This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1768

State of Minnesota,

Respondent,

vs.

Alonzo Christopher Hill,

Appellant.

Filed July 21, 1998

Affirmed in part and vacated in part.

Lansing, Judge

Ramsey County District Court

File No. KX97771

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

James T. Diamond Jr., Special Assistant State Public Defender, 2250 Fifth Street Towers, 100 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,[*] and Norton, Judge.*

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

LANSING, Judge

Alonzo Hill appeals his convictions for first degree and third degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(c); 609.344, subd. 1(c). We conclude that the trial court's exclusion of Hill's statement to police was not error and the evidence is sufficient to support the convictions. Because third degree criminal sexual conduct is based on the same conduct and is a lesser included offense of first degree, we vacate the conviction for third degree and affirm the conviction for first degree criminal sexual conduct.

FACTS

A jury convicted Alonzo Hill of sexually assaulting 18-year-old H.R. H.R. testified that she encountered a man, whom she identified as Hill, after she stopped at a convenience store that turned out to be closed. Hill came up behind her and told her to come with him or he would kill her. He then took her into an apartment, where he sexually assaulted her despite her pleas to stop. H.R. testified that Hill left the apartment room when someone knocked on the door. H.R. ran to the door of the room, where she was confronted by Hill's girlfriend, who began hitting her. H.R. screamed that Hill had raped her. Hill's girlfriend then attempted to help her, eventually taking her to the police station.

Police arrested Hill about a mile from the apartment. His clothing, a "brown puffy jacket" and white pants, matched H.R.'s description. Hill voluntarily provided a statement in which he explained that, after having sex with another woman, he saw H.R. driving down the street and motioned her to pull over. He said that he had a conversation with H.R. that led to consensual sex.

At trial, the prosecutor opposed the admission of Hill's statement to police. Defense counsel was permitted to elicit from Hill that he had given a statement to police that was consistent with his trial testimony. In closing argument, defense pointed out that Hill's statement was taped but the state "didn't want you to hear it." The court sustained the prosecutor's objection to the comment.

The jury found Hill guilty of first degree and third degree criminal sexual conduct, but acquitted him of kidnapping. The trial court sentenced Hill to 110 months for the first degree criminal sexual conduct. The court also adjudicated Hill guilty of third degree criminal sexual conduct, but imposed no sentence on that count. Hill appeals both convictions, asserting that (1) the court erred in excluding his taped statement; (2) the evidence is insufficient to support the convictions; and (3) the third degree conviction should be vacated as a lesser included offense.

D E C I S I O N

I

Hill argues that the trial court clearly abused its discretion in preventing him from testifying about his prior consistent statement to police and in preventing his counsel from further argument on the issue in closing argument. Appellate courts accord substantial deference to a district court's exercise of discretion in evidentiary rulings and will not lightly overturn an evidentiary decision. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

A defendant should not be allowed to introduce his prior statement without taking the stand because the statement would be self-serving hearsay, allowing the defendant to present his version of the facts without being cross-examined. State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977). Once the defendant takes the stand, however,

he can testify that he did make a statement to the police which is in their possession and that the basic import of the statement is consistent with his present testimony.

Id.

Hill testified in accordance with Taylor, and without objection from the prosecutor, that he had made a prior consistent statement to the police. The trial court did not prevent Hill from introducing the prior statement into evidence because defense counsel did not offer it for admission after Hill testified. Error cannot be predicated on the exclusion of evidence that the defense did not offer to introduce. State v. Torkelson, 404 N.W.2d 352, 356 (Minn. App. 1987), review denied (Minn. June 25, 1987); cf. United States v. Van Dyke, 14 F.3d 415, 421 (8th Cir. 1994) (finding error in exclusion of defendant's prior consistent statement that defense attempted to introduce).

Hill argues that the trial court improperly prevented him from arguing the prior consistent statement, the prosecution's election not to present it, "and any significance it may have" in his closing argument. See Taylor, 258 N.W.2d at 622 (allowing defense to argue that unintroduced taped statement exists and its significance). The trial court sustained the prosecutor's objection when defense counsel, in reference to Hill's statement to the police, stated, "They taped it. They didn't want you to hear it."

Assuming that Taylor's reference to "significance" pertains to the prosecutor's election not to offer the prior consistent statement, not just the significance of the statement itself, we find no prejudice that resulted from the district court's ruling. The jury was aware that Hill had given a prior consistent statement to police. In order for the verdict to have been influenced by the excluded argument, the jury would have to have speculated that the prior consistent statement was highly damaging to the state's case. But since the statement was Hill's own, the defense surely would have presented such exculpatory assertions through Hill's live testimony. Furthermore, the cruder terminology in the prior statement and Hill's references to drugs would more likely have prejudiced the defense.

II

Hill argues that the evidence is insufficient to support the convictions. In reviewing a claim of insufficient evidence to support a conviction, this court views the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved contrary evidence. State v. Ulvinen, 313 N.W.2d. 425, 428 (Minn. 1981). This court is limited to determining whether, based on the facts in the record and any legitimate inferences to be drawn from them, a jury could reasonably find the defendant guilty. Id.

Hill's argument is directed at the credibility of H.R.'s testimony and absence of direct corroboration. A conviction for criminal sexual conduct, however, may rest on uncorroborated testimony of the victim. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). Moreover, it would be an invasion of the jury's fact-finding province to evaluate and determine the credibility of witnesses. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (holding that credibility determinations are within the sole province of the factfinder).

We also reject Hill's argument that the jury's not-guilty verdict on the kidnapping charge was so logically inconsistent with the guilty verdicts that it demonstrates the insufficiency of the evidence. A minimal confinement or removal of the victim, as required for kidnapping, is often "completely incidental" to criminal sexual conduct. State v. Crocker, 409 N.W.2d 840, 845 (Minn. 1987). The jury, particularly when there is no evidence of physical force, may well find insufficient evidence of confinement or removal while finding the state has proved "force or coercion" or reasonable fear of imminent great bodily harm, as required for the criminal sexual conduct charges.

III

The district court entered convictions on both first degree and third degree criminal sexual conduct. Hill was sentenced only on the first degree conviction. Hill argues that the trial court erred in entering a conviction on Count II, third degree criminal sexual conduct. The state agrees that the conviction on Count II must be vacated. See Minn. Stat. § 609.04 (1996) (defendant may not be convicted both of greater and lesser offenses, including lesser degree of same crime, based on same conduct). We vacate the third degree criminal sexual conduct conviction.

Affirmed in part and vacated in part.

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