This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-717

In the Matter of the Welfare of:
F.G.

Filed February 1, 2000
Affirmed
Randall, Judge

Hennepin County District Court
File No: 27-J3-98-061823

William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant F.G.)

Michael A. Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State)

 

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges his delinquency adjudication for first-degree criminal sexual conduct. Appellant asserts the district court (a) erred by refusing to grant a mistrial for an alleged discovery violation and (b) violated his due process rights by failing to make adequate findings of fact. Appellant also challenges the district courtís adjudication of his guilt, claiming there is insufficient evidence to support the decision. We affirm.

FACTS

Y.G. left her 14-month-old daughter in her 14-year-old nephew F.G.ís care at her home for approximately seven to ten minutes. Y.G. testified that when she returned, she looked in her front window to check on F.G. and observed him, with his bare back and buttocks facing her, kneeling on the floor and restraining Y.G.ís infant daughter on the couch by holding her legs apart. The infant was crying, and Y.G. observed F.G. hunching over the infant moving his hips back and forth in a rocking fashion. His pants had fallen below his knees, and the babyís pants and diaper were on the floor or couch. Y.G. suspected him to be having sexual intercourse with her daughter.

Y.G.ís child was examined at a nearby hospital for signs of sexual trauma. The examination revealed findings consistent with the motherís observations. There were abrasions found on both sides of the victimís clitoral hood, and several foreign hairs were recovered from the infantís vaginal folds.

F.G. was later apprehended by police officers at his home. In his statement to the police, he denied any sexual contact with the infant and claimed to have been changing the childís diaper, during which time, his pants may have fallen down. F.G. was charged with seven counts of first-degree criminal sexual conduct and was adjudicated delinquent on one count of first-degree criminal sexual conduct. The district court ordered him to comply with a juvenile-sex-offender treatment program.

D E C I S I O N

  1. Denial of Mistrial for Brady Violation

A reviewing court determines only whether it was an abuse of discretion for the district court to deny a motion for a mistrial. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). F.G. asserts that the district court erred by denying his motion for a mistrial based on the stateís failure to disclose what he contends was material evidence.

F.G. asserts that the state withheld material, exculpatory evidence by failing to disclose the Bureau of Criminal Apprehensionís (BCAís) refusal to test: (a) certain articles of clothing and items collected from the victimís home; (b) semen allegedly found in the victim; and (c) foreign hairs found in the victimís vaginal area. An investigating officer testified that the BCA did not test F.G.ís clothing or the items collected from the victimís home. No other testimony was taken regarding the BCA testing, but the prosecutor stated in an offer of proof that: (a) the semen collected from the victim could not be subjected to DNA testing because of an inadequate sampleóeither the quantity was insufficient, or the sample contained only the heads and not the tails and (b) the foreign hairs recovered from the victim were missing the follicles necessary for DNA testing. F.G. argues that, had defense counsel known why DNA testing was not done, F.G. could have raised a different defense.

A due process violation occurs when the prosecution withholds evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). The evidence withheld must be "material to either guilt or to punishment." Id., 83 S. Ct. at 1197; see also State v. Blankenship, 277 Minn. 32, 34, 151 N.W.2d 410, 412 (1967) (stating passive nondisclosure of material evidence favorable to accused considered due process violation). Minnesota has codified the Brady principles in the Minnesota Rules of Juvenile Procedure, which provide:

The prosecuting attorney shall disclose to the childís counsel any material or information within the possession or control of the prosecuting attorney that tends to disprove the allegation(s).

Minn. R. Juv. P. 10.04, subd. 1(F); see also Minn. R. Crim. P. 9.01 subd. 1 (4) (requiring prosecution to disclose reports or results of examinations and/or tests). The duty to disclose is a continuing one. See Minn. R. Juv. P. 10.06, subd. 2.

Due process rights are implicated when a party seeks to introduce data and corresponding DNA tests as evidence without first disclosing the information to the opposing party. State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989). DNA test results may be material to the issue of guilt and have the potential to impact the outcome of a trial. Id.

Here, although there was no evidence regarding the existence or quality of semen samples for DNA testing,[1] the state had an affirmative duty under Brady and the juvenile rules of procedure to disclose what tests were or were not performed and to make available to the defense any forensic materials. Id. (requiring forensic samples be made available to defendant). Even if the samples were inadequate, as the state contends, F.G. should have been notified so that he, and an expert of his own choosing, if he wished, had the opportunity to decide whether further testing was indeed necessary. Claimed inadequacy of forensic samples heightens the importance of defendantís access to the test results, so that the choice remains with the defendant whether to investigate the matter further. See id. (emphasizing importance of testing information which allows for independent expert review). Therefore, we hold that the stateís failure to disclose such information violated the spirit of Brady and the juvenile rules of procedure.

Accordingly, an appellate court will provide the remedy of a new trial for a discovery violation when a "reasonable probability" exists that the outcome would have been different had the withheld evidence been properly disclosed. State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995). Constitutional error occurs when the evidence in question gives rise to reasonable doubt surrounding the defendantís guilt. State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980).

Although the stateís actions were in violation of Brady, on these circumstances, the nondisclosure does not rise to the level of reversible error. As the state points out, the information in question was of neutral value and tended to neither inculpate nor exculpate F.G. from the crime (in effect, the state failed to disclose that they found nothing). The stateís discovery violation, although not approved of, falls short of reversible error. The district court properly denied F.G.ís motion for a mistrial, even though it failed to recognize that the stateís actions violated Brady and the juvenile rules of procedure.

II. Adjudicative Fact-finding

F.G. next contends that by not making findings of fact indicating which evidence it credited in deciding his guilt, the district court violated his due process rights. There is no support for F.G.ís argument. The court must make a written finding reporting whether the allegations in the charging complaint were proven beyond a reasonable doubt. See Minn. R. Juv. P. 13.09 (requiring general written finding on guilt or innocence within seven days of close of trial); see also Minn. R. Crim. P. 26.01, subd. 2 (mandating general written finding of guilt or innocence within seven days of bench trialís completion). Although particularized findings are required for a juvenile disposition, they are not required for adjudications. See Minn. Stat. ß 260B.198, subd. 1(m) (Supp. 1999)[2] (stating written findings of facts required for disposition of juvenile explaining how best interests of child are served and alternative dispositions considered and why those dispositions were not appropriate); Minn. R. Juv. P. 15.05, subd. 2 (elaborating on requirement of particularized findings for disposition); see also In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn. App. 1999) (holding written findings required only for juvenile disposition, not adjudication), review granted (Minn. Sept. 28, 1999).

The district court made a written finding that the charge of first-degree criminal sexual conduct had been proven beyond a reasonable doubt. This finding was sufficient, and we find no due process violation here.

III. Sufficiency of Evidence

A delinquency adjudication requires the prosecution to prove each and every element of its case beyond a reasonable doubt. In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996). This court reviews a sufficiency of the evidence claim in the light most favorable to the verdict and assumes that the fact-finder disbelieved evidence to the contrary. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). The record and legitimate inferences drawn from the record are examined to determine "whether the fact-finder could have reasonably concluded that the defendant was guilty of the charged offense." In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997). It is for the trier of fact to determine the credibility of witnesses, as well as the weight of evidence admitted. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

F.G. bases his sufficiency of the evidence claim on the credibility of the victimís mother. Under the standard of review, this court will assume that the district court believed Y.G.ís testimony and disbelieved evidence to the contrary. Y.G. testified that she saw F.G.ís bare back and buttocks through the front window and that he was hunched over the infant moving his hips in a rocking motion, suggestive of sexual intercourse. Although Y.G. had consumed alcoholic beverages earlier in the evening, there was no evidence supporting F.G.ís assertion that the alcohol impaired her perceptions. In addition, Y.G. testified that she changed the infantís diaper immediately before leaving for the mailbox and was only gone for several minutes. The district court could have drawn a legitimate inference that there was no need for F.G. to change the childís diaper in Y.G.ís absence because F.G. knew Y.G. would only be gone a short time.

Y.G.ís eyewitness testimony and the results of the sexual assault examination, which revealed signs of sexual trauma consistent with Y.G.ís observations, form a reasonable basis for the district courtís conclusion that appellant was guilty of the offense charged.

Affirmed.

[1] The only evidence of a sperm sample obtained from the victim was in an offer of proof by the prosecutor who stated that a BCA forensic scientist was willing to testify that she saw sperm on a swab taken from the victim.

[2] The legislature renumbered and reorganized chapter 260 in 1999. 1999 Minn. Laws ch. 139. Although appellant was charged and adjudicated delinquent before the August 1, 1999, effective date of these amendments, the substance of this provision has not changed. See Minn. Stat. ß 645.02 (1998) (stating new legislation effective August 1 following enactment, absent different date specified in act).