This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In the Matter of the Welfare of:  A.J.M., Child.


Filed August 1, 2000

Kalitowski, Judge


St. Louis County District Court

File No. JX99650122


John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant A.J.M.)


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


Alan L. Mitchell, St. Louis County Attorney, Charles P. Schumacher, Assistant County Attorney, 403 Government Services Center, 320 West 2nd Street, Duluth, MN 55802 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant A.J.M. challenges his delinquency adjudication for criminal sexual conduct in the fifth degree.  He argues that the district court abused its discretion in admitting out-of-court statements made by the unavailable nine-year-old complainant because there was no non-hearsay evidence corroborating the allegations.  We affirm.


A district court’s evidentiary ruling will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  A district court may admit out-of-court statements of an unavailable child declarant under the age of ten under Minn. Stat. § 595.02, subd. 3 (1998).  A statement by an unavailable child declarant under the age of ten

alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:


            (a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability;  and


            (b) the child * * * either:


            (i) testifies at the proceedings;  or


            (ii) is unavailable as a witness and there is corroborative evidence of the act.


Minn. Stat. § 595.02, subd. 3.

In this case, the nine-year-old complainant, R.M.S., was unavailable as a witness. Because she was unavailable, the evidence in the trial consisted of three hearsay statements by R.M.S:  (1) R.M.S.’s statement to her babysitter; (2) R.M.S.’s statement to her school nurse; and (3) R.M.S.’s statement during a videotaped interview with the police.  The statement by R.M.S. to her babysitter was admitted as an excited utterance.  See Minn. R. Evid. 803(2).  The statements to the school nurse and to the police were admitted under Minn. Stat. § 595.02, subd. 3.

Appellant argues that the district court abused its discretion in admitting the statements made to the school nurse and to the police.  Appellant does not challenge the district court’s determination that the statements possessed sufficient indicia of reliability but argues that the district court abused its discretion in admitting the statements under Minn. Stat. § 595.02, subd. 3, because R.M.S.’s statements were not sufficiently corroborated.  We disagree.

Appellant argues that R.M.S.’s three statements cannot be used to corroborate each other because of their hearsay character.  But the statute and relevant caselaw do not require that the corroborating evidence be of a particular type.  Various types of evidence may be used to corroborate statements under the statute.  See, e.g., In re Welfare of L.E.P., 594 N.W.2d 163, 173 (Minn. 1999) (holding that videotaped statement was corroborated by consistency of child’s accounts of abuse over time and by other witnesses’ testimony reporting child’s hearsay statements about abuse); State v. Bellotti, 383 N.W.2d 308, 314 (Minn. App. 1986) (holding that child’s statements were corroborated by other victim’s direct testimony and defendant’s partial confession), review denied (Minn. Apr. 24, 1986).

Here, the district court properly determined that R.M.S.’s statements were sufficiently corroborated for admission under Minn. Stat. § 595.02, subd. 3.  Each of R.M.S.’s three statements was consistent with the others and nothing in the record suggested a motive to fabricate.  R.M.S. told her babysitter, the school nurse, and the police officer that (1) she was touched on her “privates”; (2) “privates” referred to her vagina; (3) R.M.S.’s younger brother was present during the incident; and (4) appellant’s brother was present during the incident.  She also told both the school nurse and police that the incident occurred in “the woods.”  We conclude the consistent accounts by R.M.S. provide sufficient corroborating evidence as required by Minn. Stat. § 595.03, subd. 3.



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