State of Minnesota, Respondent, vs. Roy McClinton, 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This opinion will be unpublished and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

A03-1968

State of Minnesota,

Respondent,

vs.

Roy McClinton,

Appellant.

Filed November 30, 2004

Reversed and remanded

Lansing, Judge

Hennepin County District Court

File No. 02027750

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

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

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

Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court denied Roy McClinton's motion to sever charges arising from incidents involving two separate victims.  In this appeal from conviction for charges stemming from one of the incidents, McClinton argues that he was unfairly prejudiced by improper joinder.  Because the state did not establish a single criminal objective that motivated both offenses and because acquittal on all charges relating to one of the victims precludes a determination of no prejudice, we reverse and remand.

F A C T S

In the jury trial underlying this appeal, the state prosecuted charges from two December 30, 2001 incidents that involved two different victims.  The first incident occurred at approximately 6 a.m. and involved a man who approached a woman, DC, at 24th Street and Bloomington Avenue in Minneapolis.  After a brief conversation, the man asked DC if she would knock on the door of a neighboring house, act as though she wanted to buy drugs, and then step to the side so he could shoot the drug dealer who lived there.  DC refused and the man grabbed her, hit her in the face, and dragged her into a garage behind the house, ordered her to remove her clothes, and beat her.  DC eventually escaped, and the man fled.

The second incident occurred shortly after 6:00 a.m. near the intersection of 28th Street and Bloomington Avenue.  McClinton encountered a woman, GT, and asked if she wanted to "get high."  When she agreed, they walked to a nearby house that GT recognized as a place where drugs were sold.  According to GT, McClinton pulled her into the basement of the house, kicked her, and ordered her to remove her clothes.  He then had sexual intercourse with her and also punched her in the stomach.  Once she was clothed, he ordered her to remove her clothes again, asking her if she had ever had her nose broken and telling her that he "ought to f--k [her] up like [he] did the other b---h."  She was then able to escape and run for help.  

The state charged McClinton with kidnapping and two counts of attempted first-degree sexual conduct for the incident involving DC; and kidnapping and firstdegree criminal sexual conduct for the incident involving GT.  Before trial, the defense moved to sever the two sets of charges under Minn. R. Crim. P. 17.03, subd. 3, arguing that the charges involving different victims were unrelated because they did not arise from a single behavioral incident and that their erroneous joinder prejudiced McClinton's right to a fair trial.  The district court denied the motion.  At trial, McClinton contested his identity as the man who assaulted DC. He admitted having intercourse with GT but asserted that it was a negotiated exchange of sex for drugs.

On the charges involving GT, the jury convicted McClinton of the lesser-included offenses of third-degree criminal sexual conduct under Minn. Stat § 609.344, subd. 1(c) (Supp. 2001); false imprisonment under Minn. Stat. 609.255, subd. 2 (2000), and fifth-degree assault under Minn. Stat. § 609.224, subd. 1 (2000).  The jury acquitted McClinton of all charges from the incident involving DC.  The district court sentenced McClinton to an upward durational departure from the presumptive sentence, relying on the dangerous-offender statute, and this appeal followed.

D E C I S I O N

A district court must sever charges or offenses before trial if "the offenses or charges are not related."  Minn. R. Crim. P. 17.03, subd. 3(1)(a).  Severance is also required if the district court determines it is necessary "to promote a fair determination of the defendant's guilt or innocence of each offense or charge."  Minn. R. Crim. P. 17.03, subd. 3(1)(b).

Charges are related for purposes of applying rule 17.03, subdivision 3(1)(a), if they form part of a single behavioral incident or course of conduct.  State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999). In determining whether offenses should be tried separately, the district court analyzes "how the offenses were related in time and geographic proximity and . . . whether the actor was motivated by a single criminal objective."  State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996).  For crimes involving intent, the third factor requires the district court to determine whether the offenses were the result of a single motivation directed toward a single goal.  Effinger v. State, 380 N.W.2d 483, 488 (Minn. 1986) (discussing Minn. Stat. § 609.035 (1984)); see also Profit, 591 N.W.2d at 458 (explaining that analysis under rule 17.03 and section 609.035 is the same).  We review the district court's ultimate decision on severance or joinder under an abuse-of-discretion standard.  Dukes, 544 N.W.2d at 20. 

When intentional offenses are not related in time, geographic proximity, and a single motivation directed to a single goal, the proper framework for evaluating the prejudicial effect of trying them together is a Spreigl balancing test.  Profit, 591 N.W.2d at 461; see also Minn. R. Evid. 404(b) (prohibiting admission of evidence of other offenses to prove character but allowing it for other purposes such as proving motive, intent, preparation, plan, or identity); State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000) (reciting standards for admissibility of Spreigl evidence).  If evidence on each charged offense would have been admissible as Spreigl evidence in separate trials, the erroneous joinder does not result in prejudice that requires a new trial.  Profit, 591 N.W.2d at 461.

The district court found that the incidents involving DC and GT took place within a few blocks and a few hours of each other.  The record supports that determination on these two factors.  Evidence of the third factor, the single motivation directed to a single goal, is not apparent in the record.  The district court reasoned that the goal was "to obtain sex by whatever means, but seemingly by force." 

A propensity toward violence, standing alone, does not satisfy the requirement of a single criminal objective.  See State v. Bookwalter, 541 N.W.2d 290, 295-96 (Minn. 1995) (rejecting argument of single behavioral incident for a sexual assault and an attempted murder that occurred at a mile-and-a-half distance over a short period of time).  And "a defendant's desire to satisfy his perverse sexual desires" forms "too broad a motivation[] to justify application of the single behavioral incident rule."  State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996); see also State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (observing that although two offenses involved coerced sexual intercourse with fifteen-year-old girl and occurred in same general place on same day, offenses were separated by about five hours and bore no essential relationship to each other). 

No evidence was produced indicating that the offenses were part of a preconceived plan.  The state's evidence tended to show that the offenses were perpetrated as the aggressor encountered DC and GT separately.  When offenses are committed "simply . . . as an idea came into [their] heads," rather than a "prearranged program of events," the offenses are not part of the same behavioral incident.  State v. Shevchuk, 282 Minn. 182, 187, 163 N.W.2d 772, 776 (1968).  Because the offenses against DC and GT were not a single behavioral incident, they were improperly joined for trial.

         The Spreigl balancing test for determining whether the failure to sever the charges requires a new trial is substantially affected by McClinton's acquittal of all charges involving DC.  This fact precludes application of the first prong of the Spreigl test to determine whether there is clear and convincing evidence of McClinton's participation in the other offense joined for trial.  State v. Kates, 616 N.W.2d 296, 299-300 (Minn. App. 2000) (holding that remand for new trial was necessary because defendant's acquittal of some charges improperly joined for trial made it impossible to apply first prong of Spreigl admissibility test), review denied (Minn. Oct. 26, 2000).  Because the acquittal on all charges relating to one of the victims precludes a determination of no prejudice, a new trial is necessary.

            The state argues alternatively that the evidence should be considered as admissible other-crimes evidence under the standard in State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271 (1962).  Under this analysis, which is related to but distinct from a Spreigl determination, evidence of other crimes is admissible when the offenses are linked together "so that one cannot be fully shown without proving the other, or where evidence of other crimes constitutes part of the res gestae."  Id.

The state did not rely on this argument in the district court.  We generally do not consider arguments raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  But even if we considered the alternative argument, the state's argument fails because each offense would still have to be separately provable.  State v. Wakefield, 278 N.W.2d 307, 309 (Minn. 1979) (stating that "under no circumstances" may evidence of crime for which defendant has been acquitted be admitted at trial on different offense).  McClinton was acquitted of the charges involving DC.  Thus, evidence of the offenses against DC would not have been admissible at trial on the charges involving GT. 

            The state also maintains that McClinton's statements to GT that he should "f--k [her] up like [he] did the other b---h" qualified as an admission of a party opponent under Minn. R. Evid. 801(d)(2) and would have been admissible as substantive non-Spreigl evidence.  But the state introduced not only these statements but also the circumstances surrounding DC's assault, which are subject to the Spreigl requirement absent limited exceptions involving self-defense that are not present in this case.  See State v. Charles, 634 N.W.2d 425, 431 (Minn. App. 2001) (recognizing an exception to other-crimes-evidenceanalysis in limited cases relating to self-defense).  In addition, these statements are vague and do not show a clear connection to the encounter with DC.  And in any event, the jury acquitted McClinton of the charge against DC so the statements would not have been admissible.  See Wakefield, 278 N.W.2d at 309 (prohibiting use of evidence of crime for which defendant was acquitted).

In a supplemental brief, McClinton challenges his sentencing as a dangerous offender.  Because we reverse and remand for a new trial, we do not address the impact of the United State Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004) on McClinton's sentencing.

            Reversed and remanded.

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