State v. Moore, A14–0358.
| Decision Date | 11 May 2015 |
| Docket Number | No. A14–0358.,A14–0358. |
| Citation | 863 N.W.2d 111 |
| Parties | STATE of Minnesota, Respondent, v. Brian Kenneth MOORE, Appellant. |
| Court | Minnesota Court of Appeals |
Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul, Minnesota; and Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County Attorney, Elk River, MN, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch–Erickson, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by JOHNSON, Presiding Judge; HALBROOKS, Judge; and LARKIN, Judge.
Brian Kenneth Moore was charged with third-degree criminal sexual conduct in violation of section 609.344, subdivision 1(c), of the Minnesota Statutes. That particular form of third-degree criminal sexual conduct requires proof that a defendant used “force or coercion to accomplish [sexual] penetration.” In this case, the state sought to persuade the jury that Moore used force, but not coercion, to accomplish sexual penetration. A Sherburne County jury returned a verdict of guilty.
On appeal, Moore's primary argument is that the district court erred by not instructing the jury on the statutory definition of the word “force,” which he contends is different from the common understanding of the word. Moore makes the argument for the first time on appeal because he did not object to the district court's instruction on that ground. We conclude that the district court erred because the jury instruction stating the elements of the charged offense did not include the legislature's definition of “force,” which is meaningfully different from the lay definition. We conclude, however, that the district court's error is not plain and, furthermore, did not affect Moore's substantial rights. We also conclude that the district court did not err in excluding certain evidence that Moore sought to introduce. Therefore, we affirm the conviction.
Moore was convicted of committing criminal sexual conduct against a woman, P.B., with whom he previously had had a consensual sexual relationship. That relationship began in another state in 2004, when P.B. was married to another man. Both Moore and P.B. later moved to different states, but they maintained contact and occasionally met and engaged in consensual sexual conduct. On a few of those occasions, according to P.B.'s trial testimony, they engaged in “rough sex” and in sexual conduct that she described as domination and submission. Certain sexual episodes also involved the infliction of physical pain through slapping and hair pulling. This sexual relationship continued until 2009. Moore and P.B. saw each other in December 2010, when Moore was living in Minnesota and P.B. was visiting relatives in the state. They met at a mall in St. Cloud, accompanied by P.B.'s daughter, but did not engage in sexual conduct.
Moore and P.B. saw each other again the following year. Moore was in a sexual relationship with and living with another woman, A.W. P.B. was living in the eastern United States, was engaged to be married to another man, and was 26 weeks pregnant. In July 2011, P.B. was required to be in Minnesota for a court hearing concerning the custody of two children from her prior marriage. Before her trip, she contacted Moore by instant message and text message and asked for assistance with transportation and other matters. In one text message to P.B., Moore wrote that he was looking forward to having sex with her, and P.B. responded that she did not want to have sex with him because she was committed to her fiancé. Moore and P.B. later exchanged additional text messages that were sexually suggestive. In one text message, P.B. wrote: In another text message, P.B. wrote:
P.B. arrived in Minnesota on July 5, 2011. Moore picked her up at the airport, drove her to a hotel in the city of Elk River, and helped her check in. They spent time together the next day, along with P.B.'s two children and A.W. and her child. Moore also ran errands for P.B. In the late afternoon, P.B. went back to her hotel room, while Moore and A.W. went to a bar to play volleyball with friends. At approximately 7:00 p.m., P.B. sent a text message to Moore, asking, “If it's not too late, will you stop by?” P.B. later testified that she wanted to ask Moore whether she could stay at the home he shared with A.W. on the following night, P.B.'s last night in Minnesota, in which case she would check out of her hotel in the morning. Moore responded by writing that he would stop by the hotel later that night. He and A.W. spent the evening with friends at two bars. At approximately 11:30 p.m., P.B. sent another text message to Moore, saying, “come see me if you can,” and “I need to talk to you.”
Moore and A.W. went to P.B.'s hotel at approximately 1:30 a.m. A.W. waited in the car while Moore went inside the hotel. Moore entered P.B.'s hotel room with an extra key card that she had given him earlier, when he ran errands for her. P.B. was sleeping but awoke to a “sharp pain” in her breast and realized that Moore was on top of her and was biting her breast. She tried to sit up but could not do so because Moore was holding her arms down with his hands and was pressing one of his legs against her stomach. Moore then rubbed and licked one of P.B.'s thighs. She was “astonished” and told him “no” repeatedly while crying. Moore pushed her onto her stomach. She pulled her legs underneath her to protect her pregnant belly. When P.B. cried into her pillow, Moore pulled her head up by her hair and told her that it was merely a dream. Moore penetrated her vagina with his penis for a couple of minutes until he ejaculated. P.B. experienced pain while Moore was penetrating her. A.W. testified at trial that Moore returned to the car after approximately ten minutes, and her testimony on that point was corroborated by hotel surveillance cameras.
After Moore left the hotel room, P.B. called her fiancé and told him that Moore had raped her. Her fiancé said that she should call the police, and they agreed that he would do so. Police officers came to P.B.'s hotel room shortly thereafter to take her statement and gather evidence. P.B. was transported by ambulance to a hospital, where a nurse performed a sexual-assault examination. The nurse observed five small lacerations on the walls of P.B.'s vagina that are consistent with a sexual assault. Meanwhile, police officers brought Moore and A.W. to the police station for questioning. Moore initially said that he had only kissed P.B. On further questioning, he said that they had had consensual sex.
In December 2011, the state charged Moore with third-degree criminal sexual conduct, in violation of Minn.Stat. § 609.344, subd. 1(c) (2010). The case was tried over two days in October 2013. The state called five witnesses: P.B., the nurse who performed the sexual-assault exam, two Elk River police officers, and A.W. The defense called one witness: a former employee of the hotel who also was Moore's neighbor. The jury found Moore guilty. The district court imposed a sentence of 48 months of imprisonment but stayed execution of the sentence, ordered jail time with credit for time in detention, and placed Moore on probation for 15 years. The district court's sentence is a downward dispositional departure from the presumptive guidelines sentence of 41 to 58 months of imprisonment. Moore appeals.
I. Did the district court err by excluding evidence of P.B.'s mental-health diagnosis?
II. Is Moore entitled to a new trial because the district court did not instruct the jury on the statutory definition of the word “force,” as used in the third-degree criminal-sexual-conduct statute?
Moore argues that the district court erred by excluding evidence of P.B.'s mental-health diagnosis.
In April 2012, Moore moved to compel discovery of P.B.'s psychotherapy records. The district court ordered that the records be produced for an in camera inspection before the omnibus hearing. In October 2012, the district court ordered that some of the psychotherapy records be produced to Moore because they contained information that was relevant to the proceeding.
In March 2013, Moore filed a motion in limine in which he sought, among other things, a ruling that evidence concerning P.B.'s mental health was admissible. The district court ruled that either party could examine P.B. about certain aspects of her medical history, which the district court identified in a confidential attachment to its order. But the district court also ruled that Moore could not introduce evidence of, among other things, P.B.'s mental-health diagnosis.1 The district court reasoned that evidence of P.B.'s mental-health diagnosis and certain other subjects would be “highly prejudicial, offer little relevance to the issues the jury will have to decide, and will distract the jury from the issues raised in the case.”
Consistent with its in limine ruling, the district court allowed Moore's trial counsel to examine P.B. about some of the symptoms of her diagnosis, such as specific incidents in the past when she could not remember events that she had experienced. The district court also allowed Moore's trial counsel to examine P.B. about her responses to a questionnaire administered by her psychotherapist. But Moore's trial counsel was not allowed to examine P.B. about her mental-health diagnosis or to introduce certain other evidence explaining the diagnosis.
When ruling on Moore's motion in limine, the district court applied the following statute, which is captioned, “Psychotherapy evidence”:
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