This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-420

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ruth Heitz,

Appellant.

 

 

Filed January 23, 2001

Affirmed

Halbrooks, Judge

 

Scott County District Court

File No. 9910555

 

 

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

 

Thomas J. Harbinson, Scott County Attorney, Neil G. Nelson, Chief Deputy County Attorney, Thomas W. Haines, Assistant County Attorney, Government Center JC340, 200 Fourth Avenue East, Shakopee, MN 55379 (for respondent)

 

Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55015 (for appellant)

 

 

 

            Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Ruth Heitz challenges her conviction of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(h)(iii) (1998).  Appellant argues that (1) her admission of sexually abusing the victim cannot, by law, support the conviction; (2) the trial court erred in instructing the jury on the definition of corroborating evidence; and (3) the requirement of unavailability of a witness should apply to admission of videotaped statements of child victims.  Because we conclude that the evidence is sufficient, that there is no reversible error in the jury instructions, and that there is no error in admitting the videotaped testimony, we affirm.    

FACTS

On July 1, 1999, appellant met with a minister and a volunteer at her church.  At the meeting, appellant admitted to sexually molesting her daughter, A.H., in the presence of her boyfriend, Howard Herrgott.  The minister and the volunteer reported the sexual abuse to child protective services. 

The following day, Jordan police officers took A.H. into protective custody.  Appellant became upset; after repeated questioning, she confessed to sexually abusing A.H.  Appellant also implicated Herrgott.

On July 6, 1999, Kathryn Mauer, a nurse at St. Paul Children’s Hospital, interviewed and examined A.H.  In the videotaped interview, A.H. told Mauer that appellant and Herrgott had shown her “how babies were made,” they had touched each other with their clothes off, and occasionally A.H. also had her clothes off.  She also said that they had watched movies about how babies were made.  A.H. told Mauer that on one occasion appellant told her not to tell anyone about what happened among appellant, A.H., and Herrgott because they might “get in trouble.”  But A.H. also said that appellant had recently told her to tell the truth and A.H. denied ever being touched sexually by appellant or Herrgott.

On the same day, appellant gave a statement to the Jordan police in which she admitted to 6 to 12 acts of oral sex between herself and A.H. and between Herrgott and A.H.  Appellant also confessed that when she and Herrgott were together in the presence of A.H., they drank heavily, watched pornographic movies, engaged in sexual intercourse, and sometimes gave A.H. alcohol.  Appellant acknowledged that Herrgott had taken photographs of appellant and A.H. with a Polaroid camera.  The police obtained a warrant for Herrgott’s apartment and found a number of pornographic videotapes and a Polaroid camera.   

Appellant was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (1998).  Appellant’s confessions and A.H.’s videotaped statement with Mauer were admitted into evidence.  Herrgott, under a grant of immunity, testified consistently with appellant’s confessions, except that he denied witnessing or participating in any acts of oral sex with A.H.  Susan Erbaugh, Ph.D., testified concerning her counseling sessions with A.H.  According to Erbaugh’s testimony, when A.H. was asked if she was ready to tell Erbaugh about what had happened, A.H. became “somewhat more uncomfortable.”  A.H. then said, “If I start to talk about it I’m going to cry.”  A.H. also told Erbaugh that appellant made the “worst mistakes.”  When asked about those mistakes, A.H. was tearful and refused to answer.  A.H.’s foster mother testified that A.H. told her that she wanted to see appellant but did not know if it would be “good” or “safe.”

Before submitting the matter to the jury, the court dismissed one of the counts, finding as a matter of law that there was insufficient evidence to support it.  The court instructed the jury that a confession alone is insufficient for a conviction without corroborating evidence that the offense charged has been committed.  During deliberation, the jury requested a definition of corroborating evidence.  Over appellant’s objection, the trial court told the jury that “corroborating evidence must link or connect the defendant to the crime,” and “it strengthens or supports other evidence.”  The jury subsequently found appellant guilty on the remaining count.

Appellant argues that her conviction must be reversed because the requirement of corroboration of a defendant’s confession has not been satisfied.  See Minn. Stat. § 634.03 (1998).  In addition, appellant argues that the trial court erred in its jury instruction defining corroborating evidence.  Third, appellant argues that she was denied her rights under the Confrontation Clauses of the United States and Minnesota Constitutions when the trial court admitted videotaped testimony from an available complainant-witness.  U.S. Const. Amend. VI; Minn. Const. art. I, § 6.  This appeal follows.     

D E C I S I O N

In reviewing a claim of insufficiency of the evidence, this court determines whether, based on the facts in the record and the legitimate inferences that could be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the charged offense.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  We must view the evidence in a light most favorable to the state and assume that the fact-finder believed the state’s witnesses and disbelieved contrary evidence, giving due regard to the state’s burden of proving appellant’s guilt beyond a reasonable doubt.  Id.  But as a matter of law, “[a] confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.”  Minn. Stat. § 634.03 (1998).  The purpose of the statute is to dissuade coercive confessions and ensure a confession’s reliability.  In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984).  The statute requires the state to offer corroborating evidence to “bolster the confession.”  Id.  Each element of an offense need not be individually corroborated so long as the independent evidence, taken as a whole, makes the defendant’s confession reliable.  Id.  The state should offer “‘independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the confession.’”  Id. (quoting Smoot v. United States, 312 F.2d 881, 885 (D.C. Cir. 1962)). 

Appellant argues that the state failed to present evidence that the crime had been committed and thus failed to meet the statutory requirement of corroboration of a confession under Minn. Stat. § 634.03.  Appellant notes that there was no medical or physical evidence of the crime.  In addition, both the victim and Herrgott disputed the sexual abuse.  But considering the form of the alleged abuse, the lack of physical evidence is not surprising.  The fact-finder determines the credibility and weight to be given the testimony of witnesses.  State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).  Here, the jury seemingly gave little weight to Herrgott’s testimony and disbelieved A.H.’s denial of the abuse. 

We conclude there was sufficient corroboration from which the jury could infer that the statements were trustworthy, and, therefore, that the sexual assaults occurred.  The state offered corroborating evidence, including the victim’s videotaped interview, the victim’s statements to her counselor and foster mother, the testimony from Herrgott corroborating the other untoward behavior with A.H., pornographic videotapes and a Polaroid camera found in Herrgott’s possession, the testimony of the minister to whom appellant had initially disclosed the abuse, and appellant’s undisputed opportunity to commit the offense.  Viewed in a light most favorable to the verdict, the supporting evidence is sufficient to corroborate and bolster the trustworthiness of appellant’s confession.  See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (when sufficiency of evidence is challenged, appellate court must determine whether evidence, viewed in light most favorable to conviction, supports jury verdict).  When the corroborating evidence is combined with appellant’s confession, it supports her conviction of first-degree criminal sexual conduct.

Appellant next argues that the trial court erred in failing to instruct the jury that respondent had the burden to prove the commission of the crime.  We review jury instructions to determine whether, taken as a whole, they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  An erroneous jury instruction does not require a new trial if the error was harmless.  State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997).  An error in instructing the jury is harmless if it can be said beyond a reasonable doubt that the error had no significant impact on the verdict.  Id.

We disagree with appellant’s contention.  The jury was told that the corroborating evidence “must link or connect the defendant to the crime,” and that “it strengthens or supports other evidence.”  This instruction is taken from the instruction on the requirement of corroborating evidence for accomplice testimony.  Combined with the corroboration-requirement instruction, this definition is consistent with the requirement that the independent evidence reinforce the trustworthiness and reliability of the confession.  M.D.S., 345 N.W.2d at 735.  The trial court’s instructions, taken in their entirety, were proper.

Finally, appellant argues that she was denied her right to confront a witness when the trial court admitted the videotaped testimony of an available witness.  The Minnesota Supreme Court recently discussed this issue in In re Welfare of L.E.P., 594 N.W.2d 163 (Minn. 1999).  In L.E.P., the court reversed the suppression of a videotaped interview of a child victim.  The court held that if neither the state nor appellant calls the child victim to testify, 

the videotape may be admitted since it has sufficient indicia of reliability and is not a weaker substitute for live testimony but derives its significance from the circumstances under which it was made.   

 

Id. at 173 (citation omitted).  Here, we find the videotaped interview between A.H. and Mauer has adequate substantiation of reliability to support its admission.  There is no motive for A.H. to lie except to protect her mother.  Furthermore, A.H.’s statements are supported by both appellant’s confessions and Herrgott’s testimony at trial.  In addition, the record reveals that Mauer asked non-leading questions.  Finally, appellant could have called A.H. as a witness but did not.  Therefore, based on L.E.P., the trial court did not err in admitting A.H.’s videotaped statement.

Affirmed.