Nelson v. State

OPINION

FORSBERG, Judge.

Appellant was charged with criminal sexual conduct in the first, third and fourth degree. The complaint was amended immediately prior to trial to include a charge of kidnapping. Appellant was found guilty of criminal sexual conduct in the first degree and kidnapping, and found not guilty of criminal sexual conduct in the third and fourth degree. He later sought post-conviction relief and appeals from the denial of relief. We affirm.

FACTS

The State presented the following evidence which formed the basis of appellant’s conviction: A.H., a part-time employee of appellant, came to St. Paul from Indianapolis, Indiana in September, 1985, to attend the Apostolic Bible Institute, a college associated with the United Pentecostal Church. On November 18, 1985, appellant raped her while threatening to kill her and violently pushing on her legs and pulling her hair. A.H. suffered some soreness after the rape and experienced severe emotional problems, including “crying episodes” and nightmares. She also testified that her spiritual life was affected for two or three months because she found it difficult to pray, believing God had let her down. A.H. felt embarrassed about the incident and her loss of virginity. She testified that sexual purity is an important value in the Pentecostal church, and all of her girlfriends were virgins.

ISSUES

1. Did the court’s grant of the State’s motion to amend the complaint to add a charge of kidnapping the day before the trial deny appellant due process of law?

2. Did the court’s admission of testimony regarding the victim’s religious background and beliefs deny appellant a fair trial?

3. Was appellant entitled to have his conviction for first degree sexual conduct vacated because it is inconsistent with the jury verdicts acquitting him of third and fourth degree criminal sexual conduct?

ANALYSIS

Appellant has the burden of proving by a preponderance of the evidence, the facts alleged in his petition for post-conviction relief. Minn.Stat. § 590.04, subd. 3 (1986). Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975). An appellate court must evaluate whether the evidence is sufficient to support the trial court’s post-conviction finding. State v. Doughman, 340 N.W.2d 348, 351 (Minn.Ct.App.1983). A reversal will not occur if the findings are supported by sufficient evi dence. Herme v. State, 384 N.W.2d 205, 207 (Minn.Ct.App.1986), pet. for rev. denied (Minn. May 22, 1986).

1. Appellant argues that he was denied due process because the court permitted the State on the day of trial to amend the complaint to add the charge of kidnapping. We disagree. Appellant wasn’t prejudiced since the kidnapping charge arose from the same conduct as the other three offenses for which appellant had been previously charged. See State v. Stephani, 369 N.W.2d 540, 549 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Aug. 20, 1985). The lack of prejudice is even more evident because appellant rejected the trial court’s offer for a continuance to prepare for the new charge.

Appellant claimed that the new charge was added because of “vindictiveness,” but the trial court found otherwise. There is substantial evidence in the record to support this finding.

2. Appellant also contends he was denied a fair trial by the court’s admission of testimony regarding A.H.’s religious background. This testimony, however, was admitted to prove severe mental anguish, an essential element of the crime, not to show credibility of the witness, which would have been a violation of Minn. R.Evid. 610.

3. Appellant claims that since he was acquitted of charges alleging third and fourth degree criminal sexual conduct, but convicted of first degree criminal sexual conduct, these inconsistent verdicts entitle him to a new trial. In State v. Juelfs, 270 N.W.2d 873 (Minn.1978), the supreme court stated the following general rule:

[A] defendant who is found guilty on one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.

Id. at 873-74. Minnesota law allows a jury in a criminal case to exercise lenity. State v. Perkins, 353 N.W.2d 557, 561 (Minn.1984). Thus, the focus is not upon the inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain the guilty verdict. United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984). The evidence was sufficient to sustain appellant’s conviction for criminal sexual conduct in the first degree.

DECISION

Amendment to the complaint on the day of trial did not deny appellant’s right to due process. Testimony regarding the victim’s religious belief was properly admitted to prove mental anguish. Appellant is not entitled to a new trial based on the jury’s rendering inconsistent verdicts.

Affirmed.