State of Minnesota, Respondent, vs. Charles Edward Grimes, 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This opinion will be unpublished and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

C9-02-1754

 

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

 

Filed December 2, 2003

Affirmed

Stoneburner, Judge

 

Rice County District Court

File No. K1011705

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN  55021 (for respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Charles Edward Grimes appeals from conviction of first- and second-degree criminal sexual conduct, arguing that (1) the district court abused its discretion in evidentiary rulings; (2) he was deprived of a unanimous verdict; and (3) prosecutorial misconduct deprived him of a fair trial.  We affirm.

FACTS

            Appellant Charles Edward Grimes was charged with criminal sexual contact based on the allegations of his daughter, J.G., and his niece, K.W., and a former girlfriend's daughter, H.Z.  The charges involving H.Z. were severed for trial.  J.G. and K.W., who were 11 years old at the time of trial, reported and testified about incidents of sexual abuse by appellant that began when each girl was about 4 years old.  Appellant denied the allegations and contended that the children were lying.  Appellant was convicted of and sentenced for first- and second-degree criminal sexual conduct.  This appeal followed.

D E C I S I O N

1.            Evidentiary rulings

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Appellant has the burden of establishing that the trial court abused its discretion in evidentiary rulings and that he was prejudiced.  Id.

            a.            Expert opinion testimony

            "The basic consideration in admitting expert testimony under Minn. R. Evid. 702 is whether it will assist the jury in resolving the factual questions presented."  State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).  But where a defendant fails to object to the admission of evidence, review is limited to a plain-error analysis.  See  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights."  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  "If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."  Id. (quotation omitted).

            Appellant complains that several of the state's expert witnesses answered questions in a way that "vouched" for J.G.'s credibility and that two of the experts testified regarding the ultimate issue of whether J.G. was sexually abused.  We first note that because appellant, with one exception, failed to raise these objections in district court, he has failed to preserve all but one of these issues for appeal.[1]  Appellant's objections to the questions as "leading" did not preserve for appeal the issues he now raises.  "An objection must be specific as to the grounds for challenge."  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993) (holding that objection on grounds of legal conclusion did not alert trial court to hearsay and confrontation clause issues), review denied (Minn. Oct. 19, 1993).  A defendant does not preserve an objection for appeal if he objects at trial on grounds different from those argued on appeal.  Id.  And appellant has failed to establish that admission of any of the testimony he now asserts was "vouching" or going to the ultimate issue constituted plain error.

            Vouching testimony is testimony that another witness is telling the truth or testimony that one believes a witness over another.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (stating that it was not vouching testimony when the witness did not testify that another was telling the truth or that he believed one person over another).  None of the expert witnesses testified that J.G. was telling the truth, or that J.G.'s testimony should be believed over that of another witness.  J.G.'s therapist testified that, in his opinion, what J.G. related to him was not suggested to her by a third person.  The testimony was given after appellant elicited testimony from another witness about the problems created when people put "ideas into kids' heads," and did not constitute vouching.  And testimony that children of J.G.'s age generally cannot maintain a lie over a significant period of time and generally are not effective liars does not amount to vouching testimony.  As the Minnesota Supreme Court has noted, "Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse."   Myers, 359 N.W.2d at 610.

In the case of a sexually abused child consent is irrelevant and jurors are often faced with determining the veracity of a young child who tells of a course of conduct carried on over an ill-defined time frame and who appears an uncertain or ambivalent accuser and who may even recant. Background data providing a relevant insight into the puzzling aspects of the child's conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children . . . .

 

Id.  Questions about whether a child has done or said anything to make an expert witness think that the child is lying are also permissible, and do not constitute "vouching."  See State v. Love, 350 N.W.2d 359, 362 (Minn. 1984) (concluding that there is a difference between an opinion that a victim is telling the truth and testimony that the victim's statement did not indicate that she was lying).

            Testimony by J.G.'s therapist that, in his opinion, J.G. was sexually abused was not objected to at trial.  Appellant's objection to the testimony of the director of Midwest Children's Resource Center that both J.G. and K.W. were sexually abused, as invading the province of the jury, was properly overruled.  Case law supports the admissibility of expert opinion testimony regarding whether a child has been sexually abused because such testimony does not go to the ultimate issue in the trial.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).  The identity of the abuser is the ultimate issue and expert testimony that a defendant committed abuse is objectionable.  Id.  But none of the experts in this case opined that appellant was the abuser.  The district court did not abuse its discretion in evidentiary rulings about expert testimony in this case.

            b.            Spreigl evidence

            Appellant argues that evidence that he sexually assaulted two other children should not have been admitted because it was more prejudicial than probative.  A reviewing court will not reverse the district court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  Evidence of other crimes or bad acts is known as "Spreigl evidence."  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). 

            Spreigl evidence is not admissible to prove a defendant's character for the purpose of showing that he acted in conformity with that character.  See Minn. R. Evid. 404(b).  Such evidence may be admitted, however, for the limited purpose of showing motive, intent, absence of mistake or accident, identity, or a common scheme or plan.  Id.  Before Spreigl evidence may be admitted, the prosecution must give notice of an intent to use Spreigl evidence and state clearly what it is being offered to prove, the evidence must be relevant and material to the state's case, clear and convincing evidence must be presented that the defendant participated in the offense or act, and the probative value of the evidence must not be outweighed by its potential for unfair prejudice.  See State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (detailing procedural requirements and safeguards governing other-crime evidence); see also State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991); State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

            In this case, after a hearing to determine the admissibility of Spreigl evidence noticed by the state to prove a common scheme or plan, the district court determined that there was clear and convincing evidence that appellant committed the acts but only allowed testimony about two incidents.  Appellant's first wife was allowed to testify about the events that led to appellant's prior conviction of criminal sexual conduct involving her 2 1/2-year-old daughter, and H.Z. was allowed to testify about appellant's actions toward her.

            "In criminal sexual conduct cases, prior sexual conduct convictions are often probative where the defendant disputes that the sexual conduct occurred or where the defendant asserts the victim is fabricating the allegations."  State v. Duncan, 608 N.W.2d 551, 557 (Minn. App. 2000), review denied (Minn. May 16, 2000).  "In such cases, the prior convictions are relevant to show a common plan or scheme on the part of the defendant."  Id.  "[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state's case.  Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state's burden of proof, should the trial court admit the Spreigl evidence."  Kennedy, 585 N.W.2d at 391-92 (quoting State v. Berry, 484 N.W.2d 14, 17 (Minn.1992)) (citing Landin, 472 N.W.2d at 860); see also DeWald, 464 N.W.2d at 504 (stating that although the risk of prejudice is present whenever Spreigl evidence is admitted, in "weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state's case."). 

            Appellant claims the state's case was not weak.  But appellant repeatedly called attention to inconsistencies in the children's testimony, the girls delayed reporting the abuse for years, appellant asserted that the claims were fabricated, and there was no physical evidence in this case.  We have previously affirmed the admission of Spreigl evidence where the state's evidence consisted of the statements of two alleged child victims and there was no physical evidence of sexual contact.  See Duncan, 608 N.W.2d at 557.  We conclude that the admission of Spreigl evidence was not an abuse of discretion in this case.  

            c.            Inconsistent out-of-court statements by J.G.

            Appellant argues that the district court abused its discretion in admitting J.G.'s videotaped interview with the Rice County Social Services child protection assessment worker, and J.G.'s videotaped interview with Midwest Children's Resource Center's nurse, because these statements were not consistent with J.G.'s trial testimony.  The state asserts that appellant did not properly preserve this issue for trial.  From our review of the record, we conclude that appellant raised the issue that the videotapes differed from J.G.'s trial testimony sufficiently to preserve this objection on appeal.

            Minn. R. Evid. 801 (d)(1)(B), provides that a statement is not hearsay and is admissible as substantive evidence if the declarant testifies at trial, is subject to cross-examination, and the statement is consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility.  State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993).  The "trial testimony and the prior statement need not be verbatim."  State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).  But if "the inconsistencies directly affect the elements of the criminal charge, the Rule 801 (d)(1)(B) requirement of consistency is not satisfied and the prior inconsistent statements may not be received as substantive evidence under that rule."  Id. at 110.

            In her statement to the child protection worker, J.G. stated that appellant performed oral sex on her, but J.G. did not testify to this at trial.  J.G. said in her interview at Midwest Children's Resource Center that an incident had occurred at the home of appellant's former girlfriend "Jody," but at trial J.G. only described incidents that occurred in her parent's bedroom in Morristown and at the home appellant and "Donna" shared in Faribault, and later, Sandstone.  But J.G. testified to sexual penetration and genital-to-genital contact on multiple occasions over an extended period of time.  The inconsistencies about the type of penetration and location of one of the incidents do not affect the elements of the criminal charges against appellant and we conclude that the statements were sufficiently consistent to be admissible under the rule. 

2.            Unanimous verdict

            Although the district court instructed the jury that they must unanimously agree on the verdict, appellant argues that because the jury was not instructed that they had to unanimously agree on which type of penetration occurred in a particular place at a particular time, he was deprived of a unanimous verdict.

            Appellant relies on State v. Stempf, a case in which this court held that juries must be unanimous on the question of whether a defendant committed the act or acts that constitute an element of the crime charged.  627 N.W.2d 352, 359 (Minn. App. 2001).  Stempf was convicted of one count of fifth-degree possession of methamphetamine.  Id. at 354.  Although Stempf was only charged with one count of possession, the state introduced two instances of possession to prove its case.  Id.  The defendant had different defenses to the two alleged acts of possession and requested an instruction to require jurors to evaluate the two acts separately.  But the district court did not instruct the jury that it had to agree unanimously on which act constituted the crime.  Id.  Since the state did not specify the act, the lack of a specific unanimity instruction was held to have denied the defendant his right to a unanimous verdict.  Id. at 358.  In this case, appellant argues that because the jurors may not have unanimously agreed on which act of sexual contact occurred where he was deprived of a unanimous verdict.  We disagree.

            Stempf involved two distinct offenses that occurred on different dates in different locations.  In this case, appellant was not charged with separate and distinct acts of penetration, rather he was charged with ongoing sexual contact that occurred over a period of time in various locations.  There is no constitutional requirement that a jury agree on the way in which a crime was committed.  State v. Poole, 489 N.W.2d 537, 543 (Minn. App. 1992), aff'd. 499 N.W.2d 31 (Minn. 1993).  And specific dates need not be charged or proven in a sexual abuse case.  Id. at 544.  The trial court did not abuse its discretion by concluding that the general unanimity instruction was sufficient to protect appellant's right to a unanimous verdict.

3.            Prosecutorial misconduct

            Appellant claims that the prosecutor engaged in serious misconduct throughout the entire trial.  "Even if established, prosecutorial misconduct does not in and of itself require a new trial."  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002) (citation omitted).  In cases where less serious misconduct is involved, the misconduct is not prejudicial unless it had a substantial role in influencing the jury to convict.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  If the misconduct is unusually serious, that misconduct is not harmless unless there is a certainty beyond a reasonable doubt that the misconduct was harmless.  Id.  And a conviction is reversed only when the misconduct is "inexcusable and so serious and prejudicial that the defendant's right to a fair trial is denied."  Steward, 645 N.W.2d at 121.  

            Appellant failed to object to some portions of the prosecutor's statements that he now claims constitute misconduct.  Generally, a defendant is considered to have waived the right to raise an issue regarding statements made by the prosecutor at trial if the defendant failed to object or seek a cautionary instruction.  State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996).  A defendant's failure to object implies that the comments were not prejudicial.  State v. Parker, 353 N.W.2d 122, 128 (Minn.1984).  We decline to address the statements that were not objected to at trial.

            Appellant claims that the prosecutor committed misconduct because he referenced evidence in his opening statement that was not presented at trial.  When denying appellant's motion for a mistrial based on this issue, the district court noted that the court would instruct the jury that what the attorneys say in their statements is not the evidence in the case, and they must rely on the actual evidence presented.  This instruction was given.  Even if the prosecutor's statements were misconduct, because the court instructed the jury to disregard lawyers' statements and base its decision solely on the evidence, we conclude that the prosecutor's statements in opening remarks could not have substantially influenced the jury to convict and therefore did not prejudice appellant.       

            Appellant argues that the prosecutor committed misconduct by asking appellant's father if he and his wife spanked their children.  The court overruled appellant's objection of "irrelevant."  Even if the question was not relevant, we do not view the question as serious prosecutorial misconduct that prejudiced appellant's right to a fair trial 

            Appellant also claims that it was misconduct for the prosecutor to ask appellant's girlfriend, who testified that he had a loving and happy relationship with his children, whether it was true that appellant's children watched them have sex.  Appellant's irrelevancy objection was overruled.  Appellant now claims the prosecutor's question was prejudicial as showing a propensity to commit sexual misconduct.  But the question was probative of appellant's relationship with his children and did not constitute misconduct. 

            Finally, appellant argues that the prosecutor violated a pretrial ruling in limine by asking J.G. if she knew what appellant did to her brother.  Appellant's objection was sustained and J.G. was not allowed to answer that question.  Therefore, while the question was improper, the court properly handled the issue by sustaining appellant's objection.  Even if it was misconduct for the prosecutor to pose the question, we cannot

conclude that one unanswered question substantially influenced the jury to convict appellant in a trial that lasted over two weeks.  

            Affirmed.

[1] Appellant objected to questioning of the director of Midwest Children's Resource Center about whether, in her opinion, the girls had been sexually abused, as calling for a response that invades the province of the jury, thereby properly preserving this issue on appeal.  But, as discussed above, the objection is without merit.