Olmsted County District Court File No. 55-CR-10-712
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Rochester, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Sara L. Martin, Charles F. Clippert, Assistant Public Defenders, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and Stauber, Judge.
On appeal from his convictions of first-degree criminal sexual conduct and furnishing alcohol to a minor, appellant argues (1) the district court deprived him of his right to testify by ruling that the state could cross-examine him about a pending allegation; (2) cumulative error, including the admission of Spreigl evidence and other prejudicial evidentiary rulings, deprived him of a fair trial; (3) his sentence, a double upward departure, was disproportionate to the severity of the offense; (4) this court should review the Spreigl witness's counseling records submitted to the court for in camera review; and (5) he is entitled to a new trial based on newly discovered falsified testimony of the Spreigl witness. Because appellant was not deprived of his constitutional right to testify, received a fair trial and sentence, and did not meet his burden of establishing that the Spreigl testimony was false, we affirm.
Appellant Thol Thim was charged by complaint with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2008) and one count of furnishing alcohol to a minor in violation of Minn. Stat. § 340A.503, subd. 2(1) (2008), in connection with an incident that occurred on January 29, 2010. According to the complaint, 25-year-old appellant gave alcohol to 16-year-old C.P. and forcibly raped her at his apartment.
Before trial, the state filed a motion to introduce Spreigl evidence that appellant also committed criminal sexual conduct against T.A. At the pretrial hearing, T.A. testified that she met appellant in August 2009 when she was 15 years old and just out of chemical-dependency treatment. She began spending time at appellant's house several days per week, and while there, would drink alcohol and use drugs. T.A. reentered a treatment program in October 2009, but spent time at appellant's apartment after completing her program in November 2009. About a week after her treatment, she went to appellant's apartment and got "very, very, very intoxicated." She went into appellant's room and went to sleep, but does not clearly remember what occurred next. She thought appellant tried to remove her pants, but she told him that she did not want to do anything with him. When she awoke, her clothes were not on right and appellant was pulling down her pants. Several days later, T.A. told appellant that she did not want to have sexual contact with him in the future. But, she had sex with appellant about a dozen times from early December 2009 to late January 2010. Her recollection of those encounters was spotty because she was blacking out, but she did not remember consenting to the encounters.
The state argued that T.A.'s evidence was admissible to prove motive, intent, lack of mistake, and plan. The state argued that the offenses were similar because of the age of the victims, location, lack of a condom, and the use of chemicals to facilitate the sexual assaults. Over appellant's objection, the district court ruled that T.A.'s testimony proved, by clear and convincing evidence, that appellant had committed the alleged prior bad acts, that those acts were similar to the conduct alleged in the pending complaint, and that this evidence was not more prejudicial than probative, and therefore admissible under Minn. R. Evid. 404(b). Before T.A.'s trial testimony, the district court instructed the jury that T.A.'s testimony was only to be used as evidence of appellant's motive, intent, plan, or as evidence of the absence of mistake or accident. T.A.'s trial testimony was largely consistent with her pretrial testimony.
At trial, C.P. testified about the alleged offense. She testified that on January 29, 2010, she called her friend M.S., appellant's girlfriend, to get together. C.P. met M.S. at appellant's apartment. The three of them watched a movie, and then M.S. left for work. C.P. and appellant walked to a nearby liquor store to purchase some alcohol, and C.P.'s friend D.K. picked them up and drove them back to appellant's apartment. The three of them drank alcohol and played drinking games. Appellant was touching C.P.'s legs and giving her a back rub.
Eventually, appellant told C.P. he wanted to talk to her in his bedroom, where they briefly kissed before returning to the living room. Later, they returned to his bedroom, where appellant repeatedly asked C.P. if she wanted to have sex. C.P. testified that she replied "no, " and D.K. faintly heard C.P. say "no" through the door to the bedroom. C.P. further testified that appellant pushed her down onto the bed, held her down by the neck, and removed her pants. Appellant sexually penetrated C.P. for five to ten minutes. C.P. could not tell whether appellant wore a condom. C.P. did not consent to the sexual intercourse.
D.K. texted C.P. to come out to the living room, and C.P. came out wrapped in a blue blanket. Initially, appellant would not leave the two girls alone. Once they were alone, C.P. told D.K. that something was "seriously wrong; we need to get out of here." C.P. was in such a hurry to leave the apartment that she and D.K. left behind their belongings. While D.K. went back inside to retrieve their belongings, C.P. called and texted her friend I.S., asking I.S. to pick her up "real quick." C.P. waited outside for I.S. to arrive, and was crying. Appellant came outside to speak with C.P., and asked her not to tell anybody what happened. When I.S. arrived, C.P. walked quickly or ran toward I.S.'s car and got in. C.P. was very upset, was crying, and stated "that was messed up."
I.S. dropped her boyfriend, J.P., and another friend off at J.P.'s house and took C.P. for a ride around the block. I.S. asked C.P. what happened, and C.P. indicated that appellant raped her. When they returned to J.P.'s house, C.P. was crying. C.P. reported to J.P.'s mother that she had been raped and asked J.P.'s mother to call the police. Rochester police officer Samuel Higgins was the first to arrive. C.P. reported to Higgins that appellant encouraged her to drink alcohol, then took her to his bedroom and asked her if she wanted to have sex. She stated that she replied "no, " but that appellant pushed her down, took off her pants, said "we're gonna do this, " held her by the throat, and sexually penetrated her. A preliminary breath test of C.P. showed an alcohol concentration of 0.03.
D.K. spoke with appellant several times that evening. During one conversation, appellant stated "you've got to be kidding me; I'm in jail forever, " and "my life is ruined; it's over." Appellant was arrested later that evening.
C.P. was taken to the hospital where nurse examiner Cheryl Darsow conducted a sexual-assault examination. C.P. was withdrawn and crying. Darsow documented reddened areas she identified as abrasions on both sides of C.P.'s neck. She did not notice any vaginal injuries, but Darsow testified that this was not unusual because of the elastic and regenerative nature of vaginal tissue. On cross-examination, defense counsel asked Darsow if she was familiar with Linda Ledray, and Darsow indicated that she was her mentor. Counsel asked whether Darsow would tend to respect an article written by Ledray, and Darsow indicated that she would. Counsel then attempted to impeach Darsow by reading from the article, but the state objected on grounds that the defense failed to disclose the article. As an offer of proof, counsel claimed the article would state that 68% of sexual-assault victims suffer genital trauma. The district court sustained the objection "as to disclosure."
C.P. testified that appellant's girlfriend M.S. asked C.P. to drop the charges and told her, "if [appellant] is convicted, he will kill himself." The defense objected to this testimony on the grounds of hearsay, but the district court overruled the objection. Later, the state sought to admit into evidence a letter written by appellant to M.S., asking her to pressure C.P. to change her story. The letter was redacted, and appellant sought to include his statement "the things I say probably will get over looked." The district court denied his motion because the statement was irrelevant, confusing, and self-serving hearsay.
Just before the close of the state's evidence, defense counsel informed the district court and the state that if appellant testified, he did "not intend to inquire of [appellant] on direct examination about anything concerning [T.A]." He then made a motion in limine to preclude the state from cross-examining appellant regarding T.A.'s rape allegations as beyond the scope of direct examination. He argued that, because T.A.'s allegations were the subject of pending criminal charges, such questioning would impermissibly force appellant to choose between incriminating himself in that matter, or not testifying in this matter. The state opposed the motion and argued that if appellant voluntarily took the stand, he would waive the privilege as to all matters relevant to this case.
The district court denied appellant's motion without qualification, concluding that T.A.'s allegations were relevant Spreigl evidence and that appellant would not be denied the privilege against self-incrimination because "it's clear that it's the defendant's choice. The Court can't compel him to testify." According to the district court, a defendant facing this decision, must "tak[e] into account many factors, one being this Spreigl evidence, " just as he or she must consider the effect of prior convictions for impeachment. The district court concluded by saying, "I find it a legitimate inquiry for cross examination, relevant to the jury. How much, I don't know. ...