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STATE OF MINNESOTA IN COURT OF APPEALS A08-0777 Jason Eric Finnegan, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed May 5, 2009 Affirmed Worke, Judge Otter Tail County District Court File No. 56-K7-05-000499 Lawrence Hammerling, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant) Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56337 (for respondent) Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Connolly, Judge. SYLLABUS A defendant voluntarily and without justification absents himself from trial after trial has commenced by attempting suicide, and thereby, waives his right to be present at all stages of trial.

OPINION WORKE, Judge On appeal from the denial of a postconviction-relief petition challenging his firstdegree criminal-sexual-conduct conviction, appellant argues that the district court abused its discretion in ruling that (1) he voluntarily absented himself from trial after he was hospitalized for a drug overdose and that it was proper to conduct his trial in absentia, and (2) the prosecutor did not commit prejudicial misconduct in closing argument. Because the record supports the finding that appellant voluntarily absented himself by attempting suicide, we conclude that appellant waived his right to be present at all stages of trial. We also conclude that the prosecutor did not commit prejudicial misconduct, and we affirm. FACTS On February 4, 2005, 14-year-old M.F. went to a school dance. When M.F. returned home with her sister and her sister's boyfriend, her older sister, S.F., was there with her boyfriend and appellant Jason Eric Finnegan, who was a friend of S.F. At approximately 11:30 p.m., M.F. went down to the basement with her sisters, their boyfriends, and appellant to play darts. After approximately one hour, appellant and M.F. were left alone in the basement. Appellant asked M.F. to fix some things on his cell phone. After fixing appellant's phone M.F. fell asleep on the love seat. A short time later, M.F. was getting up from the love seat and appellant wrapped his arm around her neck and pulled her to the ground. Appellant pinned M.F. to the ground and asked her to lie next to him. Appellant tightened his grip around M.F.'s neck and told her to take her 2

pants off. M.F. told appellant "no." Appellant covered M.F.'s mouth and pushed her neck one way and pulled her body in the opposite direction. Appellant told M.F. that if she did not take off her pants he would break her neck. Appellant forced M.F. to remove all of her clothing, put a sock into her mouth, and had sexual intercourse with her. M.F. did not tell anyone what happened until Monday when she returned to school. M.F. told one of her friends what appellant did to her. M.F. then told her sister, a school counselor, and then her mother. M.F. went to a physician and her father reported the sexual assault to the sheriff's office. The physician who examined M.F. concluded that M.F. had been sexually assaulted. Deputy Barry Fitzgibbons met with M.F., who reported that appellant raped her and that she had not been sexually active before the incident. Deputy Al Frank spoke with appellant. Appellant admitted that he had been in the basement with M.F. on the night of the incident. Appellant, however, claimed that he did not remember anything else due to the fact that he had smoked marijuana that night. When asked if he had sex with M.F., appellant said "no, I don't remember." Appellant was charged with first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct. An omnibus hearing was scheduled for August 15, 2005. Appellant failed to appear and an arrest warrant was issued. Appellant was arrested in January 2006 and released pending trial, which commenced on May 4, 2006. At appellant's trial, M.F. testified regarding the assault, and officers testified regarding their investigation. Reports were admitted into evidence that show that a DNA profile obtained from the sperm cell fraction taken from a piece of carpet from the basement floor matched appellant's DNA profile. 3 There were also nonsperm cell fractions

obtained from the carpet that included a mixture of DNA from two or more individuals; the predominant DNA profile obtained matched M.F.'s profile and appellant could not be excluded as a possible contributor to the minor DNA types. At the conclusion of the first day of trial, the district court stated that the trial would be wrapping up early the next day. Appellant did not appear for the second day of trial. Defense counsel stated that appellant's mother contacted her that morning and indicated that appellant was in bed and unresponsive. Appellant's mother requested that someone come to their home. The prosecutor informed the district court that she received a call from Sergeant Fitzgibbons who went to appellant's home to transport him. Fitzgibbons reported that he found appellant suffering from a medical condition, likely an overdose because appellant was drooling, his eyes were in the back of his head, and he was not able to speak. The prosecutor requested that the trial proceed because appellant made a choice to make himself unavailable. The district court found that appellant did voluntarily absent himself from trial because he "did something last night, according to his mother, and the officers that arrived at his home found him to be unresponsive. He was aware that we were in trial, he was aware that he was supposed to be here today, and I'm also finding that his behavior, because he's not here, is disruptive." The district court found that appellant waived his appearance, and instructed the jury: Members of the jury, we are going to proceed with the trial and you will notice that [appellant] is not present because of unforeseen circumstances. You are not to hold that fact against [appellant] while we proceed with the trial, and you are not to hold that against him during your deliberations.

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Around noon, outside the presence of the jury, the prosecutor updated the district court on appellant's condition. The preliminary report from appellant's treating physician

concluded that appellant overdosed on sleeping pills--there were 51 unaccounted-for pills. Appellant remained unaware of his surroundings and was unable to communicate. The prosecutor reminded the district court that appellant had a history of failing to appear; he failed to appear at his omnibus hearing and had a warrant open for a significant period of time. The jury found appellant guilty as charged. A warrant was issued for appellant's arrest; he appeared on May 8, 2006, and the district court advised him: [J]ust to let you know, it was the Court's determination that it was by your own willful acts that you failed to appear for the second day of your trial. And because of your own acts, you made yourself unavailable and our jury was seated, the trial was nearly completed, and it was my decision that we would go forward with the trial without your presence, so that's what we did. Appellant requested a new trial, and the district court denied the motion. On May 10, 2006, the district court ordered that appellant be evaluated and treated by the appropriate clinical psychologists or psychiatrists. The district court received a copy of appellant's psychological evaluation on May 30, 2006. The evaluation indicates that on May 5, 2006, appellant was admitted to the "Fergus Falls RTC due to being intoxicated on methamphetamine, as well as being stressed due to his present legal predicament and having suicidal ideation." On June 16, 2006, the district court sentenced appellant to the presumptive sentence of 144 months in prison.

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On September 7, 2007, appellant filed a petition for postconviction relief, arguing that his trial was erroneously conducted in his absence and that the prosecutor committed prejudicial misconduct. Appellant waived an evidentiary hearing and the district court, a different judge than who presided over appellant's trial, denied appellant's petition after finding that appellant voluntarily absented himself from trial by attempting suicide and that the prosecutor did not commit prejudicial misconduct. This appeal follows. ISSUES I. Did the district court abuse its discretion in denying appellant's petition for postconviction relief by finding that appellant waived his right to be present at trial because he voluntarily absented himself by attempting suicide? Did the district court abuse its discretion in denying appellant's petition for postconviction relief by finding that the prosecutor did not commit prejudicial misconduct? ANALYSIS Appellant argues that the district court abused its discretion in denying him postconviction relief. On a petition for postconviction relief, the petitioner bears the burden of establishing facts that warrant relief. Minn. Stat.

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