State of Minnesota, Respondent, vs. David James Koski, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-2186

 

State of Minnesota,

Respondent,

 

vs.

 

David James Koski,

Appellant.

 

 

Filed January 16, 2000

Affirmed Mulally, Judge*

 

Dakota County District Court

File No. K1991373

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Nicole E. Nee, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Ellis Olkon, Esq., Olkon & Olkon, P.A., Suite 2444 Centre Village, 431 South Seventh Street, Minneapolis, MN 55415 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.

 

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

Appeal from conviction for first-degree criminal sexual conduct, arguing that the trial court abused its discretion by admitting hearsay statements of four-year-old child victim to her mother and to a nurse describing sexual abuse by appellant. Appellant also argues that there was insufficient evidence to sustain his conviction.  We affirm.

Facts

 

M.P., age four, resided with her mother, M.K. and stepfather, appellant David James Koski.  M.P. referred to appellant as "daddy." At the time of the alleged incident, M.K. and appellant were experiencing some marital problems. 

On May 10, 1999, while her mother was toweling her off from a bath, M.P. pointed to her vaginal area and told her mother to put medicine there.  M.P. stated that "daddy touch me here with his fingers and his mouth."  M.K. asked three times whether M.P. was sure of what she was saying, and each time M.P. stated yes.  M.K. examined M.P.'s vaginal area, and noticed it was red.

            On May 12, 1999, M.K. made an appointment for M.P. for May 13th. That night, when appellant arrived home from work, M.K. accused him of improperly touching M.P. M.P. was present in the room during the confrontation and the argument, and appeared scared as her parents argued.

            On May 13, 1999, M.K. brought M.P. to their doctor's office.  M.K. told a nurse practitioner that M.P. had said that appellant had touched her.  M.P. sat in M.K.'s lap while the mother and the nurse practitioner talked.  The nurse practitioner did not physically examine  M.P., nor did she ask M.P. any questions. The nurse practitioner referred M.K. to the Children's Hospital and the Burnsville police department.  

            On May 14, 1999, M.K. took M.P. to the Midwest Children's Resource Center.  M.K. first met with Mary Dentz, and told Dentz about what M.P. had said.  M.P. was not present during this conversation.  Dentz then took M.P. to an examination room, where she conducted an interview that was videotaped.  During the interview, M.P. reported that appellant had touched her "pee-pee" with his mouth and fingers.

            Following an Omnibus Hearing on July 16, 1999, the trial court ruled that M.P.'s statements to M.K. and to Dentz were admissible pursuant to Minn. Stat. § 595.02, subd. 3.  On August 30, 1999, the court determined that M.P. was incompetent to testify at trial. 

At trial, M.K. testified as to M.P.'s statements.  The videotaped interview with Dentz was also admitted.  Finally, M.P.'s daycare provider, Grizelda Cerero testified that M.P.  told her  that "her dad had touched her vaginal area with his tongue and this occurred in her bedroom." Appellant was convicted by a jury of first-degree criminal sexual conduct and second-degree criminal sexual conduct.  Appellant moved for a new trial or in the alternative, a judgment of acquittal.  The trial court denied the motion.  The trial court sentenced appellant to 86 months, but stayed the execution of the sentence, and placed appellant on supervised probation for zero to thirty years.

D E C I S I O N

 

I.

A district court's evidentiary ruling will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, than the error is prejudicial.  Id.

            The statute allows the admission into evidence of a statement

           

alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

                                    (a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

                                    (b)  the child * * * either:

                                    (i)   testifies at the proceedings; or

                                    (ii) is unavailable as a witness and there is corroborative evidence of the act.

 

Minn. Stat. § 595.02, subd. 3. 

 

The rule against hearsay protects an accused's right to confront witnesses against him, but even hearsay is admissible under the confrontation clause if the declarant is unavailable and that statement bears indicia of reliability.  State v. Lonergan, 505 N.W.2d 349, 354 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  The factors for determining admissibility under section 595.02, subd. 3 incorporate the constitutional requirements for satisfying the confrontation clause.  State v. Bellotti, 383 N.W.2d 308, 314, 315-16 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).

In this case, the four-year-old complainant, M.P., was unavailable as a witness.  Because she was unavailable, the evidence at trial consisted of three hearsay statements:  (1) M.P.'s statement to her mother, M.K. (2) M.P.'s statement to Mary Dentz of the Minnesota Children's Resource Center during a videotaped interview (3) M.P.'s statement to her daycare provider, Grizelda Cerero.  These statements were admitted under Minn. Stat. § 595.02, subd. 3.

            Appellant argues that the district court abused its discretion in admitting the statements made to Dentz and M.K.  Appellant does not challenge the admissiblity of Cerero's testimony.  Appellant argues that the statements to M.K. and Dentz do not possess sufficient indicia of reliability and are not sufficiently corroborated.

Reliability of M.P.'s statements

            Minnesota courts consider numerous factors in determining reliability of out-of-court statements by young children.  See In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999).  These factors include the spontaneity of the statements, consistent repetition, the child's mental state, use of terminology unexpected of a child of similar age, lack of motive to fabricate, use of leading or suggestive questions, and whether the person talking with the child had a preconceived idea of what the child would say.  Id.;  see also State v. Scott, 501 N.W.2d 608, 618-19 (Minn. 1993) (holding that child's out-of-court statements were not admissible where her accounts had not been consistent, she was asked leading or suggestive questions, the language used was expected of a child of similar age, and record did not indicate whether child had a motive to fabricate).

            M.P.'s statements to M.K. possess the qualities of reliability.  M.K. did not have any preconceived idea that M.P. would accuse appellant of sexual abuse.  M.P.'s statements appear to be spontaneous as she began to talk about the inappropriate touching immediately after complaining of pain.  M.K.  did not use leading questions in asking M.P. about the pain in her vaginal area.  M.P.'s statements were consistent with what she told Dentz and Cerero.  Additionally, the timing of the statements supports the reliability of the statement, as M.P. reported the alleged incident within a day of its occurrence. 

            Appellant challenges the reliability of M.K.'s testimony on the basis that M.K. is not credible.  The trial court considered these allegations, contained in affidavits submitted to the court, and found that appellant was unsuccessful in attacking M.K.'s credibility and failed to show any reason to fabricate the story.  We will not disturb this finding.

            M.P.'s statement to Dentz possesses the qualities of reliability.  Dentz's credibility is not questioned.  M.P.'s statement to Dentz was consistent with what she told her mother and her babysitter.  While the statements were not spontaneous, in the sense that they were unexpected, the statements were not the product of inappropriate questioning. 

Corroboration of M.P.'s statements

            In considering whether a statement is sufficiently corroborated for purposes of section 595.02, courts consider whether the account of the abuse has been consistent over time, corroboration by other testimony, other corroborative evidence, and whether the evidence "interlocks to create a single consistent and cohesive account."  L.E.P., 594 N.W.2d at 173 (holding that statement was corroborated where child's statements were consistent, mother testified that she witnessed child getting dressed with the defendant in the room); see also Bellotti, 383 N.W.2d at 314 (holding that child's statements were corroborated by other victim's direct testimony and defendant's partial confession).  Other corroborating factors include whether the child has recanted or reaffirmed the statements and any corroborating physical evidence.  State v. Lanam, 459 N.W.2d 656, 660 (Minn. 1990).

The admissible evidence available to corroborate M.P.'s statements to M.K. were Cerero's testimony, and the videotaped interview with Dentz.  The admissible evidence available to corroborate M.P.'s statement to Dentz were Cerero's testimony and M.K.'s testimony.  This is sufficient corroboration to admit the statements.

            The district court did not abuse its discretion in finding that M.P.'s and Dentz's statements were admissible.  Many of the factors of reliability have been met, and both statements are corroborated by the uncontested testimony of Cerero.

II.

            Appellant's second argument is that there was insufficient evidence to support his conviction.  In reviewing the sufficiency of the evidence, this court must determine whether, in light of the record and the inferences that can be drawn from the facts therein, a reasonable jury could have concluded that the defendant was guilty of the charged offense.  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  This court must view the evidence in the light most favorable to the state's case and must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Drieman, 457 N.W.2d 703, 711 (Minn. 1990); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The issues of credibility and weight of the evidence are for the jury to decide.  Bias, 419 N.W.2d at 484.

The basis for appellant's claim that there was insufficient evidence to convict appears to be that M.K. lacked credibility as a witness.  The jury heard and saw M.K.'s demeanor at trial, and apparently believed her testimony.  Mindful of the discretion given for such determinations, the trial court did not err in refusing to grant the motion for new trial or in the alternative an acquittal due to insufficient evidence.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, §10.