In the Matter of the Welfare of: S.L.G.

In the Matter of the Welfare of: S.L.G. A06-1254, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1254

 

 

In the Matter of the Welfare of:

S.L.G.

 

 

Filed September 11, 2007

Affirmed Muehlberg, Judge*

 

Hennepin County District Court

File No. JV-05-1199

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant S.L.G.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Mike Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent State of Minnesota)

 

            Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.

U N P U B L I S H E D   O P I N I O N

MUEHLBERG, Judge

            On appeal from a delinquency adjudication of one count of second-degree criminal sexual conduct involving her three-year-old half-sister, appellant argues that the district court (a) abused its discretion in finding the three-year-old victim competent to testify; (b) violated her rights under the Confrontation Clause by admitting the victim's statements to a social worker regarding the alleged sexual assault; (c) violated Minn. Stat. § 595.02, subd. 3 (2004), by admitting hearsay statements submitted as substantive evidence on elements of a sex offense; (d) abused its discretion in making various evidentiary rulings, thereby warranting a new trial; (e) erred in adjudicating her delinquent of the lesser-included offense of second-degree criminal sexual conduct rather than the charged offense of first-degree criminal sexual conduct; (f) abused its discretion in denying her motion for a new trial; and (g) abused its discretion in refusing to stay the adjudication.  Appellant also argues that there was insufficient evidence to support her delinquency adjudication of second-degree criminal sexual conduct.  We affirm. 

FACTS

            This case involves allegations that appellant S.L.G. sexually assaulted her then-three-year-old half-sister M.G. with a vibrator.  At the time of the alleged assault, appellant, born June 26, 1991, lived primarily with her father, Lamont Green, and his fiancée, Katie Knutson.  In addition to appellant, Green had three other children, including M.G. and her six-year-old brother, D.G.  M.G. and D.G.'s mother, J.T., had primary custody of the children, and Green had visitation rights with the children on the weekends. 

            On February 5, 2005, J.T. dropped off D.G. and M.G. at Green's house for the weekend.  A few days later, on February 8, 2005, appellant stayed home from school to baby-sit M.G. and D.G. because Green was out of town on business and Knutson had to work.[1]  After being picked up by J.T., M.G. informed her mother that appellant "touched her private areas with a tickle toy."  M.G. told J.T. that the "tickle toy" was pink, about four inches long, and looked like a "boy's pee pee."  M.G. later repeated that appellant had touched her in her "pee pee" and "butt" and had done the same thing to D.G. 

            After talking with her daughter, J.T. informed law enforcement of the alleged sexual assault.  As part of the investigation, J.T. took M.G. and D.G. to CornerHouse for interrogation.  During her interview with Sara Blahauvietz, a forensic interviewer and trainer at CornerHouse, M.G. repeated that she had been touched on her private areas with a tickle toy by appellant.  Appellant was subsequently charged with first-degree criminal sexual conduct.  Appellant pleaded not guilty, and the matter was set for trial.

            In December 2005, a hearing was held on appellant's motion for discovery of J.T.'s family-court records.  Appellant claimed that these records contained information about previous false allegations J.T. had made against others on her daughter's behalf.  Appellant asserted that before the allegations against her were brought, J.T. was resisting Green's attempts to gain custody of M.G. and D.G.  Appellant speculated that J.T. decided to initiate these allegations knowing that an accusation against Green's older daughter would doom Green's attempts to gain custody of M.G. and D.G.  Appellant further requested that the state provide for in camera review of the CornerHouse interviews and police investigations concerning these prior allegations.  The district court denied the motion, stating that the defense already had ample evidence to attack J.T.'s credibility and show her possible motive to fabricate. 

            A bench trial on the matter was held in February 2006.  At trial, J.T. was called as the state's first witness and testified as to what she was told by M.G. regarding the alleged sexual assault.  The state then called M.G. as its second witness, at which time the district court inquired into her competence to testify.  After determining that M.G. was competent to testify, M.G. testified that appellant had a pink "tickle thing," but was unable to testify as to the details of the alleged assault.  Over appellant's objection, the videotape of M.G.'s interview at CornerHouse, along with the transcript of the interview, were admitted into evidence.  After the videotape was played in court, Blahauvietz testified that based on her training, it was her opinion that "abuse was likely to have occurred."

            Appellant took the stand in her defense and testified that on the day of the alleged assault, she baby-sat M.G. and D.G.  Appellant testified that a friend had brought a pink vibrator over to her house, and that M.G. found the vibrator in appellant's room and showed it to appellant.  Accordingly to appellant, she told M.G., "No, don't touch that.  It's not a kid's toy," and then took the vibrator away from M.G.  Appellant denied touching M.G. with the vibrator.  Testimony indicated that the vibrator was later chewed up by the dog and thrown away.    

            The district court found appellant not guilty of first-degree criminal sexual conduct because there was no evidence that appellant's "actions were aggressively sexually motivated."  But the district court found that "[r]ather it appears that the sexual touching was motivated by curiosity and the presence of the vibrator that the adults had left in the house."   The district court specifically found "the testimony provided by M.G. during trial was credible and persuasive and reinforced the information provided during the CornerHouse interview."  Thus, the district court found appellant guilty of the lesser-included offense of criminal sexual conduct in the second degree.

            On March 15, 2006, appellant moved to vacate the finding of guilt or, alternatively, for a new trial, asserting that the district court erred by sua sponte considering and finding her guilty of a lesser-included offense and by excluding material evidence.  Two weeks later, appellant moved to stay adjudication and disposition pending the outcome of her appeal.  The district court denied appellant's motions.  

            Appellant appeared for disposition on April 5, 2006.  Pursuant to her request, the district court continued the disposition hearing to afford her the opportunity to receive a psychosexual evaluation so that she could argue for a stay of adjudication.  A hearing was subsequently held on June 6, 2006.  The district court found that it could stay adjudication only if it found a clear abuse of the prosecutor's charging function.  Because it could not find a clear abuse of the charging function, the district court denied appellant's motion to stay adjudication.  This appeal followed. 

D E C I S I O N

I.

            Appellant challenges the district court's determination that M.G. was competent to testify.[2]  The determination of a witness's competency rests within the sound discretion of the district court.  State v. Sime, 669 N.W.2d 922, 925 (Minn. App. 2003).  This court will not reverse absent a clear abuse of that discretion.  State v. Cermak, 350 N.W.2d 328, 332 (Minn. 1984).

            A child less than ten years old is presumed competent to testify unless the district court finds that the child lacks the capacity to tell the truth or the ability to recall facts.  Minn. Stat. § 595.02, subd. 1(m) (2004); State v. Scott, 501 N.W.2d 608, 613 (Minn. 1993).  To determine competency, children are typically "asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie."  Scott, 501 N.W.2d at 615 (quoting Kentucky v. Stincer, 482 U.S. 730, 741-42, 107 S. Ct. 2658, 2665-66 (1987)).  "Where the court is in doubt as to the child's competency, it is best to err on the side of determining the child to be competent."  State v. Lanam, 459 N.W.2d 656, 660 (Minn. 1990).

            Appellant argues that M.G.'s testimony reflects that she could not tell the difference between a truth and a lie and, therefore, M.G. should not have been found competent to testify.  We disagree.  The record reflects that during the competency hearing, the prosecutor asked M.G. if she was telling the truth or making something up when she told M.G. that Star Wars the kitty lives with her.  M.G. replied that she was "[m]aking something up."  M.G. also testified that a lie is told by a "bad person" and that "[y]ou go to jail" for telling a lie.  This testimony reflects that M.G. understood the difference between telling the truth and telling a lie and that she understood that there were consequences for not telling the truth.  Although we acknowledge that the record does not show overwhelming evidence of competence, it is the better practice to err on the side of determining the child to be competent.  See Lanam, 459 N.W.2d at 660 ("Where the court is in doubt as to the child's competency, it is best to err on the side of determining the child to be competent.").  Accordingly, we conclude that the district court did not abuse its discretion in finding M.G. competent to testify. 

II.

            Appellant argues that the district court violated her rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting M.G.'s statements to Blahauvietz regarding the alleged sexual assault.  "This court reviews de novo the issue of whether hearsay statements violate the Confrontation Clause."  State v. Ahmed, 708 N.W.2d 574, 580 (Minn. App. 2006).

            The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees that every criminal defendant "shall enjoy the right . . . to be confronted with the witnesses against him."  In Crawford v. Washington, the Supreme Court interpreted this clause to bar the admission of "testimonial statements" made by a declarant out of court, unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity for cross-examination.  541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).

            Appellant argues that even though M.G. took the stand, she was unavailable for purposes of Crawford because M.G. was unable to testify about the alleged sexual assault.  We disagree.  In Crawford, the Supreme Court explained that

[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.  It is therefore irrelevant that the reliability of some out-of-court statements "cannot be replicated, even if the declarant testifies to the same matters in court."  The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

 

541 U.S. at 59 n.9; 124 S. Ct. at 1369 n.9 (citations omitted).  Dissatisfaction with a witness's answers and lapses in memory do not equate to denial of a defendant's constitutional right of confrontation.  State v. Plantin, 682 N.W.2d 653, 660 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  "[T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."  Id. at 659-60 (quoting Stincer, 482 U.S. at 739, 107 S. Ct. at 2664) (other quotation omitted).

            Here, M.G. testified at trial.  Appellant had the opportunity to cross examine M.G., but declined to exercise this right.  Thus, appellant's rights under the Confrontation Clause were not violated.  But even if we were to conclude that the Confrontation Clause was implicated, M.G.'s statements were not testimonial.  In State v. Bobadilla, a child-protection worker interviewed a three-year-old victim at a police station five days after the victim's mother brought him to the emergency room on suspicion that the child recently had been sexually abused.  709 N.W.2d 243, 246-47 (Minn. 2006).  The supreme court held that statements made by the three-year-old victim of sexual abuse to the child-protection worker were not testimonial, despite inquiries regarding what wrongdoing had occurred and police involvement in arranging the interviewneither the child protection worker nor the three-year-old victim was acting to preserve testimony for trial.  Id. at 255-56. 

            Similar to Bobadilla, M.G. was three years old at the time of the alleged assault, and the interview at CornerHouse took place about two weeks after the alleged assault occurred.  In light of the supreme court's decision in Bobadilla, M.G.'s statements during the CornerHouse interview were not testimonial.[3]  See id. 

III.

            This court reviews the district court's evidentiary rulings for abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Appellant has the burden of establishing that the court abused its discretion and that prejudice resulted from the ruling.  Id.    

            Minn. Stat. § 595.02, subd. 3 (2004), permits the use of an out-of-court statement made by a child under ten years of age about an act of sexual contact or penetration as substantive evidence if (a) the court conducts a hearing outside the presence of the jury on the reliability of the statement; (b) the child testifies or, if unavailable, the act is corroborated by other evidence; and (c) the proponent of the statement notifies the adverse party of the intent to offer the statement.

            Appellant argues that the district court abused its discretion by conducting the reliability hearing to determine whether M.G.'s out-of-court statements were admissible.  Appellant contends that because Minn. Stat. § 595.02, subd. 3, mandates that the reliability hearing be conducted out of the hearing of the jury, a judge other than the judge presiding over the case and acting as the finder of fact should have conducted the reliability hearing. 

            Minn. R. Juv. Delinq. P. 12, governing evidentiary hearings in juvenile delinquency hearings, states that "[w]here new information, evidence or issues arise during trial, the court may consider these issues at trial.  Any issue not determined prior to trial shall be determined as part of the trial."  The comment to rule 12, which is advisory in nature,[4] provides:

When the same judge is assigned to determine the admissibility of evidence in a suppression hearing and the guilt of the juvenile in the same proceeding, the juvenile's basic right to a fair trial by an impartial tribunal with a determination of guilt based on admissible evidence may be compromised.  E.g. In re J.P.L., 359 N.W.2d 622 (Minn. App. 1984). 

 

Minn. R. Juv. Delinq. P. 12 cmt.  The district court has broad discretion in deciding whether to bifurcate proceedings, and this court will not disturb its ruling absent an abuse of that discretion.  McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605, 614 (Minn. 1984).

            In 1970, the Minnesota Supreme Court, while encouraging district courts to hold separate pretrial hearings when determining the propriety of identification testimony, held that separate pretrial hearings were not mandatory in a juvenile proceeding even though the district court judge also serves as the factfinder at trial.  In re Welfare of Spencer, 288 Minn. 119, 123, 179 N.W.2d 95, 97-98 (1970).  In 1984, however, this court criticized the rules governing juvenile proceedings, noting that the better procedure in juvenile cases would be to have the hearing regarding suppression of evidence separately, before trial.  In re Welfare of J.P.L., 359 N.W.2d 622, 625 (Minn. App. 1984).  But even in that case, this court recognized that the procedural rule in juvenile proceedings did not require bifurcation, and ultimately affirmed the district court's decision.  Id. (citing Spencer, 288 Minn. 119, 179 N.W.2d 95). 

            Here, the district court decided not to bifurcate the proceedings and have a different judge review the statements to determine their reliability.  Although a bifurcated proceeding may have been the better practice, it is not required under Minnesota law.  See id.  Thus, the district court did not abuse its discretion in conducting the reliability hearing. 

            Appellant further argues that there is nothing in the record suggesting that M.G.'s out-of-court statements possessed the requisite indicia of reliability to be admitted under Minn. Stat. § 595.02, subd. 3.  In Idaho v. Wright, the United States Supreme Court identified a number of factors to be considered in determining the reliability of a child's hearsay statement regarding sexual abuse, including "spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age and a lack of a motive to fabricate."  State v. Scott, 501 N.W.2d 608, 617 (Minn. 1993) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150 (1990)).  In addition, the Minnesota Supreme Court has recognized the relevance of

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.

 

Lanam, 459 N.W.2d at 661.

            Here, the district court stated:

I did watch the entire CornerHouse tape, reviewed the transcript as we went along.  I paid particular attention to the time, content and circumstances of the interview.  I note that the questions asked were all non-suggestive.  They were open-ended questions.  The young girl gave consistent answers.  She often voluntarily disclosed a great deal of information, which was not prompted in any way.

 

The record supports the district court's finding.  The district court did not abuse its discretion in admitting M.G.'s statements. 

IV.

            Appellant argues that the district court abused its discretion by (a) misconstruing the rape shield law and precluding testimony regarding M.G. and her mother's propensities to fabricate allegations of sexual abuse; (b) precluding testimony attacking J.T.'s credibility; and (c) impermissibly permitting the state to elicit vouching evidence from the CornerHouse interrogator.  Appellant also contends that the cumulative effect of the errors require that she be granted a new trial.  As noted above, this court reviews the district court's evidentiary rulings for abuse of discretion.  Amos, 658 N.W.2d at 203.

            A.         Rape shield law

            Before trial, appellant informed the district court of her intent to introduce testimony that J.T. had previously claimed that M.G. had been sexually abused by J.T.'s father and J.T.'s ex-boyfriend.  The district court held that such testimony was inadmissible under the rape shield law.  This law provides that in prosecutions of certain sexual offenses, "[e]vidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury . . . ."  Minn. Stat. § 609.347, subd. 3 (2004).  "Sexual conduct" as used in Minn. Stat. § 609.347, has been defined to include "allegations of sexual abuse."  State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. April 18, 1991). 

            Appellant contends that the district court's ruling was an abuse of discretion because it prevented her from presenting a full and complete defense.  To support her claim, appellant cites State v. Friend, in which the supreme court stated that "[i]n certain cases the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded by the rape shield law."  493 N.W.2d 540, 545 (Minn. 1992).

            In Kobow, this court was presented with a similar issue.  In that case, the defendant "sought to admit the evidence of [the victim's] prior allegations of sexual abuse to impeach her credibility as a truthful witness."  Kobow, 466 N.W.2d at 751.  In rejecting appellant's claim, this court stated that the victim

made no statement during direct examination on this issue of prior allegations of abuse.  Having made no such statements, [the victim] was not subject to impeachment on that issue.  Had [the victim] testified that she had never alleged sexual abuse before, then appellant may have had grounds to present evidence of her prior allegations to impeach her veracity as a witness.  Even then, however, the court would have had to weigh the probative value against the prejudicial effect of testimony regarding her sexual conduct under 404(c).

 

Id.  The court further held that the exclusion of the victim's prior allegations of sexual abuse did not prevent the defendant from exercising his right to present a defense because the district court carefully weighed the probative value against the prejudicial impact and decided against admitting the prior allegations.  Id.  Finally, the court noted that only evidence of prior false reports of rape is admissible, and the defendant was unable to show that the victim's prior allegations were false.  Id. 

            Here, neither M.G. nor her mother made any statements during direct examination on this issue of prior allegations of abuse.  Without such a statement on that issue, M.G. and J.T. were not subject to impeachment on that issue.  See id.  Moreover, the district court considered the issue and determined that appellant had "ample" material to question the witness's credibility.  In fact, the district court allowed appellant to ask J.T. on cross-examination whether there had been other allegations of abuse.  On cross-examination, J.T. admitted that she had made prior allegations of abuse concerning her ex-boyfriend and her father, and that "nothing came out of those allegations."  Accordingly, the district court did not abuse its discretion in precluding testimony regarding the prior allegations of sexual abuse. 

            B.         Evidence pertaining to J.T.'s credibility

            Appellant argues that the district court abused its discretion in precluding appellant from eliciting testimony about J.T.'s custody dispute with Green, J.T.'s history of lying, and J.T.'s nervous breakdown.  But the record reflects that appellant was, in fact, allowed to elicit testimony on these issues.  During Green's testimony, the district court gave the defense some "latitude" in permitting Green to testify as to the alleged custody dispute.  Specifically, the district court stated that the defense "let us know that they believe that the motivation came from what was going along - - around this custody dispute.  I want to find out what this allegation is.  I'm going to let you get it out."  The record reflects that Green specifically testified that the parties were in the process of transferring custody of D.G. to Green when J.T. had a "nervous breakdown."  Green also testified that he brought J.T. to a Hennepin County hospital or mental facility and that "she checked herself in."  When asked whether J.T. "generally tell[s] the truth or not," Green responded, "No."  Thus, the district court did allow appellant to elicit testimony attacking J.T.'s credibility, and appellant's arguments to the contrary are completely without merit.  

            C.        Vouching evidence

            Appellant next argues that the district court committed error by allowing the state's expert witness to vouch for M.G.'s credibility.  We disagree.  "Vouching" occurs when a witness testifies that another witness is telling the truth or that the witness believes one witness over the other.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998).  A witness cannot vouch for or against the credibility of another witness.  See State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995).  But, in Minnesota, an expert may express an opinion that a child was abused.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).  The expert cannot, however, express an opinion about who committed the abuse.  Id. at 250. 

            Here, Blahauvietz did not render an opinion as to whether M.G. was telling the truth.  Rather, she rendered her expert opinion as to whether M.G. had been sexually abused.  While Blahauvietz's testimony may have helped the district court to determine whether M.G.'s testimony about being sexually abused was truthful, Blahauvietz did not evaluate M.G.'s statements for truthfulness or falsity.  Likewise, Blahauvietz did not testify that appellant was guilty of committing the abuse that M.G. has suffered.  Thus, the district court did not err in admitting Blahauvietz's testimony that M.G. was sexually abused.

            D.        Cumulative effect of alleged errors

            Appellant argues that the cumulative effect of the errors at trial denied her a fair trial.  See State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000) (stating that "when the cumulative effect of numerous errors constitutes the denial of a fair trial, the defendant is entitled to a new trial"), review denied (Minn. May 16, 2000).  But as discussed above, the district court did not err in admitting Blahauvietz's testimony that M.G. was sexually abused, and the district court allowed appellant to elicit testimony attacking J.T.'s credibility.  The district court also properly handled appellant's request to introduce testimony that J.T. had previously claimed that M.G. had been sexually abused by J.T.'s father and J.T.'s ex-boyfriend.  Appellant is not entitled to a new trial. 

V.

            Appellant contends that the evidence was insufficient to support a finding of guilt of second-degree criminal sexual conduct.  When reviewing a claim of insufficiency of the evidence, appellate courts must determine "whether the facts in the record and the legitimate inferences drawn from them would permit the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable doubt . . . ."  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  The evidence is viewed in the light most favorable to the state.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  This standard of review is applicable to bench trials.  Davis, 595 N.W.2d at 525.

            A person is guilty of second-degree criminal sexual conduct if the person "engages in sexual contact with another person" and the other person "is under 13 years of age and the actor is more than 36 months older than the complainant."  Minn. Stat. § 609.343, subd. 1(a) (2004).  Here, M.G. testified that she was there to talk about appellant and the vibrator.  Although she did not specifically testify about the assault, her testimony alluded to the assault and bolstered the credibility of the tape shown of the CornerHouse interview.  During the taped interview that was admitted into evidence, M.G. stated with specificity the details of the assault.  Moreover, Blahauvietz testified that it was her opinion that the sexual abuse occurred.  Finally, J.T. testified as to the details of the assault as described by her daughter shortly after the abuse occurred.  If believed, this evidence is sufficient to support a delinquency determination.  The district court apparently believed the state's witnesses and disbelieved any evidence to the contrary.  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating that the reviewing court assumes the fact-finder believed the witnesses supporting a delinquency determination and disbelieved any evidence to the contrary).  Accordingly, the evidence was sufficient to support appellant's delinquency adjudication of second-degree criminal sexual conduct. 

VI.

            Appellant argues that the district court erred in adjudicating her delinquent of the lesser-included offense of second-degree criminal sexual conduct rather than the charged offense of first-degree criminal sexual conduct.  "The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court."  Kobow, 466 N.W.2d at 752.        

            The Minnesota Supreme Court has stated that, in a jury trial, the district court must instruct on a lesser offense if the evidence warrants the instruction.  State v. Sessions, 621 N.W.2d 751, 757 (Minn. 2001).  More specifically, the district court must instruct the jury on a lesser-included offense when:  (1) the offense in question is an included offense; and (2) a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime.  Id.[5]  The same standard applies in a bench trial.  See State v. Bouwman, 354 N.W.2d 1, 6-8 (Minn. 1984).  In fact, in Bouwman, the supreme court recognized that the district court in a bench trial could grant a motion to acquit of a greater charged offense but deny the motion as to all lesser-included offenses, including one that was not charged.  Id.

            In Kobow, this court stated that second-degree criminal sexual conduct is a lesser-included offense of first-degree criminal sexual conduct.  466 N.W.2d at 752.  "The difference is simply one of sexual contact versus sexual penetration."  Id.  Here, the district court found that the state failed to prove that appellant engaged in sexual penetration with the victim.  But the court found that the state proved beyond a reasonable doubt that appellant engaged in sexual contact with M.G.  Thus, the district court found appellant guilty of the lesser-included offense of second-degree criminal sexual conduct.  Because second-degree criminal sexual conduct is a lesser-included offense of first-degree criminal sexual conduct, the district court did not abuse its discretion. 

VII.

            "The court, on written motion of the child's counsel, may grant a new trial" on production of "material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial."  Minn. R. Juv. Delinq. P. 16.01, subd. 1(E); see also Minn. Stat. § 260B.411 (2004) (providing that a child whose status has been adjudicated may, at any time within 15 days of the filing of the court's order, petition for rehearing on the grounds that new evidence has been discovered affecting the advisability of the court's original adjudication or disposition).  The district court's decision to deny a motion for a new trial will not be reversed on appeal absent an abuse of discretion.  In re Welfare of B.D.O., 450 N.W.2d 163, 165 (Minn. App. 1990).

            Appellant argues that she is entitled to a new trial in the interests of justice and for newly discovered material evidence.  We disagree.  The claimed "newly discovered evidence" is simply character evidence that appellant sought to introduce at trial in order to impeach J.T.'s credibility.  As we discussed above, the district court admitted some of this evidence and presumably considered appellant's assertion that J.T. falsely claimed that her daughter was sexually abused in order to obtain an advantage in custody hearings.  Any evidence not admitted was properly precluded by the district court.  Accordingly, appellant has failed to produce any newly discovered material evidence, and the district court did not abuse its discretion in denying her motion for a new trial. 

VIII.

            Under the rules of juvenile delinquency procedure, a court shall adjudicate a child delinquent or continue the case without adjudication "at the same time and in the same court order as the disposition."  Minn. R. Juv. Delinq. P. 15.05, subd. 1.  "A district court ‘has broad discretion in determining whether to continue an adjudication in a delinquency proceeding.'"  In re Welfare of J.R.Z., 648 N.W.2d 241, 244 (Minn. App. 2002) (quoting In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn. App. 1999), review dismissed (Minn. Feb. 15, 2000)), review denied (Minn. Aug. 20, 2002).

            When it is in the best interests of the child to do so and . . . when a hearing has been held as provided for in section 260B.163 and the allegations contained in the petition have been duly proven but . . . before a finding of delinquency has been entered, the court may continue the case for a period not to exceed 90 days on any one order.  Such a continuance may be extended for one additional successive period not to exceed 90 days and only after the court has reviewed the case and entered its order for an additional continuance without a finding of delinquency.

 

Minn. Stat. § 260B.198, subd. 7 (2004) (emphasisadded); see also Minn. R. Juv. Delinq. P. 15.05, subd. 4(A) ("When it is in the best interests of the child and the protection of the public to do so, the court may continue the case without adjudicating the child.").  But such a stay of adjudication may not exceed 180 days.  See In re Welfare of M.A.R., 558 N.W.2d 274, 276 (Minn. App. 1997).

            Here, the district court stated that "I do have the right to stay adjudication when I find there's been a clear abuse of the prosecutor's function, but I think I'm limited to that."  Because the district court concluded there was no abuse of the prosecutor's function, the court held that "I do not believe I have grounds for staying adjudication in this case."

            Appellant argues that the district court abused its discretion in refusing to stay her adjudication because the district court erroneously concluded that it could not stay adjudication absent a finding of abuse of the prosecutorial function.  We disagree.  The record reflects that the district court's decision, which denied appellant's request to stay adjudication, was not based solely on a lack of abuse of the prosecutorial function.  In the disposition order, the district court found that "it is not in the best interests of the child and the protection of the public to continue the case without adjudication pursuant to Minnesota Rules of Delinquency Procedure, Rule 15.05, subd. 4(A)."  Based on this finding, it is apparent that, in accordance with the juvenile rules, the district court considered appellant's best interests in declining to stay the adjudication.  The district court found appellant guilty of second-degree criminal sexual conduct, a very serious offense.  In light of the seriousness of the offense and the fact that the district court was not obligated to stay appellant's adjudication, we conclude that the district court did not abuse its discretion in denying appellant's motion to stay adjudication.  See In re Welfare of J.L.Y., 596 N.W.2d at 695 ("Imposing an adjudication within the limits prescribed by the legislature is not an abuse of discretion.").   

            Affirmed.
 

 

                                                                                   

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

[1] Although J.T. would typically pick up her children on Sundays, M.G. and D.G. were still in the care of Green and Knutson on Tuesday, February 8, 2005. 

 

[2] Although the state argues that appellant waived the issue by not challenging M.G.'s competency at trial, we conclude that appellant's demand for a competency hearing ensured that the issue of M.G.'s competency is properly before this court.

[3] This court recently distinguished Bobadilla in State v. Krasky, 721 N.W.2d 916 (Minn. App. 2006), review granted (Minn. Dec. 20, 2006).  In that case, the issue before this court was whether the statements made by a six-year-old child during an interview at Midwest Children's Resource Center were testimonial in nature.  Krasky, 721 N.W.2d at 917.  This court concluded that unlike Bobadilla, the statements were testimonial because the child's statement occurred as part of a police investigation approximately two years after the suspected sexual abuse, after the suspect's parental rights had been terminated, and two months after the child had been placed in foster care.  Id. at 920.  However, here, unlike Krasky, we do not find Bobadilla distinguishable. 

[4] The inclusion and amendment of advisory committee comments "is made for convenience and does not reflect court approval of the comments made therein."  Minnesota Supreme Court Order Promulgating Amendments to the Rules of Criminal Procedure (Dec. 13, 1989); see also State v. Pero, 590 N.W.2d 319, 326 (Minn. 1999) (noting that advisory comments to the Minnesota Rules of Criminal Procedure are not binding, but provide guidance which courts may follow).

[5] Minn. Stat. § 631.14 (2004), also states that a "defendant may be found guilty of any offense necessarily included in that offense with which the defendant is charged in the indictment or complaint."