State of Minnesota, Respondent, vs. Rex Allen Wood, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-357

State of Minnesota,

Respondent,

vs.

Rex Allen Wood,

Appellant.

Filed April 21, 1998

Affirmed as modified; motion denied

Willis, Judge

Carlton County District Court

File No. K09654

Hubert H. Humphrey, III, Attorney General, Thomas Ragatz, Assistant Attorney General, Julio R. Barron, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Marvin Ketola, Carlton County Attorney, 202 Courthouse, Box 300, Carlton, MN 55718 (for respondent)

Daniel M. Mohs, Daniel Mohs & Associates, The Colonnade, Suite 1025, 5500 Wayzata Blvd., Minneapolis, MN 55416 (for appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant Rex Wood was convicted of third- and fourth-degree criminal sexual conduct. See Minn. Stat. §§ 609.344, subd. 1(c); 609.345, subd. 1(c) (1996). He was sentenced to concurrent sentences of 26 and 68 months. He challenges two of the trial court's evidentiary rulings and its failure to provide him with an interpreter; he also argues that the evidence is not sufficient to support his conviction, that he should not have been sentenced on both counts, and that the trial court erred in calculating his criminal history score. We affirm as modified.

FACTS

Wood was charged with having sexual contact and sexual penetration with 16-year-old J.G. on December 31, 1995, following a New Year's Eve party at a house in Barnum. The complaint alleged that Wood had sexual contact with J.G. outside the house and then engaged in sexual intercourse with her while alone with her in a truck in Cloquet, where a number of the partygoers had driven.

Wood testified that he had no sexual contact with J.G. but had spoken to her in private about what he claimed were J.G.'s attempts to involve Wood's son, Ryan, in soliciting prostitution customers for her. The trial court granted the state's pretrial motion to exclude evidence of J.G.'s sexual conduct but allowed Wood to testify about his alleged discussion with her. The trial court also allowed Ryan Wood to testify, over the prosecutor's objection, that after the alleged sexual act in Cloquet, he heard J.G. and her date talking about $75. Ryan Wood also testified that J.G. called him several days later and told him that if his father did not give her $75 she would accuse him of rape.

The jury found Wood guilty of both third- and fourth-degree criminal sexual conduct. The trial court sentenced him on both counts, to concurrent terms of 28 and 68 months, based on a criminal history score of 1 for the first offense. Wood's criminal history score was based on four nonfelony units--one gross misdemeanor trespassing conviction and three misdemeanor theft convictions--all from Iowa.

D E C I S I O N

I.

Wood argues that he was denied a fair trial by the prosecution's delay in disclosing that Willie Hoffman, J.G.'s date on New Year's Eve and an eyewitness to some of the events surrounding the alleged sexual incidents, had three felony theft convictions. But defense counsel did not ask for a recess when informed on the day of trial of the prior convictions, he made full use of the convictions to impeach Hoffman, and he sought no sanctions against the prosecution. Even if this court could consider the discovery issue for the first time on appeal, Wood has not shown that his attorney's ability to impeach Hoffman with the prior convictions was in any way prejudiced by the delayed disclosure.

II.

Wood argues that the trial court abused its discretion in excluding defense evidence that J.G. had in the past offered to perform acts of prostitution and evidence to corroborate Wood's own testimony that he had asked to talk with J.G. to tell her to stop trying to involve his son, Ryan, in soliciting prostitution customers for her. A trial court's evidentiary rulings are reviewed under a clear abuse of discretion standard. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

Both the rape shield statute and the rules of evidence allow admission of the victim's prior sexual conduct only if the victim's consent is a defense or if the state's case involves evidence of semen, pregnancy, or disease. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412. Wood's defense was not consent. He denied having sex with J.G., although claiming she had propositioned him. Nor did the state's case involve evidence of semen, pregnancy, or disease.

Wood argues that the excluded evidence was relevant and admissible to explain his presence at the scene of the alleged offense inside the truck, where he claimed he wanted to talk with J.G. to tell her to stop trying to involve his son in prostitution. See State v. Wiltse, 386 N.W.2d 315, 318 (Minn. App. 1986) (finding reversible error in exclusion of defendant's evidence explaining presence at scene of crime), review denied (Minn. June 30, 1986). But Wood was allowed to testify that he was at the scene of the second incident to talk with J.G. about her alleged prostitution activities. Moreover, neither Wiltse nor the other case relied on by Wood involves the admission of evidence excludable under the rape shield statute and Rule 412. See State v. Blank, 352 N.W.2d 91, 93 (Minn. App. 1984) (finding reversible error in exclusion of testimony regarding allegedly inflammatory remarks victim exchanged with defendant before misdemeanor assault), review denied (Minn. Sept. 20, 1984). Finally, Wood presented no evidence J.G. was engaged in prostitution on the night of the incident, let alone evidence showing behavior so clearly similar to her alleged past conduct that he would have a constitutional right to present evidence of that conduct. See State v. Crims, 540 N.W.2d 860, 868 (Minn. App. 1995) (concluding victim's history of trading sex for drugs not so similar to alleged trading of sex for money to buy drugs that exclusion would violate defendant's constitutional rights), review denied (Minn. Jan. 23, 1996).

III.

Wood argues that his right to a fair trial was denied because the trial court did not provide an interpreter to assist him in understanding the proceedings. Wood, who is deaf in one ear and submitted a posttrial certificate from the Department of Human Services that he is hearing-impaired, argues that he could not hear a large portion of the trial proceedings. But Wood's attorney raised this issue only briefly at trial, suggesting that the counsel table be shifted so that Wood's good ear could catch more of the testimony and asking for no other accommodation for his client. Counsel did not request an interpreter.

The trial court must appoint a qualified interpreter to assist a defendant who is "handicapped in communication," including a person who cannot fully understand the proceedings because of a hearing disorder. Minn. Stat. §§ 611.31; 611.32, subd. 1 (1996). Wood cites the requirement in the Federal Court Interpreters Act that an impaired defendant waive his right to an interpreter on the record. 28 U.S.C.A. §1827 (f)(l) (West 1994). But there is no similar requirement in the Minnesota statute.

It is questionable whether defense counsel's brief description of Wood's hearing problem, accompanied by a ready acceptance of the minor accommodation of moving the counsel table, adequately raised in the trial court the issue of the appointment of an interpreter. Even if the issue is properly before us, there is no evidence that Wood experienced substantial difficulties hearing the trial proceedings or that he understands sign language, so that appointment of an interpreter would have assisted him.

IV.

Wood argues that the evidence is insufficient to support his convictions on the two counts of criminal sexual conduct. In reviewing a claim of insufficient evidence, this court views the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved contrary evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). This court is limited to determining whether, based on the facts in the record and any legitimate inferences to be drawn from them, a jury could reasonably find the defendant guilty. Id.

Wood's argument relies almost entirely on an attack on the credibility of J.G. and other prosecution witnesses and a claim that the evidence is consistent with a rational hypothesis of innocence. But this court cannot invade the jury's province to determine the credibility of witnesses. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (stating that credibility determinations are within the sole province of the fact-finder). A conviction for criminal sexual conduct may rest on the uncorroborated testimony of the victim alone. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). Only where the state's case relies entirely on circumstantial evidence must the evidence as a whole exclude any rational hypothesis except that of guilt. See, e.g., State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). The state's case here did not rely on circumstantial evidence but on the eyewitness testimony of J.G., corroborated by other eyewitness testimony, which this court must assume the jury believed.

V.

Wood argues that the trial court clearly erred in determining that the two incidents of criminal sexual conduct were not part of a single behavioral incident. See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (applying clearly erroneous standard of review). Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of each case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). The court must consider the factors of time and place and whether the defendant was motivated by a single criminal objective. Id. The two incidents here occurred in two separate places and were separated by a considerable time: at a minimum, the time it took to drive from Barnum to Cloquet.

This court has affirmed multiple sentencing for three sexual assaults that occurred the same night in three different locations. State v. Butterfield, 555 N.W.2d 526, 530-31 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). Wood's sexual contact with J.G. in Barnum and the sexual penetration in Cloquet were not part of the same behavioral incident.

VI.

Wood received the presumptive sentence durations, which were calculated using a criminal history score of 1 for the first offense and 2 for the second, based on an aggregation of Iowa nonfelony convictions into one criminal history point. Wood argues because they did not require specific intent, the Iowa misdemeanor theft offenses should not be considered the equivalent of any of the list of Minnesota misdemeanors that may be counted in a criminal history score.

Whether a foreign conviction is counted in a criminal history score is governed by offense definitions under Minnesota law. Minn. Sent. Guidelines II.B.5. The court should look not only at the offense definitions but also at the basic conduct involved and the sentence imposed. See Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992). We review the trial court's decision under an abuse of discretion standard. See Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).

The main focus of an analysis of an out-of-state conviction is on the offense definition. Hill, 483 N.W.2d at 61. The record shows that Wood's Iowa theft convictions are for theft by check, defined as tendering a check with knowledge that it will not be paid when presented. The equivalent Minnesota theft-by-check offense is not among those misdemeanor offenses that may be used in computing a criminal history score. See Minn. Sent. Guidelines V (listing misdemeanor and gross misdemeanor offenses that may be used in computing a criminal history score); Minn. Stat. § 609.52, subd. 2(3)(i) (Supp. 1997) (defining theft to include issuing check with knowledge of lack of right to draw on the drawee). Although Wood received a 90-day misdemeanor-level sentence in Iowa, the sentence does not help in determining whether it was a misdemeanor offense that should be counted in Minnesota or one that should not be. Finally, there is virtually no information in the record about the underlying conduct.

The state has the burden of establishing a defendant's criminal history score. State v. Campa, 399 N.W.2d 160, 162 (Minn. App. 1987), review denied (Minn. Feb. 13, 1987). The state presented no evidence to overcome the similarity in definitions between Wood's Iowa offenses and the equivalent Minnesota misdemeanor theft-by-check offenses, which cannot be used in a criminal history score. Therefore, the trial court abused its discretion in counting the Iowa misdemeanor convictions. Because Wood cannot be assigned a criminal history point without the misdemeanor units, we need not address the issue of Wood's gross misdemeanor trespass conviction. See Minn. Sent. Guidelines II.B.3 (providing that one unit is to be assigned for each misdemeanor or gross misdemeanor, with four units equal to one point). We modify Wood's sentence by reducing his sentence on Count I to 21 months and his sentence on Count II to a concurrent 58 months.

The state has moved to strike the posttrial certificate from the Department of Human Services that Wood is hearing-impaired, claiming it is not part of the record on appeal. But the certificate was filed with the trial court on November 19, 1996, before Wood was sentenced on November 27, 1996. The certificate is properly part of the record on appeal, and we deny the state's motion to strike.

Affirmed as modified; motion denied.