Itasca County District Court File No. 31-CR-11-1755
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and John J. Muhar, Itasca County Attorney, Grand Rapids, Minnesota (for respondent).
Kirk M. Anderson, Special Assistant Public Defender, Minneapolis, Minnesota (for appellant).
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Willis, Judge.
Willis, Judge [*]
On appeal from his conviction of first-degree criminal sexual conduct, appellant argues that the evidence was insufficient to sustain the verdict and that the district court abused its discretion in its evidentiary rulings. In his pro se brief, appellant argues that he was denied a fair trial because of ineffective assistance of counsel and prosecutorial misconduct, and that the district court erred by not vacating two of his convictions. We affirm.
On June 21-22, 2011, T.R., a 15-year-old girl, spent the evening socializing with a group of friends and relatives, including her 29-year-old cousin, appellant Leonard James Fisherman, Jr. After midnight, T.R. and Fisherman were dropped off at the former Willow Beach Supper Club, an abandoned building located on Highway 2 between Deer River and Ball Club, ostensibly to wait for a friend to join them.
Fisherman struck T.R. several times and forced her to the ground. He then dragged her across the driveway and ordered her to perform fellatio on him. When she refused, he struck her several more times until she acquiesced. After that, Fisherman told her to get undressed. When she refused, he drew a knife and ordered her to take off her clothes. After she did so, he penetrated her with his penis. Next, Fisherman ordered her to turn over, but she got up and ran to a nearby home, wearing only her bra and socks.
The homeowner let T.R. into the house and called 911. T.R. was so frightened that she vomited several times. The paramedics took T.R. to the emergency room, where Dr. Byron Hoffman performed a sexual-assault examination and obtained DNA samples from T.R.'s vagina and perineum. He also did a physical examination, noting facial bruising, blood around her nose, and a cut on her lip. He observed no tears, bruising, bleeding, or other signs of physical injury to her vagina or perineum.
Fisherman was charged with three counts of first-degree criminal sexual conduct. According to trial testimony, deputies from the Itasca County Sheriff's Department went to the Willow Beach Supper Club and found a bag of snacks and a partially full bottle of Captain Morgan rum, consistent with T.R.'s description of events. One of the deputies discovered an area behind the supper club where the grass had been flattened and where there were signs of a struggle, including "dirt kicked up in several spots." He also found several items of clothing and a pair of shoes. Another deputy returned to the supper club the following day because T.R. reported that her purse was missing. He recovered T.R.'s purse and a hat belonging to Fisherman. In the purse, the deputy found a prescription bottle containing suspected methamphetamine that matched T.R.'s description of a bottle that Fisherman had placed in her purse.
Investigator Mark Weller, an investigator with the sheriff's department, interviewed T.R. several times. He took pictures of her injuries in the emergency room and again two days later. At trial, Investigator Weller described T.R.'s injuries in the emergency room as including puffed lips, dried blood on her lips, "debris" in her forehead, swelling, and purplish-red cheeks. During a subsequent interview, T.R. told Investigator Weller that Fisherman had choked her; Investigator Weller saw bruising on her neck. Investigator Weller testified that T.R. was credible because "[s]he gave a good statement. She described what had happened in detail. She had a good memory. She could even describe things inside [the] vehicle[.]" T.R. described what she was wearing, and her description matched the clothing found at the supper club. Finally, her injuries were consistent with her description of the incident.
The Bureau of Criminal Apprehension (BCA) performed a DNA analysis on the biological materials recovered during T.R.'s sexual-assault examination. A BCA forensic scientist testified that DNA from two or more individuals was recovered from the swab of T.R.'s vagina. The predominant profile, or major contributor of the DNA, was T.R.; but Fisherman could not be excluded as a contributor to the minor profile of DNA, although 99.9998% of the general population would be excluded. The DNA testing revealed some anomalies, but the BCA scientist testified that this could be because T.R. and Fisherman are related, the sample was contaminated, or there was a third contributor, although T.R. ...