State v. Gunn

Oct 24, 1980
50472
Reporters:
,
Before:
Yetka
YETKA, Justice.

Defendant was found guilty by a district court jury of criminal sexual conduct in the first degree, Minn.Stat. § 609.342(e)(i) (1978) (sexual penetration accompanied by actor causing personal injury to complainant and actor ‍‌​​‌‌​‌​​‌‌​‌‌‌​‌‌​‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​‌​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​​‌‌‌‌​‌‌‌​​​​‌‌​‌​​‌‌‌‌​​​‍using force or coercion to accomplish the sexual penetration). The trial court sentenced defendant to a maximum prison term of 20 years. On this appeal from judgment of conviction, defendant contends (1) that his conviction should be reversed outright because the evidence that force or coercion was used to accomplish the admitted act of penetration was legally insufficient or (2) that ‍‌​​‌‌​‌​​‌‌​‌‌‌​‌‌​‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​‌​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​​‌‌‌‌​‌‌‌​​​​‌‌​‌​​‌‌‌‌​​​‍at least he should be granted a new trial on the ground that the prosecutor committed misconduct in his closing argument amounting to plain error. We affirm.

The defendant’s contention that the evidence was legally insufficient is merit-less. The state’s evidence showed that defendant picked up a stranded female motorist, drove her to an isolated place, struck her on the head, and, ‍‌​​‌‌​‌​​‌‌​‌‌‌​‌‌​‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​‌​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​​‌‌‌‌​‌‌‌​​​​‌‌​‌​​‌‌‌‌​​​‍by using the threat of more force, coerced her into having sexual intercourse with him. Although corrobora *138 tion of a complainant’s testimony is not required in prosecutions for criminal sexual conduct in this state, Minn.Stat. § 609.347, subd. 1 (1978), we have stated, however, that the absence of corroboration in an individual case might well call for a holding that the evidence was insufficient. State ‍‌​​‌‌​‌​​‌‌​‌‌‌​‌‌​‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​‌​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​​‌‌‌‌​‌‌‌​​​​‌‌​‌​​‌‌‌‌​​​‍v. Ani, 257 N.W.2d 699 (Minn.1977). Here there was strong corroboration of complainant’s testimony.

The other issue raised by defendant concerns the propriety of some statements by the prosecutor in his closing argument. Defendant, by failing to object at trial to any of the statements or seek specific cautionary instructions, is deemed to have forfeited his right to have the issue considered on appeal. ‍‌​​‌‌​‌​​‌‌​‌‌‌​‌‌​‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​‌​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​​‌‌‌‌​‌‌‌​​​​‌‌​‌​​‌‌‌‌​​​‍While this court could reverse, notwithstanding the defendant’s failure to preserve the issue if we deem the error sufficient to do so, we do not believe this case justifies a reversal.

Affirmed.