In a CSC 3 by Force Prosecution, Trial Court Must Instruct on Statutory Definition of “Force”. No Abuse of Discretion in Limiting Questioning of Complainant About Mental Health History

State v. Moore, Minn.Ct.App., 5/11/2015.  A jury convicted Mr. Moore of third degree criminal sexual conduct.  That state’s only theory of liability was Mr. Moore used “force” to accomplish the crime.  The trial court, however, did not instruct the jury on the statutory definition of “force”.  On appeal, Mr. Moore argued for the first time that this was a mistake which entitled him to a new trial.

The court of appeals concludes that the word “force” in the statute is “meaningfully different from the lay definition” of the word and so the omission of the definition was error.  However, this error was neither “plain” not did it affect Mr. Moore’s substantial rights and so the error was harmless.

Here’s the statute’s definition of “force”:

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 (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

This definition is narrower than the lay definition that does not reference bodily harm, etc. So, a jury could conclude that one is guilty of criminal sexual conduct in the third degree, force, by the mere exertion of “strength,” “energy,” or “power” against a victim without any actual or attempted “bodily harm.”  Unfortunately for Mr. Moore, because neither the pattern jury instructions not prior case law explicitly require the trial court to instruct on the statutory definition, this error was not “plain.”  Lastly, it did not affect Mr. Moore’s substantial rights. 

Before trial Mr. Moore’s counsel sought disclosure of the complainant’s psychotherapy records.  There’s a statute for that, Minn.Stat. 609.347, subd. 6:

(a) In a prosecution under sections 609.342 to 609.3451 . . . , evidence of the patient’s personal or medical history is not admissible except when:

     (1) the accused requests a hearing at least three business days prior to trial and makes an offer of proof of the relevancy of the history; and

      (2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial value.

(b) The court shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant. The court’s order shall detail the information or conduct that is admissible and no other evidence of the history may be introduced.

The trial court examined the records in camera and then ruled that the parties could inquire about certain symptoms and behaviors of the complainant’s mental health diagnosis, but could not ask her what that diagnosis was.  The court of appeals affirms that ruling as not being an abuse of discretion.