State of Minnesota, Respondent, vs. George Freeman, 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This opinion will be unpublished and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

C6-02-903

 

State of Minnesota,

Respondent,

 

vs.

 

George Freeman,

Appellant.

 

Filed May 13, 2003 Affirmed Poritsky, Judge*

 

 

Hennepin County District Court

File No. 01082534

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant was convicted of criminal sexual conduct in the third degree.  On appeal, he argues that (1) the evidence was insufficient to support the jury's verdict, and (2) the district court abused its discretion in imposing a sentence amounting to a double-upward-durational departure.  Because we conclude that (1) there was sufficient evidence to support the jury's verdict, and (2) the district court used appropriate aggravating factors to support an upward departure, we affirm.

FACTS

On Sunday morning, September 23, 2001, 13-year-old A.D. had an argument with her parents and was grounded for being disrespectful.  Instead of accepting her punishment, A.D. decided to run away from home.  Without telling her parents where she was going, she left home.  She intended to go to a McDonald's and then to a friend's house. 

Before A.D. got to McDonald's, appellant George Freeman, age 45, approached A.D., said "hi," and asked A.D. her name.  A.D. told Freeman her name, and they started talking.  Freeman asked A.D. where she was headed.  A.D. replied that she was going to McDonald's.  Freeman told A.D. that his car had broken down and that he would walk to McDonald's with her.   

            Once they arrived at McDonald's, A.D. ordered French fries and a soft drink.  She decided to eat her fries as she walked.  Freeman and A.D. left McDonald's together and continued walking.  Freeman asked A.D. how old she was, and A.D. told him that she was 14, even though she was only 13.  Freeman also asked her if she had a boyfriend, and A.D. told him she did, even though she did not.  They continued walking and talking.  A.D. testified that she did not feel safe walking with Freeman, and she wanted him to leave.  But she kept walking with him because she did not know what to do.

            As they walked, Freeman repeatedly asked A.D. to come to his house.  He told her that he needed to get his glasses and a drink of water, that she could meet his roommate, and that they could get to know each other a little better.  Initially, A.D. told Freeman that she would not go to his house, but, after repeated requests, she gave in. 

            Freeman lived in a duplex that was about two or three blocks away from the McDonald's.  A.D. and Freeman entered the duplex and found Freeman's roommate James Blay watching television in the living room.  Blay told A.D. and Freeman to be quiet so he could hear the television, so Freeman suggested that they go into his bedroom.  Once they entered the bedroom, Freeman shut the door and locked it.

            While in the bedroom, Freeman made sexual advances toward A.D.  He pulled her onto the bed and began taking off her clothes.  A.D. told Freeman that she did not want to do this and that she had to get to her friend's house, but Freeman continued to remove her clothes.  After Freeman had removed all of A.D.'s clothes, he took her clothes and placed them outside of the bedroom.  When he returned, he took off his own clothes.  Freeman had unprotected vaginal intercourse with A.D., and then he had A.D. perform oral sex on him.  A.D. left the bedroom for a few minutes, and when she returned, Freeman was pacing the room and smoking what appeared to be crack.  Freeman offered some crack to A.D, but she declined.  Eventually, Freeman put the crack pipe in A.D.'s mouth and lit it.  A.D. inhaled on the pipe but claims that the crack did not have any effect on her.  A.D. wanted to leave, but she was scared and could not find her clothes.

            A short time passed, and Freeman again shut and locked his bedroom door.  Freeman had unprotected vaginal intercourse with A.D.  He left the bedroom for a few minutes, and when he returned, he had unprotected vaginal intercourse with A.D. again.  Freeman then performed oral sex on A.D. and inserted his fingers into A.D.'s vagina.  He had A.D. perform oral sex on him again.  A.D. then fell asleep.

            During the night, A.D. got up to go to the bathroom.  When she returned, Freeman again had unprotected vaginal intercourse with A.D.  Afterward, they both fell asleep.  At some point later in the night, A.D. woke up because Freeman was touching her in her vaginal area.  Once she woke up, Freeman had unprotected vaginal intercourse with her.  Afterward, A.D. again fell asleep. 

            A.D. was awakened once again when Freeman told her that he could not sleep because he was very worried about something.  Freeman asked A.D. not to tell anyone about their sexual activity because he could get into a lot of trouble.  A.D. agreed that she would not tell anyone, and, a short time later, they fell back to sleep. 

            When A.D. woke up in the morning, Freeman was on top of her.  He started having unprotected vaginal intercourse with her.  He had A.D. perform oral sex on him, and then he performed oral sex on her and stuck his fingers in her vagina.  Freeman then got up and took a shower, and A.D. fell back to sleep.  Freeman gave A.D. back her clothes and gave her one of his jackets.  Freeman told A.D. that Blay was going to drive him to work, and that she should come along and then return with Blay to the house.  A.D. rode with Freeman and Blay to drop Freeman off at work.  When Freeman was getting out of the car, he told A.D. that he would see her that night, and he gave her his telephone number. 

On the way back, Blay asked A.D. how old she was, and she told him that she was 13.  Blay then asked A.D. if she had sex with Freeman, and A.D. said that she had.  Blay told her that she should not tell anyone that she had sex with Freeman because he could get into trouble.  Blay dropped A.D. off a few blocks from her house. 

A.D. walked to school but did not stay.  She then walked to McDonald's and to Target.  A.D.'s aunt drove by and saw A.D.  She stopped and offered A.D. a ride, and A.D. accepted.  They drove to the aunt's house, where A.D.'s parents were waiting.  A.D. refused to go home but agreed to go to The Bridge, which is a home for runaway children in South Minneapolis. 

The next day, Tuesday, September 25, 2001, while at The Bridge, A.D. spoke to a counselor.  After some coaxing, A.D. told the counselor what had happened to her.  At about 7:30 p.m. on Tuesday, A.D. was taken to Hennepin County Medical Center where nurse Lenore Wilson conducted a sexual assault exam, and A.D. spoke to a police officer.  Wilson testified that A.D.'s hymen was bruised and that she had reddening of the posterior fourchette.[1]  Wilson testified that she did not test for the presence of semen, because of the time that had elapsed since the alleged assault took place.  But Wilson did take vaginal and perineal swabs for further forensic analysis.  She also testified that she did not observe any external injuries and did not find any foreign pubic hair on A.D.  Wilson concluded that A.D.'s injuries were consistent with sexual penetration, but that it was possible that something else caused the injuries.  A.D. returned home on Thursday, September 27, 2001.  Detective Diane Karnitz of the Brooklyn Park Police Department interviewed A.D. and took as evidence the underwear that A.D. had been wearing on the day of the incident.

Hennepin County Sheriff's Department Forensic Analyst Suzanne Weston-Kirkegaard analyzed the forensic evidence that was collected in this case.  Weston-Kirkegaard testified that tests performed on a vaginal and perineal swab collected from A.D. were either inconclusive or negative as to the presence of sperm.  She also testified that tests performed on the underwear A.D. was wearing were negative for the presence of sperm.

Freeman chose to testify at trial.  He testified that he met A.D. on the street, walked with her to McDonald's, and then they went to his house.  Freeman testified that A.D. ate her French fries, got tired, and fell asleep on the floor in his bedroom.  He testified that while A.D. slept, he was either talking to his roommate or watching television, and that later on he went into the bedroom and lay down next to A.D. on the bed.  Freeman testified that he lay next to A.D. until the morning but denied having any sexual contact with her.

Freeman was charged with one count of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (Supp. 2001), and one count of false imprisonment, in violation of Minn. Stat. § 609.255, subd. 2 (2000).  The jury found Freeman guilty of the third-degree criminal sexual conduct charge and not guilty of the false imprisonment charge.  The court imposed a stayed sentence of 36 months and placed Freeman on probation for five years, with a condition that he serve 365 days in the workhouse. 

D E C I S I O N

1.            Sufficiency of the Evidence

 

Freeman argues that the evidence was insufficient to support his conviction of third-degree criminal sexual conduct.  In considering a claim of insufficient evidence, this court's review is limited to an examination of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In considering an appeal based on insufficiency of the evidence, this court must 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).  This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  

Minn. Stat. § 609.344, subd. 1(b) (Supp. 2001), states:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exist:

 

* * * *

 

(b) the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant.  In any such case it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older.  * * * Consent by the complainant is not a defense.

 

Minn. Stat. § 609.341, subd. 12 (2000) states that

 

"[s]exual penetration" means any of the following acts committed without the complainant's consent, except in those cases where consent is not a defense, whether or not emission of semen occurs:

(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse; or

(2) any intrusion however slight into the genital or anal openings:

(i) of the complainant's body by any part of the actor's body or any object used by the actor for this purpose.

 

            Freeman asserts that the evidence presented in this case was insufficient to support his conviction because the sexual assault exam revealed only bruising of A.D.'s hymen, which is inconsistent with A.D.'s testimony that there were multiple episodes of vaginal intercourse.  Freeman also asserts that A.D. had a motive to fabricate the story because her parents would be angry at her for running away from home, and by fabricating the story, she was able to get her parents to forgive her.

            The record shows that A.D. made multiple consistent statements regarding this incident and that Freeman made many inconsistent statements.  A.D.'s statements to two counselors at The Bridge, to nurse Lenore Wilson, to Brooklyn Park Police Officer Thomas Minster, and to Brooklyn Park Police Detective Diane Karnitz were generally consistent with each other and consistent with her testimony at trial.  By contrast, during a taped interview conducted by Detective Karnitz, Freeman initially denied that A.D. had even come into his house.  But later he admitted that she had entered his home, and that she had spent the night in his bed.  Freeman's roommate James Blay testified that when he was driving A.D. home, she told him that she had sex with Freeman.

            The forensic evidence shows that A.D. sustained injuries that were consistent with having had vaginal intercourse.  A.D. testified that she had never had sex before.  Wilson testified that A.D.'s sexual assault examination revealed bruising of her hymen and a reddening of her posterior fourchette.  Although Wilson testified that it was possible that A.D.'s injuries could have been caused by something else, she testified that A.D.'s injuries were consistent with having had sexual intercourse.  Although no evidence of semen was found in A.D.'s vagina, in her vaginal area, or on her underwear, the lack of such evidence may well have been caused by the fact that A.D. had taken a shower before the sexual assault exam and by the lapse of time between the sexual activity and the exam.

            Based on the record in this case and viewing the evidence in the light most favorable to conviction, we conclude that the jury could have reasonably found beyond a reasonable doubt that Freeman was guilty of third-degree criminal sexual conduct.  The inconsistencies in Freeman's statements discredited his testimony, while the consistency of A.D.'s statements served to support her testimony.  And much of Freeman's testimony supports A.D.'s testimony: He agrees that he met her on the street and that she came to his home and spent the night there.  He further admits that during the night they were in the same bed together. 

Freeman asserts that A.D. fabricated her story to keep her parents from being angry with her for running away.  But the jury obviously found A.D.'s testimony to be credible, and the jury's determination of witness credibility will not be overturned on appeal.  See Folkers, 581 N.W.2d at 327 (stating that it is the exclusive role of the jury to weigh witness credibility).  Freeman also argues that A.D.'s injuries were inconsistent with her testimony that she and Freeman had intercourse multiple times.  But Wilson testified that A.D.'s injuries were likely caused by sexual penetration, and it was reasonable for the jury to conclude that, consistent with A.D.'s testimony, A.D.'s injuries were caused by having vaginal intercourse with Freeman.  Even though A.D.'s hymen was still intact, albeit bruised, there was no testimony that an intact but bruised hymen was inconsistent with multiple instances of vaginal penetration.  Based on this record, we conclude that there was sufficient evidence to support Freeman's conviction of third-degree criminal sexual conduct.

            Freeman also argues in his pro se brief that the jury's verdict was mistaken and that A.D.'s testimony was not supported by the physical evidence.  As stated above, it is the exclusive role of the jury to determine the weight and credibility of witness testimony.  Id.  Here, the jury credited A.D.'s testimony, and it was reasonable for the jury to conclude that the physical evidence was consistent with her testimony.  For these reasons and the reasons stated above, we conclude that the claims made in Freeman's pro se brief are without merit. 

 

2.            Sentencing

 

The court sentenced Freeman to a stayed sentence of 36 months.  The presumptive sentence for a conviction of third-degree criminal sexual conduct with a criminal history score of zero is a stayed sentence of 18 months.  Minn. Sent. Guidelines IV, V.  Freeman argues that the trial court abused its discretion when it ruled that the multiple acts of penetration made Freeman's conduct more serious than the typical case of third-degree criminal sexual conduct.  "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).  In determining whether to depart in sentencing, a trial court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question."  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure."  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).

  The trial court based its upward durational departure on the multiple number and types of penetrations involved in this case.  Generally, multiple acts of penetration alone will justify a double durational departure.  State v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987). 

Here, the evidence shows that Freeman penetrated A.D. multiple times and engaged in four different types of penetration.  The multiple number and types of penetration make this case significantly more serious than the typical case of third-degree criminal sexual conduct.  Freeman argues, without citing any caselaw, that evidence of multiple penetrations alone is not enough to support a durational departure, and that there must also be evidence that the assailant used force or held a position of authority.  But Freeman's argument conflicts with this court's language in Mesich, which specifically states that multiple acts of penetration alone will justify up to a double durational departure.  396 N.W.2d at 52.  Here, the trial court appropriately relied on the multiple number and types of penetration alone to justify imposing an upward durational departure. 

Based on this record, we conclude that the trial court was within its discretion in finding aggravating factors sufficient to justify an upward durational departure and sentencing Freeman to a stayed sentence of 36 months.

            Affirmed.

 

*   Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The "posterior fourchette" is an area near the bottom of the vaginal opening.