St. Louis County District Court File No. 69DU-CR-09-2535
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Presiding Judge; Hooten, Judge; and Willis, Judge. [*]
Following a jury trial, appellant was convicted of attempted second-degree criminal sexual conduct and fifth-degree criminal sexual conduct. Appellant challenges his convictions, arguing that the district court abused its discretion by excluding evidence that the minor victim had possessed unusual knowledge regarding sex before the offenses occurred; that the prosecutor engaged in misconduct that constituted plain error affecting substantial rights by referring to "justice for children" during trial; and that the district court erred by convicting him of a lesser-included offense and by sentencing him twice for conduct that was part of the same behavioral incident. We affirm the district court's exclusion of evidence, but we reverse appellant's convictions and remand due to prosecutorial misconduct.
In April 2009, seven-year-old K.H. reported to friends and relatives that her grandmother's boyfriend, appellant Dale Jackson, had touched her inappropriately. K.H. was interviewed by an investigator with the St. Louis County Sheriff's Office, and she described two incidents that she said had occurred during the summer of 2008. K.H. told the investigator that, on one occasion, she was sleeping in a bed at her grandmother's house when she was awakened by appellant, who was on top of her and "was going up and down" or "humping" her. K.H. stated that appellant had pulled her pajama bottoms down, but that her underwear was still on, and that appellant was fully clothed during the incident. K.H. described a second incident, also having taken place at her grandmother's house, when defendant came up to her, showed her his penis, and said "[t]ouch it." K.H. stated that she said "no" and began to call 911, but that appellant took the telephone out of her hand, causing her to fall down and hurt herself. Appellant was subsequently charged with two counts of second-degree criminal sexual conduct, attempted second-degree criminal sexual conduct, fifth-degree criminal sexual conduct, and interference with an emergency call.
Appellant moved to "admit evidence of K.H.'s behavior where she would act out in an inappropriate manner." Appellant wished to introduce evidence at trial through his own testimony that, prior to the summer of 2008, K.H. would "act out sexually by rubbing, humping, pulling pants down and otherwise acting out sexually." Appellant intended to introduce this evidence to show "that someone other than [appellant] was the source of [K.H.'s] sexual knowledge" and "[t]o establish that [K.H.'s] prior knowledge and behavior are what led to the allegations against [appellant]." The state opposed appellant's motion, challenging appellant's qualifications to characterize behavior of "rubbing, humping, and pulling pants down" as "sexual conduct" rather than "innocent behavior" during play that "has nothing to do with sexual knowledge or intent." The state further argued that, even if the behavior was sexual in nature, it did not necessarily indicate that K.H. had sexual knowledge. Following a hearing, the district court issued an order denying appellant's motion to admit the evidence. The court concluded that the evidence had "little to no probative value" and that "[a]ny probative value it may have is substantially outweighed by its potential to be prejudicial."
A jury trial was held in January 2012, during which K.H. testified and the jury watched the video recording of the April 2009 interview. With respect to the incident involving the bed, K.H. testified that appellant had pulled down her pajama bottoms while she was sleeping and that, when she woke up, appellant was lying on the side of the bed reading a magazine and said, "Oh, your pants fell down when you were sleeping." She testified that her underwear was still on and that she got up, pulled her pajama bottoms back on, and went outside to play. K.H. stated that she did not remember that appellant had been "doing a humping motion on me" or remember telling the investigator that he had, but said that she did not think she would have had a reason to lie about appellant. With respect to the second incident, K.H. testified that appellant had shown her his "private" and said "[t]ouch, " and that she had said "[n]o." The jury subsequently found appellant guilty of attempted second-degree criminal sexual conduct and fifth-degree criminal sexual conduct. The jury was unable to reach a verdict on the remaining charges. This appeal follows. The state has not submitted a response to the appeal.
Appellant argues that the district court abused its discretion by denying his motion to introduce evidence of K.H.'s behavior. "Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). "A court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011). "On appeal, the appellant has the ...