State v. Robinson, C4-91-76
| Decision Date | 05 November 1991 |
| Docket Number | No. C4-91-76,C4-91-76 |
| Citation | 476 N.W.2d 896 |
| Parties | STATE of Minnesota, Respondent, v. Gary Neil ROBINSON, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. A criminal defendant's exclusion from a hearing to determine the competency of a child witness is reversible error when the defendant's rights have been prejudiced.
2. Spreigl evidence is admissible if the trial court finds the direct or circumstantial
evidence is otherwise weak or inadequate and it is necessary to support the state's burden of proof.
3. A defendant with two prior convictions under the repealed intrafamilial sexual abuse statutes is subject to the mandatory 37-year prison term pursuant to Minn.Stat. Sec. 609.346, subd. 2a (Supp.1989).
4. A trial court may submit a special interrogatory to a jury in a criminal case where the question is related to sentencing and does not tend to lead the jury to a finding of guilt.
5. The trial court is not bound by the jury's answer to a special interrogatory in a criminal case.
6. If a trial court erroneously instructs a jury concerning its answer to a special interrogatory in a criminal case, the court cannot use the jury's answer in making its findings of fact.
7. The imposition of a 37-year prison term for repeat sex offenders under Minn.Stat. Sec. 609.346, subd. 2a (Supp.1989) is not cruel and unusual punishment.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Alan L. Mitchell, St. Louis Co. Atty., Duluth, Brian D. Simonson, Asst. Co. Atty., Hibbing, for respondent.
John M. Stuart, State Public Defender, Steven P. Russett, Asst. State Public Defender, St. Paul, for appellant.
Considered and decided by HUSPENI, P.J., and NORTON, and AMUNDSON, JJ.
Appellant Gary Neil Robinson was convicted of second degree criminal sexual conduct and sentenced to 37 years in prison pursuant to Minn.Stat. 609.346, subd. 2a (Supp.1989). Robinson challenges his exclusion from the minor child's competency hearing, the admission of evidence of prior convictions, and his sentence. We affirm in part, reverse in part and remand for sentencing.
Following a jury trial, Robinson was convicted of second degree criminal sexual conduct for offenses against his four-year-old daughter H.R. Minn.Stat. Sec. 609.343. subd. 1(a) (Supp 1989). ("complainant is under 13 years of age and the actor is more than 36 months older than the complainant").
Robinson has two previous sexual assault convictions for offenses committed against his two stepdaughters. As a result he was sentenced to a mandatory 37-year term of imprisonment pursuant to Minn.Stat. Sec. 609.346, subd. 2a. The trial court indicated that if section 609.346, subd. 2a was found inapplicable on appeal, it intended to depart from the sentencing guidelines and sentence appellant to the statutory maximum of 20 years imprisonment. Minn.Stat. Sec. 609.343, subd. 2 (Supp.1989).
I. Did the trial court's exclusion of appellant from the hearing to determine H.R.'s competency as a witness prejudice his rights?
II. Did the trial court err by admitting evidence of appellant's prior sexual offense convictions?
III. Did the trial court err by sentencing appellant to the mandatory 37-year term of imprisonment under Minn.Stat. Sec. 609.346, subd. 2a?
1. Did the trial court err in submitting a special interrogatory to the jury concerning the date of appellant's offenses which was relevant to the sentence imposed?
2. Was the trial court bound by the jury's answer to the special interrogatory?
3. Did the trial court erroneously instruct the jury concerning its answer to the special interrogatory?
After a separate hearing the trial court concluded Robinson's daughter, H.R., was competent to testify. Robinson argues his exclusion from this hearing amounted to reversible error. We disagree.
In State v. Thompson, 430 N.W.2d 151 (Minn.1988) the supreme court stated that the exclusion of a defendant from the competency hearing of a child witness does not violate the confrontation clause or due process clause of the federal constitution. Id. at 152 (citing Kentucky v. Stincer, 482 U.S. 730, 744-45, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987)). The court observed, however, that Minn.R.Crim.P. 26.03, subd. 1, gives a defendant the right to be present at "every stage of the trial." Id. It then noted:
Because we believe that a competency hearing is a "stage of the trial" under Minn.R.Crim.P. 26.03, subd. 1, we conclude that a criminal defendant has a right to be present at a hearing to determine the competency of a witness, even a child witness. Therefore, if defendant or his attorney had asserted defendant's right to be present in this case, it would have been error for the trial court to deny defendant that right and we would have to determine whether or not the error was prejudicial.
Here Robinson asserted his right to be present, but the trial court denied it based on Moll v. State, 351 N.W.2d 639 (Minn.App.1984). In Moll, this court held a defendant does not have the right to attend the competency hearing of a child witness because defendant's presence would serve no other purpose other than to intimidate the child. Id. at 644. Moll, however, was implicitly overruled by Thompson. It is clear that based on Thompson, Robinson had a right to be present at the competency hearing. This does not end our inquiry however. We must also determine whether Robinson's exclusion was prejudicial.
After carefully reviewing the record we hold that Robinson was not prejudiced by being excluded from H.R.'s competency hearing for three reasons. First, the transcript clearly supports the trial court's conclusion that H.R. was competent to testify. Second, there is no indication that Robinson's presence at the hearing would have been useful in making a more reliable determination of H.R.'s competency. See Stincer, 482 U.S. at 747, 107 S.Ct. at 2668. Finally, Robinson presents nothing specific about his relationship with H.R. that could have assisted either his attorney or the trial court in asking questions that would have resulted in a more assured determination of competency. Under these circumstances, Robinson's exclusion from the competency hearing was not prejudicial.
Robinson argues the trial court erred in admitting evidence of two prior sexual offense convictions. In 1983 Robinson pleaded guilty to two counts of second degree intrafamilial sexual abuse involving both of his stepdaughters. In 1985, appellant again pleaded guilty to second degree intrafamilial sexual abuse for an offense against one of his stepdaughters. The trial court permitted evidence of these convictions at trial. See State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).
Robinson contends the probative value of the Spreigl evidence was outweighed by its potential for unfair prejudice. We disagree. Spreigl evidence may be admissible if the trial court finds the direct or circumstantial evidence is otherwise weak or inadequate and it is necessary to support the state's burden of proof. State v. DeWald, 464 N.W.2d 500, 503 (Minn.1991). In this case the Spreigl evidence was crucial since other evidence of Robinson's guilt was far from overwhelming. Moreover, the Spreigl evidence was also relevant to show a common scheme or plan. See State v. Slowinski, 450 N.W.2d 107, 113 (Minn.1990). Further, the trial court gave proper cautionary instructions to the jury both before introduction of the Spreigl evidence and at the close of evidence. See Slowinski, 450 N.W.2d at 114. Under these circumstances, the trial court acted within its discretion in admitting evidence of the prior convictions.
Robinson argues the trial court erred by sentencing him to the mandatory 37-year prison term provided for in Minn.Stat. Sec. 609.346, subd. 2a (Supp 1989). Subdivision 2a provides:
(a) The court shall sentence a person to a term of imprisonment of 37 years, notwithstanding the statutory maximum sentences under sections 609.342 and 609.343 if:
(1) the person is convicted under section 609.342 or 609.343; and
(2) the person has two previous sex offense convictions under section 609.342, 609.343, or 609.344.
(b) Notwithstanding sections 609.342, subdivision 3; and 609.343, subdivision 3; and subdivision 2, the court may not stay imposition of the sentence required by this subdivision.
Robinson advances three arguments: (A) by the statute's own terms, subdivision 2a does not apply to him; (B) application of subdivision 2a to him violates the prohibition against ex-post facto laws; and (C) the imposition of a 37-year sentence is cruel and unusual punishment.
Robinson's argument that the statute on its face does not apply to this case is unpersuasive. Because Robinson's current conviction is for second degree criminal sexual conduct in violation of Minn.Stat. Sec. 609.343, subd. 1(a), the requirement of subdivision 2a(a)(1) is met. Subdivision 2a(a)(2) requires, however, the two prior convictions be under sections 609.342, 609.343 or 609.344. Robinson argues because his prior convictions were for intrafamilial sexual abuse under Minn.Stat. Sec. 609.3642, which was repealed in 1985, the requirement in subdivision 2a(a)(2) has not been met. This argument fails for two reasons.
First, when the legislature repealed section 609.3642, it stated that one of the purposes of the act was to merge the crimes of "intrafamilial sexual abuse" and "criminal sexual conduct." 1985...
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...the jury found him guilty of rape—would not appear to fall within the category of a prohibited special verdict. See State v. Robinson, 476 N.W.2d 896, 903 (Minn.App.1991) (disagreeing with Osburn and finding the “better reasoned rule is that a special interrogatory may be used in a criminal......
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...This court observed in Robinson that "trial testimony did not conclusively establish when the abuse took place," State v. Robinson, 476 N.W.2d 896, 901 (Minn.App.1991) (emphasis added), aff'd as modified 480 N.W.2d 644.16 We do not speculate as to what evidence will be presented on retrial.......
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