Cory Wade Shaw, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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

C1-02-937

 

 

Cory Wade Shaw, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 3, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 99126037

 

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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)

 

 

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

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Cory Wade Shaw argues that the district court erred in denying his petition for postconviction relief.  He claims the district court erred in evidentiary rulings and in denying his request to cross-examine the victim about her prior sexual encounters.  We affirm.

FACTS

James Long is a 65-year-old man who lived near Chicago Avenue and Lake Street in Minneapolis.  In September 1999, he met L.K. at the Chicago/Lake Liquor Store parking lot when she was looking for crack cocaine.  L.K. went with Long to the house where he was staying with his friend, Lucious Shaw, and appellant, Shaw's son.  L.K. had sex with Long in exchange for crack.  This occurred several times over the next few months.

            In December 1999, L.K. stopped by the Shaw home looking for Long.  Long was there, along with L. Shaw, and Long agreed to try to find some crack for L.K.  Long purchased some crack from a dealer and gave it to L.K.  Long testified that L.K. had agreed to have sex with him in exchange for the crack.  L.K. testified that there was no such agreement on this occasion; Long simply pestered her to have sex with him, and she refused.  During this time, appellant came home with his fiancée.

            Appellant testified that after his fiancée left, L.K. confronted him about the woman he was with and became upset when he told her that it was his fiancée.  L.K. left the house not long after this exchange.  Long and appellant were watching television on the main floor of the house when L.K. unexpectedly returned, saying she had lost her keys.  She told the men she had "turned a couple tricks" while she was gone and took some marijuana from her customer.  L.K. and the men then smoked marijuana together.  At some point, appellant returned to his upstairs bedroom.  Long and L.K. testified that appellant came back downstairs with handcuffs and a gun, later identified as a rifle.  Appellant denied coming back downstairs and testified that from his bedroom he heard Long and L.K. arguing loudly.

L.K. and Long testified that appellant pointed the rifle at them and ordered them to have sex on Long's mattress in the living room.  Long testified that appellant removed L.K.'s clothing, and she performed oral sex on Long while appellant held the rifle on them.  Long testified that while he was attempting to have intercourse with L.K., appellant went back upstairs with the rifle and L.K.'s clothing.  Long testified that he then helped L.K. up and she ran outside naked to a neighbor's house.  The police were called, and L.K. reported her version of the events to the two officers who responded to the call. 

            The police officers went to the Shaw house and took Long, appellant, and L. Shaw into custody.  Officer Valerie Goligowski walked through the house and found a rifle in L. Shaw's bedroom closet and handcuffs in a dresser drawer in appellant's bedroom.  She testified that she was looking for additional suspects and weapons when she found the gun and that the handcuffs were in plain sight because the drawer was open.

            Appellant was charged with two counts of aiding and abetting first-degree criminal sexual conduct.  Prior to trial, appellant moved to suppress the handcuffs as the product of an illegal search.[1]  He also moved the court for an order allowing him to introduce evidence of his prior, consensual, sexual encounter with L.K. in exchange for drugs.  Both motions were denied.  The matter was tried to a jury.  Appellant testified on his own behalf.  The jury found appellant guilty on both counts. 

            Appellant was sentenced to the presumptive sentence of 86 months executed with 5 years of conditional release.  Appellant filed a petition for postconviction relief rather than a direct appeal.  The district court denied the petition, and appellant now challenges that denial.

D E C I S I O N

The district court determines the credibility of the witnesses' testimony as to what transpired at the time the evidence was seized.  See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984).  The district court's legal determination on the suppression motion, after finding the facts according to the credibility determinations, is subject to de novo review.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  The district court's evidentiary rulings are subject to an abuse of discretion standard.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).

1.         Appellant argues the district court erred in ruling that the rifle and handcuffs were admissible at trial.  Appellant maintains that the handcuffs and rifle were the products of an illegal search because no exception to the warrant requirement justified the warrantless search of the house.  The state argues the district court ruled properly because the circumstances established applicable exceptions to the warrant requirement.

A warrantless search of a private home is unconstitutional unless a recognized exception exists to the warrant requirement.  Othoudt, 482 N.W.2d at 221-22.  One exception, "exigent circumstances," exists when there is a highly compelling danger to persons or evidence or when an aggregation of factors creates a "totality of the circumstances" situation indicating immediate action is necessary.  State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quotation omitted).

At the suppression hearing, Goligowski testified regarding her seizure of the handcuffs.  At that time, appellant was not asking the district court to suppress the rifle.  Goligowski testified that the purpose for her search was to insure that there were no other people in the house after appellant, L. Shaw, and Long had been taken into custody.  When Goligowski and her partner responded to the call, L.K. was at a neighbor's house and she gave her version of the events to the officers.  L.K. told them she knew of at least three people in the house.  She also told them a gun had been used in the incident as well as some black handcuffs and that she believed the gun would be found in appellant's bedroom in the dresser. 

The officers called for backup and went to the house.  Long answered the door and let the officers in.  Long was taken into custody and the officers went upstairs to locate the other two men L.K. said were present at the house.  L. Shaw and appellant were found in the bedrooms and taken into custody. 

Goligowski then "participated in the search for other suspects and physical evidence" at the house.  She testified that she went upstairs and entered a closet in L. Shaw's bedroom, believing it was actually a door to another room, and that the rifle was in plain view.  Goligowski identified it as the gun L.K. had described as a sawed-off shotgun with a long curved clip.  Goligowski knew that rifles, not shotguns, have what is described as "banana clips."  She testified that the gun matched the description L.K. had given but was not in the location where L.K. said she thought it would be.  As such, Goligowski did not know whether this was the specific gun L.K. said was used in the incident or not.

            Because L.K. said that the gun would be found in a dresser in appellant's bedroom, Goligowski proceeded to that room.  She testified that upon entering she noticed that some of the dresser drawers were open, that she could see into the drawers, and that she saw the handcuffs.  Goligowski denied on cross-examination that the drawers were closed.  Appellant testified that the bottom drawer was probably open because it was very difficult to close all the way.  He believed the other drawers had been "shut pretty much" but conceded that, "like the officer stated," they were probably open about an inch.  The handcuffs were in one of the top drawers. 

            At the suppression hearing, the defense did not argue that the "exigent circumstances" exception was not applicable but maintained that the handcuffs were not in plain sight and should not have been seized.  The district court found that the handcuffs were admissible because they were found in plain sight during a legitimate search for people and weapons at the time of the arrests.  The court specifically noted that Goligowski's testimony and appellant's testimony were not actually inconsistent.  Each recalled the dresser drawers being open slightly.  The court believed Goligowski's testimony that the small opening was enough to allow her to see the handcuffs L.K. had described.

            Appellant argues that the exigent circumstances exception does not apply because the three men were already in custody when the gun and handcuffs were discovered and seized.  He maintains that there was no security issue once the three men had been handcuffed and removed from the house.  Goligowski's testimony as to what L.K. told the officers just prior to the arrests of the three men indicates otherwise, however.  She testified that L.K. knew of "at least three men" at the house.  The officers were not sure no one else was present even after the three men were taken into custody.  Also, L.K. informed the officers that a weapon was at the house.  Although Goligowski located a weapon prior to her discovery of the handcuffs, she did not know for sure that this was the weapon L.K. described.  Goligowski had information that gave rise to her lack of confidence L.K. thought the weapon was a shotgun, and L.K. thought the weapon would be in appellant's dresser, not in L. Shaw's closet.  Accordingly, Goligowski had reason to believe that another weapon might still be on the premises, and until the officers were sure there was no one else in the house to gain access to another weapon, the search could legitimately continue.  See State v. Alayon, 459 N.W.2d 325, 329 (Minn. 1990) (officers may make "protective sweep" of house for own protection upon entering).   Under the circumstances present here, the district court did not err in admitting the gun and handcuffs into evidence.

2.         Appellant argues the district court improperly ruled that evidence of L.K.'s having sex with appellant in exchange for crack cocaine in October 1999 was not admissible.  The state argued that unless the defense established a "pattern" that the sexual contact occurred "regularly" and was "similar in all respects" to the alleged incident giving rise to the criminal charges, the evidence is inadmissible under the Rape Shield Law, Minn. Stat. § 609.347 (1998), Minn. R. Evid. 412(1)(a)), and caselaw.  Appellant argues that L.K. had previously bargained sex for drugs with both appellant and Long and that this evidence was probative as to whether the incident at issue was consensual as opposed to criminal.  The district court did not explain its ruling.

As the state points out in its brief, appellant did not allege, prior to trial, that this proffered evidence was probative as to potential bias.  This theory first surfaced at the postconviction hearing.  The district court denied the postconviction petition with respect to the excluded evidence of L.K.'s prior sexual conduct, stating that the evidence was more prejudicial than probative.  See Minn. R. Evid. 403, 412(1). 

The district court is afforded significant discretion with respect to deciding issues of admissibility of evidence, and this court reverses a district court's decision only when that discretion has been abused.  Grayson, 546 N.W.2d at 736.  Here, we cannot say that the district court abused its discretion by denying admission of the proffered evidence for purposes of showing bias when that potential purpose was not argued to the district court prior to the court's initial ruling.  Instead, appellant argued only that the proffered evidence of L.K.'s sexual bargaining for crack was probative as to whether or not she consented to the alleged sexual contact. 

If the district court determines that the probative value is not "substantially outweighed by its inflammatory or prejudicial nature," then evidence of a victim's past sexual conduct can be admissible under certain conditions.  Minn. R. Evid. 412(1).  These conditions include when consent is a defense to the crime charged and the evidence consists of the "victim's prior sexual conduct with the accused." Minn. R. Evid. 412(1)(A)(ii).  Minn. R. Evid. 412(1)(A)(i) allows for the possible admission of prior sexual conduct of the victim when more probative than prejudicial, consent is a defense, and the proffered evidence "tends to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue" even though the prior acts did not involve the accused.  Even when the district court decides that an exception might apply, the court still should not allow the evidence under Rules 412 and 403 if the probative value does not outweigh the prejudicial effect.  Additionally, the accused is required to make a "sufficient offer of proof" demonstrating the admissibility of the evidence.  Minn. R. Evid. 412(2)(A), (B). 

Under the circumstances here, we cannot say that the district court abused its discretion in excluding the proffered evidence of L.K.'s prior sexual contact with either Long, appellant, or both.  Appellant's offer of proof was weak.  He did not argue that the evidence was probative of L.K.'s motive to fabricate bias evidence under Minn. R. Evid. 616 at the omnibus hearing.  See State v. Davis, 546 N.W.2d 30, 34 (Minn. App. 1996) (district court properly excluded evidence of victim's prior sexual conduct when offer of proof insufficient), review denied (Minn. May 21, 1996).  Also, the proffered evidence was not sufficiently similar to this case and the issues involved here.  Although consent can be a defense to the charged offense, appellant was not arguing consent.  The state's case against appellant was that he held a rifle on L.K. and forced her to have sex with Long.  Appellant denied that this occurred.  There was no issue raised as to whether L.K. consented to the sexual contact.  See State v. Crims, 540 N.W.2d 860, 868 (Minn. App. 1995) (excluding prior sexual conduct of victim when evidence precludes an inference that victim consented), review denied (Minn. Jan. 23, 1996).

Essentially, the issue is whether the jury believed L.K.'s or appellant's version of the events.  This was not a situation where the complainant and the accused had similar versions of the events and the salient issue was whether the complainant consented or not.  Therefore, it is not clear that the exceptions under Rule 412 apply.  

As the state argues, Minn. R. Evid. 104(a) provides that harmless error analysis applies to evidence erroneously excluded. Even though the district court granted the state's motion to exclude the evidence of L.K.'s prior sexual conduct, appellant was successful in getting this evidence before the jury at trial.  His attorney argued this theory to the jury as well.  Additionally, Long testified that the sex was not consensual.  Accordingly, we conclude that the jury would have reached the same result even if the evidence had been admitted.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). 

The district court has the responsibility to exclude evidence that is more prejudicial than probative.  Minn. R. Evid, 403, 412.  This case involved unique facts and circumstances, rendering the proffered evidence only marginally relevant to the specific charges and countervailing evidence.  Also, appellant's offer of proof was weak.  He did not raise his bias theory until after trial.  Harmless error analysis applies and indicates that appellant was able to effectively negate the district court's exclusion of the evidence at trial.  The court did not abuse its discretion in granting the state's motion to exclude evidence of L.K.'s prior sexual contact with Long and appellant under Rule 412.   

Affirmed.

[1] It is not entirely clear whether appellant is contesting the district court's decision as to the rifle on appeal.  In his brief, appellant concedes that his attorney at the suppression hearing and the hearing on the postconviction relief petition did not contest the admissibility of the rifle.  Nonetheless, a footnote in his brief states:  "But even the search that led to the discovery of the rifle was arguably unlawful because there were no exigent circumstances at the time * * * ."  Therefore, the admissibility of that evidence is analyzed as well.