This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Jess Raymond Camm,
Reversed and remanded
Hennepin County District Court
File No. 99076875
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for State of Minnesota)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Camm)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Poritsky, Judge.*
This is a consolidated case in which the state contends that the sentence is unauthorized by law because the court granted appellant use immunity for statements he might make in court-ordered treatment, and appellant contends that several erroneous evidentiary rulings entitle him to a new trial. Because the erroneous exclusion of evidence of bias is not harmless beyond a reasonable doubt, appellant is entitled to a new trial and we reverse and remand.
The child’s mother and father were in the process of getting a divorce when her father claimed to have discovered the alleged abuse. The father was living with the child in Texas at the time but moved back to Minnesota to assert charges against appellant and dissolve the marriage. In June 1999, he reported the abuse and a police officer interviewed the child in July 1999. The police referred the child to CornerHouse for an official interview to determine whether she had been abused. The state charged appellant in August 1999 with one count of criminal-sexual conduct in the second degree.
At trial the child testified to the abuse, her father testified about how the proceedings came about, and the investigating officer and the CornerHouse interviewer testified about their interviews with the child. The jury then viewed the videotaped CornerHouse interview. Appellant’s defense was that he was never alone with the child so the abuse could not have occurred, and he contended that the father of the child fabricated the story and put words into her mouth as a way to gain custody in the divorce proceedings. Many witnesses who lived with appellant during the time the abuse allegedly occurred testified that he was never alone with the child, and appellant testified in his own defense. After viewing the videotape one more time, the jury returned a verdict of guilty.
The court sentenced appellant to 27 months stayed, the presumptive sentence under the guidelines. Because sex-offender treatment was a condition of the stay and treatment would require appellant to admit to the facts underlying the conviction, the court granted him immunity so the state could not use his admissions in treatment against him.
D E C I S I O N
Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). But if excluding the evidence violated the defendant’s right to present a complete defense, the appellate court will reverse the decision unless it finds the error to be harmless beyond a reasonable doubt. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Under this standard, reversal is required where there is “a reasonable possibility” that the error “might have contributed to the conviction.” State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (citation omitted).
Factors used to determine whether such an error is harmless beyond a reasonable doubt include: (1) “the importance of the witness’[s] testimony”; (2) “whether the testimony was cumulative”; (3) the presence or absence of collaborating or contradictory evidence on material points; (4) the extent of cross-examination otherwise allowed; and (5) “the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986) (citations omitted).
1. Impeachment Evidence of a Witness’s Interest in the Trial
At trial, appellant sought to offer evidence of a conversation between the child’s mother and father in which the child’s father offered to drop the criminal-sexual-conduct charges in exchange for custody. Appellant sought to introduce evidence of these statements through the testimony of Stanley Camm, who overhead the conversation. Appellant contends that the trial court erred in ruling that this evidence was inadmissible hearsay. See Minn. R. Evid. 801(c) (defining hearsay to exclude statements not offered “to prove the truth of the matter asserted.”).
Evidence of the conversation is not hearsay; it was not offered to prove the truth of the matter asserted for it contained no factual assertion about the father having coached the child. The conversation contained an offer of future benefit. The inference to be drawn from the offer was that the father had coached the child, but the conversation did not assert this as fact.
Respondent argues that this evidence was inadmissible without first affording Chris Ham, the father, an opportunity to explain or deny the conversation. This argument is premised on requirements in the rules of evidence pertaining to the “conduct of a witness” and on a witness’s “prior inconsistent statement.” Minn. R. Evid. 608(b) (conduct evidence); 613(b) (prior inconsistent statements). But the telephone-conversation evidence was not inconsistent with any statement of Chris Ham that was offered into evidence. And Rule 608(b) governs collateral evidence of misconduct and is not applicable to evidence tending to show bias of a witness.
“[E]vidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible” and may be proved by extrinsic evidence. Minn. R. Evid. 616 & cmt. Consequently, the court often instructs the jury that in determining the weight and believability of a witness, the jury should consider the witness’s “[i]nterest or lack of interest in the outcome of the case.” 10 Minnesota Practice, CRIMJIG 3.12 (1999). Cross-examination of the witness before introducing this type of evidence of bias, prejudice, or interest is not required. Goss v. Goss, 102 Minn. 346, 350, 113 N.W. 690, 692 (1907).
Respondent also asserts that exclusion of the telephone-conversation evidence, if erroneous, is harmless. We find that the error is not harmless beyond a reasonable doubt. We cannot infer that the jury found Stanley Camm not credible; the jury could have convicted appellant and still believed Stanley Camm’s testimony that he never saw appellant alone with the child because this witness was living in Florida for two of the months in which the abuse was alleged to have occurred. More importantly, there is a reasonable possibility that the error in excluding the testimony might have contributed to the conviction.
Where error may have prejudiced a close factual case, this court will order a new trial, even if the evidence is otherwise sufficient to support the verdict.
State v. Blasus, 445 N.W.2d 535, 541 (Minn. 1989) (citation omitted). The statement shows the father’s interest in the outcome of the case and it could generate a reasonable doubt about appellant’s guilt. Cf. State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn. 1977) (stating evidence tending to prove that another person committed the crime is admissible and may be offered to generate reasonable doubt).
Exclusion of the evidence hampered appellant’s ability to present a complete defense. Appellant argued that the abuse did not occur—both because he was never alone with the child and because the father made up the story to gain custody of the child in the divorce proceedings. Appellant presented testimony from people who lived with him who stated that they never saw appellant alone with the child when she visited. He also established through direct and cross-examination of various witnesses that the abuse charges did not come up until the custody battle ensued. But the jury could have attributed the delay in the child’s relaying the allegation to the child’s not knowing that the touching was wrong or amounted to criminal behavior, and the jury could have concluded that appellant’s witnesses were not present when the abuse occurred. No evidence showed that the father put words in the child’s mouth. This theory was presented to the jury as just that—a theory presented during opening and closing comments of counsel and through inference during direct and cross-examination.
2. Other Issues
a. Vouching Testimony
Appellant contends that respondent improperly elicited vouching testimony from the CornerHouse interviewer. It is improper to elicit testimony from a witness vouching for the credibility of another witness. Van Buren v. State, 556 N.W.2d 548, 552 (Minn. 1996). It is particularly improper to admit testimony about the truth or falsity of an allegation of crime from an expert who may lend an unwarranted “stamp of scientific legitimacy” with his or her opinion. State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (quotation omitted). But the Minnesota Supreme Court has allowed expert opinion testimony that a victim has been sexually abused. State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).
After the jury viewed the videotape, respondent asked the interviewer more questions. Several times the prosecutor attempted to ask the interviewer if a child of the same age as the child in this case would “be able to hang on to a story” if the incident had not occurred and someone else made up the story for her to tell. Appellant objected several times and the trial court sustained the objections. Just prior to this series of questions, the prosecutor asked the interviewer if, based upon her training and experience, there was anything about this interview that caused her to think someone had put the child up to the allegations. No objection was made at this point and the interviewer answered “no” because of the child’s
spontaneity and because of her ability to give experiential types of descriptions and to demonstrate physically what she was telling me about * * * the naked puppy game.
Respondent contends that the testimony is not vouching testimony because the interviewer was never asked nor did she directly state that she thought the child was “credible” or telling the truth. Although the prosecutor did not use the words “credibility” or “truthfulness” in his questions, that is in essence what the prosecutor asked and what the interviewer answered. As noted above, the interviewer responded that she did not think this particular child made up the allegations or that someone else put words into her mouth because the child answered questions spontaneously and acted out what happened. This testimony is less like the opinion evidence about general “traits and characteristics typically found in sexually abused children” that the Myers court found to be permissible because the interviewer here testified to the particular traits and characteristics of a particular child. See Myers, 359 N.W.2d at 609.
Respondent contends that even if the interviewer vouched for the child’s credibility, the testimony is admissible as a response to an attack on the integrity of the witness. See Minn. R. Evid. 608(a). Under rule 608(a) the credibility of a witness may be supported by opinion evidence “only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Id. 608(a)(2). In this case, appellant did not attempt to prove by opinion or reputation evidence that the child had a character trait of untruthfulness. Moreover, the child’s mother did not testify that she did not believe the child, but testified that the child never told her about any abuse. See Myers, 359 N.W.2d at 611-12 (finding that defendant waived his ability to object to evidence supporting the child’s credibility when he introduced evidence that the child’s mother did not even believe her daughter for several months after her daughter told her about the abuse). Thus, the evidence is not admissible under rule 608(a).
Appellant did not object to this line of questioning at trial. It is questionable whether improper admission of vouching testimony rose to the level of plain error, but we decline to review that question further in light of the fact that we have determined another basis for new-trial relief in the case.
b. Curative Instruction
Appellant contends that the trial court erred by refusing to provide a curative instruction after the prosecutor elicited testimony that appellant had been declared mentally incompetent when he was a teenager living in Florida. Because we find other reversible error, we have no occasion to decide whether appellant is entitled to a new trial based on denial of this curative instruction. Neither party has provided this court with authority to determine the relevance of 15-year-old mental-illness evidence, and thus we decline to decide this question in advance of a new trial.
c. Admission of Child’s Videotaped Interview
Appellant contends that the videotaped interview of the child should not have been introduced. Under Minn. R. Evid. 801(d)(1)(B), out-of-court statements are not hearsay if (a) the declarant testifies and is subject to cross examination; and (b) the statements are consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility. A prior statement is not admissible under the rule if it “contains assertions about events that have not been described by the witness in trial testimony.” Minn. R. Evid. 801(d)(1)(B) cmt. But “[t]he trial testimony and the prior statement need not be verbatim.” State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).
In this case, the videotape did not explore any topics that were not covered by the in-court examination of the child, who was available for cross-examination. Also, defense counsel attacked her credibility during his opening statement by stating that the abuse could not have occurred because appellant was never alone with her and that the allegations did not arise until a custody battle ensued. Moreover, we find that the videotaped interview could have been offered and admitted under the catchall exception to the hearsay rule because the statements have sufficient indicia of reliability. See Minn. R. Evid. 803(24); State v. Hollander, 590 N.W.2d 341, 346 (Minn. App. 1999). The statements were spontaneous and the child corrected the interviewer when the interviewer misunderstood what she had said.
d. Impeachment by Prior Conviction
Appellant contends that the trial court erred by allowing him to be impeached by a prior conviction from Florida that may not have been a felony. The trial court’s ruling on the impeachment of a witness by prior conviction will not be reversed absent a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are less than ten years old, punishable by imprisonment “in excess of one year,” and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)-(b). The decision to allow impeachment by prior-conviction evidence may have been erroneous because the record does not establish that the prior conviction was a felony; the record does not contain a certified copy of the conviction. Also, appellant’s testimony indicates that the conduct for which he was convicted more closely resembles a gross misdemeanor than a felony. If appellant is retried, the court should examine the prior conviction more closely. See State v. Pulkrabek, 268 N.W.2d 561, 564 (Minn. 1978) (stating prosecutor must “produce evidence, such as a certified copy of the judgment of conviction”).
Appellant’s pro se brief contains a number of statements that this court could construe as a challenge to the sufficiency of the evidence to convict him. We decline to further address this issue because we find that appellant failed to substantiate his claims and because we have found appellant is entitled to a new trial.
Reversed and remanded.