State v. Kasper

405 N.W.2d 540
CourtCourt of Appeals of Minnesota
DecidedJune 26, 1987
DocketC3-86-1415
StatusPublished
Cited by2 cases

This text of 405 N.W.2d 540 (State v. Kasper) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kasper, 405 N.W.2d 540 (Mich. Ct. App. 1987).

Opinions

OPINION

LANSING, Judge.

Brian Kasper was convicted of third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(c) (Supp.1985). On appeal he disputes the sufficiency of the evidence to support the conviction and the admission of Spreigl evidence. We affirm.

FACTS

Twenty-year-old S.J. moved to Minnesota in August 1985 and lived with an older sister in New Hope. She obtained employment and on Friday night, October 25, 1985, joined several co-workers at Mingle’s, a bowling alley and bar with a small dance area in Brooklyn Park. S.J. did not have a car and made advance arrangements with a friend to get a ride home. During the evening at Mingle’s, S.J. had three vodka screwdrivers. Her arranged driver could not take her home and S.J. called a taxi. While waiting outside for the taxi, she was approached by Brian Kasper. He talked to her and offered her a ride home. S.J. refused. They continued to talk and, after 15 minutes, when it appeared unlikely that a taxi would come, she accepted a ride from Kasper.

S.J. noticed that Kasper was driving in the wrong direction and told him, but he said he knew a shortcut. Kasper drove to his mother’s home, where he lived, telling S.J. he intended to get directions and brush his teeth. When the outside light came on, he backed up and drove off. He drove onto a dirt road and stopped. S.J. said she wanted to go home, but Kasper slid over and started kissing her.

S.J. was unable to push him away, and Kasper told her to be quiet. He pulled up her shirt and forced her to lie down. He grabbed a 2" x 4" board about 18 inches long which supported the seat and threw it in the back seat. S.J. feared he would use it on her. According to S.J., Kasper then succeeded in removing her pants and engaged in nonconsensual sexual intercourse.

They dressed and Kasper drove S.J. home. He demanded SJ.’s name and telephone number. S.J. knew that Kasper already knew where she lived and worked and, afraid to give an incorrect number, she complied. S.J. did not tell her sister what happened when she arrived home because she was afraid. She planned not to tell anyone and wanted to believe it had not happened.

The next day, S.J. talked to a sister in Washington and told her that she had been raped. S.J. then told the sister with whom she lived and they told their brother, who called the police. S.J. described Kasper [542]*542and his car to police investigators. She immediately identified Kasper from a photo display. According to the police investigator, S.J. was visibly shaken when she identified Kasper. She went with the police officer to the area thought to be Kasper’s house and to the location of the assault. As S.J. was riding with the officer, she saw Kasper drive by. She covered her face and cried, “That’s him; that’s him!”

Kasper was later arrested. Police searched his car and siezed a 2" x 4". board. They also removed a blanket with blood and semen stains. Chemical analysis indicated that Kasper could have deposited the semen and that the source of the bloodstains could have been Kasper and S.J.

When questioned, Kasper admitted giving S.J. a ride. He stated he saw her in front of Mingle’s and drove her straight home. When told that S.J. said he went in the opposite direction, Kasper said it was possible he drove to his mother’s home. He then said he took S.J. home. After being told his car would be searched, he told the officer he could have driven down the dirt road with S.J. He denied having sex with S.J.

The State presented Spreigl evidence that Kasper assaulted a young woman under similar circumstances a few months before this incident.

At trial Kasper claimed he met S.J. inside Mingle’s and danced with her. He claimed they had consensual sexual intercourse and she gave him her phone number so that they could go dancing the following weekend.

ISSUES

1. Was the evidence sufficient to sustain appellant’s conviction?

2. Did the trial court abuse its discretion in admitting Spreigl evidence?

ANALYSIS

I

Kasper was convicted of engaging in sexual penetration using “force or coercion to accomplish the penetration.” Minn. Stat. § 609.344, subd. 1(c) (Supp.1985). He claims the evidence did not establish that he used force or coercion. Force is defined as

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which causes the complainant to reasonably believe that the actor has the present ability to execute the threat and also causes the complainant to submit.

Minn.Stat. § 609.341, subd. 3 (1984). Coercion is defined as

words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another.

Minn.Stat. § 609.341, subd. 14 (1984).

Kasper’s contentions are without merit. S.J.’s testimony sufficiently establishes that Kasper used force or coercion to accomplish the penetration. See State v. Carter, 289 N.W.2d 454, 455 (Minn.1979) (defendant, although using neither actual force nor verbalized threats of force, intentionally created an atmosphere of fear which caused complainant to submit to sexual advances); State v. Daby, 359 N.W.2d 730, 733 (Minn.Ct.App.1984); State v. Middleton, 386 N.W.2d 226, 230 (Minn.1986); State v. Meech, 400 N.W.2d 166,168 (Minn. Ct.App.1987) (when actor coerces complainant so as to cause her fear while accomplishing sexual contact, requirement of coercion in § 609.345, subd. 1(c), is satisfied). While not required, Minn.Stat. § 609.347, subd. 1 (1984), S.J.’s testimony was significantly corroborated. Kasper’s testimony was inconsistent with his earlier statement and was largely impeached at trial.

II

Kasper contends the trial court erred in admitting Spreigl evidence because the evidence that the other incident occurred was not clear and convincing.

At the omnibus hearing, in which the only issue raised was the Spreigl evidence, [543]*543the prosecutor presented the testimony of an Anoka County investigator that the Spreigl victim, L.D., picked Kasper from a line-up. The prosecutor verbally stated the facts of the assault and the ruling was reserved until trial.

During trial, outside the jury’s presence, a friend of L.D. testified that she knew Kasper. The testimony did not place Kas-per at the scene of the alleged assault of L.D. or in the company of L.D. The prosecutor then stated that L.D. made a photo identification and would attempt to identify Kasper in court. No further Spreigl evidence was offered. The prosecutor restated the allegations of the Spreigl incident as part of an “offer of proof.”

The trial court ruled that the evidence that Kasper participated in the Spreigl incident was clear and convincing, material and relevant, and that its probative value outweighed its prejudical effect.

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Related

State v. Kasper
409 N.W.2d 846 (Supreme Court of Minnesota, 1987)
State v. Kasper
405 N.W.2d 540 (Court of Appeals of Minnesota, 1987)

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