This opinion will be unpublished and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

C9-01-285

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Ralph Mussell,

Appellant.

 

Filed November 6, 2001

Affirmed in part, reversed in part, and remanded; motion denied

Robert H. Schumacher, Judge

 

Goodhue County District Court

File No. K80063

 

 

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

 

Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

This is an appeal from a conviction and sentence for second-degree criminal sexual conduct. Appellant Mark Ralph Mussell argues that the district court erred in (1) admitting the child-victim's out-of-court statements; (2) ordering closure of the courtroom during the child's testimony without making findings; (3) failing to instruct the jury that it must unanimously agree on a specific act of sexual contact; (4) responding to a jury question during deliberations without allowing Mussell or his counsel the opportunity to be present; and (5) calculating his criminal history score. Mussell also contends that the child's testimony was too unreliable and lacking in corroboration to support the conviction; We affirm in part, reverse in part, and remand; we deny Mussell's motion for a partial remand.

FACTS

The victim is Mussell's daughter, A.A.M., who was eight years old at the time and lived with her mother and stepfather. In October 1999, A.A.M. returned from a weekend of parenting time with Mussell. She seemed upset to her stepfather, who was the only adult at home. In responding to questions about what she had done during the weekend, A.A.M. stated that Mussell had been gone and had left her alone. She then became upset and started crying. After she calmed down, A.A.M. disclosed to stepfather that Mussell "would take his pants down and make her hold his thing." When mother returned home two days later, A.A.M. told her that Mussell had made her touch his "pee thing." Mother testified that A.A.M. sobbed and had a difficult time talking about what had happened.

Wabasha County Sheriff's Detective Charlotte Benedict, an experienced child sexual abuse investigator, interviewed A.A.M. Also, A.A.M. began counseling with Joanne Hitner, a licensed psychologist who works as a therapist and has had specialized training in working with children, including sexual abuse victims. Both testified at trial. A.A.M.'s statements to Benedict and Hitner, as well as A.A.M.'s trial testimony, regarding how Mussell made her touch him were consistent with the allegations she had made to her mother and stepfather.

Initially A.A.M. denied that Mussell touched her inappropriately, but in July 2000, A.A.M. disclosed that Mussell had in fact done so. Mother testified that occasionally, beginning when A.A.M. was about five, and frequently, beginning when A.A.M. was about seven, A.A.M. returned from visiting Mussell with a sore bottom. Mother testified that she had commented to A.A.M. that since she had stopped visiting Mussell, her bottom had not been sore. A.A.M. then ran up to her room. According to mother, A.A.M. stated that her bottom did not get sore anymore "because [Mussell's] fingers aren't there."

At A.A.M.'s next session with Hitner, A.A.M. reported that Mussell had touched her in her "privates" but that it had not gone on long because she stopped seeing Mussell shortly after it happened. The jury found Mussell guilty of three counts of second- and fifth-degree criminal sexual conduct. The district court sentenced him on one count of second-degree criminal sexual conduct.


D E C I S I O N

1. A trial 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). An out-of-court statement by a child-victim of sexual abuse about the abuse is admissible as substantive evidence if the trial court finds "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 the child testifies at the proceedings. Minn. Stat. 595.02, subd. 3 (a)-(b)(i) (2000); see In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999) (listing factors to consider in determining the reliability of out-of-court statements by young children).

Mussell contends that A.A.M.'s initial report of sexual abuse to her stepfather was not spontaneous but rather resulted from extensive questioning. The record shows that stepfather asked A.A.M. whether Mussell hit or hurt her. He also asked what she meant when she said that Mussell had left her alone. But there is no evidence indicating that stepfather asked any questions relating to sexual abuse or had a preconceived notion that Mussell had sexually abused her. The record also shows that A.A.M. spontaneously brought up the topic of the sexual abuse.

Mussell argues that stepfather was biased against Mussell and, thus, not a reliable witness. The district court, however, had the opportunity to evaluate stepfather's credibility at the hearing on the admissibility of A.A.M.'s out-of-court statements and found him credible. Witness credibility is an issue for the trier of fact to determine. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Mussell also argues that A.A.M.'s statement to mother in October 1999 was unreliable because mother was extremely angry at Mussell when she questioned A.A.M. But mother testified that she had calmed down before she questioned A.A.M., and the record does not show that mother asked any leading questions about sexual abuse. We conclude that the district court did not err in admitting A.A.M.'s out-of-court statements to mother and stepfather.

Regarding A.A.M.'s statement to Benedict, Mussell concedes that Benedict used appropriate interview techniques but argues that A.A.M.'s statement was the product of her initial statements to stepfather and mother. Mussell does not specifically argue that A.A.M.'s statement to Hitner about Mussell making her hold his penis was improperly admitted. Having concluded that the statements to stepfather and mother were properly admitted, we also conclude that the statements to Benedict and Hitner were properly admitted.

2. The state concedes that the district court erred by closing the courtroom during A.A.M.'s testimony without making findings that closure was necessary. The district court is required to "give the prosecutor, defendant and members of the public the opportunity to object to the closure before a closure order." Minn. Stat. 631.045 (2000). The district court did not give Mussell the opportunity to object to closure. "[D]enial of the sixth amendment right to a public trial is not subject to harmless error impact analysis." State v. Fageroos, 531 N.W.2d 199, 203 (Minn. 1995) (quotation and citations omitted). We choose to remand for a hearing on the necessity of closure. See id. (holding that remand was appropriate to allow prosecution to show necessity for closure).

3. When reviewing a claim of insufficiency of the evidence, this court reviews the record

to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

 

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980)). This court must assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

In challenging the sufficiency of the evidence, Mussell repeats several of the arguments he made regarding the admissibility of A.A.M.'s out-of-court statements. The same analysis applied in the admissibility context applies in the sufficiency-of-the-evidence context.

Mussell argues that A.A.M.'s description of how she held Mussell's penis was not credible because it is not a typical method of sexual stimulation. Whether A.A.M.'s allegations against Mussell were real or fabricated was a credibility question. It is the jury's role to determine witness credibility. State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).

Mussell also contends that the evidence was insufficient because A.A.M.'s allegations were uncorroborated. Corroboration of a child sex abuse victim's testimony is only required if the evidence is legally insufficient to support the conviction. State v. Hesse, 281 N.W.2d 491, 492 (Minn. 1979). A.A.M.'s trial testimony was sufficient to prove that Mussell engaged in sexual contact with her. See Minn. Stat. 609.341, subd. 11(a)-(b) (1998) (definitions of sexual contact). Moreover, A.A.M.'s prior consistent statements describing how the abuse occurred corroborated her trial testimony. See State v. Halvorson, 506 N.W.2d 331, 335-36 (Minn. App. 1993) (victim's detailed and consistent statements corroborated her trial testimony). Although there were minor inconsistencies between A.A.M.'s out-of-court statements and her trial testimony, minor inconsistencies are not a ground for reversal. State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987), review denied (Minn. June 25, 1987).

4. In cases involving convictions for intrafamilial sexual abuse, there is no requirement that specific dates be proven when the date is not an essential element of the crime charged. State v. Eggert, 358 N.W.2d 156, 160 (Minn. App. 1984). Mussell cites no authority holding that the general time-frame rule does not apply in child sex abuse cases charged under provisions requiring only a single act to support a conviction. We, therefore, conclude that the district court did not err by declining to instruct the jury that it had to agree on a specific act. See State v. Becker, 351 N.W.2d 923,927 (Minn. 1984) (date is essential element of crime only when act charged is unlawful during specific times); State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987) (jurors need not agree on the manner in which defendant committed crime; it is sufficient that all jurors unanimously agree on their ultimate conclusion that defendant was guilty of crime charged), review denied (Minn. Jan. 20, 1988).

5. During deliberations, the jury requested that it be provided with copies of the testimony of Douglas Klatt, the investigating officer who interviewed Mussell. The district court responded to the jury's question with a handwritten note that said "no" and was signed by the judge. The record does not show that the district court afforded Mussell or his counsel the opportunity to be present before responding, and the state concedes that the district court erred by responding to the jury's request without Mussell being present.

If a defendant is wrongfully denied the right to be present at a stage of trial, a new trial is not warranted if the verdict was harmless beyond a reasonable doubt or, in other words, surely unattributable to the error. State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001). When considering whether the erroneous exclusion of a defendant from judge-jury communications was harmless error, a reviewing court considers "the strength of the evidence and substance of the judge's response." Id. (citations omitted). We also consider "what the defendant would have contributed to his defense if he had been present." State v. Breaux, 620 N.W.2d 326, 332-33 (Minn. App. 2001) (citations omitted).

Mussell does not claim that the district court's denial of the jury's request was improper. See State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980) (whether to grant jury's request to read trial testimony is within trial court's discretion). Mussell's only claim of prejudice is that he was deprived of the opportunity to persuade the district court to read the requested testimony to the jury.

Mussell argues that Klatt's testimony went to one of the critical points of his defense, specifically, the failure of authorities to conduct a complete investigation. We have reviewed Klatt's testimony and are not persuaded by Mussell's argument. Evidence of the incomplete investigation was brought out through the testimony of other witnesses, including Benedict, Hitner, and stepmother. Defense counsel also addressed the issue in closing argument.

The evidence against Mussell was very strong in that all of A.A.M.'s out-of-court statements and her trial testimony were entirely consistent with respect to the significant details of how Mussell made her come into his room and hold his penis. The district court's response to the jury's question was neutral and nonsubstantive. We are satisfied that the error of responding to the jury's question without Mussell being present was harmless beyond a reasonable doubt. See Sessions, 621 N.W.2d at 756-57 (harmless error when evidence against defendant was strong and trial court's response did not favor either party).

6. Although the jury found Mussell guilty of two counts of second-degree criminal sexual conduct, he was sentenced on only one count, a severity level six offense. The district court, in sentencing Mussell, relied on a sentencing worksheet that assigned him a criminal history point for the count on which he was not sentenced. The state concedes that was error. See Minn. Sent. Guidelines II.B.101 (criminal history score is computed by assigning one point for every previous felony conviction for which felony sentence was stayed or imposed). Because the district court relied on sentencing worksheet that incorrectly showed a 27-month presumptive sentence duration, as opposed to 21 months when a defendant's criminal history score is zero, we reverse Mussell's sentence and remand for resentencing.

7. Mussell has moved for a partial remand on the sentencing issue so that the district court can correct the sentencing error in time for him to obtain relief. The "policy against piecemeal appellate review" weighs against bifurcating the appeal at this late stage. See Bonynge v. City of Minneapolis, 430 N.W.2d 265, 266 (Minn. App. 1988); cf. State v. Thomas, 371 N.W.2d 533, 534-35 (Minn. 1985) (suggesting defendant could obtain expedited appellate review of sentence by filing sentencing appeal separate from appeal of conviction). But this court may expedite the appeal on its own motion in order to preserve Mussell's opportunity to obtain full relief from a correction of the error in calculation of his criminal history score. Minn. R. Crim. P. 28.01, subd. 3. Accordingly, although we deny the motion for a partial remand, we have accelerated release of this opinion.

Affirmed in part, reversed in part, and remanded; motion denied.



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