State v. Epps, A19-1626

949 N.W.2d 474

STATE of Minnesota, Respondent,

v.Melvin DeVaughn EPPS, Appellant.

A19-1626

Court of Appeals of Minnesota.

Filed August 24, 2020

Review Granted November 25, 2020

Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Hooten, Judge.

HOOTEN, Judge

In this direct appeal from the judgment of conviction for first-degree criminal sexual conduct, appellant argues that the prosecutor committed misconduct by misstating the law in his closing argument when he told the jury that it did not have to unanimously agree that the defendant used either force or coercion to commit the offense. In his supplemental pro se brief, appellant also argues that the evidence is insufficient to support the jury's verdict, the district court abused its discretion when it imposed an unjust sentence and failed to depart from the presumptive sentence, and the prosecutor committed misconduct when he alerted the district court to a pending proceeding in Anoka County. We affirm appellant's conviction. However, we remand to the district court to assess whether appellant is entitled to be resentenced based on a 2019 amendment to the Minnesota Sentencing Guidelines, which we declared to be retroactive in State v. Robinette , 944 N.W.2d 242 (Minn. App. 2020), review granted in part (Minn. June 30, 2020).

FACTS

On February 4, 2018, Bloomington and Richfield police officers responded to a motel in Bloomington following a report of a sexual assault. The victim, who was from out of state, alleged that she met appellant Melvin DeVaughn Epps at a party in downtown Minneapolis. At around 4:00 a.m., Epps offered to drive the victim back to her motel. Initially, Epps drove the victim to two wrong motels.

At the second wrong motel (the "second motel"), Epps parked his car in the motel parking lot. He turned to the victim and asked her for a kiss. The victim complied, believing it would be a quick kiss goodbye, "just [to] be courteous and decent." However, Epps climbed over the center console of the car, got on top of the victim, and tried to fervently kiss her. The victim testified that she rested her palms against Epps's shoulders and tried to push against him to indicate that she did not want to continue. She said "no" to Epps's advances, but Epps undid his pants and "jammed [his penis] extremely hard" in her direction. The victim testified that she repeatedly said "no" and that she did not "want to do this," but Epps applied more force, grabbed her wrists, and pressed the victim down into the car seat. Epps hyperextended the victim's shoulders, used his thighs to push her legs apart, and penetrated her vagina with his penis for approximately five minutes. The victim tried to resist but Epps applied so much force that the victim testified that she believed that if she fought back she would have "dislocate[ed] something." She testified that even after she stopped resisting, Epps continued to apply a great deal of force to her cervix and she reported feeling pain for over a week after the assault.

As Epps started to move off the victim, she unbuckled her seatbelt, opened the car door, and dove into the parking lot. The victim ran from the car, "zigzagging like a jackrabbit," because she "didn't want to get hit by [Epps's] car." After safely reaching the second motel, the victim reported to the staff that she had been sexually assaulted and asked them to call her a cab to the correct motel (the "third motel").

When she arrived at the third motel, the victim told her friend with whom she was staying what had happened. The victim's friend reported the assault to the police. Bloomington and Richfield police officers responded and took the victim's statement concerning the night's events. The victim described her assailant and Epps's car. She also informed police that, in a rush to get out of Epps's car, she left her phone behind.

The officers also spoke with the victim's friend. The friend stated that he had been in communication with the victim after she left the party in downtown Minneapolis. The victim sent her friend several text messages at approximately 5:00 a.m. indicating that she was near the area of the third motel. The officers examined the victim's phone records and determined that its last location ping was in Blaine. After arriving at the phone's location in Blaine, the officers were unable to find the matching suspect or vehicle.

The officers took the victim to the hospital where she reported significant vaginal discomfort. DNA samples were taken from the victim and an exam revealed bruising and other injuries consistent with a sexual assault. The exam also revealed that one of the victim's earrings had been ripped out of her ear.

In October 2018, the officers learned that one of the DNA samples taken from the victim matched a sample taken from Epps, which was already in the criminal database. The officers then located and interviewed Epps, who confirmed that he was at the same party as the victim, but denied meeting her, driving her home, or engaging in any sexual conduct. Another DNA sample was taken from Epps after the interview.

Following the interview and a second positive DNA match, Epps amended his initial statement. He stated that he met the victim at the party and took her to an apartment complex, where he had consensual sex with her in a bathroom. He then drove the victim to the second motel and had consensual sex with her in his car. Epps stated that after the victim left, he discovered the victim's phone in his car but did not return it to her. The state examined cell tower records and determined that they were inconsistent with Epps's reported timeline.

The state charged Epps with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i), which prohibits criminal sexual conduct causing personal injury to a victim under circumstances in which the actor uses force or coercion.

At a jury trial, the following testimony and evidence was submitted to support the state's case: (1) the officers testified that they observed marks and bruising on the victim's back, legs, arms, and blood near her ear; (2) hospital staff testified that the victim made statements which were consistent with her testimony concerning the assault; (3) hospital staff reported injuries consistent with a forcible encounter and nonconsensual sex, including bruising and marks on the victim's wrists and arms consistent with being held down, bleeding from the victim's ear, and various bruises and abrasions; (4) the victim testified that she suffered numerous injuries, including a hematoma and bruising on her spine and her pelvic area; (5) phone records corroborated the victim's timeline, indicating that her phone was in downtown Minneapolis until approximately 5:00 a.m., at the second motel between 5:30 a.m. and 6:15 a.m., and at a location near Epps's home in Blaine at around 7:00 a.m.; (6) Epps and his car matched the description of the assailant and his car given by the victim; and (7) both of Epps's DNA samples matched the sample taken from the victim.

During his closing argument, the prosecutor identified the elements of the charged offense: (1) the intentional act of sexual penetration, (2) without the consent of the complainant, (3) causing personal injury to the complainant, and (4) through the use of force or coercion. In regards to the fourth element, the prosecutor stated the following:

Once again, let's talk about unanimity. So you don't all need to agree that there was either force or coercion in order for this element to be met.

So six of you could say: Yep, I think there was force. Six of you could say: There was coercion but not force.

That element is still met in that situation.

After closing arguments, the district court instructed the jury that their "verdict must be unanimous."

The jury returned a verdict of guilty. In response to three special verdict questions, the jury found that Epps used force, coercion, and both force and coercion in the commission of the charged offense. The district court denied Epps's request for a sentencing departure and sentenced him to prison for 156 months, the presumptive sentence for first-degree criminal sexual conduct. Epps appeals.

ISSUES

I. Did the prosecutor's closing argument violate Epps's right to a unanimous verdict?

II. Was the evidence sufficient to sustain Epps's conviction for first-degree criminal sexual conduct?

III. Did the district court abuse its discretion when it denied Epps's request for a downward sentencing departure?

IV. Did the prosecutor commit misconduct by alerting the district court to a pending case in Anoka County?

ANALYSIS

Epps challenges his conviction and sentence for first-degree criminal sexual conduct. He argues that the prosecutor committed misconduct by misstating the law in his closing argument regarding the elements of first-degree criminal sexual conduct. He also argues, in a pro se supplemental brief, that the evidence is insufficient to sustain the jury's verdict, the district court abused its discretion when it imposed an unjust sentence and failed to depart from the presumptive sentence, and the prosecutor committed misconduct when he alerted the district court to a pending proceeding in Anoka County.

I. The prosecutor's closing argument did not violate Epps's right to a unanimous verdict.

Epps first argues that the prosecutor committed misconduct during his closing argument when he argued that the jury need not unanimously agree on whether Epps used "force" or used "coercion" to commit an element of the charged offense.

Because Epps did not object to the prosecutor's closing argument at trial, we review any alleged...