Opinion
No. CX-97-46.
Filed July 8, 1997.
Appeal from the District Court, Ramsey County, File No. K5-96-2014.
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, (for Appellant).
Hubert H. Humphrey, III, Attorney General, (for Respondent).
Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, (for Respondent).
Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Dwayne Peterson challenges his conviction of promotion of prostitution, arguing that the evidence was insufficient to support the jury's verdict. In addition, in his pro se brief, appellant alleges that the district court was racially biased against him, that it improperly excluded impeachment evidence, and that there was prosecutorial misconduct. We affirm.
FACTS
In May 1996, appellant was approached by C.H., a twelve-year-old female runaway, and T.S., her fifteen-year-old female companion runaway, who asked him for directions to Payne Avenue. Appellant offered to give C.H. and T.S. a ride, which they accepted. Appellant asked the girls what they intended to do on Payne Avenue and C.H. responded that they wanted to make money, meaning by prostitution. Instead of driving them to Payne Avenue, appellant invited the girls to his house, and they agreed.
At his house, appellant offered the girls wine, beer, and marijuana. Appellant paged an acquaintance from work, Young Vang, and invited him to come over with a friend. Later, when Vang and his friend arrived, C.H. and T.S. had sexual intercourse with the men in appellant's living room in exchange for money. Although appellant left the house to get more beer, he was present part of the time the men were having sex with the girls. After the men left, appellant repeatedly paged Vang and asked him to return. C.H. told Vang that she needed money and she did not care who arrived as long as they had money. Later, Vang and three friends returned to appellant's house. Several of the men took C.H. to a motel where they had sexual intercourse with her for money. When C.H. returned to appellant's house the next day, appellant took the money telling her he would hold it for her.
The jury found appellant guilty of promotion of prostitution, but not guilty of first-degree criminal sexual conduct. The district court sentenced appellant to the presumptive sentence of 110 months for promotion of prostitution.
DECISION
When reviewing a claim of insufficient evidence, we consider whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense. State v. Pierson , 530 N.W.2d 784, 787 (Minn. 1995). The evidence must be viewed in a light most favorable to the jury's verdict and we assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. Id. A guilty verdict will not be disturbed if the jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty. Id.
1. Appellant challenges the sufficiency of the evidence to support the jury finding that he "knowingly" promoted the prostitution of C.H. Appellant argues that when he offered the girls a place to stay and drove them to his house, he did not knowingly transport them to aid their prostitution. Furthermore, appellant contends that the record does not indicate that he knowingly procured patrons for the girls or provided his residence for their prostitution activities. See Minn. Stat. § 609.321, subd 7 (1996) (defining promotion as a person who knowingly procures patrons, provides premises, or transports an individual within the state to aid the prostitution of the individual).
The record demonstrates that: (1) C.H. told appellant that the girls wanted to go to Payne Avenue to make money, meaning by prostitution; (2) instead of giving the girls a ride to Payne Avenue, he took them to his house; (3) appellant called Vang and told him to come over with a friend because he had two girls and some beer; (4) when the men arrived, the girls were dressed only in nightgowns; (5) appellant told the men that these were "his girls"; (6) although appellant briefly left the house, he was in the house part of the time the men had sex with the girls; (7) when T.S. did not want to have sex with one of the men, appellant told her to "lie there"; (8) appellant told the men to have sex in the bedroom rather than in the living room the next time; (9) when the men gave the girls money for sex, appellant took some of the money; (10) after the men left, appellant made repeated efforts to contact them again; (11) the men came back with two other friends who then took C.H. to a motel to have sexual intercourse; and (12) the next morning, appellant took the money C.H. had received for the sexual acts. Based on this record, we conclude without difficulty that the jury could reasonably find that appellant promoted the prostitution of C.H.
2. In his pro se brief, appellant argues that he is entitled to a new trial because the district court was racially biased against him and improperly excluded impeachment evidence; he also claims that the prosecutor committed prejudicial misconduct. Appellant mischaracterizes two statements made by the district court. Prior to trial, the district court cautioned appellant that if he went to trial and was convicted of both charges, he faced the possibility of consecutive, aggravated sentences. Additionally, at trial, the district court was "struck by the fact that the case was charged involving a white victim but not a black victim" and asked the prosecuting attorney to explain this discrepancy. The district court's comments did not indicate that it had already made a sentencing decision or that it was racially biased against appellant.
Appellant asserts that the district court abused its discretion when it granted the state's motion in limine and excluded evidence on, or reference to, C.H.'s prior sexual conduct. Appellant sought to introduce evidence that C.H. had previously run away, prostituted herself, and made allegations that a black man raped her and promoted her prostitution. Appellant claimed that this was evidence of a common scheme or plan by C.H. that should have been admitted to cast doubt on her credibility.
Generally, in cases involving a charge of first-degree criminal sexual conduct evidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury * * *.
Minn. Stat. § 609.347, subd. 3 (1996). In two limited situations, however, such evidence may be admissible: (1) when the consent of the victim is a defense in the case; or (2) when the prosecution's case includes evidence of semen, pregnancy, or disease, in which case evidence of the victim's previous sexual conduct is admissible solely to show the source of the semen, pregnancy, or disease. Id. Here, these two exceptions were inapplicable. When the victim of first-degree criminal sexual conduct is under 13 years of age, as in the instant case, consent is not a defense. Minn. Stat. § 609.342, subd. 1(a) (1996). Additionally, the state's case contained no evidence of semen, pregnancy, or disease. Therefore, the district court properly excluded any evidence or reference to C.H.'s previous sexual conduct, and the court did not abuse its discretion.
Finally, appellant claims the prosecutor committed prejudicial misconduct because he repeatedly asked Kou Thao if he remembered seeing appellant while having sex with T.S. Initially, Thao responded he did not remember. When the prosecutor attempted to clarify Thao's testimony, however, Thao testified that although he did not recall seeing appellant while having sex, he did hear appellant's voice at some point. We conclude the district court did not abuse its discretion when it allowed the prosecutor to clarify Thao's testimony. See Minn.R.Evid. 611(a) (district court has control over the mode and order of examining witnesses); State v. Kelly , 435 N.W.2d 807, 813 (Minn. 1989) (reviewing court defers to the district court's exercise of discretion in evidentiary matters). Moreover, even if we were to hold that the district court erred, appellant fails to show prejudice because C.H., T.S., and Vang all testified that they saw or heard appellant in the house while they were having sex. Appellant's pro se claims do not entitle him to a new trial.