Opinion
No. C4-01-1991.
Filed October 22, 2002.
Appeal from the District Court, Pine County, File No. K600699.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, and John K. Carlson, Pine County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Darwin Lange was convicted of three counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct for sexually abusing his girlfriend's eight-year-old daughter. Lange challenges his convictions, arguing that (1) the district court abused its discretion by admitting taped out-of-court statements the child made to an investigator and a nurse practitioner; (2) the prosecutor committed prejudicial misconduct in his opening statement, during cross-examination, and in his closing argument; and (3) the court erred in adjudicating him guilty of, and abused its discretion in sentencing him for, lesser-included offenses that arose from a single behavioral incident. In a pro se supplemental brief, Lange raises additional issues. Because we conclude that (1) the child's out-of-court statements were admissible under Minn. Stat. § 595.02, subd. 3 (2000), (2) the prosecutor's misconduct was not prejudicial, (3) the district court properly adjudicated and sentenced Lange, and (4) the issues Lange raises pro se provide no basis for relief, we affirm.
FACTS
S.K. is Terrin Anderson and Stephanie K.'s nine-year-old daughter. Darwin Lange is Stephanie K.'s boyfriend. S.K. lived with Lange and her mother from 1999 until May 2000, when her father discovered the sexual abuse for which Lange was convicted.
Anderson first learned of the abuse after finding S.K. and her five-year-old stepbrother naked in the bathroom during one of S.K.'s weekend visitations with Anderson. S.K.'s stepbrother told Anderson that they were "playing sex" and that S.K. was teaching him how. When asked, S.K. told Anderson that Lange had taught her about sex. Anderson's wife reported the incident to the Pine County Sheriff's Department. She spoke with investigator Elizabeth Ovick and told her only that S.K. had reported being abused by her mother's boyfriend.
Ovick interviewed S.K. the following morning. During the taped interview, S.K. described numerous incidents of abuse. She stated that Lange had touched her "potty area" with a bladeless razor and had inserted a "blazer" into her vagina. She drew a picture of the vibrator she had referred to as a "blazer," described it, and told Ovick that Lange kept it in his bedroom. Deputies later seized a vibrator from Lange's bedroom matching the description S.K. had provided.
S.K. also told Ovick that Lange had penetrated her vaginally and orally, had ejaculated into her mouth and made her swallow the "pee," had made her watch pornographic movies, and had pulled her pants tight across her "potty area" and then pulled and checked it "[t]o see what's wrong." S.K. was able to describe all incidents in great detail. She told Ovick, for example, that when Lange placed his penis in her vagina she was on her bed wearing only a "mask." The "mask" turned out to be a green T-shirt belonging to Lange, which he had wrapped around the child's head. She also stated that Lange had his clothes on but his pants undone, that Lange's "potty area" was big and hung down when he was done, and that having Lange's "potty area" in hers made her feel "like [she] was gonna cry." S.K. also described the plot of the pornographic movie Lange made her watch. Deputies later seized from Lange's home the video S.K. had described. The district court allowed the state to play the tape of Ovick's interview for the jury.
S.K. was later interviewed by nurse practitioner Laurel Edinburgh at the Midwest Children's Resource Center (MCRC). S.K. described in detail all the incidents she had discussed with Ovick. She also told Edinburgh that Lange made her vaginal area feel "sick" and "stinged." She described and demonstrated rubbing Lange's penis with her hand and stated that the semen tasted like "[y]uck." She told Edinburgh that Lange had French-kissed her and made her watch a "bad movie" about sex. She described the movie in detail, noting that people were taking their clothes off and "kissing and doing all the stuff that we did." S.K. also described the vibrator as being "black and circle" and stated that she had been in her bed when Lange took her clothes off, rubbed lotion on the vibrator and on her vaginal area "so it tickles," and inserted the vibrator into her vagina. The district court allowed the state to play S.K.'s videotaped statements to Edinburgh for the jury.
At trial, Edinburgh testified that although S.K.'s language use was a bit delayed, her level of sexual knowledge was greater than would be expected of an eight-year-old child. Edinburgh admitted that children lie but noted that they generally are "particularly poor at giving details [or] independent explanations about how something has happened" within the lies. On that basis, she concluded that S.K. had not fabricated the allegations of abuse.
During her testimony, S.K. described consistently the incidents of abuse she had reported to Ovick and Edinburgh. She also stated that she was frightened of her mother "[b]ecause she hurt me by not caring about what [Lange] did to me." But she indicated that she loved and missed her mother.
Two Bureau of Criminal Apprehension (BCA) analysts testified that they tested three samples of DNA evidence found on the vibrator. The first sample matched S.K.'s mother's DNA. The second and third samples contained more than one person's DNA and were consistent with both S.K.'s and her mother's DNA. The analysts testified that it was estimated that one in seven million people in a random sample of the general population would match the type of DNA found in the second and third samples.
Lange took the stand on his behalf. He denied the allegations of abuse but admitted that S.K. had no reason to lie.
The district court granted Lange's motion for a directed verdict with respect to counts three and five, reasoning that the allegation that Lange forced S.K. to touch his penis did not amount to first-degree criminal sexual conduct and that the evidence was insufficient to prove vaginal penetration beyond a reasonable doubt. The jury subsequently found Lange guilty of the remaining four counts. The court sentenced Lange to a 158-month prison term, the presumptive sentence under the guidelines. This appeal follows.
DECISION I.
Lange first argues that the district court abused its discretion by admitting S.K.'s taped statements to investigator Ovick and nurse Edinburgh because the statements do not fall within a firmly rooted hearsay exception and lack the guarantees of trustworthiness needed to be admissible under Minn. Stat. § 595.02, subd. 3 (2000). We disagree.
A district court has broad discretion in determining whether to admit or exclude evidence, and its rulings will not be disturbed unless they are based on an erroneous view of the law or constitute an abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). An evidentiary error warrants a new trial only if there is a reasonable possibility that wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn. 1994). The district court did not clearly abuse its discretion in admitting S.K.'s out-of-court statements to Ovick and Edinburgh.
Out-of-court statements made by a child under the age of ten are admissible as substantive evidence. Minn. Stat. § 595.02, subd. 3. The statements are admissible if (1) the child testifies or is unavailable as a witness, (2) the adverse party has notice that the statements may be offered as evidence, and (3) the statements describe sexual abuse and have sufficient indicia of reliability. Id. In evaluating whether out-of-court statements have sufficient indicia of reliability courts consider the circumstances surrounding the making of the statements, including whether the statements were spontaneous and remained consistent, whether they were obtained through leading or suggestive questions, whether they are the type of statements one would expect from a child the age of the declarant, whether the evaluator had a preconceived idea of what the child should say, and whether the child had any reason to lie. State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990); see also State v. Scott, 501 N.W.2d 608, 617 (Minn. 1993).
Here, S.K. testified at trial, Lange had notice that the state intended to offer S.K.'s statements as evidence, and the statements contained sufficient indicia of reliability. Throughout both interviews, S.K. used language expected of a child her age. Her statements remained consistent and were not the kind of statements one would expect of an eight-year-old child who had not experienced abuse. In addition, S.K. had no motive to lie because her allegations resulted in her being placed with the Andersons permanently. S.K. did not like living with the Andersons and missed her mother.
Lange argues that the statements are unreliable because Ovick and Edinburgh obtained them through leading and suggestive questions and had a preconceived idea about what S.K. should say. We disagree.
A. Use of Leading and Suggestive Questions
Both Ovick and Edinburgh used leading questions to elicit information from S.K. initially or to clarify a question or a response. But once a particular subject was brought up or a question or response was clarified, the leading questions stopped and S.K. showed no reluctance in accurately describing or demonstrating what happened. See State v. Struss, 404 N.W.2d 811, 816 (Minn.App. 1987) (upholding admissibility of out-of-court statements obtained through use of leading questions where child showed little reluctance in describing abuse), review denied (Minn. June 9, 1987). In addition, S.K.'s trial testimony was consistent with her prior statements. See State v. Carver, 380 N.W.2d 821, 825 (Minn.App. 1986) (upholding admissibility of statements obtained in response to leading questions where children's trial testimony was consistent with prior statements), review denied (Minn. Mar. 27, 1986). Most important, S.K.'s answers were not consistently inculpatory. Ovick asked her twice, for example, if Lange had ejaculated during the abuse. S.K. replied that he ejaculated when he penetrated her orally but not when he penetrated her vaginally. Similarly, when Edinburgh asked her if Lange had ever wanted to take pictures of her "doing this sex stuff," S.K. shook her head negatively. S.K.'s answers thus suggest that she was not prompted to answer one way or another by leading questions. The occasional use of leading and suggestive questions did not, therefore, render S.K.'s statements to Ovick and Edinburgh unreliable.
In connection with the child's drawing of the vibrator, for example, Ovick asked S.K. if the vibrator had batteries and if it vibrated. She then asked if Lange had put the vibrator "on top of your potty area or * * * inside * * *." Following a spontaneous reference by the child to Lange's use of lotion, Ovick also asked, "[D]id [Lange] put [the lotion] on your potty area?" In connection with the incidents of penetration, Ovick asked S.K. whether her hand, face, or "potty area" had touched Lange's; whether Lange had put his "potty area" inside hers; and whether anything had come out of Lange's "potty area" when he put it inside hers. Ovick also asked if S.K. had sucked Lange's "potty area" and if anything had come out when she did. Edinburgh asked S.K. if Lange used anything to make his "potty area" go inside hers, if anything came out of Lange's "potty area" when he put it inside hers, and if Lange ever touched her "butt part."
B. Preconceived Idea About What the Child Should Say
Contrary to Lange's claim, neither Ovick nor Edinburgh had a preconceived idea of what S.K. should say. Ovick's conversation with Anderson's wife the day before she interviewed S.K. was limited to the events that led Deb Anderson to call the Pine County Sheriff's Department and did not include information about specific acts of abuse. Edinburgh's conversation with Terrin Anderson on the day she interviewed S.K. was similarly limited to gathering information about S.K.'s family, social, and medical history and did not include information about the abuse. And Edinburgh did not review S.K.'s statements to Ovick before interviewing the child.
Because S.K.'s out-of-court statements to Ovick and Edinburgh contain particularized guarantees of trustworthiness and are, therefore, admissible under Minn. Stat. § 595.02, subd. 3, we do not address whether they also fall within a clearly established hearsay exception.
II.
Lange next argues that the prosecutor committed prejudicial misconduct in his opening statement, during cross-examination, and in his closing argument. Whether prosecutorial misconduct warrants a new trial is a matter within the district court's discretion. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). An appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was "inexcusable and so serious and prejudicial that a defendant's right to a fair trial is denied." State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (citation omitted). In cases involving less-serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).
But defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction. State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Relief will be granted in the absence of a timely objection only in extreme cases involving "unduly prejudicial" prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
A. Opening Statement
Lange claims that the prosecutor committed misconduct during his opening statement by misstating the DNA evidence that he expected to introduce at trial. The evidence showed that S.K. could not be excluded as a possible donor of the DNA found on the vibrator, that only one in seven million people in the general population have the type of DNA found on the vibrator, and that it was possible, but unlikely, that the DNA on the vibrator came from casual contact. The prosecutor stated that S.K.'s DNA was found on Lange's vibrator, that there was a one-in-seven-million chance that the DNA came from someone other than S.K., and that the DNA could not have come from casual contact.
The prosecutor committed misconduct by misstating the evidence. But the misconduct was not prejudicial. The jury had the opportunity to hear the evidence firsthand and was instructed immediately before opening statements that the prosecutor's comments were not evidence. Most of the statements were reasonable inferences to be drawn from the evidence, and the prosecutor correctly stated the statistical evidence during closing argument. Given the strength of the state's case against Lange, it is unlikely that the prosecutor's statements unduly prejudiced the jury. The misconduct does not, therefore, warrant reversal.
B. Cross-Examination
Lange also argues that the prosecutor committed misconduct during cross-examination. First, Lange claims that the prosecutor improperly shifted the burden of proof by cross-examining him on his failure to display anger, assert his innocence, or bring exculpatory evidence to the police after being accused of sexually abusing S.K. We do not agree. The burden of proof refers to the state's obligation to prove each element of an offense beyond a reasonable doubt. Prosecutors shift the burden of proof when they imply that a defendant has the burden of proving his innocence. See Whittaker, 568 N.W.2d at 451. Comments on a defendant's failure to testify, call witnesses, or contradict the state's evidence imply that a defendant has the burden of proving his or her innocence and shift the burden of proof thereby. Id. (stating prosecutor shall not allude to defendant's failure to testify); State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (stating prosecutor may not comment on defendant's failure to call witnesses or contradict testimony); Caron, 300 Minn. at 126, 218 N.W.2d at 199 (stating prosecutor erred by alluding to defendant's failure to call certain alibi witnesses). Here, the prosecutor made no reference to Lange's failure to testify, call witnesses, or contradict the state's evidence during trial. See Ashby, 567 N.W.2d at 28 (concluding that comment regarding defendant's failure to submit to DNA and gunpowder-residue tests to prove his innocence did not improperly shift the burden of proof). He merely challenged Lange's credibility by suggesting that his pretrial conduct was inconsistent with the conduct one would expect of someone who has been falsely accused. The prosecutor did not, therefore, shift the burden of proof.
Next, Lange claims that the prosecutor distracted the jury from its proper role of deciding whether the state met its burden of proof by asking him, "If it's not [S.K.'s] DNA [on the vibrator], whose is it?" But Lange did not object to the question at trial. See Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996) (stating that a defendant forfeits the right to appellate review absent plain error affecting substantial rights). And although the question was argumentative, it was reasonably based on evidence that S.K. could not be excluded as a contributor of the DNA, and it could well have assisted the jury in evaluating Lange's claim that S.K. was lying. It was not, therefore, plain error. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (holding that "were they lying" questions, although argumentative, were not error because they had probative value in evaluating defense theory that state's witnesses were lying).
Last, Lange claims that the prosecutor's question regarding Lange's alleged habit of asking S.K.'s mother to shave her pubic area inflamed the jury's passions. But the question was based on the evidence and was relevant to S.K.'s allegation that Lange had shaved her "potty area" with a bladeless razor. It was not, therefore, improper cross-examination.
But even if the prosecutor's comments were improper, they do not warrant reversal of Lange's conviction because they were not unduly prejudicial. The challenged questions and comments were isolated and were not representative of the entire cross-examination. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice where prosecutor's statements were isolated and not representative of the prosecutor's argument as a whole). Given the strong evidence of Lange's guilt, it is unlikely that the prosecutor's remarks substantially influenced the jury to convict.
C. Closing Argument
Lange next argues that the prosecutor committed misconduct during closing argument. First, Lange claims that the prosecutor denigrated the defense by stating that Lange's defense was to have the jury "look away" and refuse to consider all the evidence because evidence of sexual abuse is unsettling. We disagree. Prosecutors may argue the merits of a specific defense provided they do not denigrate it. Ashby, 567 N.W.2d at 28. Here, the prosecutor did not denigrate the defense; he merely characterized it and argued that it lacked merit. Cf. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (concluding that it was improper for prosecutor to refer to "real common defense tactic" of shifting focus away from defendant); State v. Bettin, 309 Minn. 578, 579, 244 N.W.2d 652, 654 (1976) (cautioning prosecutors against referring to defense as "`pushbutton defense' which defendants raise when they `cannot think of anything [else]'"); State v. Kirvelay, 311 Minn. 201, 202, 248 N.W.2d 310, 311 (1976) (stating that prosecutor improperly implied that defense that someone else committed the crime is "soddy").
Lange next claims that the prosecutor improperly encouraged the jury to convict him to protect society against child abuse by telling the jury that even if S.K.'s mom appeared not to care,
[S.K.] should not have to lie awake at night worrying about when mom's boyfriend is going to rape her again. * * * And so while [S.K.] is not your child, she is your obligation, just as much as Defendant's fate is your obligation.
He also claims that the prosecutor prejudiced the jury when he said that "[t]here is no open season on molesting 8 year old children." We agree. Comments suggesting that the jury has a duty to convict a defendant to protect society are clearly improper. See Brown, 348 N.W.2d at 747 (stating that prosecutor committed misconduct of a serious nature by telling jury that "if we are going to have law enforcement in this country the only way it can come is working and just working as a jury on each and every individual case"); State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983) (stating that it was improper for prosecutor to tell jury that they represent people in community and verdict would determine what kind of conduct would be tolerated on streets); State v. Clark, 296 N.W.2d 372, 377 (Minn. 1980) (disapproving of argument suggesting that jury should keep crime problem in mind in determining defendant's guilt); State v. Clark, 291 Minn. 79, 82, 189 N.W.2d 167, 170 (1971) (stating that closing arguments with "law and order" themes are improper).
But here the misconduct was not prejudicial. The prosecutor followed his comments with an admonition that the jurors had
taken an oath to do justice in this case, and that requires that you look at all the evidence no matter how ugly, no matter how unsettling. No one is saying that you should convict this Defendant just because you feel sorry for [S.K.] You shouldn't. That wouldn't be justice either. You must judge him on neither sympathy nor prejudice, just [on] the cold hard facts.
The prosecutor thus immediately corrected any misimpression his previous comments may have created as to the jury's role. In addition, the court properly instructed the jury as to its role. Most importantly, considering the strength of the state's evidence against Lange, there is no reasonable possibility that the prosecutor's clearly inappropriate statements deprived Lange of a fair trial. See Brown, 348 N.W.2d at 747 (upholding conviction despite prosecutor's suggestion that jury was responsible for proper law enforcement). The prosecutor's misconduct was not, therefore, unduly prejudicial.
Lange next claims that the prosecutor denigrated the defense by telling the jury that the odds of an eight-year-old child falsely accusing someone of sexual abuse were astronomical, "[c]omparable to a comet hitting your house tonight." While the prosecutor's comment may have been hyperbole, it was based on expert testimony that children are unlikely to fabricate incidents of sexual abuse, particularly using the amount of detail S.K. used in describing Lange's abuse. See Porter, 526 N.W.2d at 363 (stating that state's closing argument must be based on the evidence but need not be colorless). It was not, therefore, improper.
Next, Lange claims that the prosecutor improperly suggested that having reasonable doubt in this case would be "absurd" or "insane" when he told the jury that
[b]ecause of the nature of human affairs, the human mind can always conjure up some reason [to doubt], no matter how absurd no matter how insane.
But the prosecutor did not suggest that having reasonable doubt in this case would be "absurd" or "insane." Instead, he properly used the terms to illustrate the type of doubt that would not be reasonable.
Lange next claims that the prosecutor misstated the evidence by stating that it was uncontroverted that (1) the DNA on the vibrator was S.K.'s and (2) the DNA samples were too large to have come from casual contact. Although the prosecutor misstated the evidence, the misconduct was not prejudicial. The jury heard the DNA evidence firsthand, the district court instructed the jury that statements by the attorneys are not evidence, and the state had a strong case against Lange. The misconduct was not, therefore, unduly prejudicial.
Lange lastly claims that the prosecutor denigrated the defense and shifted the burden of proof by stating that defense counsel was engaging in a "wild speculation game" concerning the source of the DNA; that the jury may as well conclude that an alien impersonating Lange abused S.K.; that Lange's conduct during the pretrial investigation was inconsistent with that of an innocent man; that alleging sexual abuse had left S.K. all alone at the Andersons, abandoned by the one person she thought she could count on; and that he did not know which was "more desperate or more absurd," saying that S.K. fabricated the allegations of abuse or saying that the Andersons were behind them. We disagree. The prosecutor was merely arguing that Lange's anticipated defense that the DNA came from someone other than S.K. and that S.K. had fabricated the allegations of abuse lacked merit. See Ashby, 567 N.W.2d at 28 (stating that prosecutors may anticipate and argue the merits of a particular defense).
Although the prosecutor committed misconduct by misstating the evidence and by implying that the jury had a duty to convict Lange, the misconduct does not warrant reversal absent an objection at trial because it was not unduly prejudicial.
III.
Lange next argues that he was improperly convicted of counts four and six because the crime charged in count four is an included offense of the crime charged in count two, and the crime charged in count six is an included offense of the crimes charged in counts one and two. Alternatively, Lange argues that he was improperly sentenced for each count because all counts arose out of a single behavioral incident.
A. Convictions on Counts Four and Six
Criminal defendants may not be convicted of both the crime charged and an included offense. Minn. Stat. § 609.04, subd. 1 (2000). An included offense is one that is necessarily proved if the crime charged is proved. See id. Whether an offense is an included offense depends on whether it requires proof of an element not required by the other offense. State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). When the facts are undisputed, the application of Minn. Stat. § 609.04 raises a question of law subject to de novo review. Cf. State v. Bunde, 556 N.W.2d 917, 918 (Minn.App. 1996) (stating that district court's application of statutory criteria to facts as found is a question of law subject to de novo review).
Lange first claims that the crime charged in count four is an included offense of the crime charged in count two. Under count two, Lange was convicted of first-degree criminal sexual conduct for penetrating S.K. with a vibrator; under count four, he was convicted of first-degree criminal sexual conduct for intentionally touching S.K.'s intimate parts. The offenses are not included because the crime charged in count four was not necessarily proved when the crime charged in count two was proved. The evidence showed that Lange touched S.K.'s intimate parts not only when he penetrated her with the vibrator, the basis for the crime charged in count two, but also on other occasions. The count-four conviction is thus based on sexual contact other than when Lange penetrated S.K. with the vibrator, the crime underlying the count-two conviction.
Lange next claims that the crime charged in count six is an included offense of the crimes charged in both counts one and two. Under counts one and two, respectively, Lange was convicted of first-degree criminal sexual conduct for penetrating S.K. orally and of first-degree criminal sexual conduct for penetrating her with the vibrator. Under count six, Lange was convicted of second-degree criminal sexual conduct for multiple acts of abuse — different from those underlying counts one and two — committed over an extended period of time. These acts of abuse included touching the child's intimate parts, shaving the child's pubic area with a bladeless razor, and pulling her pants tight around her vagina and then pulling at her vagina and checking the area "[t]o see what's wrong." Because the crimes charged in count six were not necessarily proved when counts one and two were proved, the crime charged in count six is not an included offense of the crimes charged in counts one and two.
A person is guilty of second-degree criminal sexual conduct if the person engages in sexual contact with a complainant and (1) the person has a significant relationship with the complainant, (2) the complainant is a minor, and (3) the sexual contact involves multiple acts committed over an extended period of time. Minn. Stat. § 609.343, subd. 1(h)(iii) (2000). For purposes of subdivision 1(h)(iii), sexual conduct includes the intentional touching of either the complainant's intimate parts or the clothing covering the immediate area of the complainant's intimate parts. Minn. Stat. § 609.341, subd. 11(b)(i), (iv) (2000).
The district court did not err in entering a judgment of conviction on counts four and six.
B. Sentencing for Convictions of Crimes Charged in Counts Four and Six
Lange also claims that he was improperly sentenced on each of the four counts of which he was convicted because the four counts arose from only two behavioral incidents — one of oral penetration and one of vaginal penetration with a vibrator. Those two behavioral incidents were the bases for counts one and two. Accordingly, Lange argues, he should have been sentenced only for counts one and two. The district court's determination of whether multiple offenses are part of a single behavioral incident for sentencing purposes is a factual determination and will be reversed only if clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986); State v. Butterfield, 555 N.W.2d 526, 530 (Minn.App. 1996), review denied (Minn. Dec. 17, 1996). A factual determination is clearly erroneous if it is unsupported by the record. See State v. Johnson, 463 N.W.2d 527, 533 (Minn. 1990).
Minnesota law precludes multiple prosecutions and punishment for offenses resulting from a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2000). The statute is intended "to protect against exaggerating the criminality of a person's conduct and to make both punishment and prosecution commensurate with culpability." State v. Secrest, 437 N.W.2d 683, 684 (Minn.App. 1989) (quotation omitted), review denied (Minn. May 24, 1989). In determining whether multiple offenses arise from a single behavioral incident, courts must consider the defendant's singleness of purpose, i.e., whether the defendant was motivated by a desire to achieve a single criminal objective. State v. Chidester, 380 N.W.2d 595, 597 (Minn.App. 1986), review denied (Minn. Mar. 21, 1986). Courts must also consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind. Id.; see also State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). The supreme court has upheld consecutive sentences in criminal-sexual-conduct cases involving multiple convictions for contacts with the same victim, even where the contacts occurred within a period as short as five hours. E.g., State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984) (upholding concurrent sentences for convictions of three counts of criminal sexual conduct based on three contacts with the same victim over a weekend); State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (upholding consecutive sentences for convictions of two counts of criminal sexual conduct based on contacts with the same victim over a five-hour period); see also Secrest, 437 N.W.2d at 685 (holding that prosecution for two counts of criminal sexual conduct based on contacts that occurred in one county was not barred by defendant's earlier plea to count of criminal sexual conduct based on contacts with same victim, over same period, but in a different county).
The offenses of which Lange was convicted did not result from a single behavioral incident. Lange's abuse of S.K. took place over an 11-month period. In the course of those 11 months, Lange French-kissed S.K.; shaved her pubic area; pulled on her vaginal area; penetrated her orally, vaginally, and with a vibrator; and forced her to watch pornographic movies and to rub his penis with her hands. The incidents of abuse occurred at different times and were clearly separate. They do not demonstrate a singleness of purpose, a continuous and uninterrupted course of conduct, or an indivisible state of mind. Each time Lange molested S.K. he sought to achieve a new criminal objective. The district court thus properly concluded that each conviction arose from a different behavioral incident and did not abuse its discretion by sentencing Lange accordingly.
IV.
Lange submitted a pro se supplemental brief that raises issues related to lack of adequate time to prepare, inability to refer to stipulated offers of proof, a conflict of interest with his appointed public defender, the court's jury instructions and pretrial rulings, failure to retain an expert witness for the defense, allegedly false statements made by the prosecutor, improperly admitted Spriegl evidence, and the sufficiency of the evidence. We have carefully considered each of Lange's pro se claims and conclude that they provide no basis for relief.