, and each crime was motivated by the objective of obtaining money through robbery, the trial court did not abuse its discretion in refusing to sever the trials.”  Id. at 20. 

Here, there are three charges of criminal sexual conduct with two victims.  The alleged incidents occurred on the same morning within minutes of each other; thus, the time factor supports joinder.  The incidents with each victim also occurred within the same townhouse in bedrooms just across the hall from each other, satisfying the geographic-proximity factor.  The conduct involved in both allegations was appellant using his hand to touch the victim in the area of her buttocks.  Although there are two separate victims and three charged crimes, the crimes are so factually related in time, place, and motivation that we conclude they constitute a single behavioral incident.  Because the multiple charges constituted a continuing course of conduct or single episode, the district court did not abuse its discretion by denying appellant’s motion to sever the charges.

Because we conclude that the offenses were not improperly joined, we decline to address appellant’s argument that his acquittal of the fifth-degree offense proves the joinder was prejudicial.  See State v. Kates, 616 N.W.2d 296, 299 (Minn. App. 2000) (applying the Spreigl analysis to determine whether evidence from improperly joined offenses was prejudicially erroneous), review denied (Minn. Oct. 25, 2000).

II

            Appellant argues that because the letters he wrote to Medlock and M.M.M. from jail—which were discovered and admitted during the trial—severely prejudiced appellant, the district court abused its discretion by not suppressing the letters in their entirety.

In general, “[e]videntiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  Minnesota requires that when “a party discovers additional material [or] information [that is] subject to disclosure, that party shall promptly notify the other party of the existence of the additional material or information.”  Minn. R. Crim. P. 9.03, subd. 2.  The district court has broad discretion in imposing sanctions for violation of these discovery rules.  State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998).  But the “[p]reclusion of evidence is a severe sanction which should not be lightly invoked.”  State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979).

First, appellant argues that the letters were improperly admitted because they were turned over too late in the trial process.  Here, the prosecution did not learn of the existence of the four letters until the first day of testimony at trial.  The prosecutor learned of the letters from Medlock, who was testifying that day.  The prosecutor informed opposing counsel as soon as he heard about the letters, and promptly gave opposing counsel copies.  The district court declared the letters to be “newly discovered evidence.”  Appellant does not dispute that the prosecution complied with his continuing obligation to disclose under Minn. R. Crim. P. 9.03, subd. 2(b), but argues that the witness should have mentioned the letters earlier.  Because appellant does not argue that the state violated the discovery rules, appellant’s argument that the letters should have been excluded as a discovery sanction must fail.  Further, appellant does not argue that Medlock purposefully withheld the information until trial.  Instead, appellant argues that Medlock had the letters for several months before the trial began and should have brought the letters to the attention of the prosecutor sooner.  This argument also fails because appellant, having written and sent the letters, was equally aware of their existence and could have informed defense counsel of their existence.

Next, appellant argues that the evidence should have been suppressed under Minn. R. Evid. 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  But appellant claimed merely that the defense strategy might have been different had he known the letters were going to be used.  The district court found the “possibility” that the defense strategy “might” have been different was too tenuous to show real prejudice.  The district court noted that there was “nothing in the letters saying ‘I didn’t know what I was doing.  It was an accident.  I was too drunk.  I don’t recall it.’  And so I don’t see how the letters would help the decision toward an intoxication defense if that were the case.” 

The district court engaged in a detailed review of the letters on the record and received input from both counsel.  The district court excluded two of the letters as irrelevant, and portions of the admitted letters were specifically redacted as prejudicial or otherwise inadmissible.  Appellant failed to demonstrate actual prejudice.  On this record, the district court did not abuse its discretion by admitting the redacted letters as evidence.

Affirmed.