County District Court File No. 62-CR-15-4420
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
Considered and decided by Rodenberg, Presiding Judge; Kirk,
Judge; and Florey, Judge.
term "offense" contained in Minn. Stat. §
609.322, subd. 1(b) (2014), refers to a single charge in a
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
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
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.
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
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."
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.
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
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.
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 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.
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.
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.
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
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
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.
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
III. Is there sufficient evidence to sustain appellant's
conviction of soliciting R.C. to ...