State v. Borg

• Decision Date: 09 March 2010
• Docket Number: No. A09-243.,A09-243.
• Citation: 780 N.W.2d 8
• Parties: STATE of Minnesota, Respondent, v. Brett David BORG, Appellant.
• Court: Minnesota Court of Appeals

780 N.W.2d 8

STATE of Minnesota, Respondent, v. Brett David BORG, Appellant.

No. A09-243.

Court of Appeals of Minnesota.

March 9, 2010.

Lori Swanson, Attorney General, St. Paul, MN; and Jan Kolb, Mille Lacs County Attorney, Milaca, MN, for respondent.

Marie Wolf, Interim Chief Public Defender, Jodie L. Carlson, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by MINGE, Presiding Judge; SCHELLHAS, Judge; and STAUBER, Judge.

OPINION

STAUBER, Judge.

Appellant challenges his conviction of third-degree criminal sexual conduct on the grounds that: (1) the evidence was insufficient to sustain his conviction; (2) the district court erred in ruling that the state could elicit evidence of appellant's pre-arrest silence in the state's case-in-chief before appellant testified; (3) the prosecutor engaged in prejudicial misconduct; (4) the district court abused its discretion in refusing to impose a dispositional departure based on appellant's lack of remorse when the record otherwise supported a departure; and (5) he is entitled to specific performance of the state's plea offer. Because the district court erred in allowing the state to comment on appellant's pre-arrest silence and because we conclude the error was not harmless, we reverse and remand.

FACTS

On May 6, 2004, J.S. celebrated her 18th birthday at Grand Casino in Mille Lacs with her 18-year-old girlfriends, K.K. and D.C., and her 19-year-old girlfriend, M.W. D.C.'s mother provided the girls with a room at the casino hotel, and D.C.'s 25-year-old brother, S.C., along with his 24-year-old friends, Brett Borg (appellant) and T.B., met the girls at the casino. J.S. and S.C. were dating, and M.W. and appellant had met a few times previously. In light of their previous contact, M.W. considered appellant to be an acquaintance.

The group gambled at the casino and drank beer and Grape Pucker (an alcoholic beverage) in the hotel room and then decided to go swimming at nearby Eddy's Resort. They stayed at Eddy's for about an hour, "goofin around" and having fun at the pool. Some brought beer to the pool, and appellant poured M.W. a beer.

After swimming, the group returned to their hotel. J.S. and S.C. retired to their own room, and the rest of the group stayed in the room that had been "reserved for the girls." D.C. and K.K. slept in one bed, and T.B., M.W., and appellant slept in the other bed. Shortly after going to bed, appellant and M.W. had sexual intercourse.

The next morning, J.S. came into the room and told M.W. that she heard that M.W. had sex with appellant. M.W. responded by telling J.S. that she could not have had sex because she was menstruating. However, M.W. then realized that she was missing her tampon. According to M.W., she became very upset and told J.S. that she had not consented to sex with appellant. J.S. and M.W. subsequently discussed the possibility that appellant had used a date-rape drug, and that theory was relayed to D.C., who had been in the casino gambling. D.C. then confronted appellant, who was still sleeping, by hitting him in the face. "Shocked" by the punch and the allegations, appellant got out of bed and left the hotel.

M.W.'s parents arrived at the hotel and took M.W. to the hospital where a sexual assault examination was performed and M.W. was tested for three common date-rape drugs. The tests for the date-rape drugs came back negative, but the sexual-assault examination showed the presence of semen. Subsequent tests revealed that the DNA in the semen matched the DNA sample provided by appellant. Based on M.W.'s allegation that she did not consent to sex, appellant was arrested and charged with one count of third-degree criminal sexual conduct in violation of Minn.Stat. § 609.344, subd. 1(d) (2002). The charge required the state to prove that appellant engaged in sexual penetration with M.W. knowing that M.W. was mentally incapacitated or physically helpless.

At trial, M.W. testified that on the night of the alleged sexual assault, she rode to Eddy's Resort in the shuttle bus. According to M.W., the group was "goofin' around" at the pool and "having fun," but she denied flirting with or kissing appellant. M.W. also testified that she had about four or five beers and a couple sips of Grape Pucker during the evening, and that while they were at the pool, appellant poured her a beer while his back was turned toward her. M.W. further testified that when she got out of the pool, she felt "really tired," and that she "fell over" when she was in the bathroom getting changed.

After returning to the hotel, M.W. changed into her pajamas and went to bed. M.W. testified that she woke up when T.B. and appellant crawled into her bed, but that she did not feel threatened because she knew them. According to M.W., she dozed in and out of sleep, and woke up when appellant put his arm over her stomach. M.W. testified that she wanted to move it, but was too tired. M.W. also claimed that she did not remember anything else until she woke up the next morning and noticed that her "underwear and ... and pants were both pulled up to her hip on her left leg but completely off of her right" leg. According to M.W., she then went into the bathroom where she was informed by J.S. that she had sex with appellant. At that point, M.W. noticed that her tampon was missing. M.W. testified that she immediately became very upset, and "completely sick." M.W. further testified that she did not feel comfortable engaging in sexual activity in a room full of people or while menstruating and did not consent to sex with appellant.

K.K. testified that S.C. drove to the pool and that M.W. had climbed over the seat to sit next to appellant on the ride to the pool. K.K. also testified that everyone was "horsing" around at the pool, but did not believe that M.W. was "especially friendly" with appellant. K.K. further testified that after the group was back at the hotel, she heard M.W. say she was going to sleep and then saw her shut her eyes after she had crawled into bed. According to K.K., she later noticed some movement under the blanket and thought that appellant and M.W. were "fooling around." Although K.K. claimed that she did not know for certain that M.W. and appellant were having sex, she testified that she heard M.W. moan and did not intervene because she thought whatever was happening was consensual based on M.W.'s moan.

J.S. testified that she did not remember much about the events occurring at the pool and claimed that she did not notice anything unusual about M.W.'s demeanor. J.S. also testified that after she retired to her boyfriend's hotel room, she received a text message from D.C. stating, "I think that appellant and M.W. are having sex but I'm not sure." According to J.S., she was "shocked" when she got the text message because M.W. never mentioned having feelings toward appellant and, as her best friend, she assumed that M.W. would have confided in her if she were interested in appellant. J.S. further testified that, after M.W. denied having sex with appellant, she found M.W.'s tampon on the floor between the beds. J.S. claimed that M.W. then told her that she did not remember or consent to having sex.

Appellant testified in his defense and claimed that he kissed M.W. at the pool. Appellant also testified that the group was playing "chicken" in the pool, a game where the girls sit on the boys' shoulders in the pool. According to appellant, M.W. was his partner during the "chicken" games. Appellant did not remember pouring a cup of beer for M.W., and denied drugging her. Appellant further testified that after the group returned to the hotel, he laid down on the one of the beds but was told by K.K. that the bed was hers. Appellant claimed that as a result, he then got into the other bed next to T.B. Later, M.W. proceeded to get in the bed next to him with her back to him and laid her head on his arm.

In contrast to M.W.'s testimony, appellant claimed that after M.W. got into bed, he gave her a provocative back massage. According to appellant, he asked M.W. if it felt good, and she said yes and indicated that she wanted him to continue. Appellant further testified that the backrub was followed by even more intimate physical contact and eventually consensual sexual intercourse.

The next morning, appellant was "shocked" when D.C. struck him in the face. According to appellant, he "didn't know what was goin' on," so he just left. Appellant claimed that he did not know M.W. was menstruating and assumed that M.W. had removed her tampon because he was not aware of the presence of a tampon until the next morning. Appellant also claimed that M.W. was "definitely" awake when they had sex and that she did not seem drunk. Appellant further testified that he thought M.W. "was into him" because they had been flirting earlier, and that he "couldn't believe it" when he heard the allegations.

T.B. and D.C. both testified for the defense and both remembered playing "chicken" at the pool. T.B. testified that he observed appellant and M.W. flirting and saw them kiss, but claimed that after the group returned to the hotel he went to sleep and did not awake until the following morning. D.C. testified that she saw appellant and M.W. having sex under the blanket, and heard M.W. moaning. D.C. further testified that M.W. did not appear to be intoxicated and did not appear to be asleep during the sexual contact.

Following the trial, the jury returned a guilty verdict on the charge of sexual penetration involving physical helplessness and a not guilty verdict on the charge of sexual penetration involving mental incapacitation. Appellant subsequently filed a motion for a new trial, alleging that the state's discovery violation deprived him of a fair trial. Appellant also moved for a dispositional departure. The district court denied appellant's motions and imposed the presumptive sentence of 48 months in prison. This appeal followed.

IS...