State of Minnesota, Respondent, vs. Darren Everett Sweazey, Appellant. A06-1246, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1246

State of Minnesota,

Respondent,

vs.

Darren Everett Sweazey,

Appellant.

Filed September 18, 2007

Affirmed

Lansing, Judge

Rice County District Court

File No. K5-05-1179

Lori Swanson, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In this appeal from conviction for third-degree criminal sexual conduct, Darren Sweazey argues that the district court erred by allowing the state to impeach him with a prior third-degree-criminal-sexual-assault conviction, by failing to order a new trial when a state witness referred to inadmissible evidence, and by denying a motion to grant a judgment of acquittal despite the lack of credible evidence to support the verdict. Because the evidentiary error is harmless and the testimony, determined by the jury to be credible, is sufficient to support the verdict, we affirm.

F A C T S

The state charged Darren Sweazey with third-degree criminal sexual conduct for sexually penetrating AH, then fifteen years of age, while she was physically helpless. At trial, the state presented testimony from seven witnesses but primarily relied on the testimony of AH. AH testified that in August 2004 she and a friend went to a party. The host’s parents were not at home, and AH estimated that fifteen to twenty people were at the party. She said that beer and hard liquor were available and that she began drinking beer and vodka shortly after she arrived. She also testified that she had used marijuana earlier in the day. Over the course of the evening, AH consumed alcohol to the point where her speech was slurred, people had difficulty understanding her, and she could not stand up without support.

AH had previously met Sweazey, who was twenty-seven years old, but did not know him well. Around 11:00 p.m., the two left the party and Sweazey drove to a remote location with no houses or street lamps and stopped the car in the driveway to a field. AH described her condition as “beyond drunk” and testified that while they were in the car listening to music she passed out. When she awoke, she was stretched out across the car’s front seat, her pants and underwear had been removed, and Sweazey was on top of her, engaged in sexual intercourse with his penis inside her. AH gave Sweazey a “puzzled look” and pushed him back, but Sweazey did not stop until he was “finished.” Sweazey then gave AH her clothes and allowed her to drive back to the party.

On returning to the party, AH immediately ran inside and told two people that she had been raped. She also told the party’s host. AH testified that she was scared, crying, and upset.

AH did not call the police because she did not want her mother to know that she had been drinking. She spent the night at the house where the party was held. She testified that during the next four days she was very sore in her crotch area. A few days later, the party’s host and the friend who accompanied AH to the party, drove AH to the Red Door Clinic in the Twin Cities. A nurse preliminarily examined AH and recommended that she see a sexual-assault counselor and contact the police. AH did neither.

About nine months later, in May 2005, AH sought help from her aunt and uncle for her problems with drug and alcohol use. In the course of their conversations, AH told them about the sexual assault and they persuaded AH to tell her mother, who then contacted the police. After interviewing AH, the police filed a complaint against Sweazey in July 2005.

AH’s mother testified about the May 2005 conversation with her daughter. Two witnesses testified to their observations of AH at the August 2004 party. The friend who accompanied AH to the party testified that AH was drinking alcohol throughout the evening and that her speech was slurred but that she was able to stand without assistance. The friend said that she told AH not to go with Sweazey because AH had been drinking. Consistent with AH’s testimony, the friend testified that when AH returned from the car ride with Sweazey, AH was shaken up and crying and told her that Sweazey had raped her. The party’s host testified that AH had consumed alcohol at the party, and, that after going for a ride with Sweazey, she returned to the party and told him that Sweazey had raped her. He also testified that AH was crying and very upset.

A nurse from the Red Door Clinic testified to her interview with AH in August 2004. She said that AH told her about the sexual assault, and, after a preliminary examination, she referred AH to a sexual-assault resources program for a more thorough examination. The nurse also encouraged AH to contact the police.

Finally, the state presented the testimony of Michael Anderson, who had shared a cell with Sweazey in the Rice County jail in August and September 2005. Anderson testified that Sweazey had shown him a copy of the complaint and asked him for advice in finding loopholes. In the course of their discussions he said that Sweazey told him about the party and told him that AH was young, very drunk, and that he had “f----d the s--t out of her” in the front seat of his car. Before Anderson testified, Sweazey’s attorney requested that Anderson not be allowed to refer to the fact that Sweazey had been transported to the jail from the Moose Lake correctional facility. In his testimony, Anderson said that Sweazey was “down on a writ from Moose Lake.” Sweazey objected to Anderson’s statement and the objection was sustained.

Sweazey testified in his own defense. Before Sweazey testified, his attorney moved to exclude impeachment evidence of Sweazey’s prior conviction for third-degree criminal sexual conduct. The district court denied the motion. Sweazey did not object to the introduction of evidence of his prior theft conviction.

Sweazey testified that he and AH had twice left the party together in August 2004 so that AH could drive his car. He denied that AH was intoxicated, that she passed out or fell asleep in the car, that he had sex with her, and that she ran inside the house crying after they returned. He also denied that he had made any statements to Anderson about his case. Sweazey’s wife, who was dating him but not married to him in August 2004, testified to Sweazey’s consistent statements to her.

The jury found Sweazey guilty of third-degree criminal sexual conduct, and Sweazey appeals his conviction. He contends that the district court erred by (1) allowing the state to impeach him with his prior conviction of third-degree criminal sexual conduct, (2) denying him a new trial when Anderson referred to his being transported on a writ from Moose Lake, and (3) denying his motion for acquittal based on insufficient credible evidence to support his conviction.

D E C I S I O N

The district court denied Darren Sweazey’s motion to preclude the state from introducing, as impeachment evidence, Sweazey’s prior conviction of third-degree criminal sexual conduct. Sweazey argues that the denial of his motion requires a new trial. We apply a clear-abuse-of-discretion standard to our review of a district court’s ruling to admit evidence of a witness’s previous convictions for impeachment purposes. State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006). Generally, evidence that a witness has been convicted of a crime is admitted only if the crime is within a ten-year time period and (1) involved dishonesty or (2) was punishable by imprisonment in excess of one year and the probative value of admitting the evidence outweighs its prejudicial effect. Minn. R. Evid. 609.

To determine whether the probative value of a witness’s prior felony conviction outweighs any potential for prejudice, district courts use a five-factor test that is set out in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). The five factors are:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Jones, 271 N.W.2d at 538. A district court’s failure to “demonstrate on the record that it has considered and weighed the Jones factors” constitutes error. Swanson, 707 N.W.2d at 654. The supreme court has recently reaffirmed both that the district court must apply these factors and that the failure to make a record of the application of the factors constitutes error. State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007). The error is harmless, however, if it was clearly not an abuse of discretion to admit evidence of the convictions. Id.

Both the state and the defense referred to the Jones factors during their arguments on the motion in limine, but, as the state concedes, the record is insufficient to demonstrate that the district court considered each of the factors. Applying these factors to the evidence, we conclude, however, that the district court did not clearly abuse its discretion by admitting the prior conviction.

On the first factor, Sweazey acknowledges that criminal-sexual-conduct convictions have routinely been admitted in prior cases under the “whole person” rationale. Swanson, 707 N.W.2d at 655 (stating principle that any prior conviction helps “the jury see the ‘whole person’ of the defendant and better evaluate his or her truthfulness”); State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998) (finding impeachment value in third-degree criminal-sexual-conduct conviction); State v. Brouillette, 286 N.W.2d 702, 707-08 (Minn. 1979) (finding impeachment value in third-degree criminal-sexual-conduct conviction); State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (finding impeachment value in second-degree criminal-sexual-conduct conviction), review denied (Minn. Dec. 11, 2001). But Sweazey contends that any probative value was substantially diminished because the jury was provided evidence of his “whole person” through the uncontested admission of his prior theft conviction.

We conclude that Sweazey’s argument too narrowly interprets the “whole person” rationale. The purpose is not solely to inform the jury that the witness is a convicted felon, but, as described in Brouillette,to allow the jury to see a witness’s “repeated” behavior that violates the law. 286 N.W.2d at 707; see also State v. Flemino, 721 N.W.2d 326, 328-29 (Minn. App. 2006) (affirming continued use of “whole person” rationale). This concept is reinforced by the commonly accepted meaning of the word “whole” to denote more than a representative selection of past actions. See, e.g., Swanson, 707 N.W.2d at 653-54 (addressing defendant’s five prior convictions together). Thus, the admission of Sweazey’s theft conviction did not substantially diminish the impeachment value of Sweazey’s prior criminal-sexual-conduct conviction. Sweazey acknowledges that the second factor weighs in favor of admissibility because the conviction was recent.

On the third Jones factor, Sweazey argues that the prior conviction’s similarity to the charged crime makes it highly prejudicial and weighs against admission. The supreme court has recognized that “if the prior conviction is similar to the charged crime, there is a heightened danger that the jury will use the evidence not only for impeachment purposes, but also substantively.” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Sweazey contends that this danger was substantially enhanced by the court’s failure to issue a cautionary instruction. See Vanhouse, 634 N.W.2d at 720 (endorsing use of cautionary instructions as means of alleviating potential for prejudice).

The state counters that Sweazey waived any cautionary-instruction argument by his failure to request an instruction at trial. See State v. Leecy, 294 N.W.2d 280, 282 (Minn. 1980) (holding that defendant forfeited right to raise on appeal district court’s failure to give cautionary instruction by failing to object). As a general practice, the district court should give an appropriate cautionary instruction to the jury. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). We need not reach the issue of whether Sweazey waived his cautionary-instruction argument. Even if the argument were waived, the third factor—considering the similarity of the past conviction for third-degree criminal sexual conduct—weighs against admission of the prior conviction.

Sweazey contends that the fourth and fifth Jones factors also weigh against admission because admitting the prior conviction made him reluctant to testify in his defense and there was no other way to get his defense before the jury. In State v. Bettin, the supreme court noted that a judge could reasonably take into account that a relevant prior conviction might cause a defendant not to testify and the importance of the jury hearing the defendant’s version of the case could weigh in favor of exclusion. 295 N.W.2d 542, 546 (Minn. 1980). But the Bettin decision also recognizedthat “if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person . . . then a greater case can be made for admitting the impeachment evidence.” Id.

Recent supreme court cases emphasize that when “credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission.” Swanson, 707 N.W.2d at 655 (citing State v. Smith, 669 N.W.2d 19, 29 (Minn. 2003), overruled on other grounds by State v. Leake, 699 N.W.2d 312 (Minn. 2005)); see also Gassler, 505 N.W.2d at 67 (holding that, because defendant’s credibility was main issue, there would have been significant need for evidence). Because the only witnesses to the charged crime were Sweazey and AH, credibility was the “central issue.” We conclude that the fourth and fifth factors therefore support the admission of the prior conviction. Furthermore, in this case, Sweazey chose to testify despite the admission of the impeachment evidence. Therefore, the district court’s decision did not prevent Sweazey from presenting his defense.

Four of the five Jones factors weigh in favor of admission. The factor weighing against admission—the similarity of the prior conviction—has not precluded the admission of prior-conviction evidence in analogous circumstances. See State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (admitting evidence of two prior rape convictions in trial for first-degree criminal sexual assault); Brouillette, 286 N.W.2d at 708 (admitting evidence of prior conviction for third-degree criminal sexual conduct in trial for fourth-degree criminal sexual conduct); Vanhouse, 634 N.W.2d at 720 (admitting evidence of second-degree criminal sexual conduct in trial for first-degree criminal sexual conduct). Consequently, we conclude that the district court did not abuse its discretion by admitting evidence of the prior third-degree-criminal-sexual-conduct conviction, and the district court’s failure to place its reasoning on the record was harmless.

Sweazey’s second evidentiary argument relates to the informant’s testimony. He argues that the informant’s statement that Sweazey was “down on a writ from Moose Lake” violated a suppression order and irreparably prejudiced the jury. Sweazey argues that this is prosecutorial misconduct that prevented him from receiving a fair trial.

The state has a duty to prepare its witnesses by defining for them the acceptable limits of their testimony. See State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979) (outlining state’s obligation). Failure to prepare a witness may result in prejudicial misconduct. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). But any misconduct “will warrant reversal only when it is likely that the impermissible testimony substantially weighed on the jury’s decision.” Id.

Sweazey contends that a new trial is necessary because the jury was prejudiced by the knowledge that he was serving time in prison. We conclude that the record does not compel a new trial. The reference to the writ was “passing” and it is not likely that an ordinary juror would conclude that it meant Sweazey had been transported from prison. See State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978) (explaining that passing statement of obscure meaning did not play significant role in jury’s decision to find defendant guilty). “Writ” in its general sense is a court order, and it could reasonably have been understood as just that—an order by a Moose Lake court or official. It can also be a shorthand reference for the specific writ of habeas corpus, which orders a prison official to produce a person who is under the official’s supervision. And “from Moose Lake,” as Anderson referred to it, does not necessarily connote the state correctional facility located there. None of the terms would automatically convey the concept of imprisonment to someone who is not familiar with the criminal-justice system. We therefore find no basis to conclude that the informant’s improper statement “substantially” weighed on the jury’s decision.

For the same reasons, we conclude that it is unlikely that this material deprived Sweazey of his right to an impartial jury. See State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982) (stating that jury exposure to potentially prejudicial material deprives defendant of right to impartial jury). Furthermore, the district court sustained an objection to Anderson’s statement and, in its instructions, told the jury to ignore material to which objections had been sustained.

III

Sweazey’s final argument is that the evidence is insufficient to sustain his conviction. “In considering a claim of insufficient evidence, our review is limited to a careful analysis of the evidence to determine whether the jury, giving due regard to the presumption of innocence and the state’s burden of proof, could reasonably find the defendant guilty.” State v. Wright, 679 N.W.2d 186, 189 (Minn. App. 2004), review denied (Minn. May 18, 2004). We view the evidence in a light most favorable to the verdict and assume that the jurors, who are in the best position to evaluate witnesses’ credibility, believed the evidence supporting the verdict and disbelieved any contrary evidence. State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).

Sweazey’s central claim is that his conviction is not sufficiently supported by credible evidence. It is well established, that appellate courts do not retry the facts and that resolution of conflicting testimony is the exclusive function of the jury. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990). Evidence or testimony that is seemingly impossible under the circumstances may in some instances be inherently incredible. State v. Florence, 306 Minn. 442, 459 n.24, 239 N.W.2d 892, 903 n.24 (1976). Although inherent incredibility may be a basis for disregarding testimony, it is generally a basis to be applied by the finder of fact, not an appellate court. First Trust Co. of St. Paul v. McLean, 254 Minn. 75, 79, 93 N.W.2d 517, 520 (1958). Only in an exceptional case and when the question is free from doubt will an appellate court declare that a witness’s testimony is so inherently incredible that it is unworthy of belief. Id.

The cases Sweazey cites involve extraordinary circumstances. In State v. Gluff, the supreme court overturned a conviction because the witness had not had a sufficient amount of time to reasonably identify the defendant during a robbery. 285 Minn. 148, 151, 172 N.W.2d 63, 65 (1969). In State v. Langteau, the supreme court reversed another robbery conviction because the court was troubled by considerable unexplained weaknesses in the victim’s testimony. 268 N.W.2d 76, 77 (Minn. 1978). And State v. Huss was a highly unusual case in which significant evidence suggested that a three-year-old child had been improperly and unduly influenced in reporting that her father sexually abused her. 506 N.W.2d 290, 292-93 (Minn. 1993). This case does not present similar circumstances.

On this record, we are not persuaded that the testimony of any of the witnesses was inherently incredible, although each of the witness’s testimony had some inconsistencies. The inconsistencies in AH’s testimony were minor and were argued to the jury along with AH’s alleged motive to fabricate. Appellate courts have previously noted that inconsistent testimony is more a sign of human fallibility than testimonial falsity, especially in cases involving a traumatic event. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983). Also, inconsistencies in insignificant details are immaterial when the victim’s testimony is consistent on the whole. State v. Mosby, 450 N.W.2d 629, 634 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). AH consistently stated that she passed out in Sweazey’s car and that when she awoke Sweazey was engaged in sexual intercourse without her consent. The inconsistencies that Sweazey highlights relate to AH’s clothing, evidence of drug use, and other incidental events. Sweazey had an opportunity to argue these inconsistencies to the jury, and we must assume that the jury determined that AH’s testimony was credible.

Assuming, as the law requires, that we accept the jury’s determination of credibility, the evidence is sufficient to support the conviction. AH consistently stated that Sweazey sexually penetrated her when she was physically helpless. AH complained to others about the assault as soon as she returned to the party. State v. Reinke, 343 N.W.2d 660, 662 (Minn. 1984) (identifying prompt complaint as corroborating evidence). Two witnesses who were also at the party testified that when AH returned she was crying and very upset. And AH followed up on her complaint by visiting the Red Door Clinic several days after the assault. Other witnesses testified to AH’s consistent statements, and the jury heard evidence that Sweazey had acknowledged his actions to another person who was detained in the Rice County jail. The jury could, therefore, reasonably find Sweazey guilty of third-degree criminal sexual conduct.

Affirmed.