State of Minnesota, Respondent, vs. Elmer Ringler, Jr., Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

C2-97-1644

State of Minnesota,

Respondent,

vs.

Elmer Ringler, Jr.,

Appellant.

Filed June 16, 1998

 Affirmed

 Crippen, Judge

Aitkin County District Court

File No. K096260

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Bradley C. Rhodes, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street Northwest, Aitkin, MN 56431 (for appellant)

Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Mansur, Judge.*

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

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

 CRIPPEN, Judge

Following a jury trial, appellant Elmer Ringler, Jr. was convicted on three accusations of criminal sexual conduct with his minor foster child. He contends that the trial court committed evidentiary errors, misinstructed the jury, and erroneously denied him a Schwartz hearing, and that he was denied his right to effective assistance of trial counsel. We affirm the convictions, but without deciding the issue of assistance of counsel.

FACTS

The complainant in this case, H.H., lived on and off with appellant Ringler and his wife from 1990 to 1996. In April 1996, H.H. reported to a physician and then to police that she had been engaging in sex with appellant since 1989, when she was eleven years old, and that appellant had recently raped her forcibly. Appellant was sentenced to 86 months imprisonment following his convictions on three of five criminal counts, including one count of first degree criminal sexual conduct, Minn. Stat. § 609.342, and two counts of third degree criminal sexual conduct, Minn. Stat. § 609.344.

DECISION

1. Counsel. Appellant contends he was denied his constitutional right to effective assistance of counsel because of numerous alleged errors by his trial counsel. The present record includes too little information to permit us to assess the merits of his claim. As a result, we refrain from deciding the issue. Appellant is not foreclosed from initiating post-conviction proceedings to permit exploration of his ineffective assistance of counsel claim.

2. Evidence. The trial court has broad discretion to admit or exclude evidence, Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990), and the court's evidentiary decision will be reversed only in the event it clearly abuses that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). And the denial of a new trial motion will be affirmed in the absence of an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990); but see State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (cumulative effect of errors in evidentiary rulings may require new trial). We have examined separately the numerous evidentiary rulings disputed by appellant and find the absence of specific error in any of them. There is no cause in these circumstances to consider the cumulative effect of the several rulings raised by appellant.

a. Exclusion of defense witnesses. Minn. R. Evid. 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by "needless presentation of cumulative evidence."

Appellant proposed numerous witnesses to ratify what he had already shown through eight witnesses, including the woman living with him during the years in question. These eight witnesses testified that they lived near appellant or had attended various social events with him and H.H. during the years in question and never observed any sexual behavior between them. Facing the state's objection that the additional evidence was cumulative, the trial court allowed only three additional witnesses to testify, those whose testimony was addressed in an offer of proof by appellant's counsel. Thus, eleven witnesses testified to not seeing overt sexual contact by appellant with H.H.

No offer of proof was made in respect to the excluded witnesses, including five excluded witnesses specified in appellant's brief to this court. As the trial court held, it is evident from the opening remarks of counsel that the proposed testimony of the excluded defense witnesses would have been wholly repetitive of other previous testimony. The testimony of the disputed witnesses was properly excluded as cumulative under Rule 403, regardless of whether there was prejudice associated with the opening remarks of appellant's counsel referring to some 29 witnesses who would confirm having seen no wrongful acts of appellant toward H.H.

b. Exclusion of evidence on impotence. The trial court sustained the state's objection after defense counsel asked appellant's former wife if appellant had "any physical difficulty" with regard to their sex life.

Appellant failed to request a specific objection from the prosecutor or a specific ruling from the bench as to why the objection was sustained. See Minn. R. Evid. 103 (objections or offers of proof not made during trial are waived on appeal, except for those concerning plain error). Moreover, both before and after the state's objection, appellant's wife testified about various physical difficulties that evidently limited appellant's ability to engage in sexual acts. Also, appellant and his doctor testified about the possibility of impotence as a side effect of his blood pressure medication. It was within the discretion of the trial court to conclude that further testimony on the subject was cumulative.

c. Victim's behavior at trial. Appellant asserts that during the testimony of a defense witness, complainant H.H. mouthed the word "liar" and was making faces at the witness. Appellant argues that the trial court should have advised the jury to disregard this behavior and excluded H.H. from the courtroom for the remainder of the trial.

Denying appellant's new trial motion on this subject, the trial court found that H.H. was seated far back in the courtroom outside the jury's line of sight. The record furnishes us with no basis for assuming otherwise and thus finding trial court error either in its instructions or in its denial of a new trial. And the fact that appellant alleges no other such behavior by H.H. demonstrates that the failure to remove her from the courtroom could not have been prejudicial. Also, the removal suggestion did not occur during the trial and was waived.

Appellant further contends that the trial court wrongfully disallowed his jury argument that H.H.'s courtroom behavior showed her lack of credibility. The record furnishes no evidentiary basis for the proposed argument.

d. Medical testimony. Appellant contends that H.H.'s treating psychiatrist at Cambridge Hospital improperly testified that he diagnosed H.H. as having "major depression related to sexual abuse." Appellant asserts that the physician was not qualified to give an expert opinion on whether H.H. had been sexually abused. The trial court has broad discretion to decide whether to allow expert testimony. State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).

We will not consider this issue, because it was not raised before the trial court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Furthermore, the record shows both training and experience of the physician that qualified him as an expert under Minn. R. Evid. 702.

Appellant also contends that the physician's testimony was improper under the rule of State v. Saldana, 324 N.W.2d 227, 229-31 (Minn. 1982) (disallowing opinion of rape counselor, not a physician, as to whether or not an adult had been raped). Saldana does not address a physician's testimony regarding a child involved in consensual sex. Minnesota courts have consistently held that experts may testify to their opinion on whether a child has been sexually abused. See State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984).

e. Exclusion of parental misconduct evidence. Appellant contends that the trial court erred by refusing to allow him to seek evidence that H.H.'s sibling had been sexually abused by their father. Appellant offers only his own conclusion that this evidence was relevant. The trial court did not abuse its discretion in concluding otherwise. Minn. R. Evid. 402 (permitting exclusion of irrelevant evidence).

f. Cross-examination of defense witness. Appellant contends that the trial court erred by allowing the state to cross-examine a defense witness regarding his use or possession of pornographic videotapes. Minn. R. Evid. 403 (providing for exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice). But appellant claimed lack of sexual desire as a defense, and it was probative to show that this witness, a friend who testified that he had not seen sexual misconduct of appellant, had given appellant a pornographic video for use at his son's bachelor party. Moreover, prejudice attached to this testimony was reduced by the friend's earlier testimony that he had suspected appellant engaged in sexual activities with H.H. The trial court did not abuse its discretion in concluding that the probative value of the evidence was not substantially outweighed by its prejudice.

g. Appellant's prior statement. Because the trial court read aloud a transcript of appellant's prior statement to the police, appellant contends the court acted "as a source of impeachment evidence." The trial judge must be allowed considerable latitude in conducting the trial. State v. Burch, 284 Minn. 300, 315, 170 N.W.2d 543, 553 (1969).

The state in this case attempted to impeach appellant with his prior (inconsistent) statement by asking him to read portions that contradicted his trial testimony. Appellant then reported that he was unable to read. The court suggested that appellant's ex-wife read his statement, because she usually read other documents to him, but she stated that she did not understand the transcript. After asking if either party objected, and learning that appellant had no objection, the trial judge read the relevant portions of the transcript to the jury.

The trial court did not err in light of these circumstances. Appellant does not submit and we do not find authority contrary to this conclusion. And the procedure used in this case was less prejudicial than that employed in State v. Rasmussen, 268 Minn. 42, 44-45, 128 N.W.2d 289, 290-91 (1964), where the supreme court, noting that the defendant's statements, like those in this case, had already been received in evidence and could have been read by the jury during deliberations, held that there was no prejudice attributable to the trial judge's confrontation of the defendant with prior admissions.

h. Defendant's testimony. The trial court refused to permit appellant's explanation for opposing H.H.'s date with a boy who appellant had heard was a violent individual. It was not error for the trial court to conclude that the offered evidence was inadmissible hearsay. Moreover, appellant suffered no prejudice due to the court's ruling, because H.H. testified earlier that appellant opposed the relationship because of what he had heard.

3. Schwartz issue. A trial court has broad discretion to deny a Schwartz hearing. State v. Stofflet, 281 N.W.2d 494, 498 (Minn. 1979). A defendant "must establish a prima facie case of jury misconduct before a Schwartz hearing is mandated." State v. Wilson, 535 N.W.2d 597, 606 (Minn. 1995).

Appellant contends that one juror was biased against him because the juror had once worked with H.H.'s mother and knew H.H., and that another juror must have been prejudiced against him because she had been sexually abused as a child. Although there is no record of voir dire proceedings, it is undisputed that these facts were disclosed during voir dire, and the trial court observed in post-trial proceedings that the jurors were seated without objection. Importantly, appellant asserts no facts to support either of his conclusions that these jurors acted improperly during the trial. Appellant has not established a prima facie case of juror misconduct, and the trial court did not abuse its discretion in denying appellant's motion for a Schwartz hearing.

Appellant's most evident concern regards the role of his trial lawyer in permitting these two jurors to sit. As previously indicated, appellant's assertions on the performance of counsel are outside the scope of our review on this appeal.

4. Improper instruction. Appellant argues that the trial court erred by instructing the jury that, pursuant to Minn. Stat. § 609.347 (1996), no corroboration of a victim's testimony is necessary in a criminal sexual conduct case. This instruction is improper. State v. Williams, 363 N.W.2d 911, 913-14 (Minn. App. 1985), review denied (Minn. May 1, 1985); State v. Erickson, 403 N.W.2d 281, 286 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987). But (a) the trial court has broad discretion in fashioning jury instructions and they will not constitute reversible error absent an abuse of that discretion, State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113-14 (Minn. 1990); (b) the court's instructions to the jury must be considered in their entirety, Lim v. Interstate System Steel Div., Inc., 435 N.W.2d 830, 833 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989); and (c) the precedents on these instructions have held the instruction to be harmless error provided the jury is otherwise properly instructed on reasonable doubt and the burden of proof. Williams, 363 N.W.2d at 914. The disputed instruction was harmless error.

  Affirmed.