State of Minnesota, Respondent, vs. Walter William Sloniker, 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This opinion will be unpublished and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

A03-1026

 

State of Minnesota,

Respondent,

 

vs.

 

Walter William Sloniker,

Appellant.

 

Filed September 21, 2004

Affirmed in part, reversed in part, and remanded Willis, Judge

 

Hennepin County District Court

File No. 02090666

 

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

 

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

 

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

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This appeal is from a judgment of conviction of two counts of first-degree criminal sexual conduct; kidnapping; and second-degree assault.  Appellant Walter Sloniker argues that the trial court abused its discretion by excluding defense evidence; that Minn. Stat. § 609.04, subd. 1 (2002), bars one of his convictions for first-degree criminal sexual conduct; and that the district court improperly imposed a condition on his prison sentence.  We affirm in part, reverse in part, and remand.

FACTS

Appellant Walter Sloniker was charged with kidnapping, first-degree criminal sexual conduct, and second-degree assault for conduct committed against his estranged wife, M.S., on November 12, 2002.  The complaint alleged that Sloniker waited in his wife's car until she got off work at about 1:00 a.m., then brandished a knife, ordered her to undress, and forced her to have sex with him in the vehicle.  Although Sloniker attempted to hide his face and disguise his voice, M.S. eventually realized it was he, and after she returned home she received a phone call from Sloniker in which he threatened suicide.  Police officers arrested Sloniker at his home after he emerged with a knife to his throat and asked the officers to shoot him.  Police testified that Sloniker was distraught and said, "I did a really bad thing.  I hurt my wife."  At his apartment, police found notes to M.S., including one apologizing for "hurting you."

Sloniker testified in his own defense, stating that he had left a message for M.S. that he would meet her in her car after her shift, that he had removed the car's dome light in order to fix it, that he then fell asleep in the car and did not wake up until his wife slammed on the brakes while driving home, that his wife agreed to have sex with him, and that it was his wife's degrading statements to him that made him suicidal.

At the end of direct examination, defense counsel asked Sloniker if he had "ever attempted to do anything this drastic before?"  The district court sustained the prosecutor's objection and instructed the jury to disregard Sloniker's affirmative response.  Following a bench conference, the district court ruled that Sloniker's prior suicide attempts were not relevant.

The jury found Sloniker guilty on all counts.  After rejecting a defense motion for a downward dispositional departure and the state's motion for an upward durational departure, the district court sentenced Sloniker to the presumptive sentence of 144 months for first-degree criminal sexual conduct.  The district court imposed concurrent stayed sentences for kidnapping and second-degree assault, which were executed at Sloniker's request.  As part of its sentence, the district court ordered Sloniker, when released, to have no contact with his wife or his children, absent a family court order to the contrary.  This appeal follows.

D E C I S I O N

I.

Sloniker argues that the district court abused its discretion by ruling that the defense could not present evidence that Sloniker had attempted suicide in the past.  This court reviews a district court's evidentiary rulings for a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Although Sloniker casts this argument in terms of his constitutional right to present a complete defense, evidentiary rulings restricting defense evidence are still reviewed for abuse of discretion and are subject to harmless-error analysis.  State v. Quick, 659 N.W.2d 701, 713 (Minn. 2003).

The state presented evidence that Sloniker was suicidal when police arrived at his apartment to arrest him shortly after the incident.  It also presented the notes found in Sloniker's apartment, sometimes referred to by the prosecutor during trial as "suicide" notes, in which Sloniker expressed remorse and directed his wife to the location of a money order.  The prosecutor argued that the notes, along with Sloniker's statement to police that "I hurt my wife," constituted a confession.

Defense counsel's offer of proof regarding the admissibility of prior suicide attempts was completely lacking in any details about such attempts.  The prosecutor told the district court there were two "self-reported" suicide attempts not requiring hospitalization.  Even as supplemented by this explanation, the record as to Sloniker's prior suicide attempts is critically lacking because it does not indicate the dates of those attempts or the circumstances.  See generally State v. Morris, 606 N.W.2d 430, 436-37 (Minn. 2000) (noting inadequacy of offer of proof as to proposed testimony by victim's brother that she prostituted herself in exchange for drugs).  There is no record from which this court could conclude that the district court abused its discretion by excluding evidence of Sloniker's prior suicide attempts.

Sloniker contends that the district court's ruling denied him his due-process right to explain his conduct to a jury, as described in State v. Brechon, 352 N.W.2d 745, 750-51 (Minn. 1984).  But Sloniker was allowed to fully explain his conduct on the night of the offense.  Only evidence as to other events was barred.  And Sloniker testified that his state of mind after the incident was caused by the separation and by belittling comments his wife allegedly made to him that night.  Evidence of prior suicide attempts might have tended to corroborate that testimony, but that cannot be determined without an adequate offer of proof.

An error in excluding defense evidence is harmless if the reviewing court is satisfied beyond a reasonable doubt that, if the evidence had been admitted and its potential for damaging the state's case fully realized, a reasonable jury would have reached the same verdict.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  Here, even assuming there was error, because there was no detailed offer of proof, it is impossible to say what "damaging potential" the evidence of prior suicide attempts may have had.

II.

Sloniker argues that he was adjudicated on two counts of first-degree criminal sexual conduct and that one of those convictions must be vacated.  A defendant may not be convicted of more than one violation of the same criminal statute based on the same criminal act.  State v. Spears, 560 N.W.2d 723, 726 (Minn. App. 1997), review denied (Minn. May 28, 1997);  see Minn. Stat. § 609.04, subd. 1 (2002).  Sloniker was charged, in counts 1 and 2, with first-degree criminal sexual conduct for his sexual offense against M.S. on November 12, 2002.  Although the state argues that the two counts were "merged," it appears they were merged only for purposes of sentencing.  Accordingly, we reverse the conviction on count 1, vacating that adjudication.

III.

Sloniker argues that the district court exceeded its authority by imposing a no-contact order as part of his executed sentence.  The state agrees.

A district court may sentence a defendant convicted of a felony to court-ordered restitution in addition to either imprisonment or a fine, or both.  Minn. Stat. § 609.10, subd. 1(5) (2002).  And the court may order payment of a local correctional fee as authorized under section 609.102 in addition to any other sentence.  Minn. Stat. § 609.10, subd. 1(6) (2002).  But otherwise, executed sentences of imprisonment are not subject to court-ordered "conditions," except when specifically provided by law.  Cf. Minn. Stat. § 609.135, subd. 1(2) (2002) (authorizing court to impose conditions when staying sentence).  And even when a defendant whose sentence is executed is subject to other sanctions or disabilities, the court's role is generally to inform the defendant of such sanctions or disabilities at sentencing, not to initiate them.  See Minn. Stat. § 609.2242, subd. 3 (2002) (requiring court to inform persons convicted of domestic assault of their ineligibility to possess a pistol).  As both parties point out, the commissioner of corrections, not the court, determines the conditions of incarceration.  State v. Cook, 617 N.W.2d 417, 420-21 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).  The district court's no-contact order, therefore, although temporary and subject to any subsequent order issued in the dissolution action, was beyond the court's authority and must be vacated.  We remand for removal of that condition of the sentence.

Affirmed in part, reversed in part, and remanded.