State v. Khalil, A19-1281

• Decision Date: 27 July 2020
• Docket Number: A19-1281
• Citation: 948 N.W.2d 156
• Parties: STATE of Minnesota, Respondent, v. Francios Momolu KHALIL, Appellant.
• Court: Minnesota Court of Appeals

948 N.W.2d 156

STATE of Minnesota, Respondent,

v.Francios Momolu KHALIL, Appellant.

A19-1281

Court of Appeals of Minnesota.

Filed July 27, 2020

Review Granted October 1, 2020

FRISCH, Judge

In this direct appeal from final judgment of conviction and sentence for third-degree criminal sexual conduct, appellant Francios Momolu Khalil argues that the district court erred by (1) ruling that the state could impeach him with evidence of his probationary status and prior felony conviction if he chose to testify at trial, (2) denying several discovery requests, (3) instructing the jury that a complainant may be "mentally incapacitated" through the voluntary consumption of alcohol or narcotics, and (4) denying his motion for a downward dispositional departure from the sentencing guidelines. We affirm.

FACTS

The state charged Khalil with multiple counts of criminal sexual conduct arising from a May 14, 2017 incident. A trial established the following.

Late in the evening on May 13, 2017, complainant J.S. consumed multiple alcoholic beverages and prescription Vicodin

, a narcotic. J.S., who was 20 years old at the time, went to a bar in Minneapolis with her friend, S.L. J.S. consumed more alcohol during the drive to the bar. The bouncer denied J.S. entry, recognizing that J.S. was underage and appeared intoxicated.

Khalil, Khalil's cousin, and another man approached J.S. and S.L. outside the bar and invited them to a party. J.S. and S.L. agreed, and Khalil drove everyone to a residence. When they arrived, J.S. and S.L. discovered that there was no party.

J.S. and S.L. entered the residence. S.L. testified that she saw J.S. immediately lie down on a couch and fall asleep shortly thereafter. J.S. testified that she remembers a red leather couch and cats, but she has no recollection of falling asleep on the couch. S.L. observed Khalil sit next to J.S. on the couch, slowly move behind J.S., and also fall asleep. S.L. testified that J.S. was heavily intoxicated. Khalil's cousin testified that J.S. was sitting upright with Khalil on the couch and talking with the group for some time after they first arrived and that they later "passed out" on the couch together.

At some point in the middle of the night, J.S. testified that she woke up, face down, with Khalil on top of her, and felt a penis penetrating her vagina. J.S. told Khalil, "No, I don't want to." Khalil replied, "But you're so hot and you turn me on." J.S. then lost consciousness again.

Also at some point in the middle of the night, S.L. testified that she attempted to awaken J.S. so they could leave the house but that she was unable to awaken J.S.

At approximately 8:00 a.m., J.S. woke up, saw her shorts around her ankles, and immediately recalled the events of the evening. J.S. located S.L., called for a ride, and left the house. During the ride, J.S. told S.L. that she had been raped.

Thereafter, J.S. reported the incident to police. During his police interview, Khalil stated that he did not remember J.S. and never had sex with her.

The state charged Khalil with two counts of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct. Two of the charges against Khalil—count 1 (first degree) and count 3 (third degree)—involve sexual activity with a person when "the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless." Minn. Stat. §§ 609.342, subd. 1(e)(ii), .344, subd. 1(d) (2016).

Before trial, Khalil sought discovery of (1) a telephone call J.S. received as she was standing outside of the bar, (2) medical records of J.S. predating the incident, and (3) copies of photographs of J.S.’s vagina from the sexual-assault examination. The district court denied these requests in part. Also before trial, the state moved for an order allowing impeachment of Khalil with a prior felony theft conviction and his probationary status should Khalil choose to testify at trial. The district court granted the motion. Khalil did not testify at trial.

At trial, Khalil presented evidence that he did not administer drugs or alcohol to J.S.; rather, J.S. voluntarily became intoxicated. During deliberations, the jury asked the district court whether J.S. could be "mentally incapacitated" when she voluntarily consumed alcohol and other substances. Khalil argued that J.S. could not have been "mentally incapacitated" unless she consumed the alcohol and prescription narcotics against her will. The district court disagreed and instructed the jury that J.S. could be "mentally incapacitated" even if she voluntarily consumed the alcohol and narcotics.

The jury found Khalil guilty of third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless person in violation of Minn. Stat. § 609.344, subd. 1(d).

Khalil then requested probation instead of a prison sentence, which would have been a downward dispositional departure from the Minnesota Sentencing Guidelines. The district court denied the motion and imposed the presumptive guidelines sentence of 62 months in prison. This appeal follows.

ISSUES

I. Did the district court abuse its discretion by deciding that the state could impeach Khalil with his prior felony conviction and probationary status if he chose to testify at trial?

II. Did the district court err by denying Khalil's discovery requests?

III. Does the phrase "mentally incapacitated" under Minn. Stat. § 609.341, subd. 7, include a person who is voluntarily under the influence of alcohol or narcotics and "lacks the judgment to give a reasoned consent to sexual contact or sexual penetration?"

IV. Did the district court abuse its discretion in denying Khalil's motion for a downward dispositional departure?

ANALYSIS

I. The district court did not abuse its discretion by deciding that the state may impeach Khalil with his prior felony conviction and probationary status if he chose to testify at trial.

Khalil argues that the district court abused its discretion by ruling that the state may offer as impeachment evidence his prior felony theft conviction and accompanying probationary status. Prior-conviction evidence is admissible for impeachment purposes if the crime is a felony "and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect." Minn. R. Evid. 609(a)(1). We "will not reverse a district court's ruling on the impeachment of a defendant with his prior conviction absent an abuse of discretion." State v. Zornes , 831 N.W.2d 609, 626 (Minn. 2013). A district court must consider the following factors, commonly known as the Jones factors, in determining whether to admit prior-conviction evidence: " ‘(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; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.’ " State v. Reek , 942 N.W.2d 148, 162 (Minn. 2020) (quoting State v. Jones , 271 N.W.2d 534, 538 (Minn. 1978) ). "[I]t is error for a district court to fail to make a record of its consideration of the Jones factors, though the error is harmless if it is nonetheless clear that it was not an abuse of discretion to admit evidence of the convictions." State v. Davis , 735 N.W.2d 674, 680 (Minn. 2007).

In making its ruling, the district court considered each of the five Jones factors. First, the district court recognized that a prior crime has impeachment value when it assists "the jury to see the ‘whole person.’ " Reek , 942 N.W.2d at 162 (stating that a prior crime has impeachment value when it "assists the jury to see the ‘whole person’ and therefore to better judge the truth of the witness's testimony"). Consistent with Minnesota law, the district court found that admission of the prior felony theft conviction "is relevant to a jury's analysis of a defendant's credibility," and "a felony conviction helps the jury see the whole person." We have previously declined to find an abuse of discretion when a district court found that a felony theft conviction would aid the jury in assessing witness credibility. State v. Skinner , 450 N.W.2d 648, 653 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). We have also held that the probationary status of a defendant is admissible to show a motive to lie. State v. Johnson , 699 N.W.2d 335, 338-39 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). Second, the district court found that the then-recent felony conviction and accompanying probationary status favored admission. Third, the district court found that the prior felony theft conviction was dissimilar to the charged offenses, again favoring admission. "[T]he greater the similarity, the greater the reason for not permitting use of the prior crime to impeach." Jones , 271 N.W.2d at 538. Regarding the fourth and fifth factors, the district court recognized the importance of testimony and the significance of witness credibility in the matter, and concluded that both factors favor admission. Further, the district court offered to instruct the jury on the limited scope of permissible inferences from the impeachment evidence. See State v. Flemino , 721 N.W.2d 326, 329 (Minn. App. 2006) (recognizing that cautionary instructions diminish the risk of a jury misusing impeachment evidence).

Khalil argues that the district court abused its discretion in combining its analysis of the fourth and fifth Jones factors and that the importance of his testimony weighs in favor of excluding impeachment evidence. In support of this argument, Khalil relies on two law review articles critical of the application of the Jones factors under established Minnesota law. See Edward E. Gainor, Character Evidence by Any Other Name ...: A Proposal to Limit Impeachment by Prior Conviction Under Rule 609 , 58 Geo. Wash. L. Rev. 762 (1990) ; see also Ted Sampsell-Jones, Minnesota's Distortion of Rule 609 ,...