State of Minnesota, Respondent, vs. Richard Masika Tete, 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This opinion will be unpublished and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

C4-02-1953

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Masika Tete,

Appellant.

 

Filed September 30, 2003

Affirmed

Kalitowski, Judge

 

Clay County District Court

File No. K502419

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges his conviction of first- and second-degree criminal sexual conduct, arguing that (1) the district court abused its discretion in declining to conduct an in camera review of the complainant's mental-health records; (2) the district court abused its discretion in admitting a partially inaudible tape of the complainant's mother's conversation with appellant; and (3) the district court plainly erred in failing to give a specific-unanimity instruction to the jury.  We affirm.

D E C I S I O N

I.

            Evidentiary rulings are reviewed for an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Minn. Stat. § 595.02, subd. 1(d) and (g) (2002), prohibits unauthorized disclosure of privileged medical and psychiatric or psychological information.  A defendant may nonetheless request that the district court screen the confidential material in camera to determine whether the material is necessary to the defense.  State v. Hummel, 483 N.W.2d 68, 71-72 (Minn. 1992).  But in camera review of confidential material is not an absolute right.  Id. at 72.  A defendant seeking in camera review of confidential material must establish "a basis for his claim that it contains material evidence" by making a "plausible showing" that the information sought would be "both material and favorable to his defense."  Id. at 72 (citations omitted).

            Here, appellant argued that he believed the 12-year-old complainant had received "some sort of treatment for mental illness" that may have included medication and may affect her credibility.  We agree with the district court that appellant's request lacked specificity and failed to make a "plausible showing" that the information sought would be material and favorable to his defense.  Appellant failed to identify the source of this information other than to state that he is familiar with the family and its history.  Moreover, appellant failed to identify the type of alleged mental disorder and how that disorder would affect the complainant's credibility.  See Padilla v. Minn. State Bd. of Med. Exam'rs, 382 N.W.2d 876, 884 (Minn. App. 1986) (criticizing the practice of attempting to "discover the psychiatric record of every adversary in the hope that a mental condition or personality trait reflecting on his credibility could be found"), review denied (Minn. Apr. 24, 1986).        

            Appellant's request for an in camera review of the complainant's mental-health records was vague and conclusory, lacking a "plausible showing" of "material evidence."  Thus, we conclude the district court was within its discretion in declining to perform an in camera review.

II.

            When an audiotape is partially inaudible or part of a statement or conversation is not recorded, courts have applied the broad general rule that the recording is admissible, unless the inaudible or omitted portions are so substantial that the recording as a whole is rendered untrustworthy.  Matter of Gonzalez, 456 N.W.2d 724, 728 (Minn. App. 1990).  "Such admission is largely within the court's discretion."  Id.

            Here, the district court determined the tape was relevant as corroboration of the complainant's mother's testimony regarding her conversations with appellant.  See Minn. R. Evid. 401 (evidence is relevant if it tends to make the existence of a consequential fact more or less probable).  The court did not allow the jury access to a transcript of the tape recording, but allowed the tape "for whatever benefit and corroboration it may have, understanding that it is difficult to understand . . . ."  Thus, the district court limited the jury's reliance on the tape by not providing a transcript, but allowed the jury to listen to the tape for whatever corroborative value it may have.  Because the inaudible portions were not substantial enough to render the entire tape untrustworthy, we conclude the district court properly exercised its discretion in admitting the tape.   

            Appellant also contends the admission of the tape robbed him of his right not to testify.  We disagree.  Even if the tape had not been admitted, the jury would have heard testimony regarding the substance of the recorded conversations from the complainant's mother and the police.  Thus, the admission of the tape did not force appellant to testify.

III.

            District courts are allowed "considerable latitude" in selecting the language in the jury charge.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  A party is prohibited from assigning as error any instruction or any omission from the instructions to which the party has not objected.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But if the instructions constitute plain error, this court has the discretion to consider them.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Plain error is:  (1) error; (2) that is plain; and (3) that affects substantial rights.  Id.  

            Appellant was charged with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.  In order to prove appellant was guilty of the second-degree charge, the state needed to show that A.H. was at least 13 but less than 16 years old, that appellant was more than 48 months older than A.H., that appellant was in a position of authority over A.H., and used this authority to cause A.H. to submit to sexual contact.  Minn. Stat. § 609.343, subd. 1(b) (2002).  The only element in dispute at trial was whether sexual contact occurred.  At trial, the state alleged that multiple acts of sexual contact occurred over a certain period of time.  Specifically, the state alleged that on or about September 1, 2001, and continuing through January 1, 2002, appellant touched A.H.'s breast over her clothing more than ten times, touched her on the hip and the front of her pants, and tried to put his hand down the front of her pants.

            The district court instructed the jury that to find appellant guilty, the state needed to prove beyond a reasonable doubt that

the defendant's act took place on or about September 1, 2001 through January 1, 2002 in Clay County. 

 

            . . . .

           

            It is not necessary to prove the commission of a crime on the precise day or even year stated in the Complaint except where time is a material ingredient of the offense such as where the act done is unlawful only during certain seasons, on certain days or at certain hours of the day.

            If you find by proof beyond a reasonable doubt that the defendant has committed the act or acts complained of, you may find him guilty even if you find the act or acts were committed on dates other than those charged in the Complaint so long as the act or acts were committed before the Complaint was filed.

 

Appellant did not object to this instruction.

            Appellant now contends the district court committed reversible error by not instructing the jury that they had to unanimously agree on which of the alleged acts of sexual contact appellant committed.  Appellant argues the absence of such an instruction deprived him of his right to a unanimous verdict.  See Minn. R. Crim. P. 26.01, subd. 1(5) (providing that verdicts in criminal cases must be unanimous).  We disagree.

            Here, the state did not charge, and the victim never testified to, separate and distinct acts of sexual contact.  Instead, the victim testified that the sexual contact occurred over a considerable period of time when her mother was taking her and her brother to stay at appellant's apartment.  Thus, the state offered evidence that appellant's conduct involved ongoing sexual contact that occurred in appellant's home over a certain period of time.  Therefore, there is a unity of time and place in this case that was lacking in State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).

            In Stempf, the defendant was convicted of one count of fifth-degree possession of methamphetamine.  Id. at 354.  Although the defendant 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 that the same act constituted the crime.  Id.  Since the state did not specify the act, the lack of a specific-unanimity instruction denied the defendant his right to a unanimous verdict.  Id. at 358. 

            It is well established that a jury may reach a unanimous verdict without agreeing on precisely how or when a crime was committed, if those facts are not elements of the crime charged.  See Cross, 577 N.W.2d at 726-27 (jury need not unanimously agree on the incidents establishing a pattern of domestic abuse); State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (allowing the state to charge multiple acts of sexual abuse over an unspecified period of time where defendant availed herself of discovery opportunities); State v. Poole, 489 N.W.2d 537, 543-44 (Minn. App. 1992) (holding, in a sexual-abuse case, that because specific dates of sexual abuse were not elements of the offense, the jury was not required to agree on them), aff'd, 499 N.W.2d 31 (Minn. 1993).  Based on these holdings, the jury here was not required to unanimously agree on how or when the sexual contact occurred, as long as the jury unanimously agreed that the contact occurred.

            The district court's instructions were sufficient to protect appellant's right to a unanimous verdict.  Sexual contact was an element of the crime charged, and the jury was properly instructed that it had to unanimously agree that appellant had sexual contact with the victim.  But it was not necessary for the jury to unanimously agree on exactly when or how the act of penetration occurred, as long as the jury agreed that the sexual contact occurred some time between September 1, 2001, and January 1, 2002.  Thus, the district court's jury instructions do not constitute plain error.

            Appellant raises several other issues in his pro se supplemental brief.  After careful consideration of those issues, we conclude they are without merit.

            Affirmed.

 

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