Tuesday, June 8, 2010
No M.O.: Court Of Appeals Of Minnesota Finds Trial Court Properly Excluded Victim's Sexual History Under Rape Shield Rule
Minnesota Rule of Evidence 412(1)(A)(i) provides that
(1) In a prosecution for acts of criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct, evidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court order under the procedure provided in rule 412. Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature and only in the following circumstance:(A) When consent of the victim is a defense in the case,
(i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent.
And, as the recent opinion of the Court of Appeals of Minnesota in State v. Koloski, 2010 WL 2265583 (Minn.App. 2010), it is difficult to establish such a common plan or scheme through only a single incident of prior sexual conduct.
17-year-old S.K. told a[n]...officer that she had been sexually assaulted during the preceding night. Investigator Chad Kleffman of the Brainerd Police Department responded and drove S.K. to a hospital to have a sexual-assault examination. While in the hospital parking lot, S.K. told Kleffman that she had consumed a large amount of alcohol on Halloween night and had become extremely intoxicated. S.K. reported that she "somehow" ended up in an apartment above a bar and that she woke up to find a man she did not know having sex with her.
Appellant Jordan Koloski was identified as S.K.'s assailant. During an interview with Investigator Kleffman, Koloski stated that he had been out drinking with a group of friends and acquaintances on Halloween night. At about the time the bars closed, Koloski and his friends encountered S.K., who was in the back seat of a car. According to Koloski, he and one of his friends helped S.K. out of the car and assisted her to an apartment. The apartment, to which one of Koloski's friends had access, had three bedrooms and was located above a bar. Koloski stated that shortly after entering the apartment, his friends went into two of the bedrooms, and he went into the third bedroom where S.K. had been placed. Koloski admitted that he then took off S.K.'s clothes, performed oral sex on her, and had sexual intercourse with her. Koloski also acknowledged that he had not met S.K. before that night and described her as "wasted" and "in and out of being passed out." Koloski further acknowledged that it was wrong to have sex with S.K. when she was so intoxicated.
Koloski was charged with third-degree criminal sexual conduct, and he later moved to admit evidence of S.K.'s prior sexual conduct under Minnesota Rule of Evidence 412(1)(A)(i). Specifically,
According to Investigator Fagerman's report, S.K. claimed that about two months earlier, she and a couple of friends went to a 37-year-old man's house to use alcohol and cocaine. S.K. claimed that she returned to the man's house two days later, hoping to get more cocaine. After again using alcohol and cocaine with the man, she went with him into a hot tub where the man had sexual intercourse with her. S.K. then went upstairs to the man's room, where he again had sexual intercourse with her. The man had sexual intercourse with S.K. a third time after S.K. took a shower. According to S.K., she "didn't fight it" because she "was just like so out of it." S.K. also indicated that she did not leave until the next morning because she had no gas in her car and her cell-phone battery was dead. Approximately two months later, S.K. reported the incident to her mother after her mother had asked her why she was depressed and "doing bad at school." S.K.'s mother reported the incident to the police. The state, however, declined to press charges, citing insufficient evidence.
The trial court declined to admit this and other evidence of this incident, finding "that Koloski's offer of proof neither established a common scheme or plan nor showed that S.K. had fabricated sexual-assault allegations." After he was convicted, Koloski appealed, but the Court of Appeals of Minnesota affirmed. The court seemed to ignore the fact that Koloski failed to prove that S.K. had fabricated the prior sexual assault allegations, but it did find that
A victim's sexual history does not establish a common scheme or plan unless there is a pattern of clearly similar behavior constituting habit or modus operandi....Here, the prior sexual conduct at issue occurred once. Because a single incident does not constitute a pattern, S.K.'s conduct does not establish a common scheme or plan.
Moreover, the court found that even if a single incident could be sufficient, "the prior incident was different in several distinct ways from the charged offense," making it inadmissible under Minnesota Rule of Evidence 412(1)(A)(i).