State of Minnesota v. Francisco Cleofus Mountain ( 2015 )


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  •                            This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2014).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A14-0871
    State of Minnesota,
    Respondent,
    vs.
    Francisco Cleofus Mountain,
    Appellant
    Filed June 22, 2015
    Affirmed
    Worke, Judge
    Dakota County District Court
    File No. 19HA-CR-13-1339
    Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
    Attorney, Hastings, Minnesota (for respondent)
    Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,
    Judge.
    UNPUBLISHED OPINION
    WORKE, Judge
    Appellant challenges his first-degree criminal-sexual-conduct conviction, arguing
    that (1) evidence that the victim was physically helpless at the time of the sexual
    encounter was insufficient, (2) the district court abused its discretion by admitting
    graphic photographs, and (3) the district court abused its discretion by imposing the
    statutory maximum sentence. We affirm.
    FACTS
    On April 27, 2013, at approximately 3:29 a.m., officers and paramedics responded
    to a call for medical attention. Appellant Francisco Cleofus Mountain reported that he
    and his girlfriend, M.B., had a consensual sexual encounter and fell asleep on the couch.
    When Mountain woke, he noticed blood and called 911. There were pools of bright red
    blood on the floor, a chair, and the couch, but no other indication that a struggle took
    place.
    M.B. was found covered in blood, actively bleeding, and with a bloody towel
    around her waist. Paramedics had difficulty detecting the cause of M.B.’s injury because
    significant amounts of blood and large amounts of clots were coming from her vaginal
    area. M.B. had slurred speech, poor balance, and was emitting an odor of an alcoholic
    beverage.
    In the ambulance, paramedics observed that M.B. was impaired, incoherent, did
    not remember much about the evening, was not alert or oriented, and did not “know what
    was going on” or “have a grasp on reality.” She made statements about “having her
    brother . . . kick her boyfriend’s a--,” and that “he will never do this again.”
    When M.B. arrived at the emergency room, she was not forthright with the
    emergency room physician.        Initially, M.B. reported that she had a fight with her
    boyfriend and complained of foot and back pain. M.B. denied having sexual intercourse
    2
    and could not explain the significant vaginal bleeding. Later, M.B. stated that she had
    been kicked in her vaginal area. M.B.’s alcohol content (AC) measured .31.
    M.B. underwent surgery to mend a five centimeter laceration on the left wall of
    her vagina, an eight centimeter laceration on the right wall of her vagina, and three
    external tears. M.B. had a blood transfusion, which is rare in a vaginal bleeding case.
    The emergency room physician did not believe that M.B.’s injury could have been caused
    by a penis or a finger “unless the finger had a knife on the end of it.” He also did not
    believe that M.B.’s injury could have been caused by a consensual act, such as fisting1,
    based on the extent of the trauma and amount of bleeding. The OB/GYN who performed
    M.B.’s surgery observed that M.B. was languid and did not remember things. The
    surgeon, likewise, did not believe that fisting caused the lacerations in M.B.’s vagina
    because they were caused by “something sharp, something rigid, too large for the vagina
    or . . . excessive force.”
    Following her surgery, M.B. told a detective that she did not remember what
    happened. She stated: “I kinda [sic] remember falling to the ground and that’s all I
    remember.” M.B. told the detective that Mountain has been abusive, has hit her, and
    “tried to put his hand up her [vagina] and tear her.”
    Mountain was charged with first-degree criminal sexual conduct, using force or
    coercion to accomplish sexual penetration and causing injury; first-degree criminal sexual
    conduct, engaging in sexual penetration with a person who is physically helpless and
    1
    During trial, the word “fisting” was used to describe the sexual activity of inserting a
    hand into the vaginal cavity.
    3
    causing injury; first-degree assault, infliction of great bodily harm; terroristic threats;
    domestic assault; and pattern of stalking conduct.
    M.B. testified at Mountain’s jury trial that she was not feeling well on April 27,
    and had taken DayQuil. Around 6:30 p.m., M.B. and Mountain began drinking vodka,
    and spent the next six hours drinking alcohol and hanging out. M.B. became extremely
    intoxicated. She recalled being on her couch making out with Mountain, including some
    form of vaginal penetration, and the next thing she remembered was waking up in the
    hospital. But M.B. also testified that a few weeks before Mountain’s trial, she told the
    defense investigator that she and Mountain had engaged in a consensual sexual act of
    fisting. M.B. testified that during this consensual act, she lost her balance and fell off of
    him while his hand was in her vagina. M.B. testified that it was embarrassing to be
    injured in this manner, so she did not feel comfortable telling anyone. M.B. also testified
    that she did not want Mountain to get into trouble.
    The jury found Mountain not guilty of all counts except for first-degree criminal
    sexual conduct, engaging in sexual penetration with a person who is physically helpless
    and causing injury to that person. The district court sentenced Mountain to 360 months
    in prison, the top of the presumptive range. This appeal follows.
    DECISION
    Mountain first argues that the evidence was insufficient to show that M.B. was
    physically helpless. We review a claim of insufficient evidence to determine whether the
    evidence, when viewed in the light most favorable to the conviction, is sufficient to allow
    the jury to reach its verdict. State v. Webb, 
    440 N.W.2d 426
    , 430 (Minn. 1989). We will
    4
    not disturb the verdict if the jury, acting with due regard for the presumption of innocence
    and the requirement of proof beyond a reasonable doubt, could reasonably conclude that
    the defendant was guilty of the charged offense. Bernhardt v. State, 
    684 N.W.2d 465
    ,
    476-77 (Minn. 2004).
    When a jury considered circumstantial evidence, we apply a heightened standard
    of review. State v. Porte, 
    832 N.W.2d 303
    , 309 (Minn. App. 2013). This standard
    includes a two-step analysis to determine whether the evidence was sufficient to support
    the conviction. State v. Moore, 
    846 N.W.2d 83
    , 88 (Minn. 2014). First, we “identify the
    circumstances proved.” 
    Id.
     Then we “examine independently the reasonableness of the
    inferences that might be drawn from the circumstances proved,” and “determine whether
    the circumstances proved are consistent with guilt and inconsistent with any rational
    hypothesis except that of guilt.” 
    Id.
     (quotations and brackets omitted). The evidence is
    considered as a whole, not each piece in isolation. State v. Andersen, 
    784 N.W.2d 320
    ,
    332 (Minn. 2010).
    It is not this court’s role to interpret the evidence, State v. Stein, 
    776 N.W.2d 709
    ,
    714 (Minn. 2010), because the jury is in the best position to evaluate the evidence and has
    already done so. See Moore, 846 N.W.2d at 88; see State v. Pieschke, 
    295 N.W.2d 580
    ,
    584 (Minn. 1980) (stating that weighing credibility of witnesses is the exclusive function
    of the jury).   Accordingly, when determining the circumstances proved, this court
    “assume[s] that the jury resolved any factual disputes in a manner that is consistent with
    the jury’s verdict.” Moore, 846 N.W.2d at 88. “There may well be testimony on behalf
    of the defendant as to inconsistent facts and circumstances, not conclusively proved, and
    5
    which the jury may have a right to and do reject as not proved.” State v. Tscheu, 
    758 N.W.2d 849
    , 858 (Minn. 2008) (quotation omitted).
    A person is guilty of first-degree criminal sexual conduct when he engages in
    sexual penetration with an individual, whom he “knows or has reason to know” is
    “mentally impaired, mentally incapacitated, or physically helpless,” and causes that
    individual personal injury. 
    Minn. Stat. § 609.342
    , subd. 1(e)(ii) (2012). Mountain argues
    that M.B. was not physically helpless.
    A person is physically helpless if she “is (a) asleep or not conscious, (b) unable to
    withhold consent or to withdraw consent because of a physical condition, or (c) unable to
    communicate nonconsent and the condition is known or reasonably should have been
    known to the actor.” 
    Minn. Stat. § 609.341
    , subd. 9 (2012). Consent is present when
    “words or overt actions . . . indicat[e] a freely given present agreement to perform a
    particular sexual act with the actor. Consent does not mean . . . that the complainant
    failed to resist a particular sexual act.” 
    Id.,
     subd. 4(a) (2012). A person who is physically
    helpless cannot consent to a sexual act. 
    Id.,
     subd. 4(b) (2012).
    The circumstances proved include: (1) M.B. had taken DayQuil because she was
    not feeling well; (2) M.B. drank alcoholic beverages for approximately six hours;
    (3) M.B. was extremely intoxicated; (4) M.B. had slurred speech, poor balance, was
    emitting an odor of an alcoholic beverage, did not remember a lot, and did not “seem to
    have a grasp on reality”; (5) M.B. was impaired, incoherent at times, not alert or oriented,
    and “was unable to really know what was going on”; (6) M.B. could not explain the
    bleeding from her vagina to the emergency room physician and denied having sexual
    6
    intercourse; (7) M.B. had an AC of .31; (8) M.B. was languid and unable to remember
    things; (9) M.B. remembered making out with Mountain on the couch and then waking
    up in the hospital; and (10) M.B. told a detective that she did not remember what
    happened to her.
    These circumstances show that M.B. was physically helpless, i.e., “(a) asleep or
    not conscious, (b) unable to withhold consent or to withdraw consent because of a
    physical condition, or (c) unable to communicate nonconsent.”                
    Id.,
     subd. 9.
    Additionally, these circumstances show that Mountain knew or should have known
    M.B.’s condition. See 
    id.
     M.B. and Mountain had been drinking together for six hours.
    He claims the sexual encounter was consensual, but M.B. did not remember anything
    after making out with Mountain, and denied having sexual intercourse to the emergency
    room physician. And she exhibited signs of severe impairment, which undermines a
    conclusion that she was able to give or withdraw consent.
    We must now determine whether the circumstances proved are inconsistent with
    any rational hypothesis except that of guilt. Mountain claims that M.B. testified that their
    sexual activity was consensual. But the jury’s verdict reflects that they did not believe
    M.B. Her testimony was inconsistent. She testified that she did not remember what
    happened, but she told a defense investigator in preparation for Mountain’s trial that the
    sexual activity was consensual. She also testified that she did not want Mountain to get
    into trouble. The jury was free to evaluate M.B.’s credibility and disregard any of her
    testimony.
    7
    Mountain also suggests that the evidence shows that M.B. resisted Mountain and
    communicated her nonconsent. But if M.B. did not consent, Mountain would have had to
    use force or coercion to accomplish sexual penetration, and the jury found Mountain not
    guilty of using force or coercion. Mountain cites to State v. Montermini, to support his
    assertion that circumstances proved may not include circumstances of a charge for which
    he was acquitted. 
    819 N.W.2d 447
    , 461 (Minn. App. 2012).         In Montermini, the jury
    found the defendant guilty of third-degree murder, among other charges, but acquitted
    him of kidnapping charges. 
    Id. at 453
    . The defendant challenged the sufficiency of the
    evidence supporting the third-degree-murder conviction, arguing that circumstances
    proved may not include any circumstances underlying the kidnapping charges because
    the acquittals render these circumstances unproven. 
    Id. at 461
    . But this court stated that
    “[t]he acquittals here shed no light on which circumstances the jury believed or
    disbelieved; the acquittals only demonstrate that the jury believed the state failed to
    establish the elements of kidnapping.” 
    Id.
     The kidnapping elements were irrelevant to
    the elements of third-degree murder: “caus[ing] the death of another by perpetrating an
    act eminently dangerous to others and evincing a depraved mind, without regard for
    human life.” 
    Id. at 460
    .
    Here, the acquittals show that the jury was not persuaded that the state established
    the elements of first-degree criminal sexual conduct, using force or coercion to
    accomplish sexual penetration and causing injury. 
    Minn. Stat. § 609.342
    , subd. 1(e)(i)
    (2012).   The jury found Mountain guilty of first-degree criminal sexual conduct,
    engaging in sexual penetration with an individual, knowing or having reason to know that
    8
    the person is physically helpless, and causing personal injury. 
    Id.,
     subd. 1(e)(ii). Thus,
    the jury believed that the state proved the elements of sexual penetration and injury, but
    failed to prove that Mountain used force or coercion. Unlike Montermini, the acquittal
    sheds light on which circumstances the jury believed or disbelieved. The circumstances
    proved do not establish that M.B. was capable of communicating nonconsent; therefore,
    they are not consistent with any rational hypothesis except that of guilt. The evidence
    was sufficient to support Mountain’s conviction.
    Admission of evidence
    Mountain also argues that the district court should not have admitted graphic
    photographs of M.B.’s vagina.         Mountain’s attorney objected to admission of
    photographs that a sexual assault nurse examiner (SANE) took of M.B.’s injuries,
    asserting that they were “inflammatory and prejudicial” and failed to aid the jury in
    understanding M.B.’s injuries.     The district court stated that the photographs were
    “prejudicial” but not “unduly prejudicial,” and although “upsetting,” admitted them into
    evidence. This court reviews a district court’s evidentiary ruling for abuse of discretion.
    State v. Bolstad, 
    686 N.W.2d 531
    , 541 (Minn. 2004).
    In general, relevant evidence is admissible. Minn. R. Evid. 402.           Relevant
    evidence has “any tendency to make the existence of any fact that is of consequence to
    the determination of the action more probable or less probable than it would be without
    the evidence.” Minn. R. Evid. 401. But relevant evidence “may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice . . . or by
    considerations of . . . needless presentation of cumulative evidence.” Minn. R. Evid. 403.
    9
    “Photographs are generally admissible whe[n] they accurately portray anything which is
    competent for a witness to describe orally, and [when] they are relevant to some material
    issue.” State v. Durfee, 
    322 N.W.2d 778
    , 785 (Minn. 1982).
    In State v. DeZeler, the supreme court held that the district court appropriately
    admitted “photographs showing the horrible condition of [the] decedent’s body” because
    there was no indication that the pictures had been distorted or inaccurately portrayed the
    subject matter. 
    230 Minn. 39
    , 46, 
    41 N.W.2d 313
    , 318 (1950). The supreme court noted
    that a “horrible, revolting, and ghastly” depiction was “an inherent and inseparable part
    of the facts which were relevant to a full consideration of material issues by the jury.” 
    Id.,
    41 N.W.2d at 318-19. The material issues included “the nature and location of the death
    wound,” the time of death, and the manner in which the body was concealed. Id., 41
    N.W.2d at 318; see also State v. Morton, 
    701 N.W.2d 225
    , 228, 237 (Minn. 2005)
    (holding that “grisly” photos were relevant to show elements of first-degree and second-
    degree murder and admissible when medical examiner testified to cause of death and
    probable killing during sexual assault).
    Here, the photographs were relevant to show M.B.’s injuries. Several of the
    charges included an injury element. The photographs showed the extensive amount of
    bleeding, a cut in the vaginal wall, and tears in the labia. The photographs, although
    “upsetting,” accurately portrayed the condition of M.B.’s body immediately after the
    incident. And the SANE testified regarding the relevance of each photograph and the
    injury it portrayed.   See Durfee, 322 N.W.2d at 785 (stating that photographs are
    10
    generally admissible when they are relevant, an accurate portrayal, and a competent
    witness describes them).
    Mountain asserts that the photographs were not necessary to show the extent of
    M.B.’s injuries because witnesses testified about M.B.’s excessive blood loss and the
    surgeon detailed the extent of M.B.’s injuries. But the availability of other means for
    presenting the evidence does not make admission of the photographs an abuse of
    discretion. See State v. Hahn, 
    799 N.W.2d 25
    , 34-35 (Minn. 2011) (concluding that the
    district court did not abuse its discretion by admitting pornographic photographs even
    though a witness could have testified to their existence).
    Mountain also claims that the photographs were prejudicial and likely affected the
    outcome of his case. But Mountain was acquitted of first-degree criminal sexual conduct,
    using force or coercion to accomplish sexual penetration and causing injury; and first-
    degree assault, infliction of great bodily harm. Mountain’s acquittal on these charges
    tends to show that the jury was not unduly affected by the photographs. See State v.
    Young, 
    710 N.W.2d 272
    , 281 (Minn. 2006) (reasoning that jury’s acquittal on one count
    indicated that evidence was not prejudicial).
    Sentence
    Mountain argues that the district court abused its discretion by imposing a
    sentence at the top of the presumptive range. This court reviews sentences imposed by
    the district court for an abuse of discretion. State v. Delk, 
    781 N.W.2d 426
    , 428 (Minn.
    App. 2010), review denied (Minn. July 20, 2010).
    11
    A district court must impose the presumptive guidelines sentence absent
    “identifiable, substantial, and compelling circumstances to support a sentence outside the
    range on the grids.”     Minn. Sent. Guidelines 2.D (2012).        Sentence ranges in the
    sentencing guidelines are presumed to be appropriate for the crimes to which they apply.
    
    Id.
     “All three numbers in any given cell [on the sentencing guidelines grid] constitute an
    acceptable sentence.” State v. Jackson, 
    749 N.W.2d 353
    , 359 n.2 (Minn. 2008); Delk,
    
    781 N.W.2d at 428
     (“[A]ny sentence within the presumptive range for the convicted
    offense constitutes a presumptive sentence.”). A district court does not have to explain
    its reasons for imposing a presumptive sentence, and we will not interfere with the
    district court’s exercise of discretion when “the record shows the [district] court carefully
    evaluated all the testimony and information presented before making a determination.”
    State v. Van Ruler, 
    378 N.W.2d 77
    , 80-81 (Minn. 1985). “[I]t would be a rare case which
    would warrant reversal of the refusal to depart.” State v. Kindem, 
    313 N.W.2d 6
    , 7
    (Minn. 1981).
    With Mountain’s five criminal-history points, the presumptive guidelines sentence
    was 306 months in prison, with a range between 260-360 months. The district court
    sentenced Mountain to 360 months in prison, the top of the range, but a presumptive
    sentence. Mountain argues that the district court erred by finding that he acted with
    particular cruelty and that, although the jury did not find that he used a dangerous
    weapon, the court stated that it believed that he used a hammer that was found at the
    scene to inflict the injury. Although the district court made these statements, it did not
    12
    depart. It imposed a presumptive sentence and was not required to explain its reasons for
    doing so. See Van Ruler, 
    378 N.W.2d at 80
    .
    Mountain also claims that the district court failed to consider mitigating factors.
    The state had moved for imposition of the statutory maximum sentence of 30 years and a
    mandatory sentence under the dangerous-offender statute based on Mountain’s two prior
    qualified convictions for criminal sexual conduct and second-degree assault. The district
    court stated that it believed that Mountain felt remorse, was concerned about M.B., and
    wanted to get her medical attention. The court also stated that Mountain was respectful
    and conducted himself well in court. But the district court concluded that Mountain was
    a danger to public safety. The district court weighed aggravating and mitigating factors,
    and imposed a sentence at the top of the presumptive range, which also happens to be the
    statutory maximum. This is not a rare case that warrants reversal of imposition of a
    presumptive sentence.
    Pro se claim
    In his pro se supplemental brief, Mountain argues that “the jury was impacted by
    the rip and slice[] in [M.B.’s] dress and the cut bra and [M.B.’s] internal injuries.” He
    claims that no witness described the clothing in the condition they were in when placed
    into evidence. Mountain’s argument is unclear; perhaps he is suggesting that the clothing
    was intact when collected and subsequently ripped while in the custody of law
    enforcement. Nonetheless, this claim is deemed waived for lack of briefing. State v.
    Krosch, 
    642 N.W.2d 713
    , 719 (Minn. 2002) (deeming arguments set out in pro se
    supplemental brief waived because “brief contain[ed] no argument or citation to legal
    13
    authority in support of the allegations”); State v. Wembley, 
    712 N.W.2d 783
    , 795 (Minn.
    App. 2006) (stating that assignment of error based on mere assertion and not supported
    by argument or authority is waived unless prejudicial error is obvious on mere
    inspection), aff’d, 
    728 N.W.2d 243
     (Minn. 2007).
    Affirmed.
    14
    

Document Info

Docket Number: A14-871

Filed Date: 6/22/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021