This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Clifford Earl Smith,




Filed November 20, 2001

Foley, Judge


Anoka County District Court

File No. K7-00-3462


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


Robert M. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            This is an appeal from a conviction of second-degree criminal sexual conduct and second-degree assault.  Appellant argues that the district court abused its discretion by admitting as substantive evidence hearsay statements made by the four-year-old complainant, who had been ruled incompetent to testify, describing the sexual abuse.  Appellant claims this violated his right to confront his accuser.  He asserts that the hearsay statements had no indicia of reliability and were the result of suggestive interviewing techniques.  Appellant also argues that the hearsay statements and circumstantial evidence were not sufficient to support the conviction and do not support the district court’s findings of fact issued following the bench district.  We affirm.


            Appellant Clifford Earl Smith was charged with first-degree criminal sexual conduct under Minn. Stat. §§ 609.342, subd. 1; .341, subd. 11(c) (1998) (sexual contact with person under age 13 that includes bare genital-to-genital touching) (count 1); first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd 1(a) (1998) (sexual penetration with person under age 13 by someone more than 36 months older) (count 2); second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1998) (sexual contact with person under age 13 by someone more than 36 months older) (count 3); second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(c) (1998) (sexual contact where victim had reason to fear imminent great bodily harm) (count 4); and second-degree assault in the second degree under Minn. Stat. § 609.222, subd. 1 (1998) (assault with a dangerous weapon, a knife) (count 5).  He was convicted of counts 3 and 5, and acquitted of counts 1 and 4; count 2 was dismissed.  Smith was sentenced to 39 months in prison for count 3.  The court did not sentence Smith on count 5.

            After a predistrict hearing, the court declared the four-year-old victim, J.A.M.P., incompetent to testify.  Admitted as substantive evidence under Minn. Stat. § 595.02, subd. 3 (2000), however, were her statements to her six-year-old sister, her mother, Officer Coffey, Investigator Edward Egly, and Ann Schminski, a case manager and registered nurse who worked for Midwest Children’s Resource Center (MCRC) at Children’s Hospital.  All of J.A.M.P.’s statements to these witnesses were made within 12 hours after the incident.  Additional facts are discussed in relation to the legal issues raised and need not be separately stated.


I.  Hearsay Statements of Incompetent Witness

            A district court’s evidentiary ruling will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict and is therefore prejudicial.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). 

            Smith contends that admission of  J.A.M.P.’ s out-of-court statements denied him his constitutional right to confront his accuser under the Confrontation Clause of the United States Constitution.  He claims that the state failed to prove that the hearsay statements by J.A.M.P. had sufficient indicia of reliability.  Smith asserts that the admitted hearsay statements were (1) drawn from J.A.M.P. through leading and suggestive questions, and a refusal to take “no” for an answer; (2) internally inconsistent; and (3) “contained a mixture of fact and fantasy.”   Based on these assertions, Smith argues that he is entitled to a new district. 

            Minnesota law allows the admission into evidence of a statement

alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * by another, not otherwise admissible by statute or rule of evidence, * * * if:

            (a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

            (b)  the child * * * either:

            (i)   testifies at the proceedings; or

            (ii) is unavailable as a witness and there is corroborative evidence of the act.


Minn. Stat. § 595.02, subd. 3 (2000).  “For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements.  An unavailable witness includes an incompetent witness.”  In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999).  The factors for determining admissibility under Minn. Stat. § 595.02, subd. 3, incorporate the constitutional requirements for satisfying the Confrontation Clause.  State v. Bellotti, 383 N.W.2d 308, 314-16 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).

            Factors to be considered in determining the reliability of out-of-court statements include “spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate.”  L.E.P., 594 N.W.2d at 170 (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3149-50 (1990)).  In Idaho v. Wright, the Supreme Court noted that lower courts have “considerable leeway in their consideration of appropriate factors” as long as the factors considered relate to the likelihood of the child’s truthfulness.  497 U.S. at 822, 110 S. Ct. at 3150.

A number of other factors considered by Minnesota courts are

the knowledge of the declarant, the motives of the declarant and witnesses to speak truthfully and the proximity in time between the statement and the events described * * * [and]  whether the person talking with the child had a preconceived idea of what the child would say and the lack of leading or suggestive questions.


L.E.P., 594 N.W.2d. at 170 (quotation and citations omitted).

            In this case, the district court admitted statements J.A.M.P. made to her sister (J.P.), her mother, Investigator Egly, Officer Coffey, and Ann Schminski.[1]  Smith does not challenge the reliability of statements made by J.A.M.P. to J.P. because they were clearly spontaneous communications. 

            A.        Statements to Mother

            Regarding the statements to J.A.M.P.’s mother, Smith asserts that her mother influenced the answers J.A.M.P. gave her because she repeated or rephrased questions that she did not think J.A.M.P. understood.  Smith contends that repeating a question to a child tells the child that her first answer was not acceptable and, therefore, the answer to the rephrased question, if different, is unreliable.  He also claims that the questions were leading and suggestive. 

The mother testified that when she asked J.A.M.P. who showed her his “peep,” she could not make sense of J.A.M.P.’s answer, which was “a boy who looked like a baby-sitter, who wasn’t a baby-sitter.”  In order to clarify her daughter’s statement, the mother took J.A.M.P. outside to talk to both her and her sister, J.P.  Both children indicated that the person who committed the acts against J.A.M.P. was in the trailer in which Smith lived.  J.P. indicated that the person who showed J.A.M.P. his “peep” was the “man with the crazy hair” and a nose ring.  No one, except Smith, fit this description when coupled with the girls pointing to Smith’s trailer. 

            While the mother did repeat or rephrase some questions in order to make sure J.A.M.P. understood what she was asking, the questions were redirected to who committed the act.  For example, the mother asked, “Were your pants off?” and J.A.M.P. answered, “No.”  However, when asked, “Did he take your pants off?” J.A.M.P. answered, “Yes.”  The mother testified that she asked the second question because she was concerned that J.A.M.P. thought that she had done something wrong because of the way the first question was phrased.  In addition, the mother testified that she did not provide J.A.M.P. with answers to her questions or suggest to her things that she should say.

The mother had no preconceived notions of what had happened to J.A.M.P. when she questioned her about the events.  She testified that she had no animosity towards Smith and had no motive to falsely accuse him.  She stated that before the incident, her interactions with Smith were pleasant and no evidence was introduced at trial to the contrary.  Review of the record also shows that J.A.M.P. used terminology appropriate for a four-year-old when telling her mother about what happened.  Finally, J.A.M.P. spoke with her mother immediately after the incident occurred, thereby meeting the proximity-in-time factor.  We conclude that the district court did not err in finding that J.A.M.P.’s statements to her mother were reliable and therefore admissible as hearsay.

B.                Statements to Officer Coffey

Although the mother indicated to Officer Coffey when she arrived that (1) J.A.M.P. saw a boy’s “peep” while in the trailer; (2) they had concluded that Smith was the perpetrator; and (3) there had been some inappropriate touching, there is no indication that Officer Coffey asked J.A.M.P. leading questions.  Review of the record indicates that many of the statements J.A.M.P. made to Officer Coffey were consistent with what she had already told her mother.  In fact, Officer Coffey received additional information from J.A.M.P., such as Smith’s use of the knife and that he attempted to put his “peep” inside her “bottom,” which is J.A.M.P.’s word for vagina.  Officer Coffey spoke with J.A.M.P. within ten minutes after her mother called the police and shortly after J.A.M.P. disclosed the incident to her mother.  Once Officer Coffey established a rapport with J.A.M.P., she spoke freely with the officer.  Officer Coffey consulted the mother only to clarify the meaning of certain words used by J.A.M.P.

            Smith asserts that because neither the mother’s nor Officer Coffey’s questioning had been videotaped or recorded, “the exact nature of the questions, and of the answers, can never be determined.”  Through other comments in his brief, Smith implies that the extent of the leading and suggestive questioning by the mother and Officer Coffey will never be known.  A mere assertion without underlying factual support generally will not be considered on appeal.  Flournoy v. State, 583 N.W.2d 564, 568 (Minn. 1998).  Again, the district court did not err in determining that J.A.M.P.’s statements to Officer Coffey were reliable and therefore admissible as hearsay.

            C.        Statements to Investigator Egly

Smith conceded that, based on Investigator Egly’s recorded interview of J.A.M.P., it is evident how difficult it was to extract information from her.  This interview took place within a couple hours after the disclosure to Officer Coffey.  While Egly testified that he began the interview with the assumption that Smith had removed J.A.M.P.’s shirt, taken off her pants, and tried to put his penis inside her vagina, review of the record does not indicate that he persisted in getting answers to his questions based on these assumptions.  Egly testified that he viewed the prior information as an allegation and that it was his duty to determine whether it happened.  J.A.M.P.’s answers to Egly’s questions were consistent with her prior answers to Officer Coffey and her mother.  J.A.M.P. told Egly that she went into the trailer, saw and touched his “peep,” her clothes had been removed, Smith put his “peep” inside her and that it hurt, and he used a knife.  Egly could not establish, however, that “inside” meant genital penetration, but reasoned that “inside” meant underneath her clothing.  However, because this was not conclusive, and J.A.M.P. said that it hurt and there was blood, he sent her to the Children”s Hospital in St. Paul for an examination and interview.

Review of the record does not show that Egly’s questions were leading or suggestive, except for one instance.  In the beginning of the interview, J.A.M.P. said that Smith showed her his “peep.”  She had not mentioned anything about touching his “peep.”  Later in the interview, Egly suggested to J.A.M.P. that Smith had touched her with his “peep.”  While this was suggestive, it is not critical to the case because J.A.M.P. previously had disclosed this to Officer Coffey, which is why Egly asked the question.  All of J.A.M.P.’s answers regarding the touching were consistent with her previous answers on the subject. 

In addition, Egly repeated or rephrased questions to J.A.M.P. in only one instance.  As with the mother, the rephrasing revealed that J.A.M.P. was reluctant to answer questions that implied she did something wrong or participated in the act.  Her affirmative answers to the rephrased questions are consistent with prior disclosures.  The district court did not err in determining J.A.M.P.’s statements to Egly were reliable and therefore admissible as hearsay.

            D.        Statements to Ann Schminski

Schminski was called by Smith to testify.  Smith submitted as evidence the videotape of Schminski’s interview with and examination of J.A.M.P.  Smith, however, argues on appeal that the statements J.A.M.P. made to Schminski should not have been admitted as substantive evidence as a violation of the Confrontation Clause.  It should be noted that the Confrontation Clause of the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”  (Emphasis added.)  Because Schminski was called as a witness by Smith, he does not have a valid challenge to her testimony.  Further, the parties stipulated to the admissibility of Schminski’s report.  This interview and examination took place at 1:00 a.m., and Schminski testified that J.A.M.P. appeared to be very tired, was yawning, and had a difficult time concentrating.

            Nonetheless, a review of the record shows that J.A.M.P. was consistent in her statements about what happened to her except for statements regarding penetration--although they are consistent with Egly’s statement that he could not verify that penetration had happened.  The district court dismissed the second count and acquitted Smith of the first count, which dealt with touching intimate parts and sexual penetration, respectively.  Aside from the inconsistent statements about penetration, J.A.M.P.’s statements about other contact between her and Smith’s “peep” are consistent.  Also, J.A.M.P. stated that the cut on her inner thigh was because of the pointy knife, which was also consistent with her prior disclosures about her pants being removed and the use of the knife that she identified.  Again, we conclude that the district court did not err in determining J.A.M.P.’s statements to Schminski were reliable and therefore admissible as hearsay.

II.  Sufficiency of the Evidence

Smith argues that even if J.A.M.P.’s hearsay statements were properly admitted, they fail to form a reliable basis for his convictions.  He asserts that the district court’s findings are speculations and hypotheses about what happened rather than based on facts. 

            In considering a claim of insufficiency, an appellate court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction,” is sufficient to allow a jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  The standard of review is the same whether the fact-finder is a court or a jury.  See State v. Oanes, 543 N.W.2d 658, 661 (Minn. App. 1996) (applying standard where district court acted as fact-finder).  It is the exclusive function of the district court, acting as the fact-finder, to determine the credibility of the witnesses.  State v. Morgan, 296 N.W.2d 397, 401 (Minn. 1980).  With regard to evidence for criminal sexual conduct prosecutions, “the testimony of a victim need not be corroborated.”  Minn. Stat. § 609.347, subd. 1 (2000).

            After careful review of the record, we conclude that there was sufficient evidence to support Smith’s convictions of second-degree criminal sexual conduct and second-degree assault. 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Investigator Egly’s and Schminski’s interviews of J.A.M.P. were videotaped and admitted into evidence.