State of Minnesota, Respondent, vs. Dennis Edward Courneya, Appellant.

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may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-98-1156

State of Minnesota,

Respondent,

vs.

Dennis Edward Courneya,

Appellant.

Filed April 27, 1999

Affirmed

Huspeni, Judge[*]

Stevens County District Court

File No. K7-97-155

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Charles C. Glasrud, Stevens County Attorney, 109 East Sixth Street, P. O. Box 66, Morris, MN 56267 (for respondent)

Marc G. Kurzman, Kurzman, Grant, & Ojala, St. Anthony Main Event Centre, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Following a jury trial, Dennis Edward Courneya, a high school teacher and coach, was convicted of twelve counts of criminal sexual conduct arising from sexual abuse of female students at Hancock High School. These included: four counts of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(b) (1996); two counts of criminal sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345, subd. 1(e) (1996); and six counts of criminal sexual conduct in the fifth degree in violation of Minn. Stat. § 609.3451, subd. 1 (1996). The jury acquitted Courneya on the fourteen remaining counts.

Courneya appeals the convictions and argues: (1) the trial court abused its discretion in admitting the Spreigl testimony of L.G., A.P., and J.K.; (2) the evidence was insufficient to support the verdict of criminal sexual conduct in the second, fourth, and fifth degree regarding L.G., C.H., T.N., and S.G.; (3) the district court abused its discretion when it failed to dismiss two jurors for cause and removed another juror on the last day of testimony; (4) the trial court abused its discretion in denying Courneya's various omnibus motions prior to trial; and (5) the trial court erred in preventing Courneya from arguing that the state failed to call essential witnesses. We affirm.

FACTS

Testimony of L.G.

Courneya was L.G.'s history teacher and cross-country, basketball, and track coach. L.G. testified that in the fall of 1997 while she was at cross-country practice stretching on the football field, Courneya came over to her and said, "How is my girl?" to which she replied, "I'm fine." Courneya stated, "I need some loving today" and then stood behind her and began to rub her shoulders while moving her back and forth. He had his legs on either side of her and rubbed his genital area against her upper back. She could feel that he had an erection. L.G. tried to move forward, but Courneya also moved forward, then walked away and snickered. L.G. demonstrated these actions before the jury.

L.G. testified that when they finished with practice, Courneya walked up to her, said, "Nice job" and put his arm around her waist and hugged her while she was walking, which was uncomfortable. Courneya then stated, "Do you know how beautiful you are?" L.G. testified that she tried to ignore him but he went on: "I have looked at you over the past few months. You are still beautiful. Your boyfriend's a lucky guy. I wish I was 35 years younger or you were 35 years older." She did not say anything to Courneya about these statements.

L.G. also testified that approximately once a week, Courneya would touch her during class, coming up behind her and rubbing her shoulders while stating, "How is my girl doing?" or "I need some loving today." L.G. testified that when Courneya was rubbing her shoulders, she could sometimes feel his penis on her back, below the seat back of the chair. She demonstrated this action before the jury using a school desk and a "Resusci-Annie" doll (used to teach CPR). During cross-examination, however, when asked how Courneya could get his penis underneath the back portion of the chair, L.G. stated Courneya would come up beside her to rub her shoulders, not behind her.

L.G. also testified that Courneya would come up to her, grab her biceps, and say, "You've got chicken muscles." As he did this, he would squeeze the muscle and then brush his hand against her breast. L.G. demonstrated this for the jury. She testified he would check her muscles about twice a week, but would touch her breast about once a week. She stated that touching her breast could not have been clumsiness.

L.G. told three of her friends about the stretching incident immediately after it happened. Later, she broke down crying in class because friends were discussing it. After class, L.G. told the teacher about the incident; L.G. and the teacher spoke with the school counselor, and L.G. decided to make a report.

B. Testimony of T.N.

Courneya was T.N.'s history teacher and basketball coach. T.N. testified that Courneya would frequently touch her in the hallway (either putting his arm around her and giving her a hug, or grabbing her biceps), and would occasionally tap her buttocks or lower back when he walked by. He would say, "How is my girl doing this morning?" or "I need some loving this morning." T.N. demonstrated for the jury how Courneya would touch her arm. She stated that sometimes his fingers would brush her breasts before he grabbed her biceps. T.N. testified that when Courneya touched her breast, she felt uncomfortable and did not know what his intentions were. She later understood that this touch was not appropriate. She also testified that she did not think he did it on purpose. T.N. testified that Courneya would also touch her in the classroom; feeling her biceps, and sometimes using both hands to massage the top and bottom of the biceps at the same time. She also demonstrated this for the jury.

C. Testimony of C.H.

C.H. stated that in the fall of 1997, Courneya came up to her, grabbed her arm, and brushed his hand against her breasts. He also would put his hands on her shoulders and rock her back and forth stating, "Give me a little loving" or something to that effect. She stated his groin area would come in contact with her. This happened more frequently during her ninth-grade year because she sat in the back row. However, she sat in the front row during her tenth-grade year and learned to push her desk back so he could not walk behind her. She testified that he did it so often, she did not think anything of it, and she did not think it was wrong. She demonstrated these actions on the doll in front of the jury.

One day when C.H. was wearing shorts and Courneya was sitting on the front of his desk, he said something, leaned over, and rubbed her leg all the way down and patted it. This made her feel uncomfortable. She also testified Courneya would start massaging her back while she was stretching, but there was no contact with his groin area. Another day, during her ninth-grade year, she wore a tight shirt to class and he felt the sleeve of her shirt and stated, "Gonna feel a little nippy today?" She also thinks he said, "Nice shirt you've got there."

Courneya also had nicknames for C.H. such as "wild thing." C.H. testified that only once did she jokingly tell him to stop touching her, but otherwise she was scared to do so because it was part of her everyday life. The first time she told an adult about this behavior was after L.G.'s story came out. She told her volleyball coach, who recommended she speak with the superintendent of schools.

D. Direct testimony of S.G.

S.G. and L.G. are cousins. S.G. testified that in the fall of 1997, Courneya would sometimes feel her breast when touching her arm to feel her "chicken muscles." He would comment that they were getting bigger. This also happened during the previous two years. She demonstrated this touching in front of the jury. He also touched her on her knee once in a while. In the hallway, Courneya would approach S.G. and say, "Looking pretty good today" and "How's it going." She did not tell any adults about the touching until L.G.'s story came out because she did not feel comfortable talking about it, and did not know that the touching was wrong.

E. Other testimony

Other students testified about similar behavior, but the jury acquitted Courneya of the charges based on their testimony. Many students testified on Courneya's behalf; that they never experienced the behavior that L.G. described, such as breast-touching. However, many witnesses stated they heard Courneya use the terms "You need a little loving" or "I need a little loving." Courneya testified and explained that these comments were meant to make the student feel better when they were feeling low. He denied having any inappropriate physical contact with students, although he admitted to touching students frequently, either by feeling their muscles or rubbing their backs. He recalled making statements to L.G. such as "your boyfriend's lucky" and admitted two nicknames he had for C.H.

The jury returned the following guilty verdicts of criminal sexual conduct: (1) fourth and fifth degree (L.G.); (2) two counts each of second and fifth degree (C.H.); (3) fourth and fifth degree (T.N.); and (4) two counts each of second and fifth degree (S.G.). The jury found Courneya not guilty of the conduct involving four other students.

D E C I S I O N

Spreigl testimony

The court of appeals will not reverse a trial court's admission of evidence of other bad acts or crimes unless an abuse of discretion is clearly shown. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). A defendant who claims the trial court made an error in admitting evidence bears the burden of showing both the error and any resulting prejudice. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

Generally, evidence of other crimes or misconduct is inadmissible to prove defendant's character, or whether he acted in conformity with that character. Minn. R. Evid. 404(b). However, this evidence may be admitted for the limited purpose of showing motive, intent, absence of mistake or accident, identity, or a common scheme or plan. Id. This evidence may only be admitted if it meets guidelines set in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

a. L.G.

L.G. testified that prior to the stretching incident, Courneya came up to her during class and said, "How is my girl doing today?" and she replied, "Fine." Courneya then put his arm on her right arm like he usually did to check her muscles, squeezed her arm, and eased his hand over to her breast. When he placed his hand on top of her breast, she gasped in shock. He said, "Oh, you like that?" and walked away. L.G. did not remember this incident until December 1997, when she was preparing an affidavit, two months after the stretching incident. She did not tell the sheriff of this incident when she was first interviewed, and it was not included in the complaint.

Courneya argues that this testimony is inadmissible because it was later-reported, uncorroborated testimony, citing to the court of appeals decision in State v. Kennedy.See 572 N.W.2d 58, 64 (Minn. App. 1997) (holding evidence of subsequent offense of same victim does not satisfy Spreigl requirement), rev'd 585 N.W.2d 385 (Minn. 1998). However, the Minnesota Supreme Court specifically rejected this argument when it reversed the court of appeals' decision. State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998). L.G.'s statement cannot be excluded simply because it described conduct occurring prior to the charged incidents and was not corroborated.

Courneya next argues there was no pretrial notice of the challenged testimony. However, even if the trial court erred in admitting un-noticed Spreigl evidence, the appellant must establish prejudice and reversible error. Wanglie v. State, 398 N.W.2d 54, 58 (Minn. App. 1986). L.G.'s later-reported testimony was unknown to everyone until the school's records were subpoenaed. The state gave Spreigl notice of this testimony as soon as it was aware the testimony existed. Despite the late notice, defense counsel was able to cross-examine L.G., both during a Spreigl hearing prior to her testimony, and again in front of the jury. The record demonstrates that defense counsel was familiar enough with the evidence to cross-examine L.G. properly. Id. at 57 (holding notice requirement was fulfilled where it was clear from appellant's cross-examination of witness that testimony was no surprise).

b. A.P.

Courneya argues testimony by A.P. was introduced solely to inflame the jury and this evidence was far more prejudicial than probative. A.P. described an incident where Courneya placed his hand under her T-shirt on her stomach and asked her if his hand felt cold. He also told A.P. that she was growing up to be a nice-looking young lady.

Although the actions described by A.P. do not constitute criminal sexual conduct because her stomach does not fall under the definition of "private parts,"[1] the testimony can be characterized as a "prior bad act." Minn. R. Evid. 404(b). A.P.'s testimony is relevant and probative because it shows Courneya's aggressive or direct intent in touching a student. Id. (stating evidence of prior bad act admissible to show intent). There was no misunderstanding that Courneya intended to touch A.P.'s stomach, which distinguishes A.P.'s testimony from that of other witnesses who stated that Courneya could have unintentionally touched their breasts. Also, a limiting instruction was given both before A.P.'s testimony and again during jury instructions. The trial court did not err in admitting A.P.'s Spreigl testimony.

c. J.K.

J.K. testified that Courneya intentionally touched her, and made sexually suggestive comments to her. Although she described the same types of "touchings" as other witnesses, she believed that Courneya intended to touch her sexually and, unlike other witnesses, she knew the touching was wrong when it occurred. J.K.'s testimony is probative on the issue of intent and aggressive purposes, which the trial court found to be weak. See Minn. R. Evid. 404(b) (allowing evidence to be introduced on basis of intent); Kennedy, 585 N.W.2d at 391-92 (admitting Spreigl as support for state's burden of proof evidence when other evidence was weak). Again, the trial court gave limiting instructions regarding this testimony. There was no error in admitting J.D.'s Spreigl testimony.

d. T.N.

T.N. testified Courneya made sexually suggestive comments to her. The state introduced this evidence to show Courneya's course of dealings with T.N., and how T.N. perceived his actions and comments. The trial court did not abuse its discretion. Testimony regarding events that put T.N.'s experiences in context was proper. See Kennedy, 585 N.W.2d at 392 (holding evidence that helps to establish relationship between victim and defendant or which places the event in context bolsters its probative value).

In addition to arguing that the Spreigl evidence was unfairly prejudicial, Courneya argues that the trial court failed to weigh the probative versus prejudicial impact of each of the witness's testimony. Even if evidence is found to be relevant, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Minn. R. Evid. 403. Courneya objected to the testimony of each of these witnesses. The trial court heard arguments in chambers from both sides and found the evidence admissible. Although the trial court did not explicitly state the evidence was more probative than prejudicial, by admitting the testimony, the court implicitly found sufficient probative value under Rule 403. The Spreigl evidence was not admitted in error.

II. Sufficiency of the evidence

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Courneya argues that testimony of the witnesses was "inherently incredible" and contradictory and that testimony of 11 character witnesses called by him created reasonable doubt. We disagree. The jury is to determine both the weight and credibility of witnesses. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Courneya insists that he could not possibly have positioned his body (as described by L.G. and S.G.) so that his penis came in contact with the witnesses' backs.[2] Inconsistencies and conflicts in the testimony of witnesses, however, do not automatically mean the testimony is false, and are not bases for reversal. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983). This may be especially true when the victim is recounting a traumatic or stressful event. Id. Further, improbability is a question for the jury. Clark v. Chicago & N.W. Ry. Co., 226 Minn. 375, 381, 33 N.W.2d 484, 487 (1948). Much of L.G.'s testimony, as well as testimony by the others, consisted of demonstrations of Courneya's alleged actions. The jury viewed and evaluated the testimony of all witnesses, and while testimony may have been inconsistent and even confused at times, the jury determines credibility. See State v. Pieschke, 295 N.W.2d 580, 585 (Minn. 1980) (noting that even though both parties' stories were incredible, question of credibility was for jury).

Courneya also argues that the testimony of his character witnesses, who testified that similar incidents did not happen to them, was enough to create reasonable doubt. We disagree. Courneya's character witnesses could testify only to their own experiences. They could not testify to what happened to others. There is no basis to overturn the jury's verdict. See Seidl v. Trollhaugen, Inc., 305 Minn. 506, 508, 232 N.W.2d 236, 239 (1975) (stating where resolution is based on assessment of credibility of witnesses whose demeanor can only be observed by jury and where trial court approved jury verdict, appellate court is obliged to affirm).

III. Juror dismissal

Courneya argues that his right to a fair trial was violated because two prospective jurors were not dismissed for cause during voir dire. We disagree. To reverse on the basis of juror bias, Courneya must show: (1) the juror was subject to challenge for cause; and (2) that actual prejudice resulted from failure to dismiss the juror. State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995). The test is whether a prospective juror can set aside his opinion and render an impartial verdict. State v. Drieman, 457 N.W.2d 703, 708 (Minn. 1990). The trial judge is in the best position to observe the demeanor of the prospective juror and his opinion should be given deference. State v. Graham, 371 N.W.2d 204, 206 (Minn. 1985).

Neither of the two challenged jurors actually sat on the panel; defense counsel used preemptory challenges to remove both of them. See State v. Barlow, 541 N.W.2d 309, 311 (Minn. 1995) (stating necessity to exercise peremptory challenge to strike juror whom trial court has erroneously failed to remove for cause does not deprive defendant of fair trial). Courneya does not argue that the actual jury panel was biased. He argues it was unfair that a third juror was dismissed for cause when that juror gave substantially the same answers to questions as the two jurors who were not dismissed for cause. However, Courneya was the third juror's football coach, the juror knew some of the witnesses, and also observed some of the conduct at issue. The trial judge was well within his discretion in dismissing the third juror.

Courneya also argues that the trial judge abused his discretion when dismissing a juror on the last day of trial. We disagree. The juror, a resident assistant at a local college, informed the court that several of his residents filed a sexual harassment complaint against him and an investigation was to begin that evening. Upon questioning by the court, the juror answered that it would be very difficult for him to remain focused and give his undivided attention to the evidence. He was excused. The dismissal was well within the discretion of the trial court. See Drieman, 457 N.W.2d at 709 (holding if juror indicates, to satisfaction of trial judge, that he can set aside any preconceived notions, appellate court will not lightly substitute its own judgment).

IV. Omnibus motions

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Courneya argues that the denial of every pretrial discovery and omnibus motion prohibited him from receiving a fair trial. However, Courneya does not actually argue these issues. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (holding issues not briefed on appeal are waived). He argues only that notes may have been taken during counseling sessions a few weeks before trial that may contain exculpatory evidence. "There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846 (1977). Even if records existed of these counseling sessions, Minnesota law prohibits unauthorized disclosure of medical and psychiatric/psychological information. State v. Hummel, 483 N.W.2d 68, 71-72 (Minn. 1992). Courneya would have had to make some showing of why the records would contain information connected to the case and then the court could conduct an in camera review of the records. Id. At the time of his requests, Courneya had no proof that any records existed, or that they contained exculpatory evidence. The court did not abuse its discretion in denying these discovery requests.

V. Failure to call witnesses

Courneya argues the trial court erred in prohibiting defense counsel from commenting on the state's failure to call essential witnesses. We disagree. The trial court has the authority to order defense counsel to refrain from commenting on a prosecutor's failure to call a witness if the witnesses are available to both parties. SeeDaniels, 361 N.W.2d at 833 (affirming trial court's ruling that defense counsel could not argue prosecutor failed to call essential witnesses). The trial court did not err when it refused to let Courneya comment on the state's failure to call certain witnesses.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[1] To constitute criminal sexual conduct, the touching must be of the complainant's intimate parts which includes the primary genital area, groin, inner thigh, buttocks, or breast. Minn. Stat. § 609.341, subds. 5, 11(b) (1996).

[2] Courneya also argues that S.G.'s story was "corroborative" testimony in violation of caselaw. However, the caselaw that Courneya cites to does not support his argument. SeeState v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (allowing in expert testimony that supported victim's statements).