State of Minnesota, Respondent, vs. Michael Dwayne Stigler, Appellant.

State of Minnesota, Respondent, vs. Michael Dwayne Stigler, Appellant. A06-1247, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and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
A06-1247

 

State of Minnesota,
Respondent,

vs.

Michael Dwayne Stigler,
Appellant.

 

Filed October 30, 2007

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 05060285

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

A jury found Michael Stigler guilty of kidnapping and first-degree criminal sexual conduct, and the district court empanelled a sentencing jury to determine whether to impose an upward sentencing departure.  Stigler challenges the admissibility of a prior conviction for purposes of impeachment and the sufficiency of the evidence to support the jury's verdicts.  Stigler also challenges the instructions to the sentencing jury and asserts that the prosecutor committed misconduct during the sentencing hearing.  Because the district court did not abuse its discretion in its ruling on impeachment evidence and because the evidence is sufficient to support the jury's verdicts, we affirm the conviction.  We also affirm Stigler's sentence because the district court's instructions were not plain error, and the prosecutor's comments were based on the record and did not constitute misconduct.  

F A C T S

            The state charged Michael Stigler with kidnapping and first- and third-degree criminal sexual conduct.  At trial, the victim, CL, described her encounter with Stigler on the night of September 19, 2005.

            As CL was walking in the Bryn Mawr area of Minneapolis, Stigler pulled up next to her in his car.  Stigler asked her if she wanted to get in his car and go to his house.  CL, who had never met Stigler before, refused and began to walk away.  CL testified that Stigler then got out of the car, grabbed her, and put a knife to her neck.  Stigler ordered her to get into his car.  CL complied.  Stigler placed his hand around CL's neck while he drove to his apartment.

            At the apartment, after CL refused to submit to Stigler's demand for oral sex, he struck her and then raped her.  CL testified that, during the assault, Stigler had "his hand around my neck almost the entire time."  Stigler's thumb was on one side of her throat and his fingers on the other side.  When CL would ask to leave, Stigler would squeeze his hand tighter.  At one point during the assault, Stigler told CL that he would kill her.  CL did not, however, see the knife again while she was inside the apartment.  CL eventually escaped when Stigler went to the bathroom.

            At trial, the district court ruled that, if Stigler testified, his 2004 assault conviction would be admissible for impeachment purposes but his 1998 theft conviction would not be admissible.  Stigler decided not to testify in his own defense.

            During jury deliberations, the jury presented the district court judge with a question.  The jury asked, "Is defendant's hand considered a weapon?"  The judge answered:  "You have received all of the instructions necessary to reach your decision."  The jury then returned verdicts of guilty on each of the charges.

            The district court empanelled a sentencing jury to determine whether an upward sentencing departure was appropriate.  The district court instructed the jurors that their verdict would "assist the court in determining the defendant's sentence."  Stigler did not object to the instruction.  At the sentencing hearing, the state presented evidence about Stigler's criminal history.  During closing arguments in the sentencing phase, Stigler objected that the prosecutor's argument was based on evidence not contained in the record.  The district court overruled the objection.  The sentencing jury found that Stigler was "a danger to public safety."  Based on the jury's finding, the district court imposed a double upward departure from the presumptive sentence for each conviction.  As a result, Stigler received concurrent sentences of 316 months for the first-degree criminal sexual conduct conviction and 316 months for the kidnapping conviction.  Stigler now appeals.

D E C I S I O N

I

            A witness may be impeached by a prior conviction even if the crime did not involve dishonesty.  Minn. R. Evid. 609(a).  If the conviction was not for a crime involving dishonesty or a false statement, the probative value of admitting the evidence must outweigh its prejudicial effect.  Id.  In determining whether the probative value outweighs the prejudicial effect, the district court must consider:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue.

 

State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (quotation omitted).  We review a district court's decision to permit impeachment by prior conviction under an abuse-of-discretion standard.  See Inhot, 575 N.W.2d at 586 (applying abuse-of-discretion standard when reviewing trial court's admission of prior conviction for impeachment purposes).

            The district court did not abuse its discretion when it ruled that, if Stigler testified, he could be impeached with his 2004 assault conviction.  Four of the five relevant factors support the district court's conclusion.  First, Stigler's conviction had impeachment value because the jury could legitimately infer that a person who has committed assaulta crime that requires an intentional actis more likely to lie or misrepresent the facts while testifying.  See Minn. Stat. § 609.224, subd. 1 (2004) (requiring intentional act to commit assault); see also State v. Pendleton, 725 N.W.2d 717, 728 (Minn. 2007) (noting that prior crimes allow the jury to see the witness's "whole person" and assess his or her credibility).  Second, Stigler's assault conviction was relatively recent and was therefore probative of whether he would truthfully testify at trial.  Third, Stigler was charged with criminal sexual conduct and his previous conviction was for assault.  Because the offenses were not the same, it is less likely that a jury would improperly use the impeachment evidence.  Finally, because only Stigler and CL were present during the encounter, credibility was a central issue. 

            Although the defendant's testimony is important, and a defendant is less likely to testify when a court allows the admission of a conviction for impeachment purposes, the need for the defendant's testimony does not outweigh the other factors that favor admitting the impeachment evidence.  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (concluding that evidence of conviction could be used for impeachment despite need for defendant's testimony).  Thus, the district court did not abuse its discretion when it ruled that Stigler's assault conviction could be admitted for impeachment purposes.

            In addition, Stigler makes a general argument against the practice of admitting convictions for impeachment purposes.  Stigler argues that the "whole person" rationale for admitting prior convictions for impeachment purposes under Minn. R. Evid. 609 is inconsistent with the prohibition against using character evidence to establish conduct in conformity with the defendant's character.  Stigler's argument, however, ignores the narrow use of "whole person" evidence.  When a witness is impeached with a prior conviction, the "whole person" is introduced for the limited purpose of helping the jury to evaluate a witness's credibility  See Minn. R. Evid. 609(a) (allowing evidence of prior conviction for "the purpose of attacking the credibility of the witness").  Evidence of prior crimes can also be admitted for other limited purposes under Minn. R. Evid. 404 but not to show conduct in conformity with the defendant's character.  Thus, neither impeachment by prior conviction under rule 609 nor admission of evidence under rule 404 permits the use of character evidence to prove conduct in conformity with the defendant's character.  In both cases, the evidence is introduced for limited, permissible purposes.

II

            Stigler argues that the evidence was insufficient to establish that he committed first-degree criminal sexual conduct because the record fails to establish that he used a knife.  In his pro se brief, Stigler raises a more general challenge to the sufficiency of the evidence.

            In considering a claim of insufficient evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they reached.  State v. Brown, 732 N.W.2d 625, 628 (Minn. 2007).  As a reviewing court, we must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

            A person commits first-degree criminal sexual conduct if he or she "engages in sexual penetration with another person" and the following circumstance exists:

the actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit.

 

Minn. Stat. § 609.342, subd. 1(d) (2004).  Stigler argues that the evidence was insufficient to support his conviction because the record fails to establish that he was armed with a knife at the time of sexual assault.  The record, however, supports the jury's verdict under two different theories.

            First, under Minnesota law, a person's hands can serve as a dangerous weapon.  State v. Basting, 572 N.W.2d 281, 284 (Minn. 1997); State v. Born, 280 Minn. 306, 308, 159 N.W.2d 283, 284-85 (1968).  In determining whether the evidence was sufficient to support a conviction based on a hand being a dangerous weapon, there are no specifically enumerated factors.  Basting, 572 N.W.2d at 284.  In the past, Minnesota courts have focused on "the strength and size of the aggressor and the victim, the vulnerability of the victim, the severity and duration of the attack, the presence or absence of victim provocation, and the nature and the extent of the injuries."  Id.  The inquiry does not, contrary to Stigler's argument, focus primarily on the severity of the victim's injuries.  See id. at 285 (concluding that inquiry does not turn "on the nature and severity of the victim's injuries" alone).

            The record indicates that Stigler hit CL and then placed his hand around CL's neck in a position that permitted him to choke her.  During the assault, Stigler threatened to kill CL.  When CL requested that Stigler stop the assault, Stigler would tighten his hand.  The attack was severe, unprovoked, and occurred over an extended period of time.  Thus, under Born, the jury could conclude that Stigler's hands constituted a dangerous weapon or were used in a way that would lead CL to believe his hands were a dangerous weapon.  Therefore, the evidence was sufficient to support Stigler's conviction, and the district court properly answered the jury's question.

            Second, the jury could reasonably infer from the record that Stigler used a knife to cause CL to submit to the assault.  CL testified that she saw a knife when Stigler forced her into his car and that Stigler put the knife to her neck.  Although CL testified that she did not see a knife at the time of the sexual assault, the jury could reasonably infer that Stigler still had the knife with him at the time of the assault and conclude that Stigler used the knife to cause CL to submit.  Alternatively, the jury could conclude thatregardless of whether Stigler was armed at the time of the assaultStigler's initial use of the knife caused CL to submit to the subsequent assault.  The text of the statute does not require the defendant to be armed at the time of the sexual penetration.  Minn. Stat. § 609.342, subd. 1.  Thus, the jury's verdict was also supported by the evidence that Stigler used the knife.

In his pro se brief, Stigler challenges the credibility of the witnesses against him and argues that the DNA evidence against him was inaccurate.  When reviewing the sufficiency of the evidence, however, we assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  Taylor, 650 N.W.2d at 206.  Therefore, Stigler's credibility and accuracy arguments provide no basis for reversing his conviction. 

III

In general, the failure to object to jury instructions or to propose specific instructions constitutes a waiver of the issue on appeal.  State v. White, 684 N.W.2d 500, 508 (Minn. 2004).  Under the plain-error doctrine, we can consider challenges made for the first time on appeal if there is (1) error, (2) that is plain, and (3) that affects the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467-68, 117 S. Ct. 1544, 1549 (1997).  An error is clear or obvious if it "contravenes case law, a rule, or a standard of conduct."  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

At the beginning of the sentencing hearing, the district court instructed the sentencing jury that it "will assist the court in determining the defendant's sentence."  A similar instruction was given and implicitly approved in State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  In Chauvin, the district court instructed the jury that:

A separate jury determination is required when a defendant has been found guilty of a crime and the state seeks an increase in the defendant's sentence above the presumptive sentence provided by law.  In making that determination the trial jury shall consider those factors relevant to the question of the increased sentence.  If you unanimously find beyond a reasonable doubt that one of the following relevant factors exists then the judge may increase the defendant's sentence above the presumptive sentence provided by law.  Final determination whether to increase the defendant's sentence remains with the judge.

 

Id. at 23.  Although a specific challenge to the reference to sentencing was not raised in Chauvin, the Chauvin decision approved of the procedure used by the district court.  Id. at 29.  In both Chauvin and this case, the district court told the jurors about their role in the sentencing process.  Furthermore, we note that the district court's instruction used the same language that appears in the criminal jury instructions guide.  10 Minnesota Practice, CRIMJIG 8.01 (2006).  Thus, it is not clear or obvious that the district court's instruction was improper.

In the past, the Minnesota Supreme Court has held that jury instructions may admonish the jury that it has nothing to do with the defendant's punishment but should not otherwise refer to the defendant's punishment.  State v. Gensmer, 235 Minn. 72, 79-80, 51 N.W.2d 680, 685 (1951), cert. denied, 344 U.S. 824 (1952).  In the sentencing context, however, it is not clear or obvious that the same rule should apply.  At the sentencing hearing, Stigler did not object to the instruction and did not offer a preferable alternative.  Therefore, because no plain error occurred, Stigler is not entitled to a new sentencing hearing.

IV

            A prosecutor's closing argument must be based on the evidence produced at trial or reasonable inferences from that evidence.  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).

            At the close of the sentencing hearing, the prosecutor noted that Stigler was placed on intensive supervised release after he was released from prison following his assault conviction.  The prosecutor stated that intensive supervised release is "the most intensive supervision that a parolee is given and it's based primarily on dangerousness to public safety."  Stigler objected to this argument as not based on the evidence.  The district court overruled the objection.

            The prosecutor's argument was based on a reasonable inference from the evidence introduced at the sentencing hearing.  Stigler's parole officer described how offenders are placed on intensive supervised release:

They would look at the conviction history first and foremost.  They'd look at the offense for which the offender is going to be released on parole for.  They would also look at how that person did in prison, if they ever spent time in seg[regation], had any write-ups, those kind of things.

 

A reasonable inference from this testimony is that a person is placed on intensive supervised release primarily based on risk to public safety.  Furthermore, the parole officer testified that "there is no higher form of supervision" than intensive supervised release.  Thus, the prosecutor's argument was based on the evidence introduced at the hearing and reasonable inferences from that evidence.  The prosecutor's statements did not constitute misconduct. 

            Affirmed.