State v. Tuomi

OPINION WOZNIAK, Judge. Appellant Mitchel Tuomi was convicted of criminal sexual conduct in the first degree, Minn.Stat. § 609.342(e)(i) (1984), for sexually assaulting a young woman. On appeal he claims improper admission of statements in violation of Miranda, insufficient evidence, improper instructions, erroneous evidentiary rulings, and ineffective counsel. He also contends the trial court should not have imposed the presumptive guidelines sentence. We affirm. FACTS In the summer of 1985, 22-year-old J.P. was working at Madden's Resort, near Brainerd, Minnesota. She worked as the golf driving range attendant out of a small hut located about one mile from Madden’s Lodge. About 7:45 p.m. on August 23, she was closing the register and counting the day’s receipts. She saw a man run by the window. The man, wearing blue bikini shorts, yellow shirt, gloves, black mask, and barefoot, appeared- at the door to the hut. J.P. thought a friend was playing a joke and tried to lift the mask off. The masked man pulled the mask back down. Thinking she was being robbed, J.P. told the man to take the money. J.P. testified the man *849 then said, “I don’t want the money. I’m going to f_you.” J.P. claimed she grabbed a walkie-talkie and began screaming for help as the man grabbed her arms and started to force her to the floor. A struggle ensued. J.P. claimed the man repeatedly threatened to f_her. The man’s gloves were off because, according to J.P., he had difficulty in untying her belt with the gloves on. J.P. testified that he had his hand over her mouth. She claimed that he pulled her pants and underwear down to her knees and put his finger in her vagina. The man got off J.P. as Randy Lee, manager of Madden’s Inn, had arrived in response to J.P.’s summons for help on the walkie-talkie. Lee observed J.P. on the floor with the masked man on top of her. The man then fled out of the hut. Lee gave chase. Meanwhile, another employee of Madden’s, T.J. McGuire, arrived at the hut. He saw J.P. hysterical and screaming. He noticed her belt buckle was undone and that her pants were unsnapped. He also gave chase. As the masked man ran alongside County Road 77 down the driving range, Lee tried to get help from a passing motorist. The masked man heard Lee tell the motorist that the masked man had tried to rape a girl and he turned and yelled “bullshit.” The masked man then ran into the woods, followed by McGuire. He removed his mask and yelled to McGuire that it was a joke and a mistake. During the chase, he knocked McGuire down. The man eventually reached his black Mazda pickup truck which was parked near the airstrip next to the driving range. A chase ensued; by this time the police had arrived. Brainerd Police Officer Randy Fisher talked with J.P. who told him that a man had attempted to rape her and put his finger in her vagina. Lee and McGuire returned and described the man, his vehicle, and where he was heading. Fisher left in pursuit and radioed to the Crow Wing County Sheriff’s Department to watch for the truck. Minnesota State Trooper Eugene Abraham spotted the vehicle speeding and followed it. Meanwhile, Baxter Police Officer James Fredstrom heard that Trooper Abraham was chasing a black Mazda pickup on Highway 210. Fredstrom stopped the vehicle. The man, identified as Mitchel Tuomi, asked Fredstrom the reason for the stop and Fredstrom said to talk to Trooper Abraham who had just arrived on the scene. Trooper Abraham asked Tuomi where he was coming from and Tuomi said from Brainerd. Meanwhile, Fisher arrived and asked Tuomi where he was coming from and Tuomi again replied Brainerd. In response to further questioning from Fisher, Tuomi indicated that no one other than he had been wearing his clothes or driving his truck. (These latter statements were suppressed at trial.) Tuomi was placed under arrest and read his Miranda rights. Tuomi waived his rights and said that he had come from some friends but hadn’t stopped there, and that he had been in Brainerd. As Tuomi was being transported to jail, he asked Deputy Sheriff Neal Gaalswyk what he was arrested for and Gaalswyk replied criminal sexual conduct. Tuomi said, “This is the craziest goddamn thing I have ever done.” Tuomi had two minor abrasions on his face and a bruise on the arm; Gaalswyk photographed Tuomi’s facial injuries. Deputy Fisher returned to Madden’s and took statements from J.P. and other Madden’s employees. He took possession of the mask and gloves which were allegedly worn by Tuomi. Fisher did not note any signs of injury on J.P. and decided not to take photographs of her. He also did not photograph the inside of the hut and did not seize J.P.’s clothing or dust for fingerprints. J.P. did not wish to receive medical treatment and Fisher did not request that J.P. submit to a sexual assault exam because he thought it was unnecessary since no intercourse had occurred. However, expert testimony at trial indicated that an examination would have aided in determining the severity of any trauma, whether any foreign material from the assailant’s finger had been deposited on *850 her body, whether there were any bruises on her thighs or buttocks, or any possible fingerprint injuries from being grabbed. Fisher had not instructed J.P. not to shower and she showered while he was pursuing Tuomi. At trial J.P.’s mother testified that when J.P. arrived home that night she was hysterical. She also testified that J.P.’s mouth was puffed and swollen and that J.P. had bruises on her face, shoulder, arms, legs, thighs and back. Tuomi, age 27 at trial, testified that he was training to become a member of the United States Olympic Cross Country Ski Team and that he regularly worked out by running, roller skiing, swimming and hill bounding (running with ski poles) in the Madden’s area. He claimed he wore a ski mask to protect his face from deer flies and gloves to protect his hands from the ski poles’ wrist straps. He ran barefoot to toughen the soles of his feet. Tuomi claimed he had just finished a seven- to eight-mile run and had dropped his ski poles at the end of his course and ran toward his truck. He passed the driving range hut and the attendant said “Hi,” and he decided to stop and chat. Tuomi testified he had met J.P. a few weeks earlier in the whirlpool at Madden’s. He stood in the doorway and J.P. told him to take the money. According to Tuomi, he jokingly said, “Okay, sure,” and then J.P. suddenly hit him with the walkie-talkie. Tuomi claimed that J.P. was hysterical and they began wrestling. He asked her, “what the f_” she was doing several times as he attempted to calm her down. He claimed that when Lee arrived, he panicked and ran. He denied threatening to sexually assault J.P. or penetrating her with his finger. Tuomi claimed that following his arrest, upon being informed by Gaalswyk, he said, “This is the craziest goddamn thing I have ever heard,” not “done.” ISSUES 1.Did the trial court err in refusing to suppress some of appellant’s pr e-Miranda and post-Miranda statements? 2. Was the evidence sufficient to sustain appellant’s conviction for criminal sexual conduct in the first degree? 3. Did the trial court err in refusing to instruct on lesser offenses? 4. Did the trial court’s evidentiary rulings deny appellant a fair trial? 5. Was appellant denied effective assistance of counsel? 6. Did the trial court abuse its discretion in imposing the presumptive guidelines sentence? ANALYSIS I. 1. Appellant contends that all of his pr e-Miranda statements to officers Fredst-rom and Abraham should have been suppressed. The trial court suppressed appellant’s pr e-Miranda statements to Deputy Fisher. Trooper Abraham asked appellant about his excessive speed and also asked appellant where he was coming from. He testified at the omnibus hearing that he asked the latter question to verify that he had stopped the correct vehicle. Neither officer knew the reason for which appellant was being sought. A Miranda warning is required if statements are obtained during custodial interrogation. We do not believe the trial court erred in ruling that appellant was not in “custody” at the time of these roadside questions. State v. Herem, 384 N.W.2d 880, 883 (Minn.1986); see Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). 2. After appellant was arrested by Deputy Fisher, he was read his Miranda rights. Appellant told Fisher about stopping at a friend’s residence. Appellant requested a lawyer. When Fisher asked to search the Mazda, all questioning ended. On his way to jail, Deputy Gaalswyk testified that appellant said, “This is the craziest goddamn thing I have ever done.” This statement was a spontaneous, volunteered remark and clearly admissible. Rhode Is *851 land v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); State v. Jackson, 351 N.W.2d 352, 356 (Minn.1984). Appellant nevertheless claims that it was the fruit of earlier fifth amendment violations (appellant’s statements to Deputy Fisher which were suppressed). In Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), the United States Supreme Court held that the fifth amendment does not require the suppression of statements made after proper Miranda warnings and a valid waiver, solely because the police had earlier obtained a voluntary but unwarned statement. Appellant claims that under the Minnesota Constitution this court should recognize a fruit of the poisonous tree doctrine as applied to fifth amendment cases. However, in State v. Murphy, 380 N.W.2d 766 (Minn.1986), the Minnesota Supreme Court noted that the Minnesota self-incrimination clause is identical to the fifth amendment to the United States Constitution; therefore, the United States Supreme Court interpretation of the federal provision is of “inherently persuasive, although not compelling, force.” Id. at 771 . There is no reason to adopt a contrary view to that expressed by the United States Supreme Court. In this case, there was no showing of any coercion when appellant volunteered the statement that it was the craziest thing he had ever done. The statements were knowingly and voluntarily made and were therefore properly admitted at trial. II. Appellant claims the evidence was insufficient to sustain his conviction. Appellant personally reasserted this claim in a pro se supplemental brief which we carefully reviewed. On review, we must determine whether a jury could reasonably conclude that the defendant was guilty of the offense charged, given the facts in the record and legitimate inferences which can be drawn from the facts. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978); see State v. Daniels, 332 N.W.2d 172, 180 (Minn.1983). In examining the record, we must assume the jury believed the evidence supporting the conviction and disbelieved the contrary evidence. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). Resolution of conflicting testimony is the exclusive function of the jury because it has the opportunity to observe the demeanor of witnesses and weigh their credibility. State v. Lloyd, 345 N.W.2d 240, 245 (Minn.1984) (citing Pieschke, 295 N.W.2d at 584 ). This case is a classic case involving conflicting testimony — the complainant alleged appellant inserted a finger in her vagina and appellant denied committing any sexual offense. While the police investigation in this case left much to be desired, we think the jury was entitled to believe J.P.’s version of the events. J.P. made early and continuous cries for assistance during her struggle with appellant. She made a prompt complaint, was highly emotional and upset, and lacked a motive to fabricate her story. Her version of the events was consistent. We will not disturb the jury’s verdict. III. Appellant was charged with first- and third-degree criminal sexual conduct. Both of these crimes allege the element of sexual penetration. At the close of the evidence, defense counsel requested instructions on criminal sexual conduct in the second and fourth degrees, and of attempted criminal sexual conduct in the first, second, third and fourth degrees. Criminal sexual conduct in the second and fourth degrees involves the element of sexual contact rather than penetration. The trial court denied the requested instructions. The State acknowledges that the requested instructions are lesser offenses, but argues the trial court was not required to submit them. In Bellcourt v. State, 390 N.W.2d 269 (Minn.1986), the supreme court stated: The test used in determining whether to submit a lesser-included offense to a jury is whether the evidence provides a rational basis for an acquittal on the offense charged and a conviction on the lesser *852 offense. State v. Leinweber, 303 Minn. 414, 422 , 228 N.W.2d 120, 125-26 (1975). Thus, “proof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury” may make this distinction. State v. Adams, 295 N.W.2d 527, 532 (Minn.1980). If a trial court were to submit a lesser offense simply because “[a] jury has the power to acquit irrationally in the teeth of overwhelming evidence of guilt,” State v. Patch, 329 N.W.2d 833, 836 (Minn.1983), it runs the risk that the verdict will be based on sympathy for the defendant rather than on the evidence. See State v. Dolliver, 154 Minn. 297, 303 , 191 N.W. 594, 596 (1923). The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, LaMere v. State, 278 N.W.2d 552, 558 (Minn.1979); Leinweber, 303 Minn. at 421 , 228 N.W.2d at 125 ; but where the evidence warrants an instruction, the trial court must give it. See State v. Lee, 282 N.W.2d 896, 900 (Minn.1979). The failure to give an appropriate instruction on lesser offenses is a ground for reversal only if defendant is prejudiced thereby. See State v. Edwards, 343 N.W.2d 269, 276 (Minn.1984). Id. at 273 . Here, appellant denied touching J.P. with any criminal sexual intent. His defense was that J.P., for no apparent reason, attacked him and he began struggling with her. He claims she fabricated the story about sexual penetration. Under appellant’s version of the facts, he lacked any intent to penetrate or touch J.P. He denied committing or attempting to commit any crime, including sexual contact. The trial court heard all the evidence and in its discretion determined that the jury had to find either that appellant had penetrated J.P. or had committed no crime. See Loftus v. State, 357 N.W.2d 419, 422-23 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Mar. 6, 1985). Appellant argues that J.P.’s allusions to appellant’s unwanted touches or her testimony that she told Deputy Fisher appellant had tried to rape her arguably supports a verdict of attempted criminal sexual conduct. In light of appellant’s statements to J.P. that he was going to f_her, her statement to Fisher was obviously an indication that she believed she was about to become a victim of forced sexual intercourse. The trial court did not abuse its discretion in refusing appellant’s requested instructions on the lesser offenses. IV. Appellant personally challenges several evidentiary rulings. We find no error in any of the rulings allowing the admission of appellant’s blue bikini shorts, the testimony of J.P.’s mother regarding J.P.’s emotional condition following her reported assault, and the flight evidence that appellant had left the State while the case was pending. We cannot review appellant’s claim that his private investigator was precluded from testifying as a defense witness because there is no record that the witness was in fact precluded from testifying. Finally, J.P.’s statements to Deputy Fisher were admissible as corroborative evidence of the victim’s testimony under State v. Hesse, 281 N.W.2d 491, 492 (Minn.1979). V. Appellant personally claims he received ineffective assistance of counsel. While a direct appeal is not the most appropriate method of raising this issue, we will consider the claim. We have reviewed the record and must reject appellant’s contentions. The items appellant challenges fall within the realm of legitimate tactical decisions of counsel and do not demonstrate that appellant’s representation was not reasonably effective. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), reh’g denied, 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984). VI. The trial court did not abuse its discretion in imposing the presumptive sentence *853 under the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). DECISION Appellant’s conviction for criminal sexual conduct in the first degree is affirmed. Affirmed.