State v. Enger, C5-95-63

• Decision Date: 31 October 1995
• Docket Number: No. C5-95-63,C5-95-63
• Citation: 539 N.W.2d 259
• Parties: STATE of Minnesota, Respondent, v. Paul Allen ENGER, Jr., Appellant.
• Court: Minnesota Court of Appeals

Page 259

539 N.W.2d 259

STATE of Minnesota, Respondent, v. Paul Allen ENGER, Jr., Appellant.

No. C5-95-63.

Court of Appeals of Minnesota.

Oct. 31, 1995.

Review Denied Dec. 20, 1995.

Syllabus by the Court

1. Evidence of the victim's prior sexual conduct was properly excluded where there is no evidence that the victim had a predisposition to fabricate a charge of rape.

2. Admission of evidence to establish a relationship between an appellant and a victim is not subject to the Spreigl notice requirement.

3. In sentencing, conditional release period must be reduced by the supervised release period.

Hubert H. Humphrey, III, Attorney General, Cheryl W. Heilman, Asst. Attorney General, St. Paul, Douglas L. Ruth, Steele County Attorney, Owatonna, for Respondent.

Steven P. Russett, Leslie Rosenberg, Asst. Public Defenders, St. Paul, for Appellant.

Considered and decided by WILLIS, P.J., and HUSPENI and THOREEN, ^* JJ.

OPINION

HUSPENI, Judge.

Appellant claims the trial court abused its discretion in failing to grant a new trial or judgment of acquittal, arguing: (1) there was insufficient evidence for his conviction of criminal sexual conduct in the first degree; (2) the trial court abused its discretion by providing the parties with only a portion of B.B.'s diary; (3) the trial court abused its discretion by admitting Spreigl evidence of a prior bad act by appellant; and (4) the trial court erred in sentencing. Because we conclude that appellant's sufficiency and evidentiary arguments are without merit, we affirm on those issues; with regard to appellant's sentence, because we conclude that the conditional release period must be reduced by the supervised release period, we modify those periods to a total of 60 months.

FACTS

Appellant Paul Allen Enger met B.B., a 27-year-old mentally retarded and learning disabled woman, in 1988. In April 1991, they began a sexual relationship. Later that month, B.B. sought a restraining order against appellant as a result of an incident in which appellant refused to leave B.B.'s apartment upon her request, became verbally abusive, and grabbed the phone receiver from B.B.'s hands and shook it in her face.

In November 1991, appellant threatened to "press charges" against B.B. unless she published an apology in the local newspaper and petitioned to dismiss the restraining order. B.B. complied with appellant's request and the sexual relationship resumed.

When appellant arrived to visit B.B., he usually threw stones at her window to get her attention. In August 1992 neighbors complained about this behavior and B.B.'s apartment manager informed B.B. that in order to avoid eviction, B.B. would have to get a restraining order against appellant. B.B. filled out the papers for a restraining order but never pursued the matter in court.

According to B.B., in April 1993, after she and appellant had sex, appellant asked her for $10 to pay for his ride to her apartment and when she told him she had no money, he took two pennies from her purse, said "thank you for paying me for my services," and left. B.B. wrote appellant a letter with a penny attached to it, stating in part "I got what you were trying to say to me. Thank you for your services but I don't need your kind of services any more."

In early June 1993, appellant invited B.B. to watch him play in a baseball game and while at the game he told B.B. that he did not want to see her any more.

On June 14, 1993, appellant came to B.B.'s apartment at her request. B.B. gave appellant a letter stating that she would never take him back. Appellant was unwilling to accept B.B.'s declaration and tried to kiss her. She turned her head away, told him "don't," and ran into her bedroom and tried to lock the door. Appellant followed her, forced the bedroom door open, grabbed her, pulled her shorts down, and pushed her onto the bed. According to B.B.'s testimony, appellant stated that he was going to get back $700 that he had to pay an attorney to get the restraining order dropped. Appellant then began hitting B.B.'s legs to force them open. B.B. testified that she kept telling him "no." Appellant grabbed and tore B.B.'s underwear, as she tried to hold onto it, penetrated her with his penis, and ejaculated on her stomach. When B.B. refused appellant's request to wash herself, appellant himself washed B.B.'s stomach and left the apartment.

B.B. did not have a telephone in her apartment. She testified that because she saw appellant driving around her building, she did not go outside immediately to call for help from a pay telephone. When she was sure appellant had left, she went outside and called police, who took B.B. to the hospital. The examining physician testified that she had two large bruises on her inner thighs, two symmetrical bruises on her upper arms, and a bruise over a prominent bone on her left hip.

At trial, appellant admitted he went to B.B.'s apartment the night of June 14, 1993, read the letter, and had sex with her. He denied hitting her, denied that B.B. ever said "no," and denied noticing any bruises either before or after they had sex.

At the omnibus hearing, appellant requested a copy of B.B.'s diary to use as evidence that B.B. fabricated the crime. The trial court, over prosecutorial objection, ordered that the diary be returned to the police and made available to appellant. Pursuant to a motion for reconsideration, the trial court conducted an in camera review of the diary and provided the parties with only a portion of the original diary.

After a trial, the jury acquitted appellant of violating Minn.Stat. § 609.342, subd. 1(c) (fear of imminent great bodily harm) but convicted him of violating Minn.Stat. § 609.342, subd. 1(e)(i) (force or coercion). The trial court denied motions for a new trial and judgment of acquittal and imposed sentences of 57 months imprisonment, 29 months supervised release, and up to five years conditional release following the supervised release period.

ISSUES

1. Was the evidence sufficient to support the verdict finding appellant guilty of first-degree criminal sexual conduct?

2. Did the trial court abuse its discretion in performing an in camera review of B.B.'s diary and in limiting the evidence presented at trial to that pertaining to B.B.'s prior relationship with appellant?

3. Did the trial court abuse its discretion in allowing the prosecution to introduce, without a formal Spreigl notice, evidence of a prior incident between appellant and B.B.?

4. Did the trial court err in sentencing appellant to five years conditional release following 29 months supervised release?

ANALYSIS

1. Sufficiency of the evidence.

In reviewing a claim of insufficiency of the evidence, this court's review

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn.1989).

A reviewing court must also assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). Moreover, a complainant's testimony need not be corroborated in a prosecution for criminal sexual conduct. Minn.Stat. § 609.347, subd. 1 (1992). See State v. Halvorson, 506 N.W.2d 331, 335-36 (Minn.App.1993) (holding testimony of a 19-year-old victim of criminal sexual conduct was sufficient for the jury to believe her story over that of the defendant); State v. Haala, 415 N.W.2d 69 (Minn.App.1987) (holding ten-year-old's unequivocal testimony about her father touching her was sufficient to convict him for second degree criminal sexual conduct despite his claim that the story was fabricated), review denied (Minn. Dec. 22, 1987).

Appellant argues that the state's evidence was insufficient to support his conviction because the state failed to prove that appellant used force or coercion to have sexual intercourse with B.B. We disagree. Appellant admitted that he had sexual intercourse with B.B. at her apartment on June 14, 1993. The jury had the opportunity to consider B.B.'s testimony, to judge her demeanor, and to weigh the credibility of her story against appellant's version of events. In addition, the jury heard expert testimony that B.B.'s bruises were consistent with her allegations of criminal sexual conduct. The trial testimony provides a sufficient basis from which the jury reasonably could have returned a guilty verdict.

2. B.B.'s diary.

Appellant argues that the trial court, by reviewing the diary in camera and then making only a portion of the diary available to the parties, precluded appellant's discovery and use of all relevant material to support his theory that B.B. fabricated the crime. We disagree.

"Appellate courts largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling." State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). "A ruling is prejudicial and therefore reversible if there is a reasonable possibility the error complained of may have contributed to the conviction." Id.

The Minnesota Supreme Court has held

in camera [review] strikes a fairer balance between the interest of the privilege holder in having his confidence kept and the interest of the criminal defendant in obtaining all relevant evidence that might help in his defense. We believe that trial courts, who by training and experience are qualified for the task of determining matters of relevancy, are capable of determining what if any of the information in the records might help in the defense.

State v. Paradee, 403 N.W.2d 640, 642 (Minn.1987) (emphasis added). A trial court's determination that the records are not helpful to the defense is "subject ultimately to judicial review." Id.

This court has independently reviewed the entire diary, and we conclude that the trial court did not abuse...