Pat Peasha, Appellant, vs. Wensmann Realty, Inc., Respondent.

Annotate this Case
This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-2007

State of Minnesota,

Respondent,

vs.

Lawrence M. Clark,

Appellant.

Filed July 7, 1998

Affirmed

Kalitowski, Judge

Polk County District Court

File No. K997338

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Wayne H. Swanson, Polk County Attorney, Suite 101, Crookston Professional Center, 223 East Seventh Street, Crookston, MN 56716 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Lawrence M. Clark challenges his convictions for third-degree criminal sexual assault and furnishing alcohol to a minor, arguing: (1) there was insufficient evidence to support the convictions; (2) the district court incorrectly imposed multiple sentences for the two crimes; and (3) the district court improperly amended appellant's sentence to include a five-year period of conditional release. We affirm.

D E C I S I O N

I.

Our review of a sufficiency of the evidence appeal "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," sufficiently supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Further, the "credibility of individual witnesses is for the jury to determine." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

Appellant contends that because the victim's testimony is not corroborated and sets forth an improbable series of events, his convictions cannot stand. We disagree. A review of the trial record indicates that: (1) because there was no evidence of a noisy struggle during the assault, appellant's contention that his wife would have heard something is without merit; (2) the victim exhibited severe self-destructive behavior after the incident, and was not acting "normal" as appellant contended; and (3) the victim's account remained consistent when she reported the incident to several professionals. We conclude the evidence was sufficient for the jury to convict appellant of third-degree criminal sexual conduct.

Likewise, we assume the jury believed the victim's version of the events that appellant brought her two beers before the assault. Where the issue is one of witness credibility, we defer to the factfinder because in a criminal case, "[t]he weight and credibility to be given to the testimony of individual witnesses is within the province of the jury." State v. Rainier, 411 N.W.2d 490, 495 (Minn. 1987).

II.

Appellant also contends the separate sentences for his two convictions violate Minn. Stat. § 609.035, subd. 1 (1996), and that his sentence for furnishing alcohol to a minor should be vacated. We review the district court's determination that the incidents constituted more than one offense using a clearly erroneous standard, as it is a finding of fact. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986). Because both of the charged offenses were intentional crimes, the court examines them to see if they were "the result of a single motivation directed towards a single goal." Id. at 488. We conclude based on the record that the district court did not clearly err in determining the two incidents were not the result of a single motivation.

III.

Finally, appellant argues the district court erred by adding a five-year conditional release term to his sentence 46 days after he began serving his sentence. This court has addressed and rejected appellant's argument in State v. Garcia, No. C4-97-1337 (Minn. App. Oct. 21, 1997), review granted (Minn. Nov. 25, 1997) and State v. Humes, No. C5-97-1217 (Minn. App. Oct. 21, 1997), review granted (Minn. Nov. 25, 1997), based on the conclusion that district courts are permitted to correct an unauthorized sentence at any time. Minn. R. Crim. P. 27.03, subd. 9; see also Bangert v. State, 282 N.W.2d 540, 547 (Minn. 1979) (concluding defendant should not be allowed to benefit by sentencing court's error in application of law). Following Garcia and Humes, we conclude that because the imposition of a conditional release was mandated by Minn. Stat. § 609.346, subd. 5 (1996), the original sentence was unauthorized.

Affirmed.