State of Minnesota, Respondent, vs. Toua Hong Chang, Appellant.

State of Minnesota, Respondent, vs. Toua Hong Chang, Appellant. A03-1802, Court of Appeals Unpublished, February 15, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1802

 

State of Minnesota,
Respondent,
 
vs.
 
Toua Hong Chang,
Appellant.

 

Filed February 15, 2005

Affirmed in part, vacated in part, and reversed and remanded in part

Peterson, Judge

 

Ramsey County District Court

File No. K3024192

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from convictions of and sentences for first-degree criminal sexual conduct and crime committed for the benefit of a gang, appellant Toua Hong Chang argues that (1) the first-degree criminal-sexual-conduct conviction was supported only by the uncorroborated testimony of the victim, which was contradicted by other witnesses, and, therefore, is insufficient; (2) both convictions must be reversed because the district court erred in admitting the testimonial statement made to police by a key gang witness who was unavailable at trial; (3) the district court erred in imposing a conditional-release term on the gang offense; and (4) he did not have the prior sex offense required to impose a ten-year conditional-release term on the criminal-sexual-conduct offense.  We affirm in part, vacate in part, and reverse and remand in part.

FACTS

             After receiving a report that several young Hmong girls may have been sexually assaulted, Detective Kevin Navara separately interviewed four of the girls, X.L., T.T., P.H., and M.H.  At the time of the interviews, all of the girls were between 12 and 14 years old.  Later, the girls were also interviewed at Midwest Children's Resource Center (MCRC), which specializes in assessing children who may have been sexually abused.

            X.L. told Navara:  She had used crystal methamphetamine during the summer of 2002 with individuals whom she identified as J.B., Peter, and appellant, whom she knew as Taz.  She had smoked crystal methamphetamine at appellant's house and at Peter's.  Appellant and J.B. had told her that J.B. was a member of a gang called the 116 and appellant was a member of the U.S.C., which stands for Unstoppable Criminals.  After providing the girls with meth for free, appellant brought X.L., P.H., and M.H. to Peter's house and threatened them with physical harm unless they either paid for the meth or had sex with some men.  On the first occasion, she had sex in the basement of Peter's house with two of three Hmong men who arrived in a black SUV.  On another occasion, she had sex with up to five Hmong males at a location in south Minneapolis.  She had seen appellant and J.B. with several guns, including a shotgun and handguns.

            T.T. told Navara:  Appellant and J.B. had told her that they were either members of the 116 gang or affiliated with the U.S.C. gang.  Appellant had prostituted her and P.H., X.L, and M.H.  She was present at Peter's house when the black SUV showed up with the three Hmong males.  The prostitution occurred in the basement of Peter's house.  She was aware of an incident when appellant had sexually assaulted X.L.

            P.H. told Navara that she met the same individuals as T.T., and they provided her with free crystal meth during the summer of 2002.   P.H. said that on one occasion, appellant and Jones Yang, who lived with appellant, picked up her and one of the other girls in a maroon or red Nissan and brought them to appellant's garage, where they smoked meth.  After instructing Yang to take the other girl outside, appellant removed P.H.'s pants and underwear, tied her hands behind her back with a pink jump rope, and sexually assaulted her on a mattress on the floor.  P.H. said that before the sexual assault, appellant had loaded a black gun with bullets, and she was very afraid.  P.H. identified pictures of appellant's house and car.

            Police executed search warrants for appellant's house and car.  Evidence discovered during the searches included guns, ammunition, a crystal-meth pipe, additional drug paraphernalia, and photos documenting appellant's gang affiliation.  Yang was present when the search warrant was executed on appellant's residence.

            X.L. testified at trial:  During the summer of 2002, she met appellant, whom she knew as Taz, and J.B., and they would pick up her and her girlfriends, P.H., and M.H., and bring them to Peter's house in Minneapolis.  At Peter's house, they smoked crystal meth, which they were not asked to pay for.  On the third or fourth time, appellant said he wanted the girls to sleep with a man.  Because P.H., who was using meth for the first time, was sick, and M.H. was menstruating, neither could have sex.  Appellant made a phone call, and about an hour later, three men arrived at Peter's house in a black vehicle that looked like a jeep.  X.L. went into the basement of Peter's house, where she had sexual intercourse with two of the three men.

            X.L. testified about another incident that occurred later:  Yang and appellant picked up X.L. and P.H. and brought them to a garage, where they smoked crystal meth.  After getting a phone call, appellant left in his car.  When appellant returned, he got upset because Yang had spilled some drugs on the floor.  Appellant loaded a big black gun with bullets and threatened to kill Yang and the girls.  Appellant said the girls would have to sleep with a man to pay for half of the drugs and Jones would pay for the other half.  X.L. suspected that appellant and Yang had planned the argument, so X.L. and P.H. would feel that they owed appellant and Yang something for the drugs.  After saying that the girls owed him something, appellant instructed Yang and X.L. to go outside.  When P.H. came out of the garage, she looked like she had been crying, and, in the car, P.H. told X.L. what had happened.  X.L. identified red shotgun shells that were found in appellant's house as the type of ammunition appellant had used to load the black gun.

            P.H. testified at trial that, during the summer of 2002, she met J.B. and appellant, and J.B. introduced her to crystal meth.  Her description of what happened in the garage was consistent with X.L.'s, except that P.H. recalled that it was T.T. who was with her that day.  P.H. testified:  Appellant instructed Yang and T.T. to go outside and told Yang to lock the door.  After Yang and T.T. left the garage, appellant used a jump rope to tie  P.H.'s hands behind her back.  He then removed her clothes, and, after putting on a condom, sexually assaulted her.  The gun was in the garage during the sexual assault.  After the sexual assault, appellant instructed Yang to unlock the door.  P.H. identified a photo of appellant's garage showing a padlock on the door.  She also identified a black shotgun that was found in appellant's house as looking like the one she had seen appellant load in the garage.

            T.T. also testified at appellant's trial.  T.T. testified that she knew X.L., P.H., and M.H., and, that during the summer of 2002, she met J.B. and appellant and smoked crystal meth with appellant.  T.T. testified that X.L. told her about the time appellant prostituted her in the basement of Peter's house.  X.L. and P.H. both told her about the incident in appellant's garage when Yang dropped the drugs and appellant sexually assaulted P.H. in the garage.  She testified that she was not present when appellant sexually assaulted P.H. and that if P.H. said T.T. was present, P.H. was wrong. 

Before appellant's trial, the person that the girls knew as Peter entered an admission in juvenile court to his involvement in the incident that occurred in his house.  He testified for the state at appellant's trial that in August or September 2002, appellant brought the girls to his house; three Asian men came to the house in a black SUV and, one at a time, two of them went down to the basement; X.L. was in the basement and was being prostituted by appellant; and afterwards, appellant had some twenty-dollar bills and gave one to him.  He also testified that both J.B. and appellant brought guns to his house and that appellant had a black shotgun with a handle that folded up.

MCRC nurse practitioner Laurel Edinburgh testified that she interviewed X.L. in November 2002.  X.L. told Edinburgh that, since the previous summer, she had been drinking alcohol and using crystal meth and crank, a mixture of cocaine and methamphetamine, and that she got the drugs from appellant.  X.L. told Edinburgh about an incident at Peter's house:  X.L. and two friends were given crystal meth.  Initially, they were told that they would not have to pay for the crystal meth, but then appellant said that they had to pay.  X.L. wanted to go home to get money, but appellant said that she had to stay and that he was going to pimp her.  Appellant phoned three men, and they came to Peter's house.  X.L. was chosen to have sex with the men because one of her friends was ill from using crystal meth, and her other friend could not have sex due to premenstrual syndrome.  In the basement of Peter's house, X.L. had sex with two of the men, and then appellant gave her $20.  X.L. admitted to Edinburgh that she had some memory problems, sometimes being unable to remember events, due to the drug use.

Edinburgh also performed a physical examination of X.L.  During the physical exam, X.L. reported that she bled after having sex, and Edinburgh observed evidence of an internal physical injury that showed that X.L. had been subjected to forceful sexual intercourse.

Edinburgh also interviewed T.T.  T.T. reported that appellant had given her crystal meth.  T.T. also said that X.L. told her about the incident at Peter's house when she was pimped and paid money to have sex.

Edinburgh also interviewed P.H.  P.H. told Edinburgh about the incident in the garage.  P.H. said that her arms had been tied up with a rope behind her back, and appellant removed her clothes and put his fingers and penis in her vagina.  P.H. said that Jones and T.T. were present at the garage.  P.H. also described the incident at Peter's house, when she, M.H., and X.L. smoked crystal meth and how to pay for the crystal meth, appellant phoned three men to come to the house where two of the men sexually assaulted X.L. in the basement.  The physical examination of P.H. revealed a worse internal injury than that suffered by X.L.  The injury established that P.H. had been subjected to force related to a sexual assault.

Before appellant's trial, Jones Yang pleaded guilty to false imprisonment and aiding and abetting first-degree criminal sexual conduct for the garage incident involving P.H.  He testified at his plea hearing:  He was present during the garage incident.  He, P.H., X.L., and appellant were smoking crystal meth.  He was outside of the garage when appellant was inside with P.H.  The gun was inside the garage when appellant was in there with P.H.  He put the lock on the door.  He knew that appellant was going to have sex with P.H. and heard P.H. telling appellant to stop.  Afterwards, appellant told him that he had sex with P.H.

Yang testified at appellant's trial that his testimony at his own plea hearing and his statement to Navara were false and that Navara had instructed him on what to say.  Navara testified in rebuttal that he did not tell Yang what to say and that Yang volunteered the information about the garage incident along with the information about the prostitution incident at Peter's house and additional information about appellant's drug dealing, gang affiliation, and guns.  Navara testified that Yang also said that he feared for his life if appellant and the others found out what he told Navara.

The defense's theory of the case was that M.H. and her boyfriend, a rival gang member, fabricated the accusations against appellant and directed the other girls to falsely accuse appellant to get him out of the way.  At the time of trial, M.H. could not be located and was unavailable as a witness.

The defense called two witnesses to testify about an out-of-court statement by M.H. in February 2003.  The first testified that M.H. said that she accused appellant of sexually assaulting her because she thought appellant was going to do something to her boyfriend.  The second witness testified that she was present when M.H. told the first witness that she was purposely accusing appellant "for whatever it was" because she did not want anything to happen to her boyfriend.

The state called Navara to testify in rebuttal.  Navara testified that in an interview on November 1, 2002, M.H. corroborated what the other girls had said about appellant and the others providing crystal meth to the girls, the prostitution incident at Peter's house involving three men and the black SUV, and the guns possessed by appellant and others.

  A jury found appellant guilty of promoting prostitution of an individual under age 18 for the benefit of a gang and first-degree criminal sexual conduct.  The district court sentenced appellant to the presumptive guidelines sentence, which is an executed term of 98 months in prison, for the conviction of promoting prostitution of an individual under age 18 for the benefit of a gang.  The court imposed a permissive consecutive sentence of 144 months for the first-degree criminal-sexual-conduct conviction.  The court imposed a five-year conditional-release term for the conviction of promoting prostitution of an individual under age 18 for the benefit of a gang and a ten-year conditional-release term for the first-degree criminal-sexual-conduct conviction.

            This direct appeal challenging the convictions and sentences followed. D E C I S I O N

I.

            In reviewing an insufficiency-of-the-evidence claim, this court must review the record to determine whether the evidence, viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Appellant argues that P.H.'s testimony was uncorroborated and therefore insufficient to support his first-degree criminal-sexual-conduct conviction.  But testimony by a complainant in sexual-assault cases does not require corroboration, and a conviction can rest on the uncorroborated evidence of a single credible witness.  Minn. Stat. § 609.347, subd. 1 (2002); State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977).

Appellant argues that the inconsistency between P.H.'s initial claim that the sexual assault occurred on a mattress and her later claim that it occurred on the floor indicates that P.H. was not credible.  Appellant also argues that because P.H.'s trial testimony was the first time that she stated that the sexual assault occurred because appellant was angry about drugs, P.H. was not credible.  But even when 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); see also State v. Reichenberger, 289 Minn. 75, 78-9, 182 N.W.2d 692, 694-95 (1970) (affirming conviction of carnal knowledge of a child, even when the victim made conflicting statements before trial, because she testified positively at trial that intercourse had occurred); State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (stating where victim's accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (stating where child victim told officer she was sexually abused by defendant on five or more occasions but testified at trial to only three incidents, inconsistency was for jury to consider in weighing victim's credibility).

Appellant also argues that P.H.'s testimony was incredible because she testified that T.T. was present when the sexual assault occurred, while T.T. testified that she was not there, and X.L. testified that X.L. was there.  "Inconsistencies or conflicts between one state witness and another do not necessarily constitute false testimony or a basis for reversal."  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985); see also State v. Skramstad, 433 N.W.2d 449, 454 (Minn. App. 1988) (stating "resolution of conflicts and inconsistencies in testimony are the exclusive function of the jury"), review denied (Minn. Mar. 13, 1989).  P.H.'s apparently mistaken belief about who was present with her in the garage is not a basis for reversal.

Although P.H.'s testimony about the sexual assault was uncorroborated, her testimony about the events occurring immediately before and after the assault was corroborated by X.L.'s testimony and by Yang's testimony at his plea hearing.  Yang's testimony at his plea hearing was admissible as substantive evidence.  Minn. R. Evid. 801(d)(1)(A).  We conclude that the evidence was sufficient to support appellant's conviction of first-degree criminal sexual conduct.

II.

Appellant argues that M.H.'s out-of-court statement to Navara was inadmissible under Crawford v. Washington, the recent Supreme Court decision holding that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."  541 U.S. 36, ___, 124 S. Ct. 1354, 1374 (2004).  But hearsay statements that M.H. made to appellant's witnesses were admitted in evidence, and M.H.'s out-of-court statement to Navara was admissible under Minn. R. Evid. 806 to impeach M.H.'s credibility in making those statements.

Appellant argues that the district court failed to instruct the jury that M.H.'s out-of-court statement could only be considered for impeachment purposes.  The district court instructed the jury, "[e]vidence of any prior inconsistent statement should be considered only for the purpose of testing the credibility and weight of the witness's testimony."  Appellant did not object to the instruction or request a more specific instruction.

Appellant also argues that Navara's rebuttal testimony concerning M.H.'s out-of-court statement to him went beyond contradicting her out-of-court statements to defense witnesses and impermissibly served to corroborate the testimony of the state's trial witnesses in violation of his right to confrontation.  Appellant cites Narvara's testimony regarding M.H.'s statements about (1) the black SUV being at Peter's house; (2) appellant having a long black gun with large bullets; (3) appellant and others supplying the girls with meth; and (4) the girls being prostituted to pay for the meth that had been provided for free.  But Navara's rebuttal testimony tends to cast doubt on the credibility of M.H.'s statements to defense witnesses even if not directly related to the subject matter of M.H.'s statements to defense witnesses.  Furthermore, appellant did not object to Navara's testimony.

            Generally, when no objection is made at trial, challenges to the admissibility of evidence and to jury instructions will not be considered on appeal unless there was plain error.  State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998) (evidence); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (jury instructions).  Plain error is: (1) error; (2) that is plain; and (3) that affects substantial rights.  Griller, 583 N.W.2d at 740.  The supreme court has defined plain error as prejudicial if a reasonable likelihood exists that the error had a significant effect on the jury's verdict.  Patterson, 587 N.W.2d at 52; Griller, 583 N.W.2d at 741.

            Any error by the district court was not plain.  Moreover, Navara's testimony about M.H.'s statement was cumulative to testimony and evidence regarding out-of-court statements by numerous other witnesses.  Thus, no reasonable likelihood exists that any error had a significant effect on the jury's verdict.  Even under the more stringent harmless-beyond-a-reasonable-doubt standard cited by appellant, which applies to objected-to error, appellant is not entitled to reversal.  See State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (stating error is harmless beyond a reasonable doubt "[i]f the verdict actually rendered was surely unattributable to the error").

III.

            The state concedes that the five-year conditional-release term imposed for the promotion of prostitution for the benefit of a gang should be vacated.  Minn. Stat. § 609.109, subd. 7(a) (2002), lists the crimes for which a conditional-release term shall be imposed.  Neither Minn. Stat. § 609.322, subd. 1 (2002) (promoting prostitution), nor Minn. Stat. § 609.229, subd. 2 (2002) (crime for the benefit of a gang), is listed.

The state also concedes that the ten-year conditional-release term imposed for the criminal-sexual-conduct conviction should be modified to five years.  Minn. Stat. § 609.109, subd. 7(a), states:

If the person was convicted for a violation of section 609.342, 609.343, 609.344, or 609.345, the person shall be placed on conditional release for five years, minus the time the person served on supervised release.  If the person was convicted for a violation of one of those sections after a previous sex offense conviction as defined in subdivision 5, or sentenced under subdivision 6 to a mandatory departure, the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

Appellant does not have a prior conviction of violating one of the listed statutes and was not sentenced to a mandatory departure.  We, therefore, vacate the conditional-release term imposed for the promotion-of-prostitution conviction and reverse the ten-year conditional-release term imposed for the criminal-sexual-conduct conviction and remand for the imposition of a five-year conditional-release term.

            Affirmed in part, vacated in part, and reversed and remanded in part.