Jeff Olsen, Appellant, vs. City of Ironton, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1371

 

State of Minnesota,

Respondent,

 

vs.

 

Joe Henry Bandy,

Appellant.

 

Filed May 23, 2000

Affirmed

Anderson, Judge

 

 

Hennepin County District Court

File No. 98108691

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Amy Klobuchar, Hennepin County Attorney, Mary Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

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

 

 

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

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

             Appellant, convicted by a jury of committing third-degree criminal sexual conduct, argues that he was deprived of his right to a unanimous verdict and challenges the sufficiency of the evidence.  Also convicted of depriving another of parental rights, appellant asserts that the district court abused its discretion by imposing separate concurrent sentences.  Finally, in his pro se supplemental brief, appellant alleges various trial errors.  We hold that the jury instructions adequately protected appellant's right to a unanimous verdict, the evidence sufficiently supported that verdict, the district court acted within its discretion by imposing separate sentences, and appellant's pro se claims lack merit.  Accordingly, we affirm.

FACTS

            A.L., sixteen years old and suffering from borderline mental retardation, lived with her father C.L. and her stepmother Anna L. in Redwood Falls, Minnesota.  On October 21, 1998, appellant Joe Henry Bandy, who was a coworker and friend, came to their house and agreed to meet Anna L. and C.L. at a bar to play pool.  While at the house, appellant learned that A.L. was grounded and prohibited from visiting her natural mother that weekend in new Ulm, Minnesota.  Appellant did not meet Anna L. and C.L. at the bar.  The next morning, Anna L. and C.L. realized that A.L. was gone.

            A.L. testified that on the night of October 21, appellant left her home to play pool with Anna L. and C.L., but returned and knocked on the door.  When A.L. answered, appellant asked if she wanted to go to her mother's home in New Ulm.  A.L. said she did, packed some clothes, and left Redwood Falls with appellant.  But once in New Ulm, appellant did not take A.L. to her mother's house.  Instead, appellant took A.L. to Minneapolis.   

            Arriving in Minneapolis, A.L. remembered that they stayed in a hotel.  Appellant offered her liquor and some kind of drug.  A.L. drank some liquor and went to sleep but woke up with appellant on top of her.  She told him to get off her, but appellant said "no."  Appellant eventually complied and A.L. fell asleep wearing her bra and underwear, but woke up hours later on the floor wearing nothing.  

            The next day, appellant took A.L. to "Pat's" house.  Appellant and A.L. slept in an upstairs bedroom, and A.L. testified that "he stuck his penis in me and then it hurt and I said ‘no'.  I kept saying ‘no' and ‘ouch' and it was * * * hurting and finally he quit."  The next day, appellant left for a few hours, but A.L. was unable to call her mother in New Ulm because the house had no phone and A.L. could not remember her mother's telephone number.           

            When appellant returned, A.L. asked to go to New Ulm.  Appellant refused, and said they were going to Chicago.  The following night appellant had sex with A.L. even though she said "no."  When asked why she had sex with appellant, A.L. testified, "because I was forced to."       A.L. also testified that as punishment for disobeying him, appellant would tell her to perform oral sex.

            In the early morning hours of October 28, 1998, appellant got lost when driving and asked Maple Grove Police Officer Gregory Burstad for directions.  Appellant made A.L. lie down and told her to lie about her name and age.  Burstad saw a juvenile female in the front seat with her head lying on the driver's right thigh and detected an order of alcohol.  Appellant said the girl's name was Asia Black, she was eighteen, and that he was taking her home to a Maple Grove address.  Burstad ran a routine check and arrested appellant based on an outstanding Redwood Falls warrant.  

            More officers arrived.  When placed in a separate squad car, A.L. immediately told the police her true name and age.  Detective Kyle Larson talked to A.L. and testified that A.L. said appellant took her to a hotel, and "all she knows she woke up, her pants were removed, her panties were removed, and her vagina hurt."  Larson took A.L. to a hospital for a sexual-assault exam.  A.L. told the attending nurse that:

One night, we had something to drink and he gave me a couple of pills.  I woke up feeling really sore down there.  I think he had sex with me but I'm not sure.  He had sex with me sometime on Sunday night [October 24]. 

           

            The nurse testified that the physical exam and A.L.'s story were consistent with sexual assault.  All of A.L.'s clothing, including a pair of black pants borrowed from someone at Pat's house, was collected for DNA analysis.  Forensic test results showed that the semen in the crotch area of the black pants was consistent with appellant's DNA profile.  Other fluid from the same area matched A.L.'s DNA profile.    

            Appellant recounted that on the night of October 21, 1998, he decided to drive to Minneapolis after learning his nephew was hospitalized there for a gunshot wound.  Appellant claims he encountered A.L. walking along the road as he drove out of town.  He admitted taking A.L. to New Ulm, but claimed A.L.'s mother was not at home.  Rather than leave A.L. in New Ulm, he explained that he took her to Minneapolis with the understanding that, once there, she would call relatives.  

            Appellant said after he checked into a hotel, he left to go to a party and did not return until the next morning.  He believed A.L. planned to call someone to come and get her.  Appellant left a bottle of whiskey at the hotel.  When he returned, A.L. was still there, sleeping, and half the whiskey was gone.  Appellant said he did not have sex with A.L., but he "hung out" at Pat's house that week while wondering what her plans were.  He claimed that A.L. often had access to a phone and said he even asked a friend for money so he could buy A.L. a bus ticket home. 

            The state charged appellant with one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1998), and one count of depriving another of parental rights in violation of Minn. Stat. § 609.26, subds. 1(8).   The jury found appellant guilty of both charges.   

D E C I S I O N I.

Appellant argues that the district court's jury instructions denied him his right to a unanimous verdict.  Appellant failed to object to the jury instruction at trial or raise the issue in a motion for new trial, thereby waiving the issue.  See State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988).  Even so, we choose to address appellant's claims in the interests of justice because he alleges a fundamental error.  See id.;  Minn. R. Civ. App. P. 103.04.

Verdicts in criminal cases must be unanimous.  Minn. R. Crim. P. 26.01, subd. 1(5).  The district court instructed the jury that their verdict must be unanimous and that they could find appellant guilty based on alternate methods of sexual penetration. Appellant maintains that, because the jury considered evidence of several separate incidents, the jurors may not have unanimously agreed on which acts supported their guilty verdict.[1]

While a jury's verdict must be unanimous, the jury need not necessarily agree on the underlying supporting evidence.  For instance, a jury may find guilt on one of two theories.  See Schad v. Arizona, 501 U.S. 624, 630-32, 111 S. Ct. 2491, 2496-97(1991) (holding that submission of first-degree murder to the jury as premeditated or felony murder, without requiring agreement on which theory, was not unconstitutional); State v. Day, 501 N.W.2d 649, 653 (Minn. App. 1993) (where a doctor had sexual contact with patients, there was no violation of his right to unanimous verdict where the instruction permitted the jury to convict without specifying which alternate theory of guilt it applied); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991) (jury could find defendant guilty of first-degree criminal sexual conduct if it found that the victim had been injured or feared harm), review denied (Minn. Jan. 16, 1992).

A jury may also reach a unanimous verdict without agreeing on precisely how or when a crime was committed if those facts are not elements of the crime charged.  See State v. Cross, 577 N.W.2d 721, 726-27 (Minn. 1998) (jury need not unanimously agree on the incidents establishing a pattern of domestic abuse); State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (permitting the state to charge multiple acts of sexual abuse over an unspecified period of time); State v. Poole, 489 N.W.2d 537, 543-44 (Minn. App. 1992) (holding, in a sexual-abuse case, that because specific dates of sexual abuse were not elements of the offense, the jury was not required to agree on them), aff'd 499 N.W.2d 31 (Minn. 1993); Begbie, 415 N.W.2d at 105-06 (the absence of a unanimous agreement among jurors as to which person was the victim of terroristic threats did not violate defendant's right to a unanimous jury verdict).

            The state's complaint in this case alleged that multiple acts of criminal sexual conduct occurred between October 21 and 28, 1998, and charged appellant with a single violation of Minn. Stat. § 609.344, subd. 1(c) (1998), which provides:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if  * * * the actor uses force or coercion to accomplish the penetration. 

 

            The state presented evidence tending to show that appellant sexually penetrated A.L. by use of force multiple times, in several ways, on different dates.  The state did not have to prove when or how the forced sexual penetration took place.  Because the jury could find appellant guilty of the crime without agreeing on the precise time and manner of its commission, the district court's general unanimity instruction was sufficient to protect appellant's right to a unanimous verdict. 

II.

Appellant next claims that the evidence was insufficient to support the jury's guilty verdict.  Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995).  In evaluating the evidence, we assume that "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).

Appellant asserts that because A.L.'s testimony differed from her statements to police and the hospital nurse, she was not a credible witness.  He also claims the DNA evidence was untrustworthy.  But the testimony of a complaining witness in a sexual misconduct case need not be corroborated, and a conviction can rest on the positive and consistent testimony of a single credible witness. Minn. Stat. § 609.347, subd. 1 (1998); Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995).  Even where the complainant's testimony contains inconsistencies, the jury has the exclusive function of weighing witness credibility at trial.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

A.L. consistently maintained that she thought appellant may have had sex with her at the hotel.  The nurse said A.L. told her that A.L. and appellant had sex at least one other time, as A.L. later testified.  The nurse's physical exam supported A.L.'s story.  Mindful of A.L.'s mental limitations, we conclude that a reasonable jury could find her credible and credit her version of events.  Moreover, the jury was free to accept or reject the any part of the lengthy DNA testimony.  See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (the credibility and weight to be given expert testimony are for the jury to determine).  The evidence was sufficient to permit a reasonable jury to find appellant guilty of third-degree criminal sexual conduct beyond a reasonable doubt.

III.

Appellant also claims that the district court improperly sentenced him by imposing sentences for each of his two convictions.  A district court has great discretion in sentencing, and we will not substitute our own judgment for that of the district court.  McLaughlin v. State, 291 Minn. 277, 284, 190 N.W.2d 867, 872 (1971). 

Ordinarily, where a person's conduct consists of more than one criminal offense, that person may only be sentenced for one of the offenses.  Minn. Stat. § 609.035 (1998).   But when crimes arising out of the same incident are committed against different victims, the district court has discretion to impose one sentence per victim so long as the sentence does not exaggerate the criminality of the defendant's conduct.   State v. Montalvo, 324 N.W.2d 650, 652 (Minn. 1982).

While A.L. was the victim of appellant's criminal sexual conduct, her parents were the victims of his crime of depriving another of parental rights.  See State v. Maidi, 537 N.W.2d 280, 281-82 (Minn. 1995) (dealing with deprivation of parental rights); State v. Niska, 514 N.W.2d 260, 266 (Minn. 1994) (same).  Because appellant's crimes were perpetrated against multiple victims, and he does not claim that the sentences exaggerated the criminality of his conduct, the district court acted within its broad discretion by imposing separate, concurrent sentences.

IV.

Appellant also raises 12 issues by pro se supplemental brief, but we conclude that none has merit.  Some of these issues concern the sufficiency of the evidence and the separate sentences, which we have already addressed.  Appellant also complains of other errors not raised below or ruled on by the district court, so we decline to review them.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  As a general rule, reviewing courts will not decide issues that were not raised before the trial court. Finally, appellant complains that he received ineffective assistance of counsel.  But the claimed trial-strategy errors were matters within the discretion of appellant's attorney and do not fall within this state's definition of constitutionally defective assistance of counsel.  See State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990).

            Affirmed.

[1] Appellant relies, in part, on the unpublished case of State v. Sandve, C6-98-1379 (Minn. App. June 8, 1999).  That case not only lacks precedential value but, it is also distinguishable.  Sandve did not involve an alleged series of criminal acts and, unlike this case, the crime charged in Sandve required proof of specific intent.