State v. Jones

Feb 18, 1983
CO-82-441
Reporters:
,
Before:
Peterson
PETERSON, Justice.

Defendant was found guilty by a district court jury of a charge of criminal sexual conduct in the first degree, Minn. Stat. § 609.342(a) (1982) (sexual penetration of ‍‌​​‌‌​​‌​​​​‌​‌​​‌​​​‌​‌‌‌​​‌‌‌‌​​‌‌​‌​​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌‌‌​​​‌​​‌‌‌​‌‌​​​‌​‌‌‍a person under age 13 by a person more than 36 months older). The trial court sentenced defendant to 43 months in prison, which is the presumptive sentence for the offense (severity level VIII) by a person with defendant’s criminal history score (zero). On this appeal from judgment of conviction defendant ‍‌​​‌‌​​‌​​​​‌​‌​​‌​​​‌​‌‌‌​​‌‌‌‌​​‌‌​‌​​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌‌‌​​​‌​​‌‌‌​‌‌​​​‌​‌‌‍seeks an outright reversal on the ground that the evidence of his guilt was legally insufficient. Alternatively, he seeks a new trial on the ground that the prosecutor committed prejudicial misconduct in asking questions which implied that defendant had threatened the mother of the victim shortly after the incident. We affirm.

We hold ‍‌​​‌‌​​‌​​​​‌​‌​​‌​​​‌​‌‌‌​​‌‌‌‌​​‌‌​‌​​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌‌‌​​​‌​​‌‌‌​‌‌​​​‌​‌‌‍that the evidence was sufficient to justify the jury verdict. The victim’s testimony was positive and not impeached significantly and it was corroborated in a number of ways.

Defense counsel “opened the door” to the subject of the content of the conversation between the victim’s mother and defendant shortly after the mother ‍‌​​‌‌​​‌​​​​‌​‌​​‌​​​‌​‌‌‌​​‌‌‌‌​​‌‌​‌​​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌‌‌​​​‌​​‌‌‌​‌‌​​​‌​‌‌‍called the police. Further, defense counsel did not preserve, by proper objection, the claim of error with respect to the prosecutor’s questions whether defendant had threatened the mother. Finally, defendant himself testified that what he said may have seemed like a threat. The fact that defendant made statements of a threatening ‍‌​​‌‌​​‌​​​​‌​‌​​‌​​​‌​‌‌‌​​‌‌‌‌​​‌‌​‌​​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌‌‌​​​‌​​‌‌‌​‌‌​​​‌​‌‌‍nature to the complainant’s mother when it was clear that a formal complaint was going to be made was relevant to the issue of defendant’s guilt.

Affirmed.