State of Minnesota, Respondent, vs. Jerome Patrick Kortus, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-1220

State of Minnesota,

Respondent,

vs.

Jerome Patrick Kortus,

Appellant.

Filed April 28, 1998

Affirmed

Harten, Judge

Dakota County District Court

File No. K7-96-1055

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

James C. Backstrom, Dakota County Attorney, Mary J. Theisen, Assistant County Attorney, Government Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.

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

HARTEN, Judge

Jerome Kortus appeals from his convictions on two counts of criminal sexual conduct, alleging that the offenses were improperly joined for trial, and that the special verdict form usurped the jury's fact-finding role by assuming a fact at issue. We affirm.

FACTS

Until April 1996, appellant Jerome Kortus lived with his girlfriend Becky Engstrom, and five children in a trailer home in Inver Grove Heights. Two of the children, including one of the victims ("victim 1"), were Engtrom's from a previous marriage.

In April 1996, 13-year-old victim 1 reported that on several occasions Kortus entered her bedroom late at night and touched her breasts or vagina. She was removed from the trailer and placed with her birth father.

A 13-year-old friend of victim 1, victim 2, also reported sexual contact by Kortus. Victim 2 said that she was babysitting victim 1's siblings one night in March 1996 when Kortus returned home alone, sat by her as she rested "half-awake" on the couch, and touched her breast.

Kortus was charged with one count of second-degree criminal sexual conduct for his alleged sexual contacts with victim 1, and one count of fourth-degree criminal sexual conduct as to victim 2.

The district court joined the counts for a single trial. The district court denied Kortus' motion to sever the offenses for trial, stating that the evidence of each offense would have been admissible as Spreigl evidence in a trial on the other offense. At trial, Kortus argued that the victims fabricated their allegations. Kortus contended that victim 1 was lying because she wanted to live with her birth father. Kortus did not offer an explanation as to why victim 2 would lie.

The district court submitted verdict forms to the jury including not guilty verdict forms that read as follows:

We the jury in the above-entitled matter find the defendant Jerome Patrick Kortus not guilty of the offense of criminal sexual conduct in the second degree as a result of the sexual contact with [Victim 1] between 1994 through April 1996 within Dakota County, State of Minnesota, at a time when the defendant had a significant relationship to [Victim 1] and that she was under 16 years of age, in violation of Minnesota Statutes Section 609.343, Subdivision 1(g).

We the jury in the above-entitled matter find the defendant Jerome Patrick Kortus not guilty of the offense of criminal sexual conduct in the fourth degree as a result of the sexual contact with [Victim 2] in March or April 1996 within Dakota County, State of Minnesota, at a time when [Victim 2] was at least 13 but less than 16 years of age and Jerome Patrick Kortus was more than 48 months older, in violation of Minnesota Statutes Section 609.345, Subdivision 1(b).

Kortus did not object to the special verdict forms.

D E C I S I O N

1. We review a trial court's ruling on a motion to sever offenses under an abuse of discretion standard. State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996).

"The court shall sever offenses or charges if the offenses or charges are not related." Minn. R. Crim. P. 17.03, subd. 3(1)(a). In determining whether charges are related within the meaning of Rule 17.03,

the court focuses on the time and place of the alleged offenses and also considers whether the segments of the conduct involved were motivated by an effort to obtain a single criminal objective.

State v. Hatton, 389 N.W.2d 229, 234 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). Offenses are related if they arise from a "single behavioral incident." State v. White, 292 N.W.2d 16, 18 (Minn. 1980).

Here, the offenses did not arise as part of the same incident. They were two separate offenses against separate victims committed at separate times. Commission of one was not necessary for commission of the other, and commission of one did not further the commission of the other. Consequently, pursuant to Minn. R. Crim. P. 17.03, subd. 3(1)(a), joinder was improper. But an improper joinder of two offenses in one trial is not prejudicial if at trial on one charge, evidence concerning the other offense would have been admissible as Spreigl evidence. State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982).

We review a trial court's decision to admit Spreigl evidence for abuse of discretion. State v. Andersen, 370 N.W.2d 653, 665 (Minn. App. 1985). If the corpus delicti is at issue and the evidence is "sufficiently relevant to the charged crime," Spreigl evidence is admissible in child sex abuse prosecutions to show whether the conduct on which the charge was based actually occurred or was "a fabrication or a mistake in perception by the victim. State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).

In the instant case, under the two-part test of Wermerskirchen, the evidence as to each victim would have been admissible as Spreigl evidence in a trial on the offense against the other victim. Kortus denied the charges, thereby placing the corpus delicti at issue. Furthermore, evidence of sexual contact with each of the two alleged victims showed a pattern of opportunistic fondling of young girls within the mobile home neighborhood, such that the evidence was relevant to each of the respective charged crimes.

Kortus argues for the first time on appeal that he was prejudiced by the admission of the evidence as Spreigl evidence because the district court did not provide the jury a limiting instruction informing them that they could not convict Kortus solely on the Spreigl evidence. A defendant waives appellate review of whether a trial court erred in failing to give limiting instructions on Spreigl evidence where the defendant fails to object or request a limiting instruction at trial. State v. Belssner, 463 N.W.2d 903, 911 (Minn. App. 1990), review denied (Minn. Feb. 20, 1991). Kortus did not request a limiting instruction on the use of the Spreigl evidence; he therefore waived appellate review of issues pertaining to limiting instructions.

We hold that the district court did not abuse its discretion in finding that evidence of each offense would have been admissible as Spreigl evidence in a trial on the other offense. Consequently, the district court's misjoinder of the offenses was harmless.

2. For the first time on appeal, Kortus contends that the not guilty verdict forms usurped from the jury the issue of whether the victims actually suffered sexual contact. Kortus alleges that whether the victims suffered sexual contact was a disputed fact that was an essential element of the offense, and that by offering the verdict forms described above, the district court instructed the jury that the fact existed.

Generally, where a defendant fails to object at trial regarding an issue, the defendant waives appellate review of that issue. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). But we may review such an unpreserved issue if the alleged error was "`plain error affecting substantial rights' or if the claim relates to error in `fundamental law' in the jury instructions." Id. (quoting Minn. R. Evid. 103(d)).

Jury instructions must be considered as a whole. State v. Larson, 281 N.W.2d 481, 485 (Minn. 1979). In instructing the jury, the district court stated the elements of the offenses, and told the jury that they would have to find each of the elements beyond a reasonable doubt to find Kortus guilty as to each offense, and that if any element was not proved beyond a reasonable doubt, a not guilty verdict would be compelled.

In State v. Lockhart, 376 N.W.2d 249, 253-54 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985), the court affirmed a conviction despite finding that the verdict forms created a potential for abuse by combining the charged offenses. In so ruling, the court noted that there was no showing that the jury was confused, the jury did not raise any questions, and the verdict was not inconsistent. Id. at 254.

In the instant case, Kortus did not allege jury confusion. The jury did not raise any questions. Having examined the jury instructions as a whole, we conclude that any impropriety in the jury forms did not amount to plain error or fundamental error that would warrant reversal.

Affirmed.