State v. Momanyi

State of Minnesota, Respondent, v. Abner Otwoma Momanyi, Appellant.

A19-0520

STATE OF MINNESOTA IN COURT OF APPEALS

April 27, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part and remanded

Smith, Tracy M., Judge

Hennepin County District Court

File No. 27-CR-17-22606

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Sean Patrick Cahill, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and Smith, Tracy M., Judge.

UNPUBLISHED OPINION

SMITH, TRACY M., Judge

On direct appeal of his conviction for second-degree criminal sexual conduct, appellant Abner Otwoma Momanyi challenges his conviction, arguing that (1) the district court abused its discretion by permitting testimony about a prior interaction between him and the victim and (2) the prosecutor committed misconduct by inflaming the passions of the jury in her closing argument. Momanyi also challenges his sentence, arguing that he is entitled to a shorter sentence based on changes to the sentencing guidelines. We reject appellant's arguments challenging his conviction, but we agree that he may be entitled to resentencing under the revised guidelines. We therefore affirm in part and remand.

FACTS

The facts are drawn from Momanyi's criminal trial. On an afternoon in July 2017, nine-year-old T.M., together with her mother and younger siblings, went to the home of family friends to memorialize the friends' relative who had recently died. About 30 people visited the home throughout the day, including Momanyi, his wife, and their three children. T.M. referred to Momanyi as her uncle, out of respect, but they were not related and had only met twice previously.

At the home, T.M. went to the basement to play with the other children present, while her mother went to the kitchen to help with the dishes. Momanyi was in the basement, too. While in the basement, T.M. played with Momanyi's daughter. Momanyi's son was also in the basement, but, according to T.M., the boy left after Momanyi said something to him. Although Momanyi spoke in a language that T.M. did not understand, she assumed that Momanyi told his son to leave. Momanyi spoke to his daughter and T.M. about T.M. coming to their home for a sleepover.

T.M. then tried to go upstairs, but Momanyi physically stopped her. Momanyi then told T.M., "Come sit on my lap." T.M. testified that, though she did not want to do it, sheagreed to sit on Momanyi's lap to avoid being disrespectful to an elder. Once T.M. was on his lap, Momanyi kissed her left cheek, licked her earlobe, and touched her breast under her shirt. T.M. "felt uncomfortable," so she got off of Momanyi's lap and went upstairs to the bathroom to wipe off his saliva. After wiping off the saliva, she sat in the bathroom breathing in and out to calm herself.

T.M. tried to tell her mother what had happened, but her mother was speaking with the hosts in the kitchen and told T.M. that she would talk with her later.¹ T.M. then went outside to play with the other children. During this time, Momanyi had come upstairs from the basement. Once T.M. had gone outside, Momanyi approached T.M.'s mother and started asking her "weird questions." Momanyi told T.M.'s mother that he needed to tell her something "really troubling" about her husband. As T.M. and her family were leaving the event, Momanyi tried to arrange a meeting with her mother the next day, saying it was about something urgent and that he did not want to talk about it over the phone. T.M.'s mother testified that, looking back at the incident, she believes Momanyi was trying to distract her from T.M.

As T.M.'s mother was driving her family home, T.M. told her mother that she did not like Momanyi and that he was "weird." Her mother agreed that he was weird but then asked T.M. why she thought that. T.M. responded that he has red eyes and keeps following her. Her mother asked her if that was all, and T.M. told her what had happened in the basement. T.M.'s mother turned the car around and returned to the home to confrontMomanyi. Upon being confronted, Momanyi responded that T.M. was lying and that it was a "setup." Both T.M. and her mother slapped Momanyi. They then left, with T.M.'s mother threatening to call the police.

At home, T.M.'s mother called the police, and T.M. and her mother went to the police station to report what had happened. An employee of the child-advocacy center CornerHouse also interviewed T.M. a few weeks later. In the interview, T.M. recounted the events in the basement with Momanyi.

The state charged Momanyi with second-degree criminal sexual conduct, and a jury found Momanyi guilty. The district court sentenced Momanyi to 48 months' imprisonment and 10 years of conditional release but stayed execution of the sentence for five years.

This appeal follows.

DECISION

I. Spreigl Evidence

Momanyi argues that the district court committed reversible error when, over his objection, the district court permitted T.M. to testify about a prior incident in which Momanyi kissed her and her friend on their necks.

Evidence of other crimes or acts is governed by Minn. R. Evid. 404(b). Such evidence is commonly referred to as "Spreigl evidence," based on the supreme court's decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). "A district court's decision to admit Spreigl evidence is reviewed for an abuse of discretion." State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). "A defendant who claims the [district] court erred in admitting evidence bears the burden ofshowing an error occurred and any resulting prejudice." Id. "Evidentiary errors warrant reversal if there is any reasonable doubt the result would have been different had the evidence not been admitted." State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996) (quotation omitted).

Spreigl evidence may be admitted only in some cases. Minn. R. Evid. 404(b); State v. Ness, 707 N.W.2d 676, 682, 685 (Minn. 2006). First, the evidence has to be relevant for a valid purpose "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" and "is not admissible to prove the character of a person in order to show action in conformity therewith." Minn. R. Evid. 404(b)(1). Second, these conditions also have to be met:

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state's case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

Ness, 707 N.W.2d at 686.

But even if the Spreigl evidence is not admissible under rule 404(b), a court may permit inquiry into a prior act when a defendant "opens the door" on the subject. State v. Guzman, 892 N.W.2d 801, 814-15 (Minn. 2017). "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. Valtierra, 718 N.W.2d 425, 436 (Minn. 2006) (quotation omitted). "The opening-the-door doctrine is essentially one of fairness and common sense, based on the proposition that one party should not have an unfairadvantage and that the factfinder should not be presented with a misleading or distorted representation of reality." Id. (quotation omitted).

At trial, the prior-act evidence arose during T.M.'s testimony. During cross-examination, the defense asked T.M. about whether she felt uncomfortable around Momanyi in general, leading to this exchange:

Q: And so at any sort of touch, even if it were incidental or friendly, you might just feel uncomfortable about it?

. . . .

A: No. But most things that he did, I don't -- I don't believe it was rough or gentle. Like one time there was this occasion --

Q: I'll just stop you there. That's not responsive. But I'm just asking about whether or not you felt uncomfortable with him prior to that day.

T.M. responded that she had felt uncomfortable around Momanyi before the day of the incident. On redirect, the state then asked T.M. if Momanyi had ever touched her in a way that made her feel uncomfortable. Over the defense's objection, the district court permitted T.M. to explain that she had been uncomfortable on a previous occasion when Momanyi had kissed the back of her neck and left saliva. T.M. also testified that Momanyi had kissed another child's neck on the same occasion and that the two children had discussed how it made them feel uncomfortable.

Momanyi argues that the state failed to meet the Spreigl conditions in order to admit prior-act evidence. He argues that the state failed to provide notice that it intended to introduce Spreigl evidence, even though the prosecutor's questions implied that she was aware of the information. But the state only asked about the prior act after Momanyi's counsel brought up T.M.'s general discomfort around Momanyi. Momanyi's counsel's lineof questioning implied that T.M.'s discomfort was something she always felt around Momanyi and that she would have felt that way even if the contact between them was innocent. The state used T.M.'s explanation of what happened to rebut this implication, as it showed T.M. had a reasonable basis for being uncomfortable around Momanyi. The state did not continue questioning on the subject or raise the prior act again. We conclude that the district court did not abuse its discretion in permitting the testimony on the prior act to fairly respond to the defense's...