State of Minnesota, Respondent, vs. Charles Edward Rottelo, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-954

 

State of Minnesota,
Respondent,
 
vs.
 
Charles Edward Rottelo,
Appellant.

 

Filed June 10, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File Nos. 01041467, CT0200394, CT0200942

 

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

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Leslie Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            On appeal from a conviction of first-degree criminal sexual conduct, appellant Charles Edward Rottelo argues that the district court (1) erred by failing to administer an oath to the 12-year-old alleged victim and (2) abused its discretion in various evidentiary rulings, and by failing to grant a downward sentencing departure.  Appellant also alleges that prosecutorial misconduct violated his due process rights.  We affirm.

FACTS

 

            Appellant Charles Edward Rottelo frequently babysat his nieces, 5-year-old A.V. and 12-year-old S.V.  In May 2001, A.V. spontaneously disclosed to her grandmother that when appellant babysat them she had to watch television while appellant and S.V. went into the bedroom.  The grandmother talked to the girls' mother, who questioned A.V. and S.V. separately.  S.V. told her mother that appellant would grab her by the arm and take her to the parents' bedroom, lock the door and make her perform oral sex.  S.V. said this had occurred "five or six times."  Mother reported the conversation to S.V.'s father, who also spoke with S.V.  S.V. told him substantially what she had reported to her mother.

            Father confronted appellant and testified that appellant admitted doing the acts alleged by S.V.  Father notified the police.  Officer Scott Stroupe of the Brooklyn Park Police Department interviewed S.V. that evening in her home.  She told him what she had told her parents.  S.V. was interviewed at Cornerhouse by the program director, Amy Russell.  Russell noted that S.V. appeared "socially, emotionally, developmentally delayed somewhat."  Russell followed the Cornerhouse protocol and interviewed S.V. for about 20 minutes.  The interview was videotaped.  S.V. was counseled by Dr. Dorothy Edelson and was hospitalized in the fall of 2001, with symptoms of post-traumatic stress disorder.  Antidepressants, antipsychotic medications, and other medications were prescribed for S.V.  In November 2001, S.V. told her parents that appellant had also "touched her down there" and S.V. was convinced that she was pregnant, which was not the case.

            Appellant was charged with first-degree criminal sexual conduct.  Appellant made pre-trial motions to exclude S.V.'s statements to her mother, father, Officer Stroupe, the Cornerhouse interviewer, and Edelson.  The district court conducted extensive hearings regarding the statements and, in detailed findings, concluded that with the exception of the allegations S.V. made in November, the statements of S.V. and A.V. bore particularized guarantees of trustworthiness and were admissible as exceptions to the hearsay rule.  Both S.V. and appellant testified at trial.  Appellant denied the allegations and claimed that S.V.'s family took advantage of him for babysitting and verbally abused him because of his disabilities.

            The jury returned a guilty verdict.  Appellant moved for a downward sentencing departure, and the state moved for an upward departure.  The district court imposed the presumptive sentence of 144 months in prison plus five years of conditional release.  This appeal followed.

D E C I S I O N

1.         Witness's oath

            The district court asked S.V. whether she promised to "tell the truth when you are talking to us" and S. V. responded: "I will."  Appellant argues that S.V. should have been required to take the oath prescribed in Minn. Stat. § 358.07(7) (2002). [1]  

            Prior to giving testimony, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

 

                        * * * *

 

Furthermore, Rule 603 is designed to afford the flexibility required in dealing with * * * children.  Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.

 

State v. Mosby, 450 N.W.2d 629, 633 (Minn. App. 1990) (quotations omitted), review denied (Minn. Mar. 16, 1990).  Appellant contends that the language used by the district court was not sufficient to "awaken the witness' conscience and impress the witness' mind" as required by Minn. R. Evid. 603.

            Appellant did not object at trial to the manner in which the district court elicited S.V.'s promise to tell the truth.  An alleged error may be reviewed even if not objected to at trial, if the error is plain.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn.

R. Crim. P. 31.02 (stating that plain errors affecting substantial rights may be considered on appeal even though not brought to attention of district court).  We have previously declined to hold that failure to require a child to take an oath before testifying is plain error, noting that no Minnesota cases hold that it is plain error to fail to administer the oath.  State v. Ross, 451 N.W.2d 231, 236 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).  And appellant has not demonstrated that the manner in which S.V. promised to tell the truth prejudiced him or denied him a fair trial.  We decline to hold that the court's manner of eliciting a promise to tell the truth from S.V. is plain error and therefore will not review appellant's claim.

2.         Evidentiary rulings

            The admission of evidence rests in the sound discretion of the trial court and will be upheld unless there is a clear abuse of discretion.  State v. McCoy, 400 N.W.2d 807, 809 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

            a.         Opinion testimony that S.V. had been sexually abused

            Both S.V.'s therapist and the Cornerhouse interviewer testified, over appellant's objections, that S.V. had been sexually abused.  The district court took pretrial testimony from both witnesses and concluded that it would permit each to testify at trial about "typical characteristics" of abused children and to advance an opinion concerning whether or not S.V. was abused, without discussing the identity of the alleged abuser.

            Appellant first argues that neither of these witnesses was qualified to testify that S.V. had been abused.  Appellant asserts that the therapist was not qualified because she did not personally observe the characteristics she testified about but relied on reports from other professionals, and that the director of Cornerhouse was not qualified to testify as an expert because she only had a masters degree in counseling supplemented by some training in forensic interviewing and had worked at Cornerhouse for just over a year.  A witness may be qualified as an expert by "knowledge, skill, experience, training or education."  Minn. R. Evid. 702.  And the admission of an expert's opinion generally rests in the discretion of the district court.  State v. Sandberg, 392 N.W.2d 298, 302 (Minn. App. 1986) (holding that district court properly exercised its discretion in qualifying police officer for purpose of testifying about reporting practices of victims of sex crimes), review granted (Minn. Oct. 17, 1986).  We find no merit in appellant's argument that the district court abused its discretion by qualifying S.V.'s therapist and the director of Cornerhouse as expert witnesses to testify about the characteristics of abused children and whether S.V. exhibited these characteristics and was a sexually abused child.

            Appellant alleges that the district court abused its discretion by admitting this testimony because it usurped the jury's fact-finding role.  We disagree.

            Expert testimony on the typical behavioral characteristics of child victims of sexual abuse, the so-called "sexual abuse syndrome," may be admissible in cases involving sexual abuse of young children, as are an expert's observations of the particular behaviors exhibited by a victim.

 

McCoy, 400 N.W.2d at 810 (citation omitted) (holding that expert testimony about characteristics of sexually abused children was proper in case involving 12-year-old who alleged abuse by father since age 6 or 7).  And expert testimony relating to whether a child has been sexually abused is admissible.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).

            Appellant argues that the testimony amounted to allowing the witnesses to express an opinion about the truthfulness of S.V.'s allegations, which, he argues is prohibited.  But in discussing an expert witness's testimony that he observed characteristics commonly exhibited by sexually abused children in a particular child and that it is rare for children to fabricate tales of sexual abuse, the supreme court stated:

There can be no doubt that an indirect effect of that portion of Dr. Bell's testimony was to bolster the complainant's credibility.  Much expert testimony tends to show that another witness either is or is not telling the truth.  That fact, by itself, does not render the testimony inadmissible.  The test is not whether opinion testimony embraces an ultimate issue to be decided by the jury but whether or not the expert's testimony, if believed, will help the jury to understand the evidence or to determine a fact in issue.

 

State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).

            Appellant argues that testimony about the characteristics of abused children should be limited to instances where the behavioral issues of a very young child may be puzzling to jurors unused to issues of incest and abuse.  But S.V. is a developmentally delayed child who alleges that appellant began abusing her when she was 11 years old.  We conclude that the district court properly exercised its discretion by determining that the expert testimony would help the jury understand the evidence in this case.

            b.         Cornerhouse videotape and S.V.'s out-of-court statements

            The district court admitted the Cornerhouse videotape and S.V.'s statements to her mother, Officer Stroup, and her therapist under the residual exception to the hearsay rule.  Minn. R. Evid. 803 (24) (allowing hearsay to be admitted in cases in which the declarant testifies, subject to certain conditions).  Appellant argues that this evidence lacks sufficient reliability to be admitted. 

            Although we largely defer to the district court's evidentiary rulings, a reviewing court will review the "surrounding circumstances of an out-of-court statement [for] sufficient guarantees of trustworthiness" under Minn. R. Evid. 803 (24).  State v. Hollander, 590 N.W.2d 341, 346 (Minn. App 1999).  The reviewing court should follow a "totality of the circumstances" approach in determining whether a statement had sufficient circumstantial guarantees of trustworthiness to be admissible despite the hearsay rule.  State v. Keeton, 589 N.W.2d 85, 90 (Minn. 1998).  The reliability of an out-of-court statement should be based only on circumstances actually surrounding the making of the statements.

These circumstances * * * include, but are not limited to, whether the statements were spontaneous, whether the person talking with the child had a preconceived idea of what the child should say, whether the statements were in response to leading or suggestive questions, whether the child had any apparent motive to fabricate, and whether the statements are the type of statements one would expect a child of that age to fabricate.

 

State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (citation omitted).  The district court conducted an extensive pre-hearing inquiry into the circumstances of each statement and made detailed findings that the statements found to be admissible were specific and consistent, not made in response to leading questions, contained graphic detail concerning the alleged abuse, were not likely to be described by a girl of S.V.'s age or a girl with below-average cognitive abilities unless she had experienced the acts, and that the statements were of a type that a child of that age and cognitive ability would not be likely to fabricate.  Where the district court determined statements to have been in response to leading questions, it excluded those statements.  The record supports the district court's findings.  We conclude that the videotape and S.V.'s statements admitted by the district court possessed sufficient reliability to be admissible under Minn. R. Evid. 803(24).

            c.         S.V.'s testimony

            We decline to address appellant's argument, raised for the first time on appeal, that S.V. should not have been allowed to testify at trial, or should not have been permitted to testify to any details that surfaced after the Cornerhouse interview.  This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

3.         Prosecutorial misconduct

            Appellant argues that his due process rights were violated by prosecutorial misconduct that shifted the burden of proof, inflammatory statements speculating about psychological damage to S.V., and the district court's denial of appellant's request for surrebuttal.

            A district court's denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only

when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant's constitutional right to a fair trial was impaired.

 

State v. Johnson, 616 N.W.2d 720, 727-8 (Minn. 2000) (citations omitted).  Prosecutorial misconduct does not require a reviewing court to grant a new trial if the prosecutor's misconduct was harmless beyond a reasonable doubt.  State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996) (citation omitted).  A conviction should only be reversed if the misconduct appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial is denied.  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  Appellate courts determine whether prosecutorial misconduct was harmless beyond a reasonable doubt based in part on the type of misconduct.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  In cases involving unusually serious misconduct, the reviewing court requires certainty beyond a reasonable doubt that the misconduct was harmless before affirming.  Id.  If a case involved less serious misconduct, the reviewing court should apply the test of whether the misconduct likely played a substantial part in influencing the jury to convict.  Id.

            Appellant alleges that the prosecutor erroneously shifted the burden of proof to the defense when she said:

                        It is clear from what the defendant was trying to do, that he was trying to make himself into the victim here and make you feel sorry for him.  And there were certain things that he was trying to get across to you.

                        They have got some problems in this case, there is some evidence they have got to deal with.  What [A.V.] saw, the admissions to [S.V.'s father].  So they had to tell you why those faces [sic] of evidence are there.  They had to try and explain them away.

 

Appellant, however, did not object to this portion of the prosecutor's closing argument.  A defendant who fails to object to the prosecutor's statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).  The reviewing court may reverse despite the defendant's failure to preserve the issue if the court deems the error sufficient to do so.  Id.  But we do not find error here.  A prosecutor may challenge a defendant's rebuttal theory without shifting the burden of proof to the defense.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  And a prosecutor may "specifically argue that there was no merit to the defense," but is not allowed to belittle the defense.  State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).

            Appellant argues that the prosecutor made a series of inflammatory statements during closing argument and rebuttal.  Specifically, appellant complains that the prosecutor (1) called the jury's attention to the fact that several of the medications appellant testified that he is taking are the same medications that S.V. now has to take; (2) stated that "[i]t is likely that [S.V.] will never be the same again" because of the damage done to her, and asked the jury to

[i]magine how [mother] must feel sitting there and looking at him and talking about these things that her daughter had just experienced because of her own brother [appellant].[2]

 

Appellant also asserts that the prosecutor made a statement, not supported by the record, about S.V. not being able to talk to her friends about what happened because they did not know about sexual matters.  To the extent that any of these comments constitute misconduct, we conclude that the comments were harmless beyond a reasonable doubt, because considered in the context of the trial as a whole, it is not likely that any of these statements played a substantial part in influencing the jury to convict.  See Caron, 300 Minn. at 127-8, 218 N.W.2d at 200.

4.         Sentencing

            Appellant argues that the district court abused its discretion by failing to grant a downward departure from the presumptive sentence.  The district court's sentencing decision will not be overturned absent a clear abuse of discretion.  State v. Schmidt, 601 N.W.2d 896, 898 (Minn. 1999).  Appellate courts will not normally interfere with a sentence that falls within the presumptive sentencing range even if there are grounds that would justify a departure.  State v. Black, 341 N.W.2d 273, 275 (Minn. 1983).  Only in a rare case will a reviewing court reverse a district court's imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The mere presence of a mitigating factor does not require the district court to impose a shorter sentence.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  Provided that the district court gives due consideration to all of the relevant factors, its decision to depart or not depart will only be reversed for an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            In this case, the district court carefully considered appellant's motion for a downward departure.  After examining the presentence investigation report, results of appellant's psychological evaluation, letters from appellant's mother, brother, and another supporter, appellant's statements, and arguments of counsel, the district court stated in regard to appellant's mental illness and disability:

[T]he Court has concluded that despite [appellant's] mental condition, he did not lack substantial capacity for judgment when the offense was committed.  [Appellant] clearly knew what he was doing was wrong, as demonstrated by his efforts to hide the crime from S.V.'s younger sister, and his instruction to S.V. that she should keep their activity a secret.

 

As noted by Dr. Carlson, [appellant] was planned and cunning.  And he manipulated the victim's younger sister to insure privacy.  As Dr. Carlson further observed, there is no evidence to suggest that [appellant's] criminal sexual conduct was in any way related to his mental illness.  No evidence of delusional or disorganized behavior associated with the criminal sexual conduct.  Further, [appellant] described his behavior as a mistake.

 

Having considered all of the matters presented as mitigating factors, the Court finds no substantial and compelling mitigating circumstances warranting a downward durational departure. 

 

The district court made similar findings when denying appellant's motion for a downward dispositional departure.  The court also denied the state's motion for an upward departure, citing the recent statutory increase of the presumptive sentence as adequately addressing the criminality of appellant's offense.  The district court properly exercised its discretion when sentencing appellant.

            Affirmed.      

 

[1] Appellant purports to challenge the testimony of 5-year-old A.V. based on the district court's failure to administer the statutorily-prescribed oath, but did not advance any specific arguments with regard to A.V.  For the same reasons that we will not review this claim with regard to S.V. we decline to review the claim as applied to A.V.

[2] The district court sustained appellant's objection to the comment about mother, and appellant did not request a curative instruction.