State of Minnesota, Respondent, vs. Jamahl Lamont Martin, 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This opinion will be unpublished and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

C9-02-2127

 

State of Minnesota,
Respondent,
 
vs.
 
Jamahl Lamont Martin,
Appellant.

 

Filed December 30, 2003 Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 02036762

 

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

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Keith M. Ellison, Ellison Law Offices, 2100 Plymouth Avenue North, Suite 112, Minneapolis, MN  55411 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Hudson, 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 a conviction of first-degree criminal sexual conduct appellant Jamahl Lamont Martin argues that the district court abused its discretion by admitting into evidence (1) sex paraphernalia; (2) his girlfriend's testimony; and (3) Spreigl evidence.  We affirm.

FACTS

            Appellant became the sole guardian of his 12-year-old daughter, A.R., when she was approximately 5 years old.  Shortly after appellant bought a house, his girlfriend A.W. moved in and helped with A.R.  A.R. was very close to A.W. and considered her a godmother.  One day, A.R. confided in A.W. that appellant had been sexually assaulting her; the next day they reported it to the police.

At trial, A.R. testified: appellant began sexually molesting her when she was nine or ten years old, and he used various sex toys with her; appellant forced A.R. to have sex with him, and when she told him "no" he became angry and slapped her; when she screamed, appellant would cover her mouth or put a pillow over her face; when A.R. threatened to tell, appellant told her that he would go to jail, and she would be forced to live with her mother. 

A.R. also testified that appellant videotaped her naked and showed her videos of him engaged in sexual relations.  He also showed her magazines with pictures of naked women and catalogues of sex paraphernalia.  Appellant encouraged A.R. to try marijuana, told her to drink a beer, and put the drug Ecstasy in her beverage.  Just before her last birthday, appellant took A.R. to the doctor to receive a shot of the birth control drug Depo Provera.  A.R. reported to her doctor that she was not engaging in sexual relations with anyone. 

At trial, A.W. testified about her relationship with appellant, including their sexual history.  Over defense objections, sex paraphernalia found at appellant's home was admitted into evidence.  The state offered, as Spreigl evidence, the testimony of J.J., appellant's 14-year-old cousin, and S.T., his 12-year-old daughter.  J.J. testified that appellant spoke suggestively to her on more than one occasion and what he said to her was "nasty."

S.T. testified that when she was seven years old, appellant showed her a "nasty movie" during one of her visits.  Appellant was not in the room with her, but he told her she could watch the movie if she wanted to.  The movie was of appellant and an unknown woman naked.  Appellant also showed S.T. magazines with pictures of naked women.  He told her that he was showing them to her so that she would know what she would look like one day.

S.T. also testified that on another occasion appellant rubbed her vagina under her pajamas and told her that "[she] can be comfortable with [him]."  S.T. felt uncomfortable and ran upstairs.  Later, appellant asked her to come downstairs and took her hand and tried to make her touch his penis. 

A jury found appellant guilty of first-degree criminal sexual conduct in violation of Minn. Stat § 609.342, subd. 1(a) (2002), and he was sentenced to 360 months in prison. 

D E C I S I O N

This court reviews a district court's evidentiary rulings for abuse of discretion.  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000). 

I.

Appellant argues that the district court erred in admitting sex paraphernalia as demonstrative evidence.  Demonstrative or illustrative evidence is "admitted, when properly verified, to illustrate or express the testimony of a competent witness, but [is] not original evidence."  State v. Stewart, 643 N.W.2d 281, 293 (Minn. 2002) (quoting State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999)) (internal quotation omitted).  See Black's Law Dictionary 577 (noting that demonstrative evidence is usually offered to clarify testimony).  The standard for admitting demonstrative evidence and visual aids is whether the evidence is relevant and accurate and assists the jury in understanding the testimony of a witness.  State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 318-19 (1950).  

Except for two items, the items that appellant refers to as demonstrative evidence were items that were found in appellant's home.  Thus, except for those two items, the items were offered as substantive evidence, not demonstrative evidence.  As to those two items, A.R. testified that they looked like the items that appellant made her use; thus, the evidence was properly authenticated.  The two items were relevant because they illustrated A.R.'s testimony that appellant made her use the items, and they assisted the jury in understanding A.R.'s testimony because they were uncommon items that the jurors might not otherwise know about.  The district court did not abuse its discretion by concluding that the two items could be admitted as demonstrative evidence.

Appellant argues that the district court erred in admitting any of the sex paraphernalia because the items were not relevant within the meaning of Minn. R. Evid. 401, which defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.  Appellant argues further that even if the items were relevant, they should have been excluded pursuant to Minn. R. Evid. 403, which provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."  Minn. R. Evid. 403.  Appellant contends that the paraphernalia tended only to prove propensity and to improperly suggest that he acted in conformity with his interest in and beliefs about sex.

Although the inherent nature of the sex paraphernalia tends to demonstrate an interest in and beliefs about sex, and the presence of the items in appellant's home tends to suggest a propensity to use the items, this does not demonstrate that the district court abused its discretion by determining that the probative value of the paraphernalia was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  The paraphernalia was offered to prove that appellant committed the acts that A.R. alleged he committed.  Because many of the alleged acts involved use of paraphernalia, the paraphernalia corroborated A.R.'s testimony, and, therefore, the probative value of the paraphernalia for proving that appellant committed the alleged acts was very great.  The great probative value that the paraphernalia had for proving that appellant actually used the paraphernalia with A.R. was not substantially outweighed by the danger that the paraphernalia also tended to prove that appellant had a particular interest in and belief about sex and a propensity to use sex paraphernalia. 

II.

Appellant argues that the district court erred in allowing A.W. to testify about her consensual sexual activities with appellant.  Appellant did not object to this testimony.  Generally, error may not be predicated upon a ruling that admits evidence unless "a timely objection or motion to strike appears of record."  Minn. R. Evid. 103(a)(1).   "Failure to object at trial will act as a bar to objecting on appeal," State v. Peterson, 533 N.W.2d 87, 91 (Minn. App. 1995), unless the admission of evidence constituted plain error and affected the defendant's substantial rights.  State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001). 

Appellant argues that admitting A.W.'s testimony was error because the testimony was not relevant and the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.  As noted above, the sexual paraphernalia admitted at trial was relevant evidence.  But because A.W. and appellant lived in the same home at the time the paraphernalia was found in the home, the fact that the paraphernalia was found in the home did not, by itself, prove a link between appellant and the paraphernalia.  A.W.'s testimony about using the paraphernalia with appellant established a link between appellant and the paraphernalia, and, therefore, the testimony was relevant because it had a tendency to make the fact that appellant used the paraphernalia with A.R. more probable than it would be without the testimony.

Appellant's argument that the probative value of A.W.'s testimony was substantially outweighed by the danger of unfair prejudice is essentially the same argument that he made about the sex paraphernalia.  As we have already discussed, the probative value of the paraphernalia in corroborating A.R.'s testimony that appellant committed the acts charged was very great.  Therefore, the district court did not abuse its discretion in concluding that the probative value of A.W.'s testimony linking the paraphernalia to appellant was not substantially outweighed by the danger that the testimony would cause the jury to regard appellant as a sexual deviant.

III.

Appellant argues that the district court abused its discretion by admitting Spreigl evidence.  Evidence showing that the accused has committed another crime unrelated to the crime for which he is on trial is generally inadmissible.  State v. Spriegl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  Evidence of other crimes or bad acts may not be used to prove the accused's propensity to engage in criminal behavior.  State v. Thieman, 439 N.W2d 1, 6 (Minn. 1989).  But such evidence is admissible if (1) the state gives notice that it intends to use such evidence; (2) the state indicates the purpose for offering the evidence; (3) the evidence is clear and convincing; (4) the evidence is relevant and material; and (5) the probative value of the evidence outweighs its prejudicial effect.  Stewart, 643 N.W.2d at 296.  The admission of Spreigl evidence will be affirmed on appeal absent an abuse of discretion.  State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).  

            Appellant argues that the testimony of S.T. and J.J. about their experiences with him was inadmissible to show motive, intent, common scheme or plan, and the existence of the alleged acts because the evidence is not clear and convincing, it was never shown that the state's case was weak with respect to these elements of the state's case, and the district court misapplied the weak-case rule.

1.         Clear and convincing

            The clear and convincing standard "requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  This standard is met when the truth of the facts sought to be admitted is "highly probable."  Id. 

            At the Rasmussen hearing the district court found that S.T.'s and J.J.'s direct testimony was clear and convincing evidence.  We agree.  This court has said that "[c]lear and convincing evidence may be established by the testimony of a single witness."  State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000).  

            The rationale for admitting such uncorroborated evidence is clear:  if a sexual assault victim's testimony alone is sufficient to establish proof beyond a reasonable doubta much higher standardit should be enough to satisfy the clear and convincing requirement.  See Minn. Stat. § 609.347, subd. 1 (1996) (providing that "[i]n a prosecution under sections 609.342 to 609.346, the testimony of a victim need not be corroborated.");   see also State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); State v. Kinyon, 268 N.W.2d 78, 78 (Minn. 1978). 

 

State v. Kennedy, 585 N.W.2d 385, 389-90 (Minn. 1998).  The supreme court has also affirmed the admission of uncorroborated testimony of the victim of a Spreigl offense.  See e.g., State v. Wermerskirchen, 497 N.W.2d 235, 241-42 (Minn. 1993); State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984).

2.         Strength of state's case, weak-case rule

            Appellant argues that the district court erred by admitting the Spreigl evidence to show motive, intent, common scheme or plan, and the existence of the alleged acts without specifically finding how the evidence filled a weak point in the state's case with respect to these issues.  Appellant contends that none of the purposes for which the Spreigl evidence was offered were in question during the course of the trial.

            At the Rasmussen hearing, the district court stated:

            As to purposes, the State has specified common scheme or plan, intent, motive, and basically commission of the act as a result of the modus operandi or common features.  I do find that there are common features which create a modus operandi.  All of the girls are related, they are young females, and the acts occurred at the defendant's residence where he was staying when he was alone with kids.  I think that creates a significant nexus, as far as the purposes go, to find that those purposes exist in this case. 

 

            After hearing the state's case at trial, the district court found that the case was weak.  In explaining why it was admitting the Spreigl evidence, the district court stated:

            I do believe that the State's case relies primarily on the testimony of the twelve year old girl accusing her father.  And although there were a number of witnesses, most of them reported her story, and so she's the source there.  There were no other people that had testified to knowing or seeing anything that would corroborate her allegations.

 

            There was some physical evidence found, but I believe there are alternative explanations available to the defense to explain that away.  There was no medical testimony that confirmed her story.  She has been accused of falsifying and making up these incidents.  Not all the items that she described were found during the search, and I would also point out that there was a delay in the reporting, all of which make this weak and point back to the victim as being pretty much the sole source of the State's case.

 

            Under those circumstances, I believe the State is entitled to use the Spreigl as it needs to, and under those circumstances the probative value would outweigh any prejudice. 

 

The district court's statements demonstrate that the court found that the state's case was weak because it was based primarily on A.R.'s testimony, there was limited physical evidence and no medical evidence, and A.R. delayed in reporting.  Appellant argues that the district court incorrectly relied on the weakness of the state's overall case, rather than the weakness of the state's case on individual issues. 

            In State v. Kennedy, 572 N.W.2d 58, 63 (Minn. App. 1997), rev'd 585 NW.2d 385 (Minn. 1998), this court stated:

Under the "weak-issue" rule, if the prosecution's proof of an element of its case is weak, other-conduct evidence offered to support that particular issue can be admitted.  But if other-conduct evidence is offered to support an element of the case for which the prosecution already has sufficient proof, that evidence is inadmissible regardless of the overall strength or weakness of the state's case.

 

(Emphasis in original.)

            In his brief, appellant incorrectly attributes this court's statement in Kennedy to the supreme court and argues that the district court incorrectly applied the weak-case rule, rather than the weak-issue rule.  But the supreme court reversed this court's Kennedy decision and explained that this court erred in applying the weak-issue rule:

            While the court of appeals is correct in its interpretation of [State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967)] as requiring the use of the weak-issue rule, it failed to mention that Billstrom and its progeny are cases in which identity was at issue.  In cases where some other matter is at issue, this court has stated that the weak-case rule should be applied. 

 

Kennedy, 585 N.W.2d at 392.

            Identity was not at issue in this case.  Therefore, the district court did not err when it applied the weak-case rule.

Appellant argues that admitting the evidence to show a common scheme or plan is of particular concern here because it is nearly indistinguishable from using the evidence as evidence of propensity, which is improper.  But the supreme court determined in Kennedy that Spreigl evidence may be used to prove a common scheme or plan or to refute a defendant's contention that the victim's testimony was a fabrication.  Id. at 391.

In Kennedy, the supreme court explained:

While it is important to make plain that such bad act evidence cannot be used to prove action in conformity therewith, it can be used to show a link between the bad act and the charged offense in order to establish a modus operandi, or to refute defendant's allegation that the charged incident was merely a fabrication.

 

Id.  See also Wermerskirchen, 497 N.W.2d at 242 (stating that where corpus delecti is at issue, particularly in child sex abuse cases, the trial court should admit the Spreigl evidence if it "is satisfied that the other crime is sufficiently relevant to the charged crime"); State v. Anderson, 275 N.W.2d 554, 555-56 (Minn. 1978) (affirming admission of Spreigl evidence to show common scheme or plan).

            Because appellant's defense at trial was that A.R.'s allegations were "a cooked up story," the district court did not abuse its discretion by admitting the Spreigl evidence.

Affirmed.