This opinion will be unpublished and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

C1-00-996

 

In the Matter of the Welfare of:

 

B.M.M.

 

Filed January 23, 2001

Affirmed

Harten, Judge

 

Ramsey County District Court

File No. J8-99-554279

 

Philip G. Villaume, Villaume & Associates, 5200 Willson Road, Suite 150, Edina, MN 55424 (for appellant)

 

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

 

Susan E. Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Beth Gessner Sullivan, Assistants County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant B.M.M. challenges his adjudication of delinquency for committing two counts of second-degree criminal sexual conduct.  Appellant claims that (1) the evidence was insufficient to support the adjudication; (2) the juvenile court erred in admitting Spreigl evidence; (3) the prosecutor failed to divulge exculpatory evidence; (4) the juvenile court erred in declining to reveal certain psychological records of the victim; and (5) the juvenile court erred in admitting into evidence a videotaped interview with the victim.  We affirm.

FACTS

 

            The charges in this delinquency adjudication stem from allegations of sexual abuse articulated by seven-year-old A.R.  On July 22, 1999, A.R.’s father picked her up from her swimming class.  A.R. told him that her instructor had been “rude.”  She stated that her instructor had touched her in the crotch area.  During a subsequent conversation with her mother, A.R. repeated that her instructor had been rude.  Her mother, having asked A.R. to show her where the instructor touched her, stated that A.R. “took my finger” and “put it in between her buttocks cheeks.”  A.R. told her mother to “[p]retend you are me,” took her mother’s hand and held it over A.R.’s crotch, and said, “You are feeling my swimsuit penis.”  When asked if this incident could have been accidental, A.R. responded, “No way.”  A.R. also stated that the instructor had admonished A.R. “not to tell.” 

A.R.’s mother reported the incident to the principal of A.R.’s school and then to the police.  On July 28, 1999, a child abuse case manager examined and interviewed A.R. at a hospital.  The interview was videotaped.  A.R. identified 17-year-old appellant, B.M.M., as the instructor who had sexually touched her.

Appellant was charged in juvenile court with two counts of criminal sexual conduct in the second degree.  Appellant denied the charges.  Prior to trial, appellant sought disclosure of impeaching information and of potentially exculpatory evidence.  He also sought disclosure of A.R.’s psychiatric records.  The juvenile court reviewed these records in camera and, having determined that portions might be relevant, permitted appellant’s counsel access to the relevant portions of a counselor’s notes.

At trial, A.R. identified B.M.M. as the swimming instructor who had wrongfully touched A.R.  A.R. testified that, during her swimming lesson, B.M.M. had “touched the outside of [her] vulva” underneath her clothing and then “grabbed my hand and put it into a fist and made it go up and down on his penis” over the outside of his clothing.

            The juvenile court admitted into evidence the out-of-court statements that A.R. had made to her father, to her mother, and to the child abuse case manager.  The juvenile court also admitted A.R.’s videotaped interview with the case manager, subject to the caveat that the court might disregard and strike from the record portions of the tape if it concluded that the interview was leading or overly suggestive.  

            Appellant testified that the alleged contact between himself and A.R. did not occur.  He also testified that, in the course of giving swimming lessons, it was possible that he and other instructors might touch the buttocks (among other areas) of a student by accident.

The juvenile court admitted the testimony of two Spreigl witnesses.  One of the witnesses, a lifeguard who has worked at the pool with appellant, testified that in April 1999, she, appellant, and other lifeguards were swimming in the pool after work hours.  She testified that on that occasion, appellant had “grabbed” her buttocks.  She further testified that while she was giving appellant a ride home, he began tickling her on the knee and upper thigh.  She stated that both incidents made her uncomfortable such that she requested not to work with appellant.  The second witness, also a lifeguard at the pool where appellant worked, testified that in the fall of 1998, appellant had made gestures toward her simulating oral sex and that appellant “would grab my butt.”  The second witness also requested that she not be scheduled to work with appellant because these acts made her uncomfortable. 

            The juvenile court determined beyond a reasonable doubt that appellant had intentionally touched the anal opening of A.R. under her clothing and had placed A.R.’s hand on his penis over his clothing.  The court adjudicated appellant guilty of two counts of criminal sexual conduct in the second degree.

A.R.’s family submitted a victim impact statement prior to disposition.  The statement related that shortly after the incident in question, A.R. attempted to throw herself from a moving car.  Appellant argued that the prosecutor should have revealed this incident.  The prosecutor stated that she was not aware of a suicide attempt by A.R., but vaguely recalled A.R.’s mother relating an incident during which A.R. was “getting out of a car” and that A.R.’s mother had told the prosecutor that A.R. might be "too fragile to proceed with trial.”  Appellant moved for a new trial based on failure to disclose exculpatory information in accordance with the Minnesota Rules of Juvenile Procedure.  The juvenile court denied B.M.M.’s motion, stating that (1) the material raised in the victim impact statement was “not exculpatory” and “not relevant to the guilt or innocence” of appellant and (2) the court found nothing in the psychological records of A.R. indicating mental illness.  This appeal followed.

D E C I S I O N

1.                  Sufficiency of Evidence

A reviewing court will not disturb a verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the accused was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  This standard applies regardless of whether a court or jury heard the evidence.  State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984).

Here, the juvenile court heard A.R.’s live testimony to the effect that appellant had touched her vaginal area under her clothing and had forced her to touch his penis over his clothing.  The juvenile court also heard testimony concerning A.R.’s out-of-court allegations that appellant had touched A.R.’s rectum under her clothing, her vaginal area under her clothing, and had forced her to touch his penis over his clothing.[1]  Although appellant denied that the incident occurred, credibility is for the factfinder.  Conroy v. Kleinman Realty Co., 288 Minn. 61, 66, 179 N.W.2d 162, 166-67 (1970).  A.R.’s testimony is sufficient to support the juvenile court’s determination, beyond a reasonable doubt, that appellant had touched A.R.’s anal opening under her clothing and had forced her to touch his penis over his clothing.  Both of these acts constitute criminal sexual conduct in the second degree.  Minn. Stat. §§ 609.341, subds. 5, 11(a); 609.343, subd. 1(a) (1998).     

2.                  Spreigl Evidence

In Minnesota, evidence of prior crimes or bad acts is typically termed Spreigl evidence.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  A reviewing court will not reverse a trial court’s admission of evidence of other crimes or bad acts absent a clear abuse of discretion.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). Spreigl evidence is inadmissible unless (1) the evidence is clear and convincing that the accused participated in the prior act; (2) the evidence of the prior act is relevant and material to the state’s case; and (3) the probative value of the prior act evidence is not outweighed by its potential for unfair prejudice.  State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). 

Here, the juvenile court did not abuse its discretion.  First, the uncorroborated testimony of the Spreigl witness standing alone is sufficient to meet the clear-and-convincing threshold.  See Kennedy, 585 N.W.2d at 389 (uncorroborated testimony of Spreigl witness against the word of the accused is sufficient to meet clear-and-convincing standard). 

Second, despite appellant’s argument to the contrary, the Spreigl testimony was relevant to the state’s case.

[G]enerally, the greater similarity of the other crime [or bad act] to the crime charged in time, place or modus operandi, the greater the chance that the other crime [or bad act] is relevant.

 

State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984) (quoting State v. Mattson, 287 N.W.2d 408, 411 (Minn. 1979).  Appellant essentially argues that similarity is lacking here because the subject matter of the Spreigl testimony involves arguably less serious unwelcome sexual touching of female members of appellant’s peer group rather than the arguably more serious unwelcome sexual touching of a young child.  Age differences between victims of sexual assault, however, are not necessarily crucial in determining the relevancy question.  See State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987) (upholding admission of Spreigl evidence of a sexual assault of a seven-year-old girl even though defendant was accused of sexual assault of college-aged woman).  Nor is the seriousness of the violation dispositive.  See State v. Wermerskirchen, 497 N.W.2d 235, 237-38, 242 (Minn. 1993) (in case of sexual assault, permitting Spreigl testimony that defendant nonconsensually looked at, touched, and rubbed other females).  The juvenile court did not abuse its discretion in determining relevancy where the prior bad acts and the crime at issue both involved the opportunistic sexual touching of females, near in time and at the same place.

Finally, despite appellant’s claim that the Spreigl evidence may have had a prejudicial effect on the judge acting as trier of fact, there is no indication in the record that the judge viewed appellant’s prior bad acts as propensity to commit similar bad acts.  Moreover, the text of Minn. R. Evid. 404(b) precludes admission of evidence “to prove the character of a person in order to show action in conformity therewith.”  Given the judge’s duty to conduct a fair hearing and to be faithful to the law, Minn. Code Jud. Conduct, Canon 3(A)(1)-(2), we cannot say that admission of the Spreigl evidence had the claimed prejudicial effect.  We therefore affirm the decision of the juvenile court to admit the Spreigl evidence.

3.                  Disclosure of Exculpatory Evidence

Appellant claims that he should have been informed of an alleged suicide attempt by A.R.  Appellant points out that in juvenile proceedings, the prosecutor must disclose to the child’s counsel “any material or information within the possession and control of the prosecuting attorney that tends to disprove the allegation(s).”  Minn. R. Juv. P. 10.04, subd. 1(F). Information is material if there is a reasonable probability—probability sufficient to undermine confidence in the outcome—that, had it been disclosed to the defense, the trial result would have been different.  State v. Wildenberg, 573 N.W.2d 692, 697 (Minn. 1998).  Here, the juvenile court determined that the alleged suicide attempt was neither exculpatory nor relevant to determining appellant’s guilt or innocence.  We agree.  We, like the juvenile court, have studied A.R.’s confidential psychological records and find no suggestion that A.R. suffers from mental illness that would impair her abilities to perceive or to report sexual abuse.  Under these circumstances, an unproven suicide attempt does not significantly bear on A.R.’s credibility.  As the juvenile court stated, the evidence would not be relevant in any event because its probative value is outweighed by its tendency to cause confusion by drawing attention away from the event at issue and putting A.R.’s mental competency on trial.  See State v. Morgan, 477 N.W.2d 527, 530 (Minn. App. 1997), review denied (Minn. Jan. 17, 1992).  Accordingly, appellant is not entitled to a new trial because he was not apprised of A.R.’s alleged suicide attempt.

4.                  Victim’s Psychological Records

Despite the juvenile court’s in camera review and partial disclosure of A.R.’s psychological records, appellant appears to claim that he should have had greater or complete access to these materials.  It is settled law, however, that a trial court may review confidential psychological records of an alleged sexual abuse victim in camera to determine what material may be relevant to the defense.  State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).

[T]rial courts, who by training and experience are qualified for the task of determining matters of relevancy, are capable of determining what if any of the information in the records might help in the defense.

 

Id.  In making such evidentiary decisions, a reviewing court will generally defer to the discretion of the trial court and will not lightly overturn the trial court’s decision.  State v. Enger, 539 N.W.2d 259, 262 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995).  We have carefully reviewed A.R.’s psychological records and conclude that the juvenile court acted within its discretion in declining to disclose portions of A.R.’s psychological records. 

5.                  Admission of Videotaped Interview

Finally, appellant contends that the juvenile court erred in admitting the hearsay statements contained in the videotaped interview between A.R. and the hospital child abuse case manager.  He claims that the interview did not contain sufficient indicia of reliability because it was leading and suggestive. 

Although the juvenile court admitted the videotape into evidence, it is not clear what authority the court was using.  Such videotaped interviews would typically be admissible under Minn. Stat. § 595.02, subd. 3 (1998).  See, e.g., In re Welfare of L.E.P., 594 N.W.2d 163, 171-72 (Minn. 1999) (videotaped statements by seven-year-old sexual abuse victim to child abuse examiner were admissible under the statute).  The record does not reflect, however, that the juvenile court conducted a formal hearing or that

the time, content, and circumstances of the statement and the reliability of the person to whom the statement [was] made provided sufficient indicia of reliability.

 

Minn. Stat. § 595.02, subd. 3(a).  But the record indicates that the juvenile court agreed to view the videotape and reserve judgment on its admissibility depending on whether the interview was leading or suggestive.  Appellant had the opportunity to object to admissibility of the videotape after the viewing.  Under the circumstances, we conclude that this was an adequate substitute for a formal statutory hearing.

Appellant’s proffered reasons as to why the videotape should have been excluded are not persuasive.  The interviewer’s techniques were not dissimilar to those examined  in L.E.P., where the supreme court held that a videotaped interview of a seven-year-old sexual abuse victim was admissible.  L.E.P., 594 N.W.2d at 172.  Although the interviewer used the term “weirdo” to refer to the person who touched A.R., the record indicates that A.R. initiated use of the term because she did not know appellant’s name.  As for B.M.M.’s concerns that A.R. used diction not expected of a person her age, the record indicates that her father, a physician, taught A.R. to use medical terminology for human genitalia rather than “silly” words.  Moreover, A.R.’s version of the events remained, on the whole, consistent from the time of the incident to the time of trial.  We therefore hold that videotaped interview contained sufficient indicia of reliability and the juvenile court did not err in admitting it into evidence.

Affirmed.



[1] The mother testified that, shortly after the incident, A.R. demonstrated how appellant had touched her rectum.  Also, contrary to the assertions of counsel at oral argument, the record reveals that A.R. stated during the videotaped interview that appellant had touched her “butt hole” underneath her bathing suit.