Pope County District Court File No. K8-04-246.
The definition of "position of authority" in Minn. Stat. § 609.341, subd. 10 (2002), that is incorporated into Minn. Stat. § 609.344, subd. 1(e) (2002), as an element of third-degree criminal sexual conduct is not unconstitutionally vague, because it provides reasonably certain notice that, for purposes of criminal-sexual-conduct prohibitions, an on-duty police officer is in a position of authority over a seventeen-year-old child.
The opinion of the court was delivered by: Lansing, Judge
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*fn1
Scott Mogler challenges the constitutionality of the phrase "position of authority," as used in Minn. Stat. § 609.344, subd. 1(e) (2002), and defined in Minn. Stat. § 609.341, subd. 10 (2002). He also appeals the district court's evidentiary rulings, venue determination, jury instructions, and imposition of the guidelines sentence; challenges the sufficiency of the evidence to support his conviction of third-degree criminal sexual conduct; and alleges prosecutorial misconduct. Because the definition of "position of authority" that is incorporated into Minn. Stat. § 609.344, subd. 1(e), is not unconstitutionally vague, the evidence supports the conviction, the prosecutor's comments were not misconduct, and the district court did not err or abuse its discretion, we affirm the conviction and sentence.
In the summer of 2004, Scott Mogler was a police officer employed by the city of Starbuck to perform community policing. In this capacity, which involves establishing a presence in the city and establishing a rapport with community residents, Mogler met seventeen-year-old RL and became acquainted with her and a number of her friends through a series of brief conversations around town, usually in the evening. During these encounters Mogler was driving a squad car and in uniform.
Mogler let RL ride in his squad car, and they exchanged cell-phone numbers and phone calls. On July 4, 2004, Mogler and RL arranged to meet at the beach. Mogler drove to the beach in his squad car. He was on duty and wearing his uniform, including a badge and service weapon. After meeting at the beach, Mogler drove RL in the squad car to the city-council building, which also serves as the police station. Mogler and RL had sexual intercourse in a conference room at the police station. A few days later Mogler and RL agreed to meet again. Mogler drove his squad car to the prearranged meeting place. He was on duty and in full uniform. Mogler and RL had sexual intercourse in RL's car.
RL testified that, before the first incident of sexual intercourse, she had joked around with Mogler and told him she was older than her true age. Mogler, who was thirty-one in the summer of 2004, told RL that he knew she was only seventeen because he had conducted a background check on her.
RL's father learned of the incidents and, on July 7, 2004, notified the Pope County Sheriff's office. Her father said that he believed one of the incidents occurred in Mogler's squad car. The sheriff notified Starbuck's police chief, Hal Henning. In deference to a request from RL's family, Henning agreed to delay the investigation for a day or two, but to preserve any potential evidence in Mogler's squad car, he arranged to trade vehicles with Mogler. Henning testified that, when he informed Mogler of the trade, Mogler became "very nervous" and asked to discuss something with Henning. Mogler inquired whether he was in trouble with the sheriff's office. Henning said he was not aware of any problems, and Mogler then said that he had "f----d up" and that his career was over. When asked what he had done, Mogler said he had "messed around" with a girl while on duty. He told Henning that he had thought she was nineteen years old but then acknowledged that he knew she was only seventeen.
Following this conversation, Henning advised a deputy to contact RL. RL confirmed the sexual nature of their relationship, and the deputy then arrested Mogler. Henning and the deputy accompanied Mogler to his home to allow him to change out of his uniform. While at his house, Mogler awakened his wife and told her that he was going to jail because he had been "messing around with an underage girl."
The state charged Mogler with two counts of third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(e) (2002). Mogler moved to dismiss the charges, to suppress the statements he made to his wife and Henning, and to change venue because of pretrial publicity.
The district court denied the motions and, following a trial, a jury convicted Mogler of both counts. In May 2005 the district court sentenced Mogler to eighteen months in prison on the first count and twenty-three months on the second count, to be served concurrently. The court stayed execution of the sentences, ordered Mogler to serve six months in jail, placed him on probation for a period of up to five years, and imposed a $3,000 fine.
In this appeal from conviction and sentencing, Mogler raises eight issues. The Minnesota Fraternal Order of Police, the local chapter of a national organization of police officers, has submitted an amicus brief in support of Mogler's appeal, addressing the interpretation of "position of authority."
I. Is "position of authority," as used in Minn. Stat. § 609.344, subd. 1(e) (2002), and defined in Minn. Stat. § 609.341, subd. 10 (2002), unconstitutionally vague?
II. Did the district court err by denying a motion to suppress statements made by the defendant to his public employer and statements made to his wife in the ...