This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1342

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Anthony Novak,

Appellant.

 

Filed July 3, 2001

Affirmed

Amundson, Judge

 

Scott County District Court
File No. 99-14065

 

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


Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN† 55379
(for respondent)

 

John M Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

U N P U B L I S H E D† O P I N I O N

 

AMUNDSON, Judge

During a trial for first-degree criminal sexual conduct, the district court permitted a police officer to summarize a victim's prior consistent statement although the defense did not challenge the victimís credibility.† After notice to defense counsel, the court also responded to a jury request during deliberations outside appellant's presence.† We affirm.†

FACTS

††††††††††† Scott Anthony Novak was charged with first-degree criminal sexual conduct in violation of Minn. Stat. ß 609.342, subd. 1(b) (1998) for the sexual assault of S.M., the 13-year-old friend of Novak's daughter, R.N.† The complaint alleged that, while S.M. was a guest in Novak's home, Novak sexually assaulted her both orally and digitally.

††††††††††† At trial, S.M. testified to the sexual assault and was then cross-examined by Novak's attorney.† He asked S.M. whether she had gone over her testimony with anyone at the county attorney's office before testifying.† He asked S.M. about her prior statements to the police.† He also challenged as inconsistent her prior statements that Novak touched her "private area with his hand, but didn't insert his finger," that Novak touched her under the shirt, but "didnít do anything else there," and that her friend was in the room when she told Novak to stop.† Novak's attorney also questioned S.M. about the incongruity between two statements to the police about whether Novak had inserted his tongue into her vagina.† He asked whether the police officer interviewing her told her what information he wanted to get and that it was important for her to say that he licked her genital area or bare skin so that Novak would get a greater punishment.† He also questioned whether she was feeling the effects of alcohol during the incident.

††††††††††† Detective Greg Tucci, who took S.M.'s recorded statement, then testified to S.M.'s statements to the police.† Although he initially summarized her statements, most of his testimony consisted of answering specific questions rather than giving a narrative.† The officer's testimony was consistent with S.M.'s testimony at trial.

††††††††††† While the jury was deliberating, a juror sent a note to the judge requesting copies of the police reports or transcripts of the testimony.† The judge, in open court, met with the jury and asked the jurors to clarify the request.† At the time of the hearing, the judge noted on the record that the assistant county attorney was present.† The judge indicated he "reviewed with [defense counsel] what I thought your question was and told him what my response was going to be; and he has indicated that he approves of my response."† The judge then instructed the jury that they had to rely on their own recollection of the testimony and the court would not transcribe testimony given in open court.† He also advised the jury that the police reports were not available because they were not entered into evidence.

The jury convicted Novak and this appeal followed.

D E C I S I O N

††††††††††† Novak contends that the district court erroneously (1) permitted the investigating officer to summarize the victim's statements to police for the jury as prior consistent statements and (2) instructed the jury, outside Novak's presence, that they could not have access to trial transcripts.† He also alleges, pro se, that he was not given an opportunity to speak on his own behalf and his attorney did not provide an adequate defense.

I.

††††††††††† Over Novak's objection, the district court allowed Detective Tucci to testify to the victim's statements as prior consistent statements.† Novak alleges that S.M.'s statements to the police did not qualify as prior consistent statements because he had not challenged S.M.'s credibility.

††††††††††† Evidentiary rulings rest within the district court's discretion and will not be reversed absent a clear abuse of discretion.† State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).†† The Minnesota Rules of Evidence provide that a prior, consistent out-of-court statement is not hearsay and is admissible as substantive evidence if

[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness.

Minn. R. Evid. 801(d)(1)(B).† This rule was amended in 1990 to "broaden the admissibility of prior consistent out-of-court statements and ensure that such statements are both consistent and helpful to the jury."† State v. Nunn, 561 N.W.2d 902, 908 (Minn. 1997).† The pre-1990 rule required the prior statement be "offered to rebut an express or implied charge against [the declarant] of recent fabrication or improper influence or motive."† Id. at 908-09 (quotation omitted).†† This factor is no longer a requirement for admission of a prior consistent statement.† Id. at 909.†

††††††††††† Here, the statements made to the police were admissible as prior, consistent out-of-court statements.† First, S.M. testified at trial and, on cross-examination, defense counsel asked her if she had gone over her testimony with anyone at the county attorney's office before testifying; questioned her ability, in a dark room after she had consumed alcohol, to determine whether Novak touched her with his finger or penetrated her with his tongue; requested details of her recollection of the events surrounding the assault; suggested that she had originally stated that Novak had put his hands under her shirt and done nothing more; probed the consistency of her first and second statements to the police; and asked whether the police suggested to her what to say at trial to maximize Novak's punishment.† Second, the prior statements were consistent with S.M.'s statements at trial.† Third, the prior statements were helpful in assisting the jury to determine S.M.'s credibility, which was critical because S.M. was the only witness to the assault and there was no physical evidence.† Under these circumstances, the district court did not abuse its discretion by admitting Tucci's testimony regarding S.M.'s statements.†

II.

 

Novak alleges that because he has a right to be present at all critical stages of his trial, the district court erred by addressing the jury outside of his presence.† He also alleges that the district court incorrectly informed the jury that they could not have testimony re-read to them.†

††††††††††† Any communication between the judge and jury after the jury has begun deliberations should be conducted in the presence of defendant and counsel.† State v. Mims, 306 Minn. 159, 167-68, 235 N.W.2d 381, 387 (1975).

The trial judge * * * should not communicate with a juror or the jury on any aspect of the case * * * except after notice to all parties and reasonable opportunity for them to be present.

State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994) (quotation omitted). †

††††††††††† Although Novak and his counsel were not present for the communication between the judge and the jury, the judge, prior to the communication, advised defense counsel of the issue that had arisen and his proposed instruction to the jury.† Novak's attorney approved of the contemplated response.† The judge gave notice to defense counsel and a reasonable opportunity for defense counsel to be present.† Accordingly, there was no violation of the standard set forth in Kelley.†

††††††††††† Novak also alleges it was error for the judge not to re-read the portions of the transcript requested by the jury.† However, granting a jury's request for a re-reading of trial testimony is within the discretion of the court. State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980).† Here, the jury did not even ask for a re-reading.† They asked for copies of reports and transcripts of testimony.† The trial court did not abuse its discretion in failing to grant a re-reading when the jury did not specifically request one.

III.

 

††††††††††† Novak also raises additional issues in his pro se brief: that he was not given an opportunity to speak on his own behalf and that his attorney did not provide an adequate defense.† First, Novak voluntarily waived his right to testify at trial.† Second, we have reviewed the record and find that his attorney provided a vigorous defense.† Defense counsel thoroughly cross-examined each witness and, through the effective use of motions, was successful in keeping out damaging testimony.† We do not find that Novak affirmatively proved that his counselís representation "fell below an objective standard of reasonableness" and that there was a "reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different."† Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted).† Indeed, there do not appear to be any errors at all, much less those that would have changed the verdict.

††††††††††† Affirmed.