This opinion will be unpublished and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

C1-00-1596

 

State of Minnesota,

Respondent,

 

vs.

 

Lorn Laverne Runge,

Appellant.

 

Filed August 7, 2001

Affirmed

Randall, Judge

 

Stearns County District Court

File No. K4-00-74

 

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

 

Roger S. VanHeel, Stearns County Attorney, 725 Courthouse Square, Box 1168, St. Cloud, MN  56302 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Appellant challenges his conviction for first-degree criminal sexual conduct.  He argues that the district court abused its discretion in ruling that his 1991 conviction for third-degree criminal sexual conduct was admissible as Spreigl evidence and for impeachment purposes if appellant testified.  He further contends that the cumulative effect of both rulings resulted in prejudicial error.  Appellant finally argues that the court erred in admitting the victim's prior out-of-court statements that did not bolster her credibility and contained additional assertions not made in trial testimony.  We affirm.

FACTS

            R.M., daughter of appellant Lorne Laverne Runge, told relatives at a New Year's Eve party in December 1999 that appellant had been sexually abusing her.  This allegation led to the filing of a complaint charging appellant with first-degree criminal sexual conduct.  At trial, R.M. testified that appellant sexually abused her periodically since 1995, and the abuse grew more frequent when she was 13 and lived with appellant for three months in late 1999.  She alleged that appellant had oral, anal and vaginal sex with her, which was "ever[y] other night, if possible."  She also testified that appellant used a vibrator on her, made her wear lingerie and stockings while having sex with him, made her watch pornographic movies, and smoked "weed" with her before having sex. 

            In his opening statement, appellant's counsel stressed that "[t]he credibility of [R.M.] in this case is crucial."  He then described the number of people who would testify and how their stories differed from R.M.'s.  Indeed, there was evidence presented at trial that damaged R.M.'s credibility.   For instance, R.M. told police that the abuse started when she was nine, yet told a nurse that it was at age seven.  And when a police officer interviewed persons to whom R.M. revealed the abuse, no one recalled R.M. alleging the abuse occurred at any time prior to late 1999.  Additionally, at trial, R.M. did not remember discussing the abuse with the nurse.  This nurse then testified that an examination of R.M. revealed no physical evidence of penetration or abuse.  Finally, a psychological exam conducted in early 1999 for reasons unrelated to this case, prior to the allegations, noted that children with inconsistent discipline, such as R.M., had a tendency to seek attention through fabricating stories.

            There was also evidence presented at trial that corroborated R.M.'s allegations.  For instance, police found the items that R.M. alleged appellant used on her such as the lingerie, stockings and "weed" in the areas she said they would be.  But, appellant's wife, R.M.'s stepmother, later testified that those items belonged to her, the wife, and one day after finding the items misplaced, she suspected R.M. and admonished her.  R.M.'s allegations were also supported by two prosecution witnesses who testified about R.M.'s revelations to them.  Both witnesses were allowed to testify over appellant's objections.  First, appellant's mother testified that R.M. told her that appellant had sex with R.M., used "homemade things" on her and bought her a negligee to wear.  But appellant's mother testified that R.M. told her the abuse started when R.M. moved in with appellant in late 1999 (as opposed to 1995), and R.M. told her that appellant never used condoms.  R.M. testified that appellant did use condoms sometimes. 

            Next, R.M.'s aunt testified that R.M. told her appellant touched her breasts and vagina with his fingers, put his tongue and face on her breasts and had sex with her.  She also testified that R.M. told her that appellant watched her take baths and used a plastic squirt bottle to "douche" her.  Again, there were inconsistencies because R.M.'s aunt testified that R.M. told her she had sex with appellant only a few times, but R.M. testified that it was "ever[y] other night, if possible."

            This aunt is also appellant's half-sister and the victim of appellant's 1991 conviction for third-degree criminal sexual conduct.  Over appellant's objection, the district court allowed the state to introduce Spreigl evidence of this conviction including the woman's testimony about the facts surrounding the conviction.  She testified she was 11 at the time of the incident, she and appellant smoked marijuana, appellant touched her breasts and vagina with his hands, and he penetrated her vagina with his penis.  Previously, in a pre-trial hearing, the district court ruled that appellant could be impeached with this evidence if appellant chose to testify.  Appellant did not testify.  The jury found appellant guilty of the charged offense.  This appeal followed.

D E C I S I O N

I.          ADMISSIBILITY OF THE 1991 CONVICTION

            In March 1991, appellant, age 20, and his half-sister (R.M.'s aunt), age 11, were at their grandparents' house where appellant had a room.  Appellant and his half-sister went to his room alone.  His half-sister later reported that appellant made her smoke marijuana, took off her clothes and forcefully penetrated her vagina with his penis.  On May 6, 1991, appellant pleaded guilty to using force to sexually assault his half-sister and was convicted of third-degree criminal sexual conduct. 

A.  Spreigl Evidence

A reviewing court will not reverse the district court's admission of Spreigl "evidence of other crimes or bad acts unless an abuse of discretion is clearly shown."  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988) (citation omitted).  While Spreigl evidence may not be used to show the appellant "acted in conformity with bad character, it may be admissible to show motive, intent, identity, or common plan" if its probative value substantially outweighs potential unfair prejudice. State v. Profit, 591 N.W.2d 451, 461 (Minn. 1999).  Appellant contends that the district court abused its discretion in admitting Spreigl evidence of his 1991 conviction because it had little probative value and was prejudicial.  We understand appellant's argument that the danger of unfairness is high.  However, despite the dangers of admitting Spreigl evidence, the Minnesota Supreme Court has held such evidence admissible when it is deemed "relevant and material to the state's case," its probative value being determined by considering the need for the evidence as well as the closeness in time, place and modus operandi of the other crime to the charged crime.  State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999). 

The district court found that the Spreigl offense was supported by clear and convincing evidence (appellant's guilty plea), was relevant and material to the case and contained many common factors such as appellant assaulting an underage female relative in a home setting with the use of marijuana involved.  The court ultimately ruled the evidence was admissible because R.M.'s credibility, which was important to the case, had been impeached, and thus concluded that the probative value outweighed the possible prejudicial effect.

            Evidence of a prior sexual assault, by definition, is prejudicial to a defendant in the eyes of a jury.  The issue is not "prejudice," but rather "impermissible prejudice."  With Spreigl evidence, the danger is always present that the trier of fact could move from fact-finding to a decision based on an emotional bias.  But that danger is present with all relevant evidence that tends to support guilt.  Here, the district court could have ruled the evidence inadmissible but it was not error not to do so.  Probative value of Spreigl evidence is heightened when there is scant physical evidence and the case may turn on testimony and credibility.  See State v. Sebasky, 547 N.W.2d 93, 98 (Minn. App. 1996) (admitting evidence of prior sexual offenses in subsequent sex offense trial in part because subsequent case rested solely on testimony of two teenage complainants), review denied (Minn. Jun. 19, 1996).  The district court gave the proper limiting instructions to the jury as requested by appellant.  Jurors are presumed to follow the district court's instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); see also State v. Ostlund, 416 N.W.2d 755, 764-65 (Minn. App. 1987) (finding that the cautionary instructions were sufficient to guard against prejudice), review denied (Minn. Feb. 24, 1988).  We conclude that while the record would have supported exclusion of the Spreigl evidence, upon viewing the entire record, the district court did not abuse its discretion in admitting the evidence.

            B.  Impeachment

            A district court's ruling on the impeachment of a witness by prior conviction is reviewed under an abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Appellant contends the district court's ruling that he could be impeached by his 1991 conviction if he chose to testify was an abuse of its discretion.  We disagree. 

Evidence of a prior conviction may be admissible to impeach a defendant's testimony if the underlying offense is 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) (2000).  To determine whether the probative value outweighs the prejudicial effect, the court should consider:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

 

Ihnot, 575 N.W.2d at 586. 

            Appellant argues that the current charge and prior conviction are similar and introducing the prior conviction creates the risk that the jury will convict him based on the prior conviction regardless of the weight of the evidence in the pending offense.  Despite the danger, Minnesota courts have allowed impeachment by prior conviction of similar crimes.  See Ihnot, 575 N.W.2d at 588 (finding no abuse of discretion in admitting a third-degree criminal sexual conduct conviction for impeachment in a trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming decision to allow impeachment by two prior rape convictions in trial for first-degree criminal sexual conduct).  Thus, although the facts surrounding the 1991 conviction are similar (use of marijuana, abuse perpetrated on younger-female relative, use of home setting), the risk is the same level of danger presented in the Ihnot and Frank cases.

            Next, appellant argues that the offense is stale.  First, the prior offense occurred in 1991, which is within the ten-year time limit.  Second, the district court noted during the pre-trial conference, appellant was incarcerated for a period during that time. 

            Appellant finally argues that it was important for him to testify because credibility was a central part of the case and the ruling of admissibility chilled his right to testify.  We initially note the admissibility ruling for impeachment purposes did not keep appellant off the stand because the evidence was already admitted as Spreigl evidence.  Also, at the pre-trial hearing, appellant's counsel noted that appellant would "not be the sole source of information for his side of the story."  Appellant presented his version of the events through cross-examination and by presenting his own witnesses.  Appellant concedes that his credibility would have been a central issue if he had testified.  See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (holding that when credibility is central to a case, "a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater").  The question is close, but a review of the factors as a whole indicates that while the court could have found the prior conviction inadmissible, there is no showing that the district court erred in admitting the evidence. 

C.  Cumulative Effect

            Finally, appellant argues that the cumulative effect of the ruling that the evidence would be admissible for both purposes requires reversal.  We disagree.  It is true "that when the cumulative effect of numerous errors constitutes the denial of a fair trial, the defendant is entitled to a new trial."  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  But the district court did not err in admitting the evidence as Spreigl evidence and ruling the same evidence would be admissible for impeachment purposes.  We find no cumulative effect requiring reversal.

II.        ADMISSIBILITY OF PRIOR-CONSISTENT STATEMENTS

            Over appellant's objection, the district court allowed the testimony of two prosecution witnesses on the victim's revelation of abuse to them as prior consistent statements.  Appellant alleges that because the testimony was not helpful in evaluating R.M.'s credibility and contained assertions beyond what R.M. had testified to, the district court erred by allowing them to testify.  This court will not reverse a district court's ruling on an evidentiary matter absent an abuse of discretion.  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).  Minn. R. Evid. 801(d)(1)(B) provides that prior, consistent, out-of-court statements are not hearsay and are admissible 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.

             Appellant first argues that the "repetitious" testimony did not bolster R.M.'s credibility.  Prior statements are helpful to the trier of fact in evaluating credibility if the witness's credibility has been challenged.  State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).  Here, it is undisputed that R.M.'s credibility was challenged.  The witness testimonies were not repetitious, but were the witnesses' separate recollections of the allegations R.M. revealed.  They were similar to R.M.'s testimony, but we conclude that the testimony was allowable to bolster R.M.'s challenged credibility.

            Appellant next argues that this testimony contained additional details not revealed during R.M.'s testimony.  See Minn. R. Evid. 801(d)(1)(B), 1989 comm. cmt. (explaining that prior statement not admissible under rule if it "contains assertions about events that have not been described by the witness in trial testimony").  Appellant notes that the first witness testified that R.M. told her that appellant used "homemade things" when sexually abusing her.  Respondent's contention that R.M. "directly testified" that appellant "made vibrators" is incorrect.  It is an additional piece of information about the abuse not offered by R.M. during testimony. 

            The next witness testified that R.M. told her that appellant watched her take baths and used a plastic-spray bottle to "douche" her.  These details do not appear anywhere in R.M.'s testimony.  But as respondent notes, this court has not always required "absolute consistency."  See Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn. App. 1998) (stating although prior consistent statement by videotape contained serious allegations not revealed in trial testimony, victim did testify at trial, was subject to cross-examination, statement was "reasonably consistent" with victim's trial testimony, and statement may have helped jurors judge victim's credibility).  Here, the statements are not additional allegations; they are merely additional details about the same allegation.  The details are not any more graphic or shocking than what R.M. revealed in her direct testimony.  R.M. was subject to cross-examination, and the statements were reasonably consistent with R.M.'s testimony about abuse.  The testimony by the two witnesses may have assisted the jury in judging R.M.'s credibility.  Based on these facts, we conclude the district court properly admitted the testimony of the two witnesses.

            Affirmed.