This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Kenneth Retzlaff,
Filed February 29, 2000
Stearns County District Court
File No. K79849
Mike Hatch, Attorney General, Margaret H. Chutich, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and
Roger S. Van Heel, Stearns County Attorney, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (for respondent)
Neil R. Tangen, Tangen Law Office, P.O. Box 758, Starbuck, MN 56381 (for appellant)
Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was convicted of three counts of criminal sexual conduct in connection with sexual touching of three teenage victims. He appeals from the judgment of conviction, claiming: (1) there was no proper waiver of his right to a jury trial; (2) there is insufficient evidence to support the convictions; and (3) the trial court erred in failing to make specific findings to support the convictions. We affirm.
Following a bench trial in November 1998, the district court convicted appellant of three counts of criminal sexual conduct, for touching the breasts, buttocks, and/or vaginal areas of three teenage girls, J.O., J.M., and A.S. The district court acquitted appellant of a charge based on his conduct toward a fourth teenage girl, J.R. Appellant is manager of a resort where the teenagers were camping.
In December 1997, all four teenagers initially gave statements to the police detailing the places, general time periods, and natures of the various acts. About one month later, two of the four teenagers recanted their statements. At trial and under subpoena, these two offered testimony consistent with their initial statements and explained that they had recanted under pressure from their parents, who were good friends of appellant. The parents testified that they pressured their daughters to recant because they feared appellant would sue. Additional trial testimony was provided by friends and various social workers and rehab counselors who verified certain aspects of the teenagers’ trial testimony. Appellant also testified; he denied that the acts occurred.
Immediately before the trial, appellant waived his right to a jury trial in response to questions posed by his counsel in open court. Appellant affirmed that he wanted the judge as factfinder, that he had discussed his choice with counsel, and that he wanted to do so because the judge may have more latitude in the introduction of evidence. The examination ended as follows:
COUNSEL FOR APPELLANT: Do you, I guess the terms are, understandingly and intelligently elect to waive your right to have your case decided by 12 people, 12 people from this county, at this time?
APPELLANT: I’ll go with the Judge.
The transcript of the examination concerning the waiver reveals that appellant had in open court about two weeks earlier waived his right to a jury trial. Thus, appellant twice waived his right to a jury trial.
D E C I S I O N
1. Waiver of Jury Trial
Both the United States and Minnesota Constitutions guarantee the right of a jury trial on these charges. U.S. Const. art. III, § 2, clause 3, and amend. VI; Minn. Const. art. I, §§ 4 and 6. The accused may waive this constitutional right if the waiver is "knowing, intelligent and voluntary." State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).
Rule 26.01, subd. 1(2) of the Minnesota Rules of Criminal Procedure sets out the procedure for jury trial waiver:
The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.
* * * *
The defendant shall be permitted to waive jury trial whenever it is determined that (a) the waiver has been knowingly and voluntarily made * * *.
The district court has discretion whether to accept the waiver and, before doing so, should be satisfied that the defendant was informed of his rights and that the waiver was voluntary. State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).
The purpose of the district court inquiry is to determine whether the waiver is knowing and voluntary, and the focus should be on whether the defendant understands the basic elements of a jury trial. Ross, 472 N.W.2d at 654. The nature and extent of the inquiry may vary with the circumstances of a particular case. Id.; see also Adams v. United States, 317 U.S. 269, 278, 63 S. Ct. 236, 241 (1942) (whether there is an "intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstance of each case").
Appellant claims that the district court erred in accepting his waiver because the judge (1) did not personally ask appellant whether he understood and wanted to waive his right to a jury trial, as required by Minn. R. Crim. P. 26.01, subd. 1, and (2) failed to "make the law clear" by questioning the assertion by appellant’s counsel that the court would have greater latitude to consider additional evidence.
Based on the law and the record, we conclude that the district court did not abuse its discretion in finding that the waiver was knowing, intelligent, and voluntary. The record shows that appellant was aware of his right to a local 12-person jury, had discussed the right several times with his counsel, but chose to waive the right for tactical reasons. The waiver occurred on two separate occasions in open court. The fact that this waiver resulted from examination by his counsel—and not by the district court (as suggested in Minn. R. Crim. P. 26.01)—is inconsequential. Rule 26.01 is a procedural rule to ensure that the waiver is knowing, voluntary, and intelligent. The exchange between appellant and his counsel on the record in open court fully supports the district court’s decision to accept the waiver as knowing, voluntary, and intelligent.
Appellant also claims that the district court failed to "make the law clear" because counsel stated that the judge may have more latitude in permitting introduction of evidence. However, as respondent points out, the Minnesota Supreme Court cautioned that the trial court should not inquire why the defendant has waived his right to a jury trial; matters of trial tactics are left to the defendant and his attorney. Ross, 472 N.W.2d at 654. We note that at trial appellant was given greater latitude than is generally allowed in cross-examining victims on their prior conduct.
2. Sufficiency of the Evidence
When reviewing sufficiency of the evidence, the appellate court is limited to determining whether, based on the facts in the record and any reasonable inferences, the factfinder could reasonably conclude that the defendant was guilty of the charged offense. State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996). The appellate court views the evidence in the light most favorable to the factual findings and assumes the factfinder believed the state’s witnesses and disbelieved contrary evidence. Id.
With respect to J.O. and J.M., appellant was convicted of fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1, (1998); at all material times the two teenagers were less than 16 years old and appellant was about 45 years old. With respect to A.S., appellant was convicted of fifth-degree criminal sexual conduct under Minn. Stat. § 609.3451, subd. 1, (1998), for non-consensual sexual contact. In prosecution under either of these sections, "the testimony of the victim need not be corroborated." Minn. Stat. § 609.347, subd. 1, (1998). And, based upon the record, there is sufficient evidence to support the three convictions based solely on the testimony of the three teenage victims.
The fact that two victims recanted under pressure from their parents does not alter the analysis. J.M. stated that her parents were afraid of getting sued and that the accusations would harm her father’s business. A.S. just wanted the whole matter to go away and recanted with her cousin, J.M. The trial testimony of both victims was consistent with their initial statements given to police. Several other witnesses corroborated the victims’ original statements. All three teenagers were subject to an extensive and lengthy cross-examination. The district court, as factfinder, was in the best position to judge witness credibility.
3. Sufficient Findings
Appellant claims that the district court did not make sufficient findings to support the convictions. Following a bench trial, the judge must "specifically find the essential facts in writing on the record." Minn. R. Crim. P. 26.01, subd. 2. Here, the judge prepared written findings covering all elements of the crimes, including approximate dates of the contact, the nature of the contact, where it occurred, the ages of the appellant and his victims, and all other necessary elements. These findings are sufficient to satisfy the requirements of Minn. R. Crim. P. 26.01, subd. 2, and to establish the basis for the district court’s decision.
Affirmed. Appellant cites the Seventh Circuit decision of United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981), which details each aspect of a jury trial upon which the defendant should be advised. While the decision provides "helpful guidelines" in ensuring that the waiver is voluntary and intelligent, it is not a binding format that Minnesota trial courts are obliged to follow. Ross, 472 N.W.2d at 654.