State of Minnesota, Respondent, vs. Phillip Neal Jones, Appellant.

State of Minnesota, Respondent, vs. Phillip Neal Jones, Appellant. A05-2454, Court of Appeals Unpublished, February 13, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2454

 

State of Minnesota,

Respondent,

 

vs.

 

Phillip Neal Jones,

Appellant.

 

Filed February 13, 2007

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. K7-04-2303

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Phillip Neal Jones was convicted by a jury of first-degree criminal sexual conduct, resulting in personal injury; first-degree criminal sexual conduct, use of a dangerous weapon; pattern of harassing conduct; and fifth-degree assault. Appellant challenges his convictions, arguing that he was denied the right to confrontation because the district court did not allow inquiry into the victim's sexual relationships with other men.  Appellant also challenges the constitutionality of his sentence, arguing that the district court did not have the inherent authority to empanel a sentencing jury.  We affirm.

D E C I S I O N

I.

            Appellant's convictions stem from the sexual assault of T.W.  Appellant and T.W. were in an ongoing sexual relationship at the time of the assault.  In anticipation of trial, appellant filed a motion to introduce evidence of T.W.'s prior sexual conduct as an exception under the rape shield statute, Minn. Stat. § 609.347, subd. 3 (2004).  Appellant sought to show, by cross-examination of T.W., that the accusations against him were fabricated by T.W. because she "had ongoing sexual relationships with other men during her relationship with [appellant] and up to the date of the alleged incident."  The district court allowed T.W. to be cross-examined regarding her sexual relationship with appellant, but denied appellant the opportunity to cross-examine T.W. regarding sexual relationships with other men because appellant had not provided an "adequate foundation." 

            We review the district court's evidentiary rulings, including rulings regarding a victim's prior sexual conduct, for a clear abuse of discretion.  State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

            Evidence of a victim's previous sexual conduct is not admissible in a prosecution for criminal sexual conduct except by court order pursuant to the rape shield statute. Minn. Stat. § 609.347, subd. 3; State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996).  The statute provides that when consent of the victim is a defense, the following evidence is admissible:  "evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue."  Minn. Stat. § 609.347, subd. 3(a)(i).  To obtain a court order admitting such evidence, the accused must make a motion "setting out with particularity the offer of proof of the evidence that the accused intends to offer."  Minn. Stat. § 609.347, subd. 4(a) (2004).  For such evidence to be admissible "the judge must find by a preponderance of the evidence that the facts set out in the accused's offer of proof are true."  Minn. Stat. § 609.347, subd. 3. 

            A defendant's right to confrontation is violated when the court prohibits the defendant from engaging in cross-examination designed to show a "prototypical form of bias on the part of the witness."  State v. Pride, 528 N.W.2d 862, 866 (Minn. 1995) (quotation omitted).  But "[t]he Constitution will tolerate a rule or statute requiring the trial court to make a threshold finding of veracity as a predicate to the admission of a criminal defendant's highly probative, but exceedingly prejudicial, evidence."  State v. Davis, 546 N.W.2d 30, 35 (Minn. App. 1996), review denied (Minn. May 21, 1996).

            Here, appellant argues that while inadequate foundation may be a valid reason to disallow inquiry into T.W.'s past sexual acts with other men, it is inadequate to bar inquiry into the existence of T.W.'s sexual relationships with other men.  We disagree.

            Appellant's entire initial offer of proof regarding T.W.'s sexual relationships with other men stated:  "[t]hat [T.W.] had ongoing sexual relationships with other men during her relationship with [appellant] and up to the date of the alleged incident being her reason to fabricate accusations against [appellant]."  No names or dates were provided and the offer of proof was unaccompanied by any affidavits.  Absent such indicia of veracity or any other corroboration, the district court properly determined that appellant failed to prove the allegations in his offer of proof by a preponderance of the evidence.

            Appellant's right to confrontation was not violated because his offer of proof was insufficient to make a threshold finding of veracity.  We thus conclude that the district court did not abuse its discretion by denying appellant the opportunity to cross-examine T.W. concerning sexual relationships with other men.

II.

            After the jury convicted appellant, it was reconvened by the district court to make sentencing determinations.  The jury found that appellant had two "previous sex offense convictions" for purposes of the repeat-sex-offender statute, Minn. Stat. § 609.109, subd. 3 (2004), and that appellant's offenses involved (1) multiple forms of penetration; (2) multiple acts of penetration over an extended period of time; and (3) that appellant acted with particular cruelty towards his victim.  Based on these findings, appellant was sentenced to life in prison.

            Appellant argues that the district court did not have authority to convene a sentencing jury to determine aggravating sentencing factors.  We disagree.

            The Minnesota Supreme Court's recent decision in State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), resolves the issue of whether a district court has inherent judicial authority to empanel a sentencing jury. Whether a district court has such authority is an issue of law that we review de novo. Chauvin, 723 N.W.2d at 23.

            In Chauvin, the supreme court determined that district courts have the inherent authority to empanel a jury to find sentencing factors in the absence of explicit legislative authorization.  Id. at 27.  Here, the district court, like the district court in Chauvin, bifurcated the proceedings and reconvened the jury to make findings for sentencing.  Applying Chauvin, we conclude that the district court did not err by reconvening the jury to find aggravating sentencing factors.

            Affirmed.