HARTEN, Judge.
Appellant challenges his conviction of aiding and abetting first-degree criminal sexual conduct, arguing that (1) his right to confront his victim was denied when the district court abused its discretion by excluding evidence of the number of sources of semen found on the victim's underwear; (2) the prosecutor opened the door to evidence of the victim's prior sexual conduct; (3) the district court erred in excluding evidence of the victim's prior employment as an escort; (4) the district court committed reversible error by failing to correctly define the "intentionally aiding and abetting" element of appellant's crime; (5) the prosecutor committed misconduct during closing argument; and (6) appellant is entitled to a new trial because of his trial counsel's cumulative errors. Because we see no abuse of discretion in the district court's exclusion of evidence, no error in its statement of the law, no prosecutorial misconduct, and no cumulative errors that would entitle appellant to a new trial, we affirm.
On 15 July 2012, C.M.J. reported to police that she had been orally and vaginally raped by Chukwudi Gregory Jideofor and appellant Enamidem Celestine Okon earlier that day. Appellant was charged with two counts: aiding and abetting first-degree criminal sexual conduct (sexual penetration—force or coercion with personal injury) and aiding and abetting first-degree criminal sexual conduct (sexual penetration—accomplice with force or coercion). In a separate proceeding, Jideofor had entered an Alford plea to aiding and abetting first-degree criminal sexual conduct (sexual penetration—accomplice with force or coercion), and he agreed to testify against appellant.
At appellant's trial, Jideofor testified that (1) appellant arrived with C.M.J. at Jideofor's apartment about 3:00 a.m.; (2) C.M.J. sat on a bed; (3) appellant pulled up her dress, pulled down his pants, and tried to remove her underwear while she resisted; (4) appellant then pulled her head towards him and forced her to give him oral sex, which she also resisted; (5) appellant put on a condom and penetrated C.M.J. vaginally; (6) C.M.J. screamed and moaned, but could not get away because Jideofor was holding her down; (7) when appellant tried to penetrate C.M.J. anally, she screamed; (8) Jideofor removed his condom during the rapes, but appellant did not; (9) Jideofor could tell C.M.J. was in pain when he raped her vaginally; and (10) the men put pillows over C.M.J.'s face to stifle her screams so the neighbors would not hear her.
C.M.J. testified that: (1) because she needed a ride, she called appellant, with whom she was socially acquainted; (2) when appellant picked her up, she noticed that he was intoxicated and his driving was erratic; (3) appellant drove her to the apartment of Jideofor, whom C.M.J. had met previously and with whom she did not get along; (4) while C.M.J. was sitting on a bed, appellant grabbed her from behind and put a pillow over her face; (5) Jideofor pulled her underwear down and began raping her vaginally; (6) appellant, who had one hand around her throat, forced his penis into her mouth; (7) C.M.J. screamed and tried to push both men away, but was unable to do so because they held her down; (8) because C.M.J. was wearing a tampon, she experienced intense pain during vaginal penetrations; (9) the two men continued to rape her for about an hour, switching positions so each could rape her both orally and vaginally; (10) the men at first wore condoms, but she thought that they removed them so they could ejaculate into her mouth; (11) one of the men unsuccessfully attempted to penetrate her anally; and (12) about 11 or 12 hours elapsed between the rapes and C.M.J.'s admission to the hospital.
The DNA forensic scientist testified that: (1) she received C.M.J.'s rectal and perioral swabs, the mattress cover from Jideofor's bed, and C.M.J.'s underwear, all of which were examined and found to contain semen
The jury found appellant guilty on both counts and found two aggravating factors, namely personal injury and multiple forms of penetration, for each count. Appellant received the presumptive guideline sentence for aiding and abetting first-degree criminal sexual conduct (sexual penetration—accomplice with force or coercion).
Appellant, represented by different counsel on appeal, challenges his conviction, claiming that: (1) the exclusion of evidence as to the number of sources of semen found on C.M.J.'s underwear was an abuse of the district court's discretion and violated appellant's constitutional right to confront his victim; (2) the prosecutor opened the door to evidence of the victim's prior sexual conduct by introducing rectal swab and dissipation-of-semen evidence; (3) the district court erred in excluding evidence of C.M.J.'s prior employment as an escort; (4) appellant is entitled to a new trial because the jury instructions on the "intentionally aiding and abetting" and the "coercion" elements of the charges against him misstated the law; (5) appellant is entitled to a new trial because of prosecutorial misconduct in (a) implying that appellant belittled the victim, (b) misstating the evidence relating to Jideofor's Alford plea, and (c) using "we" statements to evoke the jury's sympathy; and (6) appellant is also entitled to a new trial because of his trial counsel's cumulative errors.
Appellant challenges the district court's exclusion of evidence that the semen on C.M.J.'s underwear came from five or more sources. "Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). "When an error implicates a constitutional right, we will award a new trial unless the error is harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if the jury's verdict was surely unattributable to the error." State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012) (citation and quotation omitted).
Appellant argues that evidence of the number of sources of semen on C.M.J.'s underwear was admissible to show that she engaged in sexual conduct with someone other than appellant close to the time of his offense. But, as the district court concluded, the issue was whether appellant had sex with C.M.J., whose identity was not questioned, and therefore "what [was] relevant [was whether] the DNA of any semen found matched [appellant's], not whether there was DNA found that matched the DNA of other persons."
Even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Minn. R. Evid. 403. "The right to present a defense is not unlimited; the admission of evidence of a witness's prior sexual conduct is highly prejudicial and will not survive a rule 403 balancing test unless a special exception applies." State v. Olson, 824 N.W.2d 334, 340 (Minn. App. 2012) (quotations and citations omitted), review denied (Minn. 27 Feb. 2013). "Special circumstances" include evidence showing a predisposition to fabricate a charge of rape, id., and "[evidence that] explains a physical fact in issue at trial, suggests bias or ulterior motive, or establishes a pattern of behavior clearly similar to the conduct at issue." State v. Crims, 540 N.W.2d 860, 868 (Minn. App. 1995) (emphasis omitted), review denied (Minn. 23 Jan. 1996). Because (1) appellant was not asserting consent as a defense; (2) the state was not offering evidence of appellant's semen on the underwear (there was no such evidence to offer); (3) none of the special exceptions applied; and (4) the evidence of other semen on the underwear was irrelevant to the issue of whether appellant had vaginal sex with C.M.J., the district court properly excluded that evidence.
Appellant relies on State v. Hagen, 391 N.W.2d 888, 890 (Minn. App. 1986) (concerning a victim who alleged that the defendant had raped her that morning, told hospital personnel she had last had intercourse 20 days earlier, and on examination showed semen that were neither her husband's nor the defendant's), review denied (Minn. 17 Oct. 1986). In Hagen, the defendant denied having any contact with the complainant on the date of the alleged rape, there was no evidence that he did have contact with her, and the only evidence linking the defendant to the alleged rape was the complainant's testimony. Id. at 892. Therefore, this court concluded that excluding evidence relevant to the complainant's credibility and her motive to fabricate was prejudicial. Id.
Here, there was evidence linking appellant to the assault: (1) he admitted that he was with C.M.J. that night; (2) C.M.J.'s account was corroborated by Jideofor; (3) C.M.J.'s pain and demeanor were observed by police and hospital staff; and (4) other DNA evidence on the mattress pad linked appellant to the crime. The district court did not abuse its discretion in excluding evidence of the sources of the semen found on the underwear.
Appellant argues that evidence of the number of sources of semen on C.M.J.'s underwear should have been admitted in rebuttal because the prosecutor opened the door to the presentation of that evidence. Because appellant did not argue this to the district court, our standard of review is plain error.
In any event, the state's presentation of evidence that the rectal swab did not provide conclusive DNA and that semen remains detectable for varying times in different body cavities did not "open the door" to evidence of the number of donors of the semen on C.M.J.'s underwear. "Opening the door occurs when one party by introducing certain material . . . creates in the opponent a right to respond with material that would otherwise have been inadmissible." State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007). Both C.M.J. and Jideofor testified that the attempt at anal penetration was unsuccessful, and the DNA analyst testified that the rectal swab contained no conclusive DNA evidence. Therefore, information about the sources of the semen on the underwear would have been irrelevant. Moreover, because no evidence was provided about how long semen remains detectable on clothing and the jury heard that the semen on C.M.J.'s underwear was not appellant's, evidence about the number of sources of such semen was also irrelevant.
No plain error occurred in not presenting evidence on the sources of the semen on the underwear as rebuttal evidence.
The district court excluded evidence that C.M.J. had previously worked as an escort and met appellant as a client on the ground that the term "escort" would imply "possible involvement in prostitution, which in turn invokes notions about one's sexual history." Evidence of a victim's sexual history is irrelevant unless it explains a physical fact at issue, suggests bias, or establishes a similar pattern of behavior. See Minn. R. Evid. 412; Davis, 546 N.W.2d at 32-34 (upholding exclusion of evidence of victim's hypothetical statement that she would trade sex for money because it "[fell] short of demonstrating a pattern of clearly similar behavior"); Crims, 540 N.W.2d at 867-68 (rape victim's sexual history as a prostitute was irrelevant because there was no showing of a similar pattern of behavior). Appellant's offer of proof did not include any specific prior acts, and neither C.M.J.'s lack of consent nor her pattern of behavior is at issue; appellant did not offer to show that C.M.J. was working as an escort on the night in question or that she had done so at any particular time.
Evidence that C.M.J. was an escort would have implied a particular sexual-conduct history, and evidence of a victim's previous sexual conduct is inherently prejudicial. Davis, 546 N.W.2d at 34. Moreover, the testimony from C.M.J. and Jideofor that C.M.J. was injured during the rapes would have outweighed any probative value of the evidence of C.M.J.'s employment history as an escort. See Crims, 540 N.W.2d at 868 (noting that evidence of the victim's struggle precluded the inference that the offense was merely another episode in her history of prostitution).
Appellant argues that the state "opened the door" to this evidence when the jury heard testimony that C.M.J. and appellant met on a social website and that C.M.J. was initially hesitant to report the incident to the police. But appellant did not object to this evidence at trial or ask the court to admit rebuttal evidence of C.M.J.'s job as an escort. In any event, neither evidence of the way appellant and C.M.J. met nor evidence that C.M.J. worked as an escort would have rebutted the testimony of what appellant and Jideofor did to C.M.J. on 15 July 2012. There was no prejudice to appellant in its exclusion.
Because appellant's counsel did not object to the jury instructions, the standard of review is plain error. See State v. Vance, 734 N.W.2d 650, 655 (Minn. 2007), overruled on other grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012); Strommen, 648 N.W.2d at 686 (setting out plain error criteria of an error that is plain and that affected the defendant's substantial rights and noting that, if the criteria are met, the error will be corrected only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings). "An instruction is in error if it materially misstates the law." State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). "[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
At the beginning of the trial, the jury was instructed: "Aiding and abetting. [Appellant] is guilty of a crime committed by another person when [he] has intentionally aided the other person in committing it or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it." This instruction was repeated at the end of the trial, when the jury was also instructed as follows on the elements of aiding and abetting first-degree criminal sexual conduct (sexual penetration—accomplice with force or coercion):
To challenge the instruction on "intentionally aiding and abetting," appellant relies on State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012) (finding error when district court instructed jury as to "the elements of first-degree felony murder and attempted first-degree felony murder, but . . . did not give a separate accomplice liability instruction or define `intentionally'").
Id. at 806. Here, the jury was instructed on the meanings of both "accomplice" and "intentionally." Moreover, in Milton:
Id. at 810. Thus, the jury-instruction error in Milton did not occur here, and, if it had occurred, under Milton it would not warrant a new trial.
The jury was instructed that:
The state concedes "that the coercion instruction should have referenced both [appellant] and the accomplice. . . ." Thus, because the coercion instruction applied only to appellant, the issue becomes whether this error affected appellant's substantial rights. See Strommen, 648 N.W.2d at 686. Substantial rights are affected if there is a "reasonable likelihood that the error had a significant effect on the verdict." Vance, 734 N.W.2d at 660 n.8.
There is minimal, if any, likelihood that the jury found appellant guilty because it had not heard that the use of coercion by Jideofor or by appellant was an element of the crime. Jideofor's testimony made it clear that he restrained C.M.J. and compelled her submission to appellant's penetration and was thus appellant's accomplice.
Appellant is not entitled to a new trial on the basis of error in the jury instructions.
Because appellant did not state an objection to the district court on prosecutorial misconduct, the standard of review is plain error. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this standard, the state bears the burden of proving that there is no reasonable likelihood that the absence of the misconduct would have a significant effect on the jury's verdict. Id.
The prosecutor's rebuttal closing argument began:
Appellant argues that, by using this language, the prosecutor was "bolster[ing C.M.J.'s] credibility [and] suggesting to the jury that [appellant] should be punished for [his] further victimization of the victim by choosing to go to trial." But, when C.M.J. was asked why she waited so long after the rapes to go to the hospital, she replied that she didn't want to deal with law enforcement or go through "any of this," meaning the trial. The prosecutor pointed out that C.M.J. knew that getting the police involved was likely to result in a trial; C.M.J. had no motive to invent the rapes she reported or to imply that appellant should not have gone to trial.
Appellant also argues that it was misconduct for the prosecutor to use "we" to refer to himself and the jury. See State v. Mayhorn, 720 N.W.2d 776, 789-90 (Minn. 2006) (in a drug-dealing trial, prosecutor's statement to jury that "this is kind of foreign for all of us, I believe, because we're not really accustomed to this drug world and drug dealing" improperly described the prosecutor and the jury as a group of which the defendant was not a part). But an analysis of the prosecutor's language here shows that he used "we" to refer to himself and others involved in the state's handling of the incident, not to himself and the jury, which he addressed as "you" a few sentences later. The only time the prosecutor used "we" to refer to himself and the jury was in saying, "When we talked . . .," a reference to his conversations with jurors. That use of "we" did not imply that he and the jurors were in a group that excluded appellant.
Finally, appellant asserts that the prosecutor committed misconduct when he questioned Jideofor about his Alford plea. When the prosecutor asked Jideofor if he had been truthful with law enforcement, Jideofor had answered, "Not really." This exchange then occurred:
Appellant argues that Jideofor's responses "made it seem to the jury who was not properly instructed as to the definition of an Alford Plea . . . that [Jideofor] had not actual[ly] originally said at the plea hearing that [his] sex with C.M.J. was consensual, which he had." But the prosecutor informed the jury and Jideofor what an Alford plea was when he asked the question. Jideofor admitted in response to the prosecutor's questions that he had not always been honest. Appellant does not explain why this was prosecutorial misconduct.
Appellant has similarly not shown misconduct in the prosecutor's questioning of Jideofor, his use of the word "we," or his making the point that C.M.J. lacked any motive to fabricate the rapes. Even if there was misconduct, the state can meet its burden of showing that there is no reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury's verdict because extensive testimony from the victim and the accomplice supported that verdict. See Ramey, 721 N.W.2d at 302.
Appellant alleges that he is entitled to a new trial because of the cumulative effect of seven errors on the part of his trial counsel.
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted). A claim of ineffective assistance is a mixed question of law and fact and is reviewed de novo. Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013).
Appellant alleges that seven errors were "all related to the crux of the trial": (1) failure to object to the exclusion of evidence on the multiple sources of semen on C.M.J.'s underwear and to her prior employment as an escort; (2) failure to properly cross-examine as to the absence of rectal-swab evidence; (3) failure to object to the jury instructions; (4) failure to impeach Jideofor; (5) failure to offer the transcript of Jideofor's Alford plea into evidence; (6) failure to request an Alford plea jury instruction; and (7) failure to procure a note in the stipulation that Jideofor was offering an Alford plea. But all of these are matters of trial strategy, and appellate courts "do not second-guess trial counsel's decisions about trial strategy." State v. Bahtuoh, 840 N.W.2d 804, 818 n.3 (Minn. 2013); see also State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (decisions such as what evidence to present, what witnesses to call, what objections to make, and what information to include in opening and closing statements are left to counsel's discretion). Moreover, appellant does not show that, but for any or all of these alleged errors, the result of his trial would have been any different. See Gates, 398 N.W.2d at 561.
Appellant is not entitled to a new trial on the basis of his counsel's cumulative errors.
