Olmsted County District Court File No. K2-02-3562.
Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.
An assault committed by a defendant after being told to leave a bedroom that is not a separate "building" cannot support a conviction for first-degree burglary.
The opinion of the court was delivered by: Wright, Judge
Affirmed in part and reversed in part
In this appeal from convictions of first-degree burglary, fifth-degree assault, and third-degree criminal sexual conduct, and from the denial of a motion for a new trial, appellant challenges the sufficiency of the evidence, the jury instructions, and prosecutorial comments in closing argument. Appellant raises additional arguments in his pro se brief. We affirm in part and reverse in part.
Jesse Maki and Melodee Rohrer leased a one-bedroom apartment in Rochester. They permitted Lisa Madison and O.S. to stay with them without charging rent. Madison was staying with the couple for about three weeks until her apartment became available; O.S. had been there for about a month and was staying until she could find another place to live. Generally, Madison slept in the living room on an inflatable mattress. But if Rohrer and Maki were going to be up late, they allowed Madison, who worked an early shift, to sleep in their bedroom. O.S. usually slept on the floor of the living room.
On September 3, 2002, the four roommates went to CJ's, a karaoke bar, where O.S. met appellant Frank Johnson. While at the bar, O.S. danced with and talked to Johnson. During the course of the evening, Johnson began kissing O.S. Although O.S. initially returned the kisses, she later rebuffed Johnson.
O.S. left the bar to give Madison a ride home. Because Maki and Rohrer planned to stay up late, Madison went to sleep in the bedroom as previously arranged. O.S. returned to the bar for several hours. Rohrer, Maki, O.S., and Johnson returned to the apartment after the bar closed.
When Rohrer and Maki started arguing, Johnson and O.S. went to the bathroom to talk. After the argument ended, they returned to the living room. Shortly thereafter, O.S. went into the bathroom and started taking a shower.
O.S. testified at trial that Johnson appeared in the shower without any clothes on and cornered her. She told Johnson that she did not want to do this because she was feeling uncomfortable. Johnson retreated at first, but he approached O.S. again in the shower. O.S. told Johnson no and got out of the shower. As O.S. was getting dressed, Johnson told her to take off her pants. O.S. refused. Johnson then told O.S. that he was going to rip her pants off, and he pushed her against the wall. O.S. fell to the floor.
When Johnson leaned over O.S. and tried to convince her to have sex with him, O.S. continued to refuse. She testified that she did not scream because she thought she could handle Johnson's advances, and she did not want anyone to feel sorry for her. Johnson eventually penetrated her.
Rohrer walked in the bathroom and saw Johnson and O.S. O.S. testified that she did not say anything, but she gave Rohrer a look with which she intended to communicate, "Help me get out of here." Rohrer left the bathroom without assisting O.S.
Testifying as a defense witness, Rohrer explained that, in the bar, Johnson and O.S. had been "awfully friendly" and that it looked like "maybe something... was going to happen between them that night." Rohrer testified that she did not hear any noise coming from the bathroom during the period when, according to O.S., Johnson was raping O.S. Rohrer explained that, when she went to the bathroom, she found O.S. and Johnson sitting on the floor. Rohrer testified that "[O.S.'s] back was against the wall and her legs were spread and [Johnson] was sitting in between her," with O.S.'s arms around his neck. Johnson turned around and said "hey," but O.S. did not say anything. Rohrer described O.S.'s expression as an "oh sh-t kind of look," not a frightened look. Rohrer then walked out and slammed the door behind her.
O.S. testified that, after Rohrer left, she told Johnson that she was going to vomit, and he got off of her. O.S. returned to the living room and Johnson followed shortly thereafter. O.S. sat across the room from him with her head between her legs because she was disgusted and did not want to look at him. When Johnson and O.S. were briefly alone, Johnson asked O.S., "What do I have to do to push you down, do I have to hold you now?" O.S. responded, "No, you don't." Johnson then grabbed O.S. and held her down. As Maki returned to the living room, Johnson released O.S., who then went to the bedroom.
When O.S. went into the bedroom where Madison was sleeping, she crawled into bed on the other side of Madison. Madison described O.S. as trembling like a leaf, distraught, "sheet white," and very upset. O.S. asked if she could sleep in the bed with Madison. Madison consented and asked O.S. what was wrong. O.S. told Madison, "[He] raped me." When Madison asked O.S. who had raped her, O.S. started crying.
The events on which the burglary and assault convictions are based happened next. Rohrer testified that, after O.S. went to the bedroom, she, Maki, and Johnson sat in the living room while Johnson had a cigarette. As Rohrer prepared to go to bed, Johnson asked if he could go into the bedroom to say goodbye to O.S. Rohrer gave Johnson permission, but told him to be quiet because Madison was sleeping.
Johnson walked into the bedroom at about the same time that Madison asked O.S. who raped her. Madison testified that Johnson told O.S. to come out of the bedroom so that he could talk to her. O.S. told Johnson that she did not want to talk to him or go anywhere with him. Madison, who described Johnson as very drunk and angry, told Johnson three times to leave the bedroom. Johnson struck Madison. Conflicting testimony was given as to when Rohrer and Maki came into the bedroom, whether Rohrer told Johnson to leave the bedroom, and whether this occurred before Johnson struck Madison.
Rohrer, O.S., and Madison then went to the police station so that O.S. could report the rape. Rohrer returned home while Madison accompanied ...