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State v. Ivy

Court of Appeals of Minnesota

September 25, 2017

State of Minnesota, Respondent,
v.
Rashad Ramon Ivy, Appellant.

         Ramsey County District Court File No. 62-CR-15-4420

          Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey, Judge.

         SYLLABUS

         I. The term "offense" contained in Minn. Stat. § 609.322, subd. 1(b) (2014), refers to a single charge in a criminal complaint.

         II. The statutory aggravating factor of multiple victims contained in Minn. Stat. § 609.322, subd. 1(b)(4), is not implicated unless the specifically charged offense alleged multiple victims.

          OPINION

          FLOREY, Judge

         On appeal from his convictions of ten counts that included sex-trafficking, criminal sexual conduct, and solicitation to practice prostitution, appellant argues that (1) the district court erred by denying his motion to sever under Minn. R. Crim. P. 17.03, subd. 3; (2) the district court committed prejudicial plain error by not sua sponte giving an accomplice-liability jury instruction pertaining to Count 10 of the complaint; (3) there was insufficient evidence to sustain his conviction of Count 5 of the complaint; (4) the prosecutor committed prejudicial misconduct during closing argument; and (5) his sentence was unlawfully enhanced. Appellant also filed a pro se supplemental brief raising several issues. We affirm appellant's convictions, but because we conclude that appellant's sentence was unlawfully enhanced, we reverse his sentence and remand for resentencing.

         FACTS

         In June 2015, appellant Rashad Ivy was charged with second-degree sex trafficking and domestic assault by strangulation, for offenses involving A.B., Counts 1 and 2. The complaint was later amended to add the following ten charges: Counts 3-5, second-degree solicitation to practice prostitution involving S.M., J.S., and R.C., respectively; Count 6, third-degree criminal sexual conduct involving J.S.; Count 7, conspiracy to engage in sex trafficking in the second degree; Counts 8-10, second-degree sex trafficking involving K.B., A.H., and T.H., respectively; Count 11, first-degree solicitation to practice prostitution involving W.M-H.; and Count 12, conspiracy to engage in sex trafficking in the first degree. Tarris Trapps and Danika Johnson, who both testified against appellant, were charged with, and pleaded guilty to, offenses associated with appellant's sex-trafficking scheme.

         Prior to trial, the district court denied appellant's motion to sever Counts 1 and 2, involving A.B., from the rest of the counts in the complaint under Minn. R. Crim. P. 17.03, subd. 3. The matter then proceeded to trial at which Tonya Price of Homeland Security Investigations testified as "an expert in human trafficking." According to Price, a human trafficker or "pimp" typically has a "bottom bitch" or "main girl" who "takes direction from the trafficker and has more control over other girls." Appellant's "main girl" was Johnson, who moved in with appellant in September 2014. Shortly thereafter, Johnson began giving "sensual" body massages for money, which soon escalated into prostitution. Johnson testified that she would give appellant the money she earned prostituting, and he would buy her "stuff, " like cars and clothes. Johnson also testified that, under the direction of appellant, she encouraged other women who had been recruited by appellant to become prostitutes, and helped them create advertisements on Backpage.com.

         Appellant met K.B. while she was working as a dancer. Shortly thereafter, when K.B. began having marital problems, appellant convinced K.B. to move in with him and Johnson. Appellant also convinced K.B. to quit her job as a dancer and to begin "[h]aving sex for money" because "it's faster money working on Backpage." According to K.B., appellant and Johnson helped her post advertisements for the purpose of prostitution on Backpage by taking pictures of K.B. and creating the "wording" for the ad. The advertisements were paid for through "Vanilla Visa" cards obtained by either K.B. or Johnson with money supplied by appellant. K.B. would then go on out-calls to have "sex with johns, " and when she was "finished giving [her] services, " she would give appellant "all of [her] money." K.B. testified that appellant's car was used to transport K.B. and Johnson to their out-calls, which sometimes occurred in Duluth and Moorhead; that appellant was often in the car during the out-calls; and that he established the "prices for her services." K.B. further testified that, in addition to being in a sexual relationship with appellant, he made her follow "certain rules, " including not being "allowed to argue, " doing "[e]verything he said, " and calling him "Daddy." And if K.B. and Johnson did not follow his rules, appellant would "get physical."

         K.B.'s two small children eventually joined her and Johnson at appellant's Jackson Street apartment. But on April 19, 2015, when K.B. tried to leave the apartment with her children, appellant assaulted K.B. and would not let her leave. K.B. testified that a week or two later, appellant beat her children with a belt for making a mess in a bedroom. The children suffered bruises to their arms, backs, and stomachs, and one of the girls still has a permanent scar on her face. K.B. and her children left the apartment on April 30, and did not return.

         In May 2015, appellant met R.C. at a gas station the day she graduated from college. Shortly thereafter, R.C. went to appellant's apartment, where they had sex. R.C. testified that she eventually realized that appellant was a "pimp, " and that the women who were living with him were his prostitutes. R.C. also testified that appellant wanted her to "become familiar" with the websites advertising his services. According to Johnson, appellant was "trying to recruit [R.C.] into the business" because she was a college graduate and could help make it "legitimate." R.C. testified that although appellant never specifically asked her to prostitute for him, he did ask her to give "massages for money, " which she understood to mean was the first "step" into prostitution. R.C. further testified that she soon became "[p]aranoid" about appellant, and on May 26, 2015, she called 911 to report appellant's prostitution business.

         T.H. was staying at appellant's apartment during the time period that appellant was attempting to "recruit[]" R.C. "into the business." According to Johnson, she and appellant met T.H. at a restaurant. A few days later, T.H. began frequenting the Jackson Street address, and Johnson helped her create and post advertisements on Backpage. Johnson also testified that she went on "out-calls" with T.H., saw T.H. "collect money" from "johns, " and assumed that T.H. gave the money to appellant. T.H. did not testify at trial.

         J.S. and S.M. testified that they met appellant on May 15, 2015, while both were residing at a sober house in St. Paul. According to the women, they were walking back from a coffee shop when appellant and Trapps[1] pulled up in a white SUV and insisted that the women accompany them to appellant's apartment. J.S. and S.M. reluctantly agreed, and upon their arrival at the apartment, Trapps raped S.M. and appellant forced J.S. to perform oral sex on him. After appellant ejaculated on her face, he told J.S. that she "could make a lot of money with that mouth, " and told her that he would "hook [her] up with something tonight." According to J.S., she understood appellant's comments to mean that he wanted her to work for him as a prostitute. Appellant then instructed Johnson to talk to J.S. and S.M. about working as prostitutes and to "get them ready" to begin working. Appellant and Trapps left the apartment, and J.S. and S.M. left shortly thereafter.

         A.B. testified that in early June 2015, she posted on Facebook that she needed some "weed" and someone to "vent to" because she was estranged from her parents and "frustrated" with her living situation. Appellant responded to the post, and the two smoked marijuana together. The next day, appellant brought A.B. to his apartment. According to A.B., she believed that she was appellant's "girlfriend" and that Johnson was appellant's "working girl." But shortly after they arrived at the apartment, appellant directed Johnson to create a new email account for A.B., and to post a prostitution advertisement for her on Backpage. That afternoon, A.B. went on an out-call with Johnson. A.B. testified that after meeting with the john, Johnson gave "all of the money" to appellant.

         Later that day, A.B. packed all her "stuff" and she and her three-year-old son moved into appellant's apartment. A.B. testified that over the course of the next eight days, Johnson, at appellant's direction, would create ads for her on Backpage. These were paid for by Vanilla Visa cards that were purchased by appellant "for the purpose of the ads." Appellant then directed her to go on out-calls, where she had sex with men for money. Appellant sometimes drove to the out-calls, and A.B. was often accompanied by T.H. and Johnson.

         On June 13, 2015, A.B. and Johnson got into a fight and A.B. hit Johnson. When they returned to the apartment, appellant physically assaulted A.B. for punching Johnson. According to A.B., appellant choked her, punched her in the side of the head, made her ears bleed, and held her face underwater in the bathtub. A.B. eventually convinced appellant to take her to the hospital, where she told staff that appellant was prostituting her.

         A.B.'s statements prompted a police investigation, and appellant's vehicle was stopped by law enforcement at about 10:00 p.m. on June 13. Inside the car were two cell phones, prepaid Visa cards, and "multiple condoms." W.M-H., a 17-year-old female, was also in the vehicle when appellant was stopped. W.M-H. initially told police that appellant asked her if she was comfortable with stripping and prostitution and whether she would work for him making money in exchange for sex. But at trial, W.M-H. recanted her story and claimed that she did not remember much of what she told law enforcement.

         The jury found appellant guilty of all charged offenses except Counts 11 and 12 involving W.M.-H. Following a sentencing trial, the jury also found 15 aggravating factors. The district court then imposed consecutive sentences for the four counts of aiding and abetting second-degree sex trafficking and the three counts of second-degree solicitation to practice prostitution. The district court also imposed concurrent sentences for the third-degree criminal-sexual-conduct offense and the domestic-assault offense; the district court did not pronounce a sentence for the conspiracy offense. The total length of appellant's sentence is 700 months. This appeal followed.

         ISSUES

I. Did the district court err by denying appellant's motion to sever under Minn. R. Crim. P. 17.03, subd. 3?
II. Did the district court commit prejudicial plain error by not instructing the jury that R.C. was an accomplice and that her testimony on the charges related to T.H. had to be corroborated?
III. Is there sufficient evidence to sustain appellant's conviction of soliciting R.C. to ...

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