Opinion
No. A06-961.
Filed April 10, 2007.
Appeal from the District Court, St. Louis County District Court. File No. 69-DU-CR-05-2261.
Lori Swanson, Attorney General, St. Paul, MN 55101; and.
Alan L. Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney, Duluth, MN 55802 (for appellant).
Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN 55101 (for respondent).
Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
The state argues that the district court erred by granting respondent's motion for a judgment of acquittal after determining that the evidence was insufficient to sustain a conviction of first-degree criminal sexual conduct. Because we conclude that the evidence in the record is sufficient to support the jury's verdict, we reverse.
FACTS
In August 2004, respondent David Richard Carlson approached S.M.C. in his van near the Fourth Street Market in Duluth and asked S.M.C. if she needed a ride. S.M.C., who was then 13 years old, was waiting at the market for a ride from her sister. S.M.C. knew respondent and decided to accept a ride from him. S.M.C. requested that respondent take her home, but instead respondent drove S.M.C. to an area in Duluth where houses were being torn down.
S.M.C. testified that while they were driving in the van, respondent asked her to "flash" her breasts, which she declined to do. S.M.C. stated that respondent also requested that she perform fellatio on him, which S.M.C. also declined to do. S.M.C. testified that when the van had stopped, respondent offered her money and cigarettes to show him her breasts and to perform oral sex. When S.M.C. declined, respondent told S.M.C. that he would "kill" her and then forced S.M.C. to perform fellatio on him by grabbing the back of her head and forcing it to his penis, which he had taken out of his pants. S.M.C. testified that respondent had his hand on her head during the incident and that she could not pull away. Eventually, respondent ejaculated into a t-shirt that was in his van. S.M.C. testified that she "felt hurt and scared" after respondent had threatened her and that she "thought [she] was going to get hurt."
After the incident, respondent drove to a store, where he purchased cigarettes and pop for S.M.C. S.M.C. testified that she was "upset" and "crying" when respondent was in the store. In addition to the pop and cigarettes, respondent gave S.M.C. $45. Eventually, respondent brought S.M.C. to a store near her home and dropped her off. Before dropping her off, respondent told S.M.C. that she should come and talk to him if she needed any more money. S.M.C. testified that when she arrived home, she told her younger sister, N.R.C., what had happened. On October 12, 2004, S.M.C. told the school-liaison officer about the incident.
On cross-examination, S.M.C. testified that she did not tell N.R.C. of any threats or force used by respondent. S.M.C. also admitted that respondent did not hit her or threaten to break any of her bones. But S.M.C. maintained that she was "scared." On re-direct examination, S.M.C. stated that she saw tools in the van, including screwdrivers and wrenches. But on re-cross examination, S.M.C. admitted that respondent never picked up a screwdriver.
N.R.C. testified that S.M.C. was crying when she came into her bedroom on the day of the incident and told N.R.C. what had happened. Specifically, N.R.C. testified that S.M.C. told her that respondent asked S.M.C. to show him her breasts and to perform fellatio on him. N.R.C. stated that S.M.C. was "very scared" and was upset and crying as she told N.R.C. what had happened. But on cross-examination, N.R.C. stated that S.M.C. never told her that she was either afraid of getting killed or afraid of being physically hurt.
Officer Jason McClure, S.M.C.'s former school-liaison officer, testified that he interviewed S.M.C. on October 12, 2004, in his office at her school. Officer McClure stated that S.M.C. told him that respondent asked her to "flash him her breasts" and that when she refused, respondent threatened to "kill her." Officer McClure also testified that after S.M.C. refused to do what respondent asked, respondent put his hand behind her head and forced her to perform oral sex on him. Officer McClure stated that S.M.C. said that she was "scared" and "intimidated" during the incident and that S.M.C. was "upset," "crying," and looked "very defeated" during his interview with her. Officer McClure also interviewed N.R.C., who told Officer McClure that S.M.C. was "very upset" and "crying" when she came home and told N.R.C. what had happened. On cross-examination, Officer McClure testified that S.M.C. did not mention during his interview that respondent would not let her out of the van, that there were any weapons in the van, or that respondent made oral threats to use a screwdriver or other weapons against her. But on re-direct examination, Officer McClure stated that he never specifically asked S.M.C. whether there were weapons or tools in the van.
Respondent was charged with (1) first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (2004); (2) third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2004); (3) third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2004); (4) solicitation of children to engage in sexual conduct in violation of Minn. Stat. § 609.352, subd. 2 (2004); and (5) terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004). A jury subsequently found respondent guilty on Counts 1 through 4 but not guilty of terroristic threats.
Respondent brought a number of posttrial motions, including: (1) a motion for judgment of acquittal on the first-degree criminal sexual conduct conviction pursuant to Minn. R. Crim. P. 26.03, subd. 17(3); (2) a motion for a new trial in the interests of justice, because he was denied a fair trial and because errors of law occurred during trial; and (3) a motion for a new trial based on legally inconsistent verdicts on Counts 1 and 5. With regard to the motion for judgment of acquittal, respondent argued that there is insufficient evidence of S.M.C.'s reasonable fear of imminent great bodily harm to sustain a conviction of first-degree criminal sexual conduct. The district court denied respondent's motion for a new trial, but granted respondent's motion for judgment of acquittal on his conviction of first-degree criminal sexual conduct, concluding that "there was insufficient evidence to support the jury's verdict regarding the third element of Criminal Sexual Conduct in the First Degree."
This appeal follows.
DECISION
The state argues that the district court erred by granting respondent's motion for judgment of acquittal after determining that the evidence is insufficient to sustain a conviction of first-degree criminal sexual conduct. Minn. R. Crim. P. 26.03, subd. 17(3), states, in relevant part, that
[i]f the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal or insufficiency of evidence to support an aggravated sentence may be made or renewed within 15 days after the jury is discharged or within such further time as the court may fix during the 15-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal, in which case the court shall make written findings specifying its reasons for entering a judgment of acquittal.
"A motion for acquittal is procedurally equivalent to a motion for a directed verdict." State v. Slaughter, 691 N.W.2d 70, 74 (Minn. 2005). "The test for granting a motion for a directed verdict is whether the evidence is sufficient to present a fact question for the jury's determination, after viewing the evidence and all resulting inferences in favor of the state." Id. at 74-75. Accordingly, a district court may grant a motion to acquit if it determines that the state's evidence, when viewed in the light most favorable to the state, is insufficient to sustain a conviction. See id. at 75 (applying Minn. R. Crim. P. 26.03, subd. 17(1) and stating that a district court may "properly deny [a] motion to acquit if it determine[s] that the state's evidence, when viewed in the light most favorable to the state, [is] sufficient to sustain a conviction"); see also 8 Henry W. McCarr Jack S. Nordby, Minnesota Practice § 31.9 (2001) (stating "it appears that a judge considering a motion for acquittal (or for a new trial) should apply the same criteria used by appellate courts in judging sufficiency of evidence").
In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
Here, the jury found respondent guilty of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(c) (2004). Section 609.342, subdivision 1(c), states that "[a] person who engages in sexual penetration with another person . . . is guilty of criminal sexual conduct in the first degree if . . . circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another." Minn. Stat. § 609.341, subd. 12 (2004), defines "sexual penetration" as including fellatio committed without the complainant's consent. Minn. Stat. § 609.02, subd. 8 (2004), defines "great bodily harm" as "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm."
Therefore, in order to convict respondent of first-degree criminal sexual conduct, the state was required to prove that: (1) respondent intentionally sexually penetrated S.M.C., (2) the sexual penetration occurred without S.M.C.'s consent, (3) S.M.C. had a reasonable fear of imminent great bodily harm at the time of respondent's act, and (4) respondent accomplished the act because S.M.C. had a fear of imminent great bodily harm. Minn. Stat. § 609.342, subd. 1(c); see also 10 Minnesota Practice, CRIMJIG 12.03 (2006).
The district court granted respondent's motion for judgment of acquittal, concluding that there was insufficient evidence that S.M.C. had a reasonable fear of imminent great bodily harm to herself so as to sustain respondent's conviction of first-degree criminal sexual conduct. Specifically, the district court stated:
In the present case, there was evidence as to the size differential between the [respondent] and S.C.M. [sic]. There was evidence that S.C.M. [sic] was "scared." Other than S.C.M.'s [sic] testimony regarding her size, that she was "scared" and that there was a screwdriver in the van, there was no other evidence that would possibly support the jury's verdict. However [sic], there was insufficient evidence to support the jury's verdict regarding the third element of Criminal Sexual Conduct in the First Degree.
The state argues that, viewing the evidence in the light most favorable to the conviction, the evidence is sufficient to support the jury's determination that S.M.C. did, in fact, have a reasonable fear of imminent great bodily harm during the incident. In support of its position, the state contends that the district court failed to consider a number of other factors that contributed to S.M.C.'s fear of great bodily harm. We agree.
The district court stated that the only evidence tending to show that S.M.C. may have been in fear of imminent bodily harm was the size differential between respondent and S.M.C., S.M.C.'s testimony that she was "scared" during the incident, and the presence of a screwdriver in the van. But in doing so, the district court re-weighed the credibility of witnesses and ignored other evidence in the record that supports the jury's verdict. For instance, S.M.C. was only 13 years old at the time of the incident, while respondent was 52 years old — a significant age difference. In addition, the record shows that S.M.C. was alone with respondent at the time of the incident, in an unfamiliar area of town, where a number of buildings were being torn down. The record also indicates that very few people other than construction workers were in the neighborhood at the time. Most importantly, however, is the evidence in the record indicating that after S.M.C. declined respondent's initial requests to show him her breasts and to perform a sexual act on him, respondent threatened to "kill" S.M.C. and eventually physically grabbed S.M.C. by the back of her head and forced her to perform fellatio on him. S.M.C. testified that she felt "hurt and scared" and that she "thought [she] was going to get hurt." Neither this court nor the district court should lightly overturn a jury's verdict. Therefore, when viewing this evidence in the light most favorable to the conviction, and, assuming that the jury believed the state's witnesses and disbelieved any evidence to the contrary, we conclude that the evidence here is sufficient to support the jury's determination that S.M.C. had a reasonable fear of imminent great bodily harm during the incident. See State v. Lattin, 336 N.W.2d 270, 270-71 (Minn. 1983) (holding that evidence was sufficient to support conviction of criminal sexual conduct in the first degree when defendant placed rape victim in "reasonable fear of imminent great bodily harm" by threatening to kill her if she did not cooperate); State v. Morrison, 310 N.W.2d 135, 136, 137 (Minn. 1981) (holding that evidence was sufficient to support conviction of criminal sexual conduct in the first degree when defendant was a "huge man" who placed victim in fear of imminent great bodily harm by threatening to kill her if she did not comply with sexual demands).
Respondent argues that because S.M.C. knew him prior to the incident and had ridden in his van before, factors such as the age difference and size difference "contributed little if nothing toward proving that [S.M.C.] was in imminent fear of great bodily harm." But just because S.M.C. knew respondent and had contact with him on prior occasions does not mean that S.M.C. could not be fearful of bodily harm due to respondent's size, especially when coupled with direct threats and physical force.
In addition, the district court cites to State v. Halvorson, 506 N.W.2d 331 (Minn.App. 1993), and State v. Gerald, 486 N.W.2d 799 (Minn.App. 1992), to support its conclusion that S.M.C. did not suffer "actual bodily harm" that "created a high probability of death or caused a permanent or protracted loss [or] impairment of the function of a bodily member or organ." But the state did not need to prove actual bodily harm in order to convict respondent of criminal sexual assault in the first degree. Rather, the state merely needed to show that S.M.C. had a reasonable fear of imminent bodily harm at the time of respondent's act. Therefore, these cases have no bearing on whether the evidence sufficiently supports respondent's conviction.
The district court also granted respondent's motion for judgment of acquittal on the ground that it would be "illogical" for the jury to find that S.M.C. was in fear of imminent great bodily harm for purposes of respondent's conviction of first-degree criminal sexual conduct, yet find that respondent was not guilty of terroristic threats because he did not intend to cause extreme fear. But neither the district court nor respondent cites to legal authority stating that a jury cannot convict a defendant of criminal sexual conduct in the first degree and simultaneously render a verdict of not guilty on a charge of terroristic threats. The elements of the two crimes are different. While first-degree criminal sexual conduct requires proof that a victim was fearful of imminent great bodily harm, terroristic threats requires, in part, that a defendant threaten a victim with the intent to terrorize or in reckless disregard of the risk of causing such terror. See Minn. Stat. § 609.713, subd. 1 (2004). In addition, as the state points out, a jury may render a verdict of not guilty despite the law and facts, and a jury has the ability to acquit on one count in an attempt to limit a defendant's punishment. State v. Brown, 455 N.W.2d 65, 70 (Minn.App. 1990) (holding that defendant was not entitled to a new trial where jury convicted him of first-degree murder but acquitted him of attempted second-degree murder), review denied (Minn. July 6, 1990). Therefore, we conclude that the district court erred when it determined that the evidence is insufficient to support the jury's verdict and consequently granted respondent's motion for judgment of acquittal on his conviction of criminal sexual conduct in the first degree.
This court stated in Brown that "the jury in a criminal case has the power of lenity — that is, the power to bring in a verdict of not guilty despite the law and the facts. The jury [can acquit a defendant] on one count [of a multicount indictment] solely to limit his punishment." 455 N.W.2d at 70 (quotation omitted) (alterations in original); see also State v. Thomas, 467 N.W.2d 324, 327 (Minn.App. 1991) (stating that a "defendant who is found guilty on one count of a two count . . . complaint is not entitled to a new trial or dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent," as the "inconsistent verdicts could show the jury exercise[s] leniency" (quotation omitted)).
Despite the fact that the district court failed to reach the issue, respondent also argues that the evidence is insufficient to support the jury's verdict because it did not prove the final element of the offense of criminal sexual conduct in the first degree — that respondent accomplished the act because S.M.C. had such a fear of imminent great bodily harm. Respondent argues that he did not accomplish the act because of S.M.C.'s fear of bodily harm, but instead accomplished the act by use of force. But respondent fails to consider that the jury may have found that S.M.C. complied with respondent's demands out of both fear and force. Moreover, respondent's argument would lead to absurd results in instances in which a defendant is charged with a violation of section 609.342, subdivision 1(c), for committing rape. In such cases, as occurred here, the victim is often threatened either before or while being physically forced to participate in sexual acts. See Lattin, 336 N.W.2d at 270-71 (convicting defendant of criminal sexual conduct in the first degree when defendant forced victim to an area between two buildings before threatening and raping her); Morrison, 310 N.W.2d at 136-37 (convicting defendant of criminal sexual conduct in the first degree when defendant "used threats and force" to rape the victim). Under respondent's reasoning, defendants in such cases could not be convicted of first-degree criminal sexual conduct because it was force, in addition to threats, that allowed defendant to accomplish the act. Because such a result would be absurd, we reject respondent's argument.