In the Matter of the Welfare of:  J.M.C.

In the Matter of the Welfare of:  J. M. C. A05-2402, Court of Appeals Unpublished, November 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2402

 

 

In the Matter of the Welfare of:  J. M. C.

 

 

Filed November 21, 2006

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 240483/J5-05-050357

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant J.M.C.)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent State of Minnesota) 

 

 

            Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N

            On appeal from an adjudication of delinquency on three counts of second-degree criminal sexual conduct for sexually abusing his younger sister, appellant argues that the district court erred by (1) precluding him from attacking his sister's credibility with evidence of her mental state and her propensity to fabricate; (2) allowing a CornerHouse investigator to describe reasons for delayed disclosure and to testify that sleeping during a sexual assault speaks to the level of trauma a child experienced; (3) preventing family members from testifying; and (4) admitting incriminating out-of-court statements made by the complainant.  Appellant also argues that the prosecutor committed misconduct and that the evidence is insufficient to prove that the offense occurred after he turned age ten or that he committed the offense.  Because we see no error in any of the evidentiary rulings of the district court, or any prosecutorial misconduct, and because the evidence is sufficient to prove that the offense was committed after appellant's tenth birthday and was committed by him, we affirm.

FACTS

            From July 1997 until May 2003, appellant J.M.C., born in September 1989, lived in Brooklyn Park with his stepfather J.C.; his half-sister J.V.C., born in January 1992; and his half-brother Z.C.[1]  In May 2003, the family moved to Crystal, where they lived with J.C.'s fiancée and her son.

            Appellant admitted to frequently physically abusing and fighting with J.V.C.  In June 2004, when J.C. was away from home, appellant fought with J.V.C., injuring her.  Appellant was charged with assault, and child protection conducted an investigation.  The children were removed from J.C.'s care after he left them at home alone again.

            Appellant was subsequently returned to the care of J.C. under protective supervision, and J.V.C. was placed in foster care with her maternal aunt.  On December 20, 2004, J.C. called J.V.C. and said that at the next court hearing he was going to request overnight visitation.  Later that evening, the aunt found J.V.C. curled up on the floor, shaking.  J.V.C. said that she could not stay overnight in the house with appellant; appellant had done bad things to her and would touch her where her private parts are; and it started when she was three or four and stopped when she was about nine.  The aunt reported J.V.C.'s allegations to child services worker Carly Buchler, who referred the aunt to the Brooklyn Park Police Department.

            J.M.C. was charged by delinquency petition with four counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(d) (dangerous weapon), (g) (significant relationship and victim under age 16), (h)(i) (significant relationship and force or coercion), (h)(iii) (significant relationship and multiple acts over extended time period) (2002).  The case was tried to the court.

            At trial J.V.C. testified to the following:  Appellant started touching her when she was about three years old, and continued to do so until she was about ten; he touched her many times over her clothes on her "bottom" and the vaginal area; when they moved to Brooklyn Park, appellant continued to touch her when J.C. was not around; appellant threatened to kill J.V.C. if she refused to do what he told her to do or if she told anyone about the touching; appellant sometimes threatened her with a butcher knife and sometimes with a match to make her do what he wanted.

            J.V.C. also testified that the last time the touching happened, she was ten years old; appellant came into her bedroom, wearing a blue robe with nothing underneath, and told her to touch him; appellant had a match and threatened to burn her if she refused; appellant wanted J.V.C. to touch his penis, and his penis got stiff and started feeling hard; appellant touched J.V.C.'s vagina and she escaped by falling asleep; when she awoke, her nightgown was on inside out and backwards, and there was a smell in the room; the touching stopped when the family moved in with J.C.'s fiancée and her son.

            Jennifer Anderson, M.S.W., L.I.S.W., is the training director at the CornerHouse Interagency Child Abuse Evaluation and Training Center.  CornerHouse conducts forensic interviews of children and vulnerable adults regarding allegations of sexual abuse, severe physical abuse, and/or witnessing violent crimes.  Anderson has extensive training in this area and has conducted about 150 interviews.  She testified that in her experience, some children fall asleep during abuse, a disassociative experience that speaks to the level of trauma experienced by a person.  Anderson testified that she is familiar with delayed and partial disclosure, and that delayed disclosure may occur because of feelings of embarrassment, fear of reprisal, fear of stigmatization, and fear of culpability; that children often disclose abuse in a piecemeal manner, to gauge the response, sometimes do not want to get anyone in trouble, and sometimes fear for their own safety or that they will not be believed, and may feel culpable.

            A videotape of Anderson's interview of J.V.C. was admitted into evidence at trial for corroborative purposes only.

            Brooklyn Park Police Department Detective Porter testified that in December 2000, the Brooklyn Park Police Department was contacted by child protection regarding allegations made by the children's mother, who was then living in California.  The mother was concerned about the condition of the apartment in which the children lived and a lack of supervision.  Porter interviewed J.V.C. and Z.C. at school.  J.V.C. referred to inappropriate behavior by her brothers, such as, looking down her shirt and grabbing her crotch.  Porter told J.C. that J.V.C. sometimes felt uncomfortable living with two brothers, and J.C. assured Porter that he would supervise the children's interactions.  The report by mother did not contain information regarding sexual inappropriateness.

            J.V.C. recalled being interviewed by someone when she returned from visiting her mother in California.  She testified that she did not tell the interviewer everything and that she told her mother about only some of the touching because she did not want her mother to hurt appellant.  J.V.C. did not tell J.C. about the sexual abuse because she was afraid he would hurt appellant and not believe her.

            Appellant denied ever having sexual contact with J.V.C.  J.C. testified that he believed J.V.C. manipulated the situation, so she could go and live with her aunt and uncle.  J.C. also testified that J.V.C. is dishonest about details and subject to dramatic outbursts that include yelling, screaming, threats to kill herself, and banging her head against the wall.

            The district court found appellant guilty of the first three counts, which alleged that from about November 1999 to May 31, 2003, he repeatedly engaged in sexual contact with J.V.C.  The court found appellant not guilty of the fourth count, which alleged that in about May 2003, appellant engaged in sexual contact with J.V.C.  The district court denied appellant's motion for a new trial and issued an order adjudicating him delinquent and placing him on supervised probation.  This appeal followed.

D E C I S I O N

I.

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  Although a defendant has the right to present a complete defense, this right must be exercised in compliance "with procedural and evidentiary rules designed to ensure both fairness and reliability in the ascertainment of guilt and innocence."  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation omitted).

            Victim's mental state and propensity to fabricate

            Appellant argues that the district court erred by limiting his examination of J.C. regarding J.V.C.'s mental state and propensity to fabricate.  The record reflects, however, that the district court allowed considerable testimony by J.C. on those issues, including the following:  J.V.C. was prone to dramatic outbursts; she had recently been hospitalized twice, and documents from psychiatrists and other medical personnel had led J.C. to question the veracity of J.V.C.'s allegations;  J.V.C. had made false statements to police, including that she had ecstasy on her and that she had attempted to commit suicide by jumping off a large dirt mound at a construction site by Highway 94; J.V.C. had fabricated stories to get her brothers or other people in trouble; during the past couple of years, J.V.C. had been prone to screaming fits, "screaming that she needs help, she needs somebody to understand her, that she wants to be a kitty cat, she hears voices, bangs her head against the wall and says she wants to kill herself"; J.V.C. had a history of mental-health problems, had been treated by a psychologist for post-traumatic stress disorder, had previously had "a major breakdown," and had grief issues resulting from her mother's death and other unresolved issues.

            The district court sustained objections to testimony by J.C. that it was possible that J.V.C. had a bipolar diagnosis and that she took medication for mental-health conditions before her allegations against appellant came to light.  Following a discussion with the district court, defense counsel agreed that sufficient evidence had been admitted regarding J.V.C.'s mental health and propensity to fabricate.  By agreeing that sufficient evidence on those issues had been admitted, appellant waived any objection as to whether the district court erred in not allowing additional examination of J.C. regarding J.V.C.'s mental state and propensity to fabricate.  See State v. Brooks, 690 N.W.2d 160, 164 (Minn. App. 2004) (concluding that by failing to make the proper objections at trial, appellant waived right to have admissibility of evidence considered on appeal), review denied (Minn. Dec. 13, 2005); see also In re Welfare of W.J.R., 264 N.W.2d 391, 394 (Minn. 1978) (requiring some specifics in offer of proof beyond conclusory characterization of evidence offered).  Even if the district court erred in limiting the examination of J.C., the error was not prejudicial in light of the considerable evidence that was admitted on those issues.  See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (explaining that an error in excluding defense evidence is harmless if appellate court is "satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized," the same verdict would have been reached).

            The district court sustained an objection to defense counsel's question to appellant, "Can you think of any reasondo you have an opinion why your sister would make up a story about you sexually assaulting her from the time you were 6 until you were approximately 11 or 12?"  Because the question went to appellant's personal opinion, not to J.V.C.'s reputation, for truthfulness the evidence was properly excluded.  See Minn. R. Evid. 608(a) 1977 comm. cmt. (stating that Minnesota courts generally allow reputation evidence, but not personal opinions, on issue of another's credibility); see also State v. Kahner, 217 Minn. 574, 582, 15 N.W.2d 105, 109 (1944) ("witness may testify to the reputation of another witness for truth and veracity, but not as to his moral character").

            Anderson's testimony

            Appellant next argues that the district court erred in allowing Anderson to testify that sleeping during a sexual assault "speaks to the level of the trauma the child has experienced" and to describe reasons for delayed disclosure.  Anderson laid a foundation for her testimony by describing her training and experience, and testified that J.V.C.'s statement that she "fell asleep" during the sexual abuse "is consistent with potentially disassociative experience and disassociation can be common in child sexual abuse cases.  It is a very natural reaction to unnatural or overwhelming circumstances."  Anderson also testified that the reasons for delayed disclosure include feelings of embarrassment, fear of reprisal, fear of stigmatization, and fear of culpability.  The district court did not err in admitting Anderson's testimony, and the ruling is consistent with existing caselaw.  See State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (addressing admissibility of expert testimony on child victim's emotional condition).

            Stepfather's testimony

            The district court excluded an affidavit by J.V.C.'s stepfather stating:

            [The mother] had several disputes with [J.C.] and eventually decided to seek physical custody of the children.  To that end, at the beginning of each visit, [the mother] questioned the children to determine if they were suffering any type of abuse.  Had [J.V.C.] ever reported any type of abuse to [the mother], (a) I would have had direct knowledge; (b) [the mother] would have immediately reported such allegations to the authorities for the child's protection; and (c) [the mother] would not have hesitated to use sexual abuse allegations to support her case for gaining custody, as she did with other unrelated bits of evidence.

 

The district court excluded the evidence as hearsay because it contained speculative statements regarding the probable actions and thoughts of the mother, who is deceased.

            Appellant argues that stepfather's statement was admissible as habit evidence.  See Ture v. State, 681 N.W.2d 9, 17 (Minn. 2004) (addressing admissibility of habit evidence).  The authority cited by appellant does not establish that, in this case, mother's reports to stepfather and the authorities and her conduct in the custody dispute were sufficiently regular and that the situation had been repeated enough to require admission of the evidence as a matter of law.  Even if the district court erred, the error was not prejudicial.  The district court admitted other evidence regarding mother's reports to the authorities and her conduct in the custody dispute with J.C.

            Grandmother's testimony

            When defense counsel stated that he might call appellant's grandmother to testify, the state objected because she had not been sequestered.  The district court ruled that the grandmother would not be permitted to testify because she had been sitting through the trial.  Defense counsel agreed with the ruling, and we deem the issue to have been waived.  Appellant argues, however, that notwithstanding defense counsel's acquiescence, because there was no sequestration order in this case, the court had no authority to prevent the grandmother from testifying.  We conclude otherwise.  Even absent a sequestration order, the district court acted within its broad discretion in deciding to exclude the testimony of this witness who had heard all of the testimony of all of the other witnesses in this matter.

II.

            Appellant also argues that the district court abused its discretion by admitting J.V.C.'s out-of-court statements to the aunt, Buchler, and Anderson.  The district court admitted the statement to the aunt as substantive evidence under the residual exception to the hearsay rule and the statements to Buchler and Anderson as prior consistent statements for corroborative purposes only.  The court also ruled that the statement to the aunt was admissible as a prior consistent statement.  We see no abuse of discretion in any of these decisions.

            Residual exception

            "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Minn. R. Evid. 801(c).  The residual exception is set forth in Minn. R. Evid. 803(24), and allows "hearsay to be admitted in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803."  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  Factors favoring admissibility in Ortlepp included that (1) the declarant was present, so no confrontation issue arose; (2) the declarant admitted making the statement; and (3) the statement was consistent with all other evidence presented by the state.  Id.; see also State v. Soukup, 376 N.W.2d 498 (Minn. App. 1985) (following Ortlepp), review denied (Minn. Dec. 30, 1985).  Additional factors that may be considered include whether the declarant had a motive for lying and the consistency among multiple out-of-court statements by a declarant.  State v. Robinson, 718 N.W.2d 400, 410 (Minn. 2006).

            Most of the factors identified in Ortlepp and Soukup are present in this case.  In addition, the district court found:

            As in Lanam, [the aunt] had no motive to falsely accuse the defendant.  Further, [J.V.C.'s] mental and emotional distress at the time she made the statements to [the aunt] provide additional guarantees of trustworthiness.  [J.V.C.] did not seek out [the aunt] or initiate a conversation with her.  As in Bellotti, [J.V.C.] showed a reluctance to speak with anyone, preferring to hide on the floor of a shower.

 

Appellant has not satisfied his burden of showing that the district court erred in admitting J.V.C.'s statement to her aunt.

            Prior consistent statement

            When a witness's credibility is attacked, a consistent pretrial statement by the witness may be introduced if admission would help the trier of fact determine the witness's credibility.  Minn. R. Evid. 801(d)(1)(B); State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997).  Such prior consistent statements are not hearsay.  Minn. R. Evid. 801(d)(1)(B).

            Appellant attacked J.V.C.'s credibility, and appears to argue that because he did not use prior inconsistent statements to attack credibility, prior consistent statements were not admissible to bolster J.V.C.'s credibility.  Appellant cites no authority supporting this position.

            Absolute consistency between the out-of-court statements and trial testimony is not required.  See Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn. App. 1998) (stating although prior consistent statement by videotape contained serious allegations not revealed in trial testimony, victim did testify at trial, was subject to cross-examination, statement was "reasonably consistent" with victim's trial testimony, and statement may have helped jurors judge victim's credibility).  J.V.C. testified at trial and was subject to cross-examination, and her out-of-court statements were reasonably consistent with her trial testimony.  Appellant has not satisfied his burden of showing that the district court erred in admitting J.V.C.'s statements to Anderson and Buchler.

III.

            Generally, a defendant who fails to object to the prosecutor's closing argument or to seek a cautionary instruction waives the right to have the issue considered on appeal.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  The defendant's failure to object implies that the remarks were not prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Therefore, this court reviews unchallenged prosecutorial conduct for plain error, determining whether the misconduct was "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object . . . should not forfeit his right to a remedy."  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

            Appellant objects to the following argument:

When your father doesn't believe you and doesn't protect you, it is very sad and very tragic.  And when the police come and Child Protection, because her brother is beating you and they leave him in the home, it is very sad and it is very tragic.  It's time for someone to start believing [J.V.C.].

 

            . . . [Appellant] needs to be held accountable for what he's done.

 

            Appellant urges that this argument improperly injected emotion into the case and appealed to the fact-finder's sympathy for the victim.  But "[i]t is proper for a prosecutor to talk about what the victim suffers and to talk about accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant."  State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985).  In addition, we note again that this case was tried to the court without a jury, and arguably many of the concerns regarding improperly injecting emotion into a case heard by a jury are assuaged when a judge is the trier of fact.

            Appellant further argues that the prosecutor improperly referred to evidence that the defense was prevented from pursuing.  Appellant does not specify the allegedly improper argument made by the prosecutor, but claims only that the prosecutor acted improperly in objecting to evidence.  Our review of the record shows no improper conduct by the prosecutor.

IV.

            In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  In evaluating the reasonableness of the jury's decision to convict, the court defers to the jury on the issues of witness credibility and the weight to be assigned each witness's testimony.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  This same standard of review applies when a case is tried to the court.  State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).

            Appellant argues that the evidence was insufficient to prove that he committed criminal sexual conduct after he turned age ten.  Under Minn. Stat. § 260C.007, subd. 6(12) (2004), a child who "has committed a delinquent act before becoming ten years old" is a "child in need of protection or services."  J.V.C. testified unequivocally at trial that the abuse stopped when she was ten, and she explained why she recalled it was then.  Mindful that district courts are particularly well-suited to judge the credibility of witnesses, we will not disturb the finding of this district court that J.V.C.'s testimony was credible.  See State v. Kramer, 668 N.W.2d 32, 37-38 (Minn. App. 2003) (recognizing that trial court, as fact-finder, "is in the best position to judge the credibility of witnesses" and is "the sole judge of credibility"), review denied (Minn. Nov. 18, 2003).  J.V.C. is more than two years younger than appellant.  Her testimony was sufficient to show that appellant committed criminal sexual conduct after he turned age ten.

            Appellant also argues that the evidence was insufficient to prove that he committed the acts of criminal sexual conduct.  Appellant cites J.V.C.'s delay in disclosing the abuse until two and a half to three years after it ended.  But Anderson testified about reasons why child victims of sex abuse delay in disclosing the abuse.  The state in which the aunt found J.V.C., curled up on the floor and shaking, provides additional corroborating evidence.  Appellant again raises the issue of J.V.C.'s credibility, but as already noted, credibility is an issue for the fact-finder to resolve.  Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to prove beyond a reasonable doubt that J.V.C. committed criminal sexual conduct.  See State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (when victim's accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (when child victim told officer that she had been sexually abused by defendant on five or more occasions but at trial testified to only three incidents, inconsistency between testimony and the prior statement was for jury to consider in weighing victim's credibility).  This case turned in large measure on the credibility assessments made by the district court.  J.V.C. was determined to be a credible witness, and we will not disturb that assessment.

            Affirmed.

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

[1] J.V.C. is J.C.'s only biological child.  Appellant and Z.C. have different fathers.