This opinion will be unpublished and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
State of Minnesota,
Ramsey County District Court
File No. K0992078
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
Appellant challenges his conviction of first- and second-degree criminal sexual conduct, arguing that the trial court erred by allowing the jury to take copies of a transcript of the victim’s videotaped interview into the jury room and by responding to the jury’s request to review the videotape without first notifying counsel. Appellant also argues that the prosecutor committed prejudicial misconduct by eliciting inadmissible testimony, injecting her personal opinion of the victim’s veracity in closing argument, denigrating the defense theory, and shifting the burden of proof in closing argument. We hold that the trial court abused its discretion by permitting the transcript to go to the jury room and by communicating with the jury without consulting counsel. But because, on this record, the errors did not result in prejudicial error and there was no prejudicial prosecutorial misconduct, we affirm.
In 1990, appellant Nithara Xaysana moved into his sister-in-law’s home. While he lived there, he slept in the bedroom of his nieces, then eight-year-old complainant P.S. and her younger sister, sharing the same bed for a period of time.
When P.S. was approximately 12 years old, she told her cousin K.X. that appellant was sexually abusing her. P.S. spoke softly and cried when K.X. asked if she had been raped. K.X. told her parents about the abuse, and they told P.S.’s mother and stepfather. Appellant moved out at P.S.’s mother’s request, when P.S. was about 12 years old. P.S.’s mother later denied that anyone told her about any sexual abuse.
In the fall of 1998, P.S. experienced depression and was referred to the school social worker, Vicky Uhr. Uhr suggested that P.S. join a support group at school for Asian girls. P.S. told Uhr that her mother was very strict, hit her, and took her paychecks. P.S. also told Uhr about the past sexual abuse by appellant. Uhr did not report the abuse because it had happened more than five years earlier and P.S. had not seen appellant and did not feel threatened at that time.
In the spring of 1999, P.S. saw appellant again. When P.S. told Uhr that she had been frightened by seeing him, Uhr responded that she was now legally required to report the matter. Uhr contacted the school’s liaison officer, St. Paul police officer Steve Stoll. Stoll interviewed P.S. and later testified at trial that P.S. was visibly upset and that she stated that she was afraid to go home because appellant had approached her in her home and tried to hug her. P.S. told Stoll she was afraid that appellant would rape her again. Stoll made arrangements for P.S. to stay in a shelter. After a week at the shelter, she returned home.
On April 12, 1999, P.S. was interviewed and physically examined by Kimberly Martinez, pediatric nurse at the Midwest Children’s Resource Center. In the videotaped interview that was later transcribed, a tearful P.S. described the abuse in detail.
Sex-crimes investigator Heidi Hinzman interviewed P.S., K.X., and appellant. When Hinzman asked appellant, through an interpreter, why he moved out of his sister-in-law’s house, he said that it was because “he had sexually done something to [P.S.].” Later, he said he moved out because he had done something bad. He also said that P.S. was angry with him because he found, and then had taken away, notes from her friends.
After the jury was empaneled, appellant objected to the admission of the videotape and transcript of P.S.’s interview with Martinez. Respondent argued that the videotape should be admitted either as statements made for the purpose of medical diagnosis or as a prior consistent statement. The court deferred ruling on the issue until after opening statements and ultimately admitted the videotape and transcript as a prior consistent statement because appellant’s trial counsel commented adversely on P.S.’s credibility in his opening statement.
At trial, the jury heard testimony from K.X. about her conversation with P.S. P.S.’s sister testified that she remembered seeing appellant on top of P.S. once when they were all sleeping in the same bed.
P.S. described the abuse by appellant. She testified that appellant had also hit her when he had lived with them and enforced her mother’s strict rules. P.S. also described her contentious relationship with her mother. Cross-examination revealed minor inconsistencies in her story.
Martinez testified about her interview with P.S. On direct, the prosecutor asked Martinez if she believed appellant, and, before defense counsel could object, Martinez answered affirmatively. In addition, Martinez testified that she had reviewed a transcript of the interview and found it to be substantially true and accurate. Before the jury was given the transcript, the court cautioned it that
[t]here was no court reporter present at the time of this interview. And under court rules the party offering the tape prepares a transcript. And this is done based upon one person’s hearing with a little help from others attempting to make sure they picked up every word. Again, there was no court reporter there to interrupt when a word was misunderstood. So this is the best transcript we have available.
The jury watched the videotaped interview in court, with a copy of the transcript in hand.
Respondent called Carolyn Levitt, M.D., medical director of the Midwest Children’s Resource Center. Dr. Levitt testified that delayed reporting of sexual abuse was common. While Dr. Levitt testified that she believed that P.S.’s demeanor in her interview with Martinez indicated that there had been sexual abuse, she conceded that she could not rule out other causes for P.S.’s depression, sadness, and visible stress.
Appellant’s theory of the case was that P.S. lied about the abuse because she wanted to get out of her mother’s restrictive home. Appellant’s expert, Robert Barron, Ph.D., testified that, although most reports of child abuse are truthful, his review of the videotape, police reports, and social worker’s notes led him to conclude that there were indications in this case that the allegations were false. He based this conclusion on P.S.’s conflict with her mother and appellant, P.S.’s history of running away from home, and the inconsistencies in her allegations.
Appellant testified through an interpreter. He admitted that when he had lived with the family, he slept in the bedroom of P.S. and her sister. He denied any inappropriate touching of either girl. He testified that he had numerous conflicts with P.S. about house rules and had taken “love letters” from her backpack. He believed that he was asked to leave the apartment because his sister-in-law thought he was hitting the girls. He also stated that P.S.’s mother thought he was “forcing” the children. The interpreter explained that in Laotian, the word used for “forcing” may mean either forcing somebody to do something; a person with more power than someone else; beating someone up; killing somebody; or “forcing somebody sexually.” Appellant acknowledged seeing P.S. before her birthday and said he did not go to the party because he could not afford the gift she wanted.
During deliberations, the jury requested a VCR and television in order to review portions of P.S.’s videotaped interview with Martinez. Without consulting counsel, the trial court decided not to provide the videotape, but directed the jury to the transcript. Before the verdict was accepted, the court told counsel about the jury’s request and its response. Appellant expressed surprise that the jury had been given the transcript, which he believed had not been entered into evidence and moved for a mistrial. Appellant’s counsel’s motion was denied. The jury found appellant guilty of criminal sexual conduct in the first and second degree.
For a period of time after trial, appellant was held at the Washington County jail. A fellow inmate told authorities that appellant had confessed to the sexual abuse. The informant’s information was disclosed to the trial court before sentencing.
On March 30, 2000, the court granted respondent’s motion for an upward departure and sentenced appellant to 90 months. The court departed from the sentencing guidelines because of various aggravating factors, including appellant’s lack of remorse, the fact the abuse occurred in P.S.’s bedroom—her “zone of privacy,” and the position of authority appellant held over P.S. The trial court specifically noted that “the testimony of the jailhouse snitch * * * doesn’t even need to be considered by the court as an aggravating factor.” This appeal follows.
D E C I S I O N
Appellant argues that admitting the transcript and permitting it to go to the jury room was erroneous because there was a question as to its accuracy and because the person who prepared the transcript did not testify. This court applies a deferential standard when reviewing a district court’s evidentiary rulings. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980). The supreme court has stated that “[t]ranscripts should not ordinarily be admitted into evidence unless both sides stipulate to their accuracy and agree to their use as evidence.” Id. at 103 (quoting United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974) (citation omitted), cert. denied, 421 U.S. 916, 95 S. Ct. 1577 (1975)). Olkon set forth guidelines for the use of transcripts of audiotape recordings, such as having the preparer of the transcripts lay a foundation for their use.
Here, the transcription was from the videotaped interview of P.S. by Martinez. Before playing the videotape to the jury, Martinez testified that she had reviewed the transcript and found it to be “substantially true and accurate.” As a participant in the interview, her attestation to the accuracy of the transcript lays the proper foundation. In addition, the court informed the jury that there had been no court reporter at the interview and that the transcript had been created by listening to the videotape itself. While appellant’s counsel argued in opposition to admission of the transcript that it contained “inaccuracies,” no record of any errors in transcription was made. The trial court ultimately admitted the transcript into the “court record” as a prior consistent statement in light of appellant’s counsel’s strategy in his opening statement. Given the trial court’s discretion, Martinez’s foundational testimony to its accuracy, and the court’s cautionary instruction, we conclude that providing the jury with the transcript for use during trial was not error.
Appellant also argues that the trial court erred by allowing the transcript to go to the jury room because the court failed to comply with the requirements of Minn. R. Crim. P. 26.03, subd. 19(1), and “placed undue prominence on [P.S.’s] testimony in a case where credibility was the only issue.”
Minn. R. Crim. P. 26.03, subd. 19(1), provides:
The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits, which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.
A trial court has broad discretion in determining which exhibits can be taken to the jury room. State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn. 1991). When making this determination, the court should consider whether the exhibit will “aid the jury in proper consideration of the case,” unduly prejudice either party, or be subjected to improper use by the jury. Id. at 515 (citation omitted).
One of the issues on appeal in Kraushaar was whether it was prejudicial error for the trial court to permit the jury to have unrestricted use during deliberations of a videotaped interview with an alleged victim of sexual abuse. Id. at 514. The majority held that a videotaped interview is not a deposition or so akin to a deposition within the meaning of Minn. R. Crim. P. 26.03, subd. 19(1), so as to be barred by the rule. Kraushaar, 470 N.W.2d at 515. While that case involved videotape and not a transcript of the interview, the court referenced the rationale behind the rule as stated in section 5.1(a), ABA Standards Relating to Trial by Jury (1st ed. 1968). The rationale is the concern that permitting depositions
to be taken to the jury room would result in the jury rereading them and examining them and thus either giving them greater emphasis or subjecting them to closer criticism than the testimony of the witnesses who appeared in court.
Kraushaar, 470 N.W.2d at 515 (quotation omitted). Appellant’s argument in this matter raises exactly that concern.
The facts in this case differ significantly from Kraushaar in that appellant’s trial counsel here did object to the admission of the videotape and the transcript. When the transcript was admitted, the trial court characterized it as becoming part of the “court record.” While the record is not clear, appellant’s trial counsel seemed to assume that that meant the jury would have the transcript for use during the time the videotape was played in court, but would not have the transcript in the jury room. On this record, we hold that it was error for the trial court to have permitted the transcript to go into the jury room.
But even if allowing the transcript to be used during deliberations was error, we conclude that any error was harmless. In Kraushaar, the supreme court held that allowing the jury to view the videotaped testimony of a child sexual-assault victim in the jury room was non-prejudicial error. Id. at 516. Here, the court allowed the jury to re-read the transcript of an interview. The transcript was consistent with a significant amount of other evidence, and it is doubtful that reading the transcript of a videotape they had already viewed caused the jury to convict where it otherwise would not have done so. See id. (holding that these same factors led to non-prejudicial error).
Next, appellant argues that the trial court committed prejudicial error when it communicated with the jury during deliberations about the review of certain evidence without notifying the parties. If, during deliberations, the jury requests a review of certain testimony or other evidence, the court may permit the jury to reexamine the requested evidence once the parties have been notified. Minn. R. Crim. P. 26.03, subd. 19(2)(1). The judge and jury should not communicate during deliberations except “in open court and, where practicable, in the presence of counsel * * * and in criminal cases in the presence of the defendant.” State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955). A defendant is not entitled to a new trial for improper or ex parte communication, however, where “the error was harmless beyond a reasonable doubt.” State v. Kelly, 517 N.W.2d 905, 908 (Minn. 1994) (citing State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1993)).
Here, when the jury requested equipment to allow it to view the videotaped interview, the trial court told them to look at the transcript of the interview instead. None of these interactions occurred on the record. The court later told counsel that:
[c]ase law would indicate that since the tape was played during the course of the trial, that I could have honored that request and allowed them to watch the video tape. And it would have been my judgment at the time, it would have been more prejudicial to put the tape on to once again watch the very teary-eyed alleged victim in this case.
Where a trial court’s communication with a jury is “neutral and nonsubstantive” or where it “presumably would have been the same” had counsel been consulted first, reviewing courts have found no prejudice. State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995); State v. Kindem, 338 N.W.2d 9, 16-17 (Minn. 1983). Thus, although the court should have informed counsel of the jury request, this error did not prejudice appellant.
Appellant argues that the prosecutor committed misconduct when she elicited inadmissible evidence and made improper statements in closing arguments. Determination of whether the prosecutor engaged in prejudicial misconduct is within the trial court’s discretion. State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000). Reversal is warranted only where the alleged misconduct, examined within the context of the entire record, is so prejudicial that an appellant’s right to a fair trial is impaired. Id. When credibility is a central issue, reviewing courts will pay “special attention” to statements that may inflame or prejudice the jury. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).
Appellant first contends that the prosecutor elicited improper testimony when she asked Martinez if she believed P.S. The state concedes that it was inappropriate to ask a witness her opinion about the victim’s veracity. But this improper question occurred only once. Moreover, the court gave the jury a cautionary instruction to disregard the testimony. We will assume that the jury followed the court’s instructions. Therefore, the jury instruction cured any misconduct. State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).
Appellant’s second argument is that the prosecutor engaged in misconduct when she failed to caution a witness against referring to P.S. as the “victim,” despite the pretrial order prohibiting witnesses from referring to P.S. as the “victim.” Our review of the record reveals that there was only one instance during the trial that a witness referred to P.S. as the “victim.” Officer Hinzman referred to P.S. as the “victim” in response to a question about how she located appellant. It is error for a prosecutor to elicit evidence ruled inadmissible. State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994). But it does not appear the prosecutor elicited this testimony. In addition, immediately after Hinzman answered, defense counsel objected and the witness was told to identify P.S. as the “alleged victim.” The prosecutor also apologized. This occurrence does not constitute misconduct.
Next, appellant argues that the prosecutor committed misconduct in her closing argument by expressing her personal belief about the veracity of the witnesses, shifting the burden of proof, denigrating appellant and his theory of the case, and misstating the meaning of proof beyond a reasonable doubt. A prosecutor “must proceed with care in closing argument,” only arguing matters that may be fairly drawn from evidence that is introduced during trial. State v. Bright, 471 N.W.2d 708, 713 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991). Defense counsel has a duty to object to improper statements during closing arguments and seek a curative instruction. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). But even if the defense counsel does not object, a conviction may be reversed on appeal if statements made in closing arguments are egregious and prejudicial. Minn. R. Crim. P. 28.02, subd. 11; State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (finding that even if the attorney failed to object at trial, to preserve the issue, the supreme court could review if error is sufficiently egregious).
The prosecutor’s remarks that appellant refers to state generally that after “consider[ing] all the factors,” the jury should believe P.S. A prosecutor may not express “his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quotation omitted). Here, the prosecutor argued that the evidence supported P.S.’s version of the events and that, therefore, the jury “should” believe P.S. None of the comments appellant identifies included the prosecutor’s opinion. In this case, the state was offering a permissible interpretation of the evidence rather than a personal opinion as to veracity.
Appellant also argues that the prosecutor shifted the burden of proof and improperly suggested the appellant had a burden to explain how P.S.’s allegations of sexual abuse would help P.S. escape her mother’s strict rules. The prosecutor’s closing arguments must not “distract the jury from its proper role of deciding whether the state has met its burden.” State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation omitted). But rather than shifting the burden, the prosecutor simply argued that there was no evidence to support appellant’s theory that P.S. lied about appellant in order to get out of her mother’s house.
Next, appellant argues that the prosecutor denigrated him and unfairly attacked the defense theory. He argues the prosecutor personally attacked appellant by stating he got “to choose his prey.” Improper character attacks may constitute prosecutorial misconduct if the prosecutor’s references to the defendant’s character have the potential for planting in the jurors’ minds a prejudicial belief from otherwise inadmissible evidence. State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) (holding that a prosecutor’s references to the defendant as a “coward” with a “twisted thought process” were improper) (quotation omitted); State v. Ives, 568 N.W.2d 710, 713-14 (Minn. 1997) (“would-be punk”); State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994) (“scorpion” fable); State v. Merrill, 428 N.W.2d 361, 372 (Minn. 1988) ( “an animal”).
We conclude that this comment was improper, but harmless. The single reference to P.S. as appellant’s “prey” came within a 24-page closing argument. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (stating that there is less likelihood of prejudice when the comments are brief and isolated). We remind the prosecutor that she may not seek a conviction at any price. Salitros, 499 N.W.2d at 817. We caution the prosecutor against using this type of inflammatory comment in her closings. The prosecutor should function as “a ‘minister of justice’ whose obligation is ‘to guard the rights of the accused as well as to enforce the rights of the public.’” Id. (citation omitted).
Appellant further argues that the prosecutor impermissibly suggested that the defense theory was a standard argument. A prosecutor may argue that there is no merit to a particular defense in view of the evidence or no merit to a particular argument. State v. Kirvelay, 311 Minn. 201, 202, 248 N.W.2d 310, 311 (1976). But it is improper for a prosecutor to suggest that the arguments of defense counsel are part of a standard argument that the defense makes in “cases of this sort.” Salitros, 499 N.W.2d at 818. Here, by asserting the defense theory was a common one and her “favorite possible defense argument,” the prosecutor’s comment was improper. But this comment, by itself, does not justify a reversal.
Finally, appellant argues that even if each instance of misconduct alone is inadequate to require reversal, cumulatively the misconduct was not harmless beyond a reasonable doubt. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (holding that even if an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of the errors may compel reversal). Prosecutorial misconduct is harmful, and grounds for reversal, if it played a significant or substantial part in influencing the jury to convict. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993). The prosecutor’s argument “must be taken as a whole to determine if it provides a basis for reversal.” State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (citation omitted).
Here, although the prosecutor stretched the limits of permissible behavior in her closing argument, the strength of the state’s case is such that reversal is unwarranted. See State v. Rose, 353 N.W.2d 565, 570 (Minn. App. 1984) (“Because the evidence against the appellant was substantial, the prosecutor’s comments were harmless.”), review denied (Minn. Sept. 12, 1984). In light of the substantial evidence of appellant’s guilt, including the testimony of P.S., her cousin, her sister, the experts, and the police investigators, we hold that this prosecutorial misconduct was harmless beyond a reasonable doubt.
In his pro se supplemental brief, appellant argues that the trial court erred when it relied on the untruthful statement of a jailhouse informant when sentencing him. This court reviews sentencing departures under an abuse-of-discretion standard. Cooper v. State, 565 N.W.2d 27, 34 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Although the trial court generally applies the presumptive sentence, the court has discretion to depart when the offense involves “aggravating or mitigating circumstances.” State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Here, the court found that multiple aggravating factors made the circumstances of appellant’s crime severe, stating explicitly that it need not rely on the information given by the informant. Because the court did not rely on any of the information that appellant argues is untruthful, this argument is without merit.