Opinion
No. C9-02-801.
Filed May 20, 2003.
Appeal from the Nicollet County District Court, File No. K301441.
Mike Hatch, Attorney General, Kristen Olsen, Assistant Attorney General, (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On review of his convictions for third-degree criminal sexual conduct and solicitation of a minor to engage in sexual conduct, appellant Gabriel Ramirez challenges the district court's decision barring cross-examination of the victim regarding her prior misrepresentations and its decision sentencing him under the career-offender statute. Because the district court did not abuse its discretion in its evidentiary ruling, we affirm on that issue. But because the district court did not have sufficient information to determine the sequential nature of appellant's prior convictions, we reverse and remand for re-sentencing.
DECISION 1. Evidentiary Ruling
Absent a clear abuse of discretion, a district court's evidentiary rulings will not be disturbed on appeal. State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000). Appellant argues that the district court abused its discretion in denying his request to cross-examine S.F. and her friend regarding prior misrepresentations of their age. The court prohibited the defense from cross-examining the two on that issue, finding that the evidence was irrelevant to the particular offenses for which appellant was charged.
Appellant's defense was mistake of age; he believed S.F. to be 16 years of age or older. Thus, he argues that admission of evidence that S.F. had previously misrepresented her age to another person would support his defense. The state contends that because appellant was not present at the time that S.F. allegedly made the statements and because only his state of mind was relevant to a mistake-of-age defense, anything S.F. may have told someone outside appellant's presence was irrelevant. See Powe v. State, 389 N.W.2d 215, 220 (Minn.App. 1986) (holding alleged false representations made outside defendant's presence not relevant to his claim that he believed victim was 16 or older), review denied (Minn. July 31, 1986). We agree.
Moreover, the jury was allowed to hear other evidence to show that S.F. had made false statements regarding her age. Appellant testified to representations that S.F. made in his presence about her age. Additionally, another defense witness testified that S.F. told Ramirez and a group of friends that she was 18 years old. Furthermore, S.F. testified that she told appellant that she was 15, even though she was only 14. Given this evidence regarding S.F.'s misrepresentations and S.F.'s acknowledgement that she misrepresented her age to appellant, he cannot establish that he was prejudiced by this evidentiary ruling. The district court therefore did not abuse its discretion by prohibiting additional cross-examination on this subject.
2. Sentencing
The decision to depart from the sentencing guidelines is within the district court's discretion and will not be disturbed absent a clear abuse of that discretion. State v. Munger, 597 N.W.2d 570, 574 (Minn.App. 1999) (citation omitted), review denied (Minn. Aug. 25, 1999). Appellant argues that the district court abused its discretion in sentencing him under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2000). The career-offender statute permits the court to depart from the presumptive sentence and sentence an offender up to the statutory maximum
if the judge finds and specifies on the record that the offender has five or more prior felony convictions and the present offense is a felony that was committed as part of a pattern of criminal conduct.
Id.
Relying on State v. Huston, 616 N.W.2d 282 (Minn.App. 2000), appellant argues that he does not have the requisite five prior sequential convictions to qualify as a career offender. A prior conviction is defined as
a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under [Minn. Stat.
§ 609.1095].
Minn. Stat. § 609.1095, subd. 1(c) (2000). Thus, "five sequential felony offenses and convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction, etc.)." Huston, 616 N.W.2d at 283.
Appellant argues that the state did not provide the district court with sufficient information to prove that each conviction occurred before appellant committed the next felony. We agree. The evidence in the record lists seven conviction dates, but only one offense date, as follows:
Offense Date Conviction Date Crime
5/13/91 selling controlled substance
3/6/92 burglary of occupied residence
3/6/92 possession of cocaine
3/23/92 probation violation (5/13/91 case)
A probation violation in itself is not a "conviction," although it may be based on a conviction for a separate offense.
6/24/93 possession of cocaine
11/8/93 possession of cocaine base
11/94 9/3/96 return to U.S. after deportation
Because the district court did not have all the offense dates before it, it could not determine that the previous crimes were sequential in order to qualify under the career-offender statute. We therefore reverse and remand for consideration of the dates of the offenses and their relationship to the various conviction dates.
Finally, we have considered the additional arguments in appellant's pro se brief and find them to be without merit.