State of Minnesota, Respondent, vs. James Edward Lewandowski, Appellant.

State of Minnesota, Respondent, vs. James Edward Lewandowski, Appellant. A06-537, Court of Appeals Unpublished, May 22, 2007.

This opinion will be unpublished and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

A06-537

 

State of Minnesota,

Respondent,

 

vs.

 

James Edward Lewandowski,

Appellant.

 

Filed May 22, 2007

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

 

Mille Lacs County District Court

File No. K6-04-906

 

Lori Swanson, Attorney General, Catherine M. Keane, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127; and

 

Jan Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, Minnesota 56353 (for respondent)

 

Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, Minnesota 55101-2264 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that (1) the statutory definition of "position of authority" is unconstitutionally vague, in violation of due process because it provides a non-exclusive list of types of authority fitting within the term; (2) the district court abused its discretion by admitting Spreigl evidence of sexual conduct against witnesses who were over 16 years of age and of sufficient age to consent but for the alleged "position of authority;" (3) the district court abused its discretion by instructing the jury on third-degree criminal sexual conduct only once, and not as a lesser-included offense of each count of first-degree criminal sexual conduct, and that it abused its discretion in failing to instruct that appellant must be in a position of authority "at the time of the act"; and (4) the cumulative effect of trial errors denied him a fair trial.  We affirm in part, reverse in part, and remand for a new trial.

FACTS

In July 2001, the victim, who was 12 years old at the time, began taking horseback-riding lessons from appellant at his farm in Mille Lacs County.  Because appellant's farm was more than an hour's drive from the victim's house, the victim stayed at appellant's farm for one to three days at a time to get extra riding time and take additional lessons.  As part of the arrangement, the victim helped out with chores around the farm to defray the cost of the lessons. 

When the victim stayed overnight at appellant's farm, appellant provided her with meals and she slept in the guest bedroom of his home, which was located next to the bedroom appellant shared with his wife.  The victim did not come and go from appellant's farm as she pleased, and she testified that when appellant asked her to do something, she would do it.  Occasionally, appellant transported the victim to horse shows and while they were away at the horse shows, the victim felt that appellant acted as her guardian.  The victim's mother testified that appellant told her that he would take care of the victim like she was his own daughter and that she trusted appellant and "believed he would take care of [the victim]."   

            The first time the victim stayed overnight at appellant's farm, he asked her to sit on his lap and proceeded to rub her stomach and stick his hand under her shirt to touch her breasts.  On another occasion, appellant lifted up the victim's shirt while they were standing in the kitchen.  The victim testified that appellant's actions made her feel uncomfortable but that she did not tell anyone about it because she "thought he was a nice guy, and he didn't mean it in a bad way."  During her testimony, the victim also described several other incidents in which appellant touched her breasts and vagina, penetrated her with his fingers, penetrated her with his penis, pushed her head down on his penis to give him oral sex, and licked her vagina.  The victim testified that she did not tell anyone about what appellant did because she "was scared that people would think I was sick or gross or that I knew that was wrong, but I thought if I told anyone they would blame me for it."  She also testified that appellant told her that "it wouldn't be a good idea" to tell anyone about what had happened and that if her parents knew "they would put him away." 

            After her horseback-riding lessons with appellant ended, the victim eventually confided in a family friend, who then told the victim's mother what had happened.  The police were notified, and appellant was subsequently arrested.  Appellant was charged with four counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(b), 2(a), 2(b) (2004), and two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subds. 1(a), 2(a) (2004).

            In March 2005, appellant moved for an order declaring Minn. Stat. § 609.341, subd. 10 (2004), unconstitutionally vague.  The district court denied appellant's motion.  A jury trial began on December 12, 2005.  On December 15, 2005, the jury returned guilty verdicts on the four counts of first-degree criminal sexual conduct, not-guilty verdicts on the two second-degree criminal sexual conduct charges, and guilty verdicts on the lesser-included offenses of third- and fourth-degree criminal sexual conduct.  Appellant moved for a new trial and for a downward durational departure.  The district court denied both motions and sentenced appellant to 144 months.  This appeal follows.

D E C I S I O N

I

            Appellant argues that the phrase "position of authority" in Minn. Stat. § 609.341, subd. 10 (2004), is unconstitutionally vague because the language of the statute allows for "arbitrary enforcement and unjust prosecution."  Appellant was convicted of four counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b) (2004), which states that a person is guilty of first-degree criminal sexual conduct if "the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant."  Minn. Stat. § 609.341, subd 10, defines "position of authority":

"Position of authority" includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act. 

 

In a recent opinion, this court determined that the phrase "position of authority" as defined by Minn. Stat. § 609.341, subd. 10, is not unconstitutionally vague.  State v. Mogler, 719 N.W.2d 201, 207 (Minn. App. 2006) (examining the constitutionality of the phrase in the context of a conviction of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(e) (2002)).  The Mogler court stated:

The statute defining "position of authority" lists three examples of persons in a position of authority:  a parent; a person charged with the responsibilities of the parent; and a person charged with any duty or responsibility for the health, welfare, or supervision of the child.  The plain meaning of the words in the phrase "position of authority" provides additional guidance on the types of people encompassed in the statutory definition.  "Position" indicates either a person's social standing or employment while "authority" refers to the "power to enforce laws, exact obedience, command, determine, or judge."

 

Id. (citations omitted).

Here, appellant was the victim's horseback-riding instructor, fed her and provided her with transportation when she stayed at his farm, and effectively acted as her guardian.  For these reasons, and based on the plain language of the statute, we conclude that appellant held a "position of authority" over the victim within the meaning of Minn. Stat. § 609.341, subd. 10.  See State v. Hanson, 514 N.W.2d 600 (Minn. App. 1994) (concluding evidence was sufficient to show owner of horse stables was in position of authority over 17-year-old girl he employed); State v. Bates, 507 N.W.2d 847 (Minn App. 1993) (upholding an upward durational departure on convictions of first- and second-degree criminal sexual conduct because appellant was victims' gymnastics instructor and abused his position of trust even though the abuse did not take place during the lessons), review denied (Minn. Dec. 27, 1993).

            Appellant also argues that the phrase "includes but is not limited to" in Minn. Stat. § 609.341, subd. 10, is unconstitutionally vague because it is overbroad.  Appellant does not explain how the statute is vague in the context of his own behavior; he argues only in general terms and focuses only on hypothetical situations.  However, "[w]hen First Amendment freedoms are not involved, vagueness challenges must be examined in light of the defendant's actual conduct.  The defendant must show that the statute lacks specificity as to his own behavior and not some hypothetical situation."  Mogler, 719 N.W.2d at 206 (citations omitted).  Appellant does not argue that his First Amendment rights have been violated.  Therefore, because appellant has failed to demonstrate that his claim of unconstitutional vagueness relates directly to his own behavior, we conclude that appellant has failed to show that Minn. Stat. § 609.341, subd. 10, is unconstitutionally vague.

II

            Appellant argues that the district court's jury instructions constituted an abuse of discretion because although the district court instructed the jury on the lesser-included offense of third-degree criminal sexual conduct, it did so in a manner that gave the jury the impression that it only applied to one of the four counts of first-degree criminal sexual conduct.  Appellant also argues that the district court abused its discretion by giving the jury only one verdict form for the lesser-included offenses of third- and fourth-degree criminal sexual conduct while providing a separate verdict form for each count of first-degree criminal sexual conduct.  Appellant argues that the jury instructions and verdict forms confused the jury and deprived him of a fair trial.  We agree. 

District courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  "Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case."  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted).  "The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it."  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).  "We evaluate the erroneous omission of a jury instruction under a harmless error analysis."  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004). If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial. State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989).

While it is clear from the record that the district court tried to craft the jury instructions and verdict forms in the least confusing way possible, the record also shows that those efforts failed.  For the following reasons, we conclude that this confusion may have resulted in a harsher verdict than might otherwise have been rendered and that appellant is entitled to a new trial.

First, the jury instructions were unclear.  The district court decided to place the instruction for the lesser-included offense of third-degree criminal sexual conduct at the end of all of the instructions for the four counts of first-degree criminal sexual conduct, and included the instruction only once even though there were four counts of the greater offense.  Although the lesser-included third-degree offense was added at trial and not charged in the complaint, it applied as a lesser charge to all four counts of first-degree criminal sexual conduct and should have been instructed as to each of the four counts.  The district court followed the same format in its jury instructions for the two counts of second-degree criminal sexual conduct; the instructions for the two counts of second-degree criminal sexual conduct were followed by a single instruction on the lesser-included fourth-degree criminal sexual conduct.  As with the instruction for third-degree criminal sexual conduct, this single instruction implied that the jury could choose the second-degree offense on only one count.

Second, the verdict forms were confusing.  Rather than have one guilty and one not-guilty form for each count, the jury received only one guilty and one not-guilty form for all of the lesser-included offenses; the district court grouped each of the lesser-included offenses into a single verdict form.  Meanwhile, the jury received the full complement of verdict forms for the greater offenses.  A question submitted by the jury during deliberations demonstrates the confusion caused by the instructions and verdict forms.  Part way through its deliberations, the jury submitted the following question:

The jury has been studying the charges and the verdict sheets.  We need to know if we can convict Counts 2 and 3 as a Third Degree Verdict.  If so, we need paperwork.  We need to have lesser charge, if that is possible, or are the lesser charges lumped into one Third Degree Charge and one Fourth Degree Charge?

 

After reading the question back to the jury, the judge stated: "The answer to the last part of that question is ‘yes.'"  We do not believe that this answer was sufficient to mitigate the jury's confusion or correct the deficiencies in the jury instructions and verdict forms.

Third, the fact that the jury found appellant guilty of both first-degree and third-degree criminal sexual conduct further demonstrates the jury's confusion regarding the instructions and verdict forms.  If the jury had truly understood the relationship between the greater- and lesser-included offenses, it would have found appellant guilty of first-degree criminal sexual conduct or third-degree criminal sexual conduct, but not both.  At best, the third-degree guilty verdict was superfluous.

Furthermore, the transcript shows that, at first, the jury did not return a guilty verdict on third-degree criminal sexual conduct.  After the jury returned its verdict, but before it was read aloud, the district court apparently noticed that both the guilty and not-guilty third-degree verdict forms were unsigned.  The court instructed the jury to return to deliberations and sign one of the forms:

THE COURT:            Jurors, I notice that on the fifth charge, that being Criminal Sexual Conduct in the Third Degree Complainant Underage, neither verdict form has been signed.  So I would ask you to return to deliberate to sign the fifth verdict form on that charge.

                       

Mr. Foreperson, would you like me to return all of the verdict forms to you or shall I retain those that have been signed and just give you back the fifth form?

 

JUROR HASS:          I think just give us the fifth form.

 

THE COURT:            I will do that.  The jury then will resume deliberations, and let us know when that last verdict form is signed, and we will receive your verdict.  The jury is excused.

 

(The jury at 10:48 a.m., retired to consider its verdict.)

 

(At 11:00 a.m., the following proceedings were held in the presence and hearing of the jury, with all parties present:)

 

THE COURT:            Jurors, you may be seated.  Jurors, the verdict form for the fifth charge has now been received.  I will read the verdict forms in order of the charges.  The Defendant will rise as the verdicts are read.

 

Finally, to complicate matters further, the record also shows that the jury mistakenly signed several of the verdict forms:  the two second-degree criminal sexual conduct guilty forms and three of the four first-degree criminal sexual conduct not-guilty verdict forms.  The foreperson crossed out his signature on each of the mistakenly-signed forms and each of the other jurors initialed the forms.  While these mistakes on the verdict forms are not dispositive, when viewed in the aggregate with the other circumstances of this case, they bolster our concerns about the accuracy and clarity of the jury instructions and verdict forms. 

On this record, we do not believe that the jury clearly understood that it had the option of the lesser-included offense on each of the six counts of the greater offenses.  Nor can we conclude that the jury's obvious confusion only affected a portion of the jury's verdict.  For these reasons, we vacate appellant's convictions on all counts and reverse and remand for a new trial.

            Because we reverse and remand on the issue of the jury instructions and verdict forms, we do not reach appellant's remaining arguments.

            Affirmed in part, reversed in part, and remanded.

 

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