State of Minnesota, Respondent, vs. Mark Jeffrey Dunker, Appellant.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C7-98-1231

State of Minnesota,
Respondent,

vs.

Mark Jeffrey Dunker,
Appellant.

Filed April 6, 1999
 Affirmed
 Short, Judge

Otter Tail County District Court
File No. K097801

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

David J. Hauser, Otter Tail County Attorney, 121 W. Janius Avenue, Fergus Falls, MN 56537 (for respondent)

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

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

U N P U B L I S H E D   O P I N I O N

SHORT

Mark Jeffrey Dunker was convicted of first-degree criminal sexual conduct for acts committed against a seven-year-old boy in violation of Minn. Stat. § 609.342, subd. 1(a) (1998). On appeal from conviction and sentencing, Dunker argues: (1) the evidence is insufficient to sustain the conviction; (2) the trial court abused its discretion in evidentiary rulings; and (3) he was denied a fair trial due to prosecutorial misconduct, jury misconduct, and ineffective assistance of counsel. We affirm.

D E C I S I O N

I.

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994). Inconsistencies between witnesses do not necessarily constitute false testimony or a basis for reversal. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

The record demonstrates: (1) the seven-year-old boy went to Dunker's house to pet Dunker's puppies; (2) Dunker masturbated and ejaculated in front of the boy; (3) Dunker touched and photographed the boy's genitals; (4) Dunker showed the boy a pornographic video and magazines; (5) Dunker placed his "private parts" in the boy's "butt" and mouth, and "salty" "white stuff" came out;" and (6) the boy gave consistent reports to his older brother, father, physician, social worker, and at trial. Although Dunker denied the conduct, the jury was entitled to reject that testimony. See State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (stating that "judging the credibility of witnesses is clearly a function of the jury"). Given these facts, the evidence is sufficient to establish, beyond a reasonable doubt, that Dunker was guilty of first-degree criminal sexual conduct.

II.

Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion which results in prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). Evidence that a defendant committed a prior crime or misconduct is inadmissible to show character as a basis for an inference that the defendant acted in conformity with that trait on a particular occasion. Minn. R. Evid. 404. Such evidence is admissible to establish motive, intent, or the existence of a common plan or scheme. Minn. R. Evid. 404(b); State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977). However, even when offered for a proper purpose, evidence of a prior crime is admissible at trial only if the Spreigl requirements are met. See State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (requiring notice, disclosure of evidence, relevance, clear and convincing evidence defendant participated in other offense, and probative value outweighing prejudice).

Dunker argues the trial court abused its discretion by admitting evidence of an uncharged criminal sexual investigation in violation of the clarity requirements set forth in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), and prejudicial evidence of two prior convictions and one uncharged incident in violation of Minn. R. Evid. 403. We disagree. The record demonstrates: (1) in the uncharged conduct, the four-year-old girl immediately and spontaneously reported the abuse to her father, clearly identified Dunker as the perpetrator, had no motive to lie, told substantially similar stories to her father and at Dunker's trial, and used age-appropriate terminology; (2) in the prior convictions, the uncharged incident, and the instant case, Dunker enticed prepubescent children to his home, sexually abused each child by touching their genitals, masturbating on or near them, showing them pornography, ejaculating in front of or on them, and/or sexually penetrating them; (3) each child identified Dunker and, despite their young ages, some children were able to describe the appearance or taste of semen; and (4) in the instant case, there were no eyewitnesses and the trial court gave cautionary instructions at the time of admission of the evidence and at the close of trial. Given these facts, we conclude the evidence is clear and convincing that Dunker had sexual contact with the four-year-old girl. See Kennedy, 585 N.W.2d at 389 (holding victim's Spreigl testimony need not be corroborated to be clear and convincing); State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991) (citing Idaho v. Wright, 497 U.S. 805, 822, 110 S. Ct. 3139, 3148 (1990), which identified factors evaluating trustworthiness of child's statements in child sex abuse cases). Furthermore, we cannot say the trial court abused its discretion in finding the Spreigl evidence more probative than prejudicial. See State v. Wermerskirchen, 497 N.W.2d 235, 240 (Minn. 1993) (noting closer relationship between crimes, in terms of time, place, and modus operandi, gives greater probative value); State v. Slowinski, 450 N.W.2d 107, 114-15 (Minn. 1990) (concluding trial court lessened danger of unfair prejudice by giving cautionary instructions to jury).

Dunker also argues the trial court abused its discretion by admitting vouching testimony from a social worker and a pediatric physician who examined the boy. See State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (recognizing credibility of witness is for jury to determine, and one lay witness cannot vouch for or against credibility of another witness); State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (noting, as general rule, it is error to admit expert opinion testimony on truth or falsity of witnesses' allegations). But the record shows: (1) both witnesses, who had extensive experience interacting with child victims of sexual abuse, testified the boy's statements were reasonably spontaneous and appropriate to his age; (2) during redirect about the potential for false reporting of allegations of sexual abuse, the prosecutor elicited testimony from the social worker that the boy's spontaneous statements were specific and detailed, which reduced the risk of false reporting; (3) after defense counsel questioned the lack of physical evidence and attacked the veracity of the boy's claims, the prosecutor asked the physician for his opinion as to whether the boy had been abused; and (4) the physician testified that the boy's awareness of anatomy and human physiology indicated he experienced sexual contact. See Larson, 472 N.W.2d at 125 (discussing technique for determining trustworthiness of children's statements in sex abuse cases). Under these circumstances, defense counsel opened the door to the testimony and the trial court did not abuse its discretion in finding the expert witnesses' testimony relevant and useful to the jury in making their credibility determinations. See Myers, 359 N.W.2d at 610-11 (noting professional's opinion may be helpful in child sex abuse case, particularly when opposing counsel "opens the door" to such testimony).

III.

Dunker finally argues he was denied a fair trial due to prosecutorial misconduct, jury misconduct, and ineffective assistance of counsel. After a careful review of the record, we conclude: (1) the prosecutor's summation constituted proper argument; (2) the trial court properly exercised its discretion in thoroughly questioning the jurors and finding no bias; and (3) defense counsel's tactical decisions are insufficient to support a claim of ineffective assistance of counsel. See State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), but holding disputes with attorney's trial tactics not basis for ineffective assistance of counsel); State v. Richards, 552 N.W.2d 197, 210 (Minn. 1996) (concluding trial court is in best position to question juror who had contact with party or involved person to determine if juror can continue to be impartial); State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996) (noting prosecutor has considerable latitude in closing argument and can present all legitimate arguments and proper inferences based on evidence). Under these circumstances, the arguments contained in Dunker's pro se brief are without merit. Given our resolution of these issues, we need not rule on the state's motion to strike parts of Dunker's pro se brief.

Affirmed.