State of Minnesota, Respondent, vs. Carlos Medardo Linares, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-253

 

State of Minnesota,

Respondent,

 

vs.

 

Carlos Medardo Linares,

Appellant.

 

Filed January 27, 2004

Affirmed Hudson, Judge

 

Dakota County District Court

File No. K5-02-2389

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, Minnesota 55033 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant Carlos Medardo Linares challenges an evidentiary ruling at trial and the sufficiency of the evidence to support his conviction of third-degree criminal sexual conduct.  Because the evidence supports a finding that appellant used force or coercion to engage in sexual intercourse with the victim, and because the complained-of evidentiary ruling was not an abuse of discretion, we affirm.

FACTS On July 25, 2002, appellant Carlos Linares (then 21) gave 16-year old A.W. a ride home from work.  Both were employees at a Burger King restaurant in Rosemount.  Linares had driven A.W. home on several occasions, and that night, he drove her home because the restaurant manager asked him to do so. 

            There is no dispute that Linares and A.W. had sex in Linares's car that night.  After A.W. got home, she called a friend and told her what had happened.  The friend spoke to A.W.'s mother and told her that A.W. had been sexually assaulted.  A.W.'s mother called the police.  A.W. also called the restaurant manager and told him that Linares had forced her to have sex with him.

            When police arrived, A.W. told them Linares had forced her to have sex with him.  On the way to the hospital for a sexual assault examination, A.W. saw Linares drive by in his car.  She alerted the officers and they stopped and arrested Linares.  The following morning, A.W. gave a videotaped statement to a police detective about the events of the prior evening.

            Linares pleaded not guilty, claiming that A.W. had consented to have sex with him and that he had not used any force or coercion to make her do so.

            At trial, A.W. testified that they pulled up to her house, and as she was about to exit the car, Linares asked her for a kiss.  She said no and turned to get out of the car, and he reached across and put his right hand on her left shoulder to push her back against the seat.  He asked her to close the door, she said no, and he reached over and pulled it shut.  They spoke for a few minutes, and then he drove away from her house at a fast rate, and down to a nearby dead-end.  At the dead-end, he began kissing her hard on the mouth, neck, and chest.  He bit her lower lip, leaving it swollen.  He climbed over the console and on top of her, with his legs between hers.  He pushed up her shirt and bra, kissing her chest, and left hickeys on her chest and breasts.  A.W. testified that she told him no, and pushed his shoulders to unsuccessfully try to get him to stop.  Holding her down with one hand, Linares began fumbling with A.W.'s shorts, trying to pull them down.  She struggled with him, but he was stronger than she, and he managed to pull her shorts down to her knees.  He pulled her underwear aside, unzipped his pants, took out his penis, and forced himself inside of her.  Linares ejaculated, then noticed that it was late, and said he had to go back to work.  He left the car through the passenger door, wiped himself off with a towel, threw the towel in the backseat, and then drove her home. 

            On cross-examination, A.W. admitted that she did not think that Linares meant to hurt her when he bit her lip, and that she did not consider the hickeys on her chest to be injuries.  She also remembered that Linares used the towel to wipe her body off, too, and that she had told that to police the morning after the assault.  She said the sex was forceful because she had nowhere to go and could not get away, and Linares did not ask her if she was willing to have sex.

            The officer who first responded to the sexual assault call testified that he did not notice any injuries to A.W., but stated that her lip was swollen when he arrived at her house.  She told him about the assault and seemed upset, but not frightened or hysterical. 

            A videotape of the interview between a police detective and A.W., made the morning after the assault, was played for the jury while the detective was on the stand.  The detective testified that vaginal swabs from A.W. showed the presence of DNA consistent with the DNA of Linares.  On cross-examination, defense counsel asked to replay a segment of the video interview to call attention to a physical gesture A.W. made.  The trial court ruled that although the video in its entirety was admissible, it would not allow just a segment to be replayed.  Although counsel argued that many of the jurors had missed A.W.'s gesture because they were reading their typed transcripts instead of watching the video, the court maintained its ruling.

            Linares testified in his own behalf through a Spanish interpreter.  Linares testified that once at work, A.W. had come into a walk-in freezer while he was inside, turned off the lights, and hugged him so tightly she lifted him off the ground.  He kissed her and she did not object.  The next day, he received a "write-up" and was informed that A.W. told managers he forced a kiss on her.  He was told not to talk or look at her again.  Two days later, A.W. approached him in the parking lot and asked him why he was mad at her.  She denied telling managers he had pushed himself on her and said that her father had overheard her talking about Linares to a friend and called her manager.  Linares said that about a month before the assault, A.W. helped him take out the trash at work.  He asked her for a kiss, and she leaned down and gave him one.  That night, he drove A.W. home, and they kissed for a few minutes in front of her house. 

            Linares also testified that on July 25, A.W. approached him at work and asked if he would drive her home.  He said he could not because he had agreed to drive the manager home in the opposite direction.  But, the manager asked him to take A.W. home and told him he could stay on the clock when he did.  He estimated they left the restaurant between 10:14 and 10:30 p.m.  In the car, A.W. wanted to talk about the translations of various words between Spanish and English.  When they got to A.W.'s house, Linares turned off the car.  A.W. opened the door to get out, and Linares asked her for a kiss.  She closed the door, turned to him smiling and leaned toward him.  He put his hand on her shoulder gently and kissed her.  She put her hand on his leg and then he began to caress her breasts.  A.W. said "not here" and the two drove away.  Linares denied pulling A.W. into the car or shutting the door.  He said that from his position in the driver's seat, he could not have reached to shut the door.  A.W. directed him where to turn, and they ended up in the dead-end area. 

            At the dead-end, Linares turned off the ignition and he and A.W. began kissing again.  He climbed over to the passenger side and reclined the seat.  They were kissing while he lay on top of her.  Linares went to pull up A.W.'s shirt, but she grabbed it and took it off herself.  He pushed up her bra and kissed her chest and breasts.  Linares believed that the hickeys left on A.W.'s chest were made by him.  He denied ever biting her lip, but admitted that some of the kissing was "passionate."  He unbuttoned her shorts, and she unzipped them and lifted herself off the seat and pulled down her shorts and underwear.  He helped her get them below her knees and then pulled his own pants and underwear down below his knees also.  He said that at no time did A.W. struggle against him or fight him. 

            Once both of their pants were down, Linares said, they had sex.  Afterward, he grabbed a towel from the back seat and asked A.W. if she needed it.  She used it to wipe her vaginal area, and then he used it to clean himself.  He climbed out the passenger door and dressed himself.  He threw the towel down outside the car and did not see where it went.  On the way back to A.W.'s house, he asked her if she would be at work the next day.  She said she wasn't sure, but that when he got back to Burger King, he should check the schedule and call her that same night to tell her if she was on the schedule to work. 

            He went back to work, drove the manager home, and headed back toward his own home.  On the way, he was stopped by police and arrested.  Linares denied that he ever used force, confinement, or intimidation to coerce A.W. to have sex with him.  He also denied that he ignored any word or sign from A.W. that she did not want to have sex with him.  Linares denied that he had any problems with A.W. at work aside from the one "write-up" he received.  He said he had once asked A.W. on a date, and she said she would try to get time off work, but it never happened.  He admitted he knew the dead-end road was there, because he had driven A.W. home several times before.  He did not know why A.W. would tell police or anyone else that he had raped her. 

            The jury found Linares guilty of third-degree criminal sexual conduct.  Linares was sentenced to 48 months, plus a 5-year conditional release term, and ordered to give a DNA sample.  This appeal follows.

 

DECISION

 

I

 

Appellant argues that the evidence presented at trial is insufficient to support a conviction for third-degree criminal sexual conduct because it did not prove beyond a reasonable doubt that he used force or coercion to accomplish sexual penetration with A.W. 

When considering a claim of insufficient evidence, this court conducts a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the prosecution witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

Appellant was convicted under Minn. Stat. § 609.344, subd. 1 (c) (2002), which provides that a person is guilty of third-degree criminal sexual conduct if he uses force or coercion to engage in sexual penetration of another person. "Force" is defined as

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

 

Minn. Stat. § 609.341, subd. 3 (2002).  "Coercion" is defined as

 

words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.

 

Minn. Stat. § 609.341, subd. 14 (2002).  Appellant argues that he did not use force or coercion to restrain A.W. when she sat in the car in front of her own home, with the car door open, for several minutes, and there is no evidence that she suffered any injuries. 

            However, A.W. testified that she struggled with appellant when he climbed on top of her and tried to remove her shorts and that she told him to stop and he did not.  She also said he had one hand on her shoulder when he climbed on top of her, and that although she is physically larger than he, he was stronger than she expected.  She also said in her statement to police that once they reached the dead-end road, she felt she had nowhere to go and had no choice whether to have sex with Linares. 

            Despite appellant's testimony that the sex was consensual, the jury was free to believe A.W. instead of appellant.  There was enough evidence presented at trial to support a finding of coercion, particularly because the statute does not require proof of a specific act of coercion.  Minn. Stat. § 609.341, subd. 14.  A.W.'s testimony showed that appellant closed her car door and locked it, then drove her to a secluded, dark area and climbed on top of her, holding her with one hand and forcefully removing her clothes.  She was 16 years old at the time; appellant was 21.  From the evidence presented, the jury could reasonably conclude that A.W. felt she was confined and unable to escape sexual contact with appellant, and that appellant's physical conduct toward her, even if not violent enough to cause injury, coerced her to engage in sexual contact with him. 

II

            Appellant also argues that the trial court abused its discretion by refusing to allow the defense to replay a segment of the videotaped interview between A.W. and police after the entire video had already been played and admitted into evidence.        

In general, rulings on evidentiary matters are within the discretion of the district court.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  If the district court abuses its discretion, this court must determine whether, had the evidence been admitted, the jury would have reached the same verdict beyond a reasonable doubt.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  

            Appellant wanted to replay the video to call the jury's attention to a physical gesture A.W. made while talking about where appellant kissed her.  The gesture, appellant argues, created an inconsistency in A.W.'s statement, and strongly suggested that A.W. consented to appellant kissing her upper chest and breasts.  Appellant wanted to replay the video segment because members of the jury were reading their transcripts to follow along, rather than watching the video so they could see the gesture the first time. 

            Appellant is correct that the trial court should have instructed the jurors to rely on what they saw and heard in the video, rather than on what they read in the transcript, which the jury apparently did not do.  State v. Olkon, 299 N.W.2d 89, 103 (Minn. 1980).  But, appellant has not shown that the trial court abused its discretion by refusing to replay only a segment of the tape.  Further, appellant has not shown any prejudice to his defense, as there is only the assertion of defense counsel that the jury was not watching the video and did not see A.W.'s gesture.  Moreover, defense counsel was allowed to refer to the gesture and call attention to any inconsistencies in A.W.'s various statements during closing arguments, as well as perform a complete cross-examination of A.W. and the interviewing detective.  Appellant has not shown that the trial court's ruling was error, and in any event the ruling did not diminish appellant's ability to present a full and complete defense.

Affirmed.