This opinion will be unpublished and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

C8-01-343

 

 

State of Minnesota,

Respondent,

 

vs.

 

Oscar Deleon,

Appellant.

 

Filed January 15, 2002

Affirmed

Schumacher, Judge

Dissenting, Klaphake, Judge

 

Renville County District Court

File No. K600627

 

 

Mike Hatch, Attorney General, James B. Early, John B. Galus, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

David J. Torgelson, Renville County Attorney, Commerce Building, Box D, Olivia, MN 56277 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

ROBERT H. SCHUMACHER, Judge

††††††††††† Appellant Oscar Deleon was charged in Renville County with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct in violation of Minn. Stat. ßß 609.342, subd. 1(b), (g), .343, subd. 1(h)(i) (2000), arising out of conduct with N., his wife's thirteen-year-old niece.† The jury found Deleon guilty of the second-degree charge and not guilty on the first-degree charges.† Deleon appeals the conviction, alleging he was denied a fair trial by the trial court's exclusion of certain proffered evidence and that the trial court erred by ordering restitution.† We affirm.

FACTS

††††††††††† Deleon and his wife were living in Renville, Minnesota with his wife's parents and her three children.† On the evening of September 13, 2000, his wife's niece, N., was assisting Deleon with baby-sitting two of his wife's children.† His wife was not at home at the time.

††††††††††† N. testified that while she was at the home with Deleon, he repeatedly asked her to have sex with him and made numerous sexual contacts despite her reluctance.† N.'s testimony included specific details regarding the variety of sexual acts that included penetration, fondling her breasts and genitalia, and forcing her to touch him sexually.† These acts took place at various locations throughout the home.†††

N. also testified about how she came to reveal the incident to others.† N. did not tell anyone about the incident on the night it happened because she was afraid and upset.† After having told a friend the next day, N. spoke with the school counselor, who informed her that this would have to be reported to the police.

N. met with Detective Frank Berg at the police station.† N. and Berg both testified that at this meeting, N. related the events surrounding the incident in detail.† The facts as related by N. to Berg were consistent with her testimony at trial on the elements of the crime for which Deleon was convicted.† Additionally, Kim Shemon, a victim-support advocate, testified that she was present for part of the interview and related the facts as reported by N.

Berg took a statement from Deleon as well.† In the statement, Deleon denied any inappropriate contact with N.† Deleon also claimed that N. fabricated the incident in retaliation for Deleon informing N.'s mother that N. had been sexually active with a juvenile male and should have a medical examination and pregnancy test.†

Prior to trial, the prosecution had listed the transcription of Deleon's statement as a exhibit.† The statement included the allegation regarding N.'s past sexual history.† Consequently, on the day before trial, the prosecution moved the trial court for an order prohibiting any testimony about or reference to this allegation, arguing that Minn. R. Evid. 412, the "Rape Shield Law," prohibited the evidence and that it was more prejudicial than probative.† The defense countered that the allegation should be admissible as it indicated N.'s motive to fabricate.† The defense did not specify precisely what testimony would be offered, nor make a separate motion for admission of the prior sexual history evidence, the process indicated under Rule 412, nor was the issue briefed to the trial court.

Additionally, the defense did not argue the constitutional implications of excluding the proffered evidence as part of the response to the state's motion.† The prosecution raised the issue that there was some doubt as to whether the assertion was even accurate.† The defense never specified any testimony or other evidence that would corroborate Deleon's assertion in his statement to Berg.

The "offer of proof" amounted to the following statement by Deleon's attorney:

I believe the testimony's going to come out, whether it be through Oscar Deleon or through [N.s] mother, that she did arrange a pregnancy test and he did help, he being the Defendant, helped arrange that or asked that the mother do that because he had learned that she was sexually active with a young boy, and so he did that.

 

The defense made reference to the possibility that N.'s mother's testimony might include something on this issue.† The reference was equivocal, however, and N.'s mother, although listed as a potential witness for the state, was not listed as a witness for the defense.† N.'s mother did not testify at trial.

The parties agreed consent was not a defense to any of the crimes with which Deleon was charged.† The court then concluded that the proffered evidence did not fit under the other exception listed under rule 412, to wit, when the evidence of prior sexual conduct is offered to rebut physical evidence offered by the prosecution.† Having so concluded, the trial court granted the state's motion and prohibited any testimony or reference to the allegation regarding N.'s prior sexual conduct.

The jury found Deleon not guilty on the two counts of first-degree criminal sexual conduct and guilty on one count of second-degree criminal sexual conduct.† The trial court sentenced Deleon to the presumptive sentence of 48 months and included a restitution order for $157, the cost N.'s parents incurred in transporting N. from Texas to Minnesota for trial.†

D E C I S I O N

1.†††††††† Deleon contends that the district court committed reversible error with the exclusion of his proferred evidence regarding N.'s motive to fabricate.† "Appellate courts largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling."† State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).† The district court's decision will stand absent a "clear abuse of discretion." Id.† This standard of review with respect to evidentiary issues in general has been specifically applied to proffered evidence regarding a complainant's prior sexual history.† State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991); State v. Kroshus, 447 N.W.2d 203, 204 (Minn. App. 1989), review denied (Minn. Dec. 20, 1989).

††††††††††† The case law indicates that the district court's analysis does not end upon a determination that the prior sexual history is excludable under Minn. R. Evid. 412.† Although the proffered evidence might not fit under the specifically defined exceptions listed in rule 412, Minnesota courts have uniformly held that the evidence might nonetheless be admissible and necessary to avoid violating the defendant's constitutional rights of due process and effective confrontation of his accuser.† State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986); State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982); Jackson v. State, 447 N.W.2d 430, 435 (Minn. App. 1989).

The parties did not argue the constitutional issues surrounding the proffered evidence at trial, and therefore they were not addressed by the district court.† Generally, appellate courts will not consider matters not argued and considered in the court below.† Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).† The reviewing court, however, may decide constitutional issues, even when not raised below, where the interests of justice so require, the parties have adequate briefing time, and the issue was at least implied in the lower court.† Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).

††††††††††† As we have stated, the district court did not address the constitutional implications involved with excluding this evidence because it was not raised.† This does not mean, however, that the exclusion of the evidence was necessarily reversible error.† When the offer of proof is insufficient, appellate courts have not found district court error.† Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000); State v. Richards, 495 N.W.2d 187, 195 (Minn. 1992); In re Welfare of W.J.R., 264 N.W.2d 391, 394 (Minn. 1978); State v. Anderson, 395 N.W.2d 83, 85 (Minn. App. 1986).

In W.J.R., the Minnesota Supreme Court concluded that the district court was mistaken in concluding that the evidence at issue was not pertinent to the issue before the court.† 264 N.W.2d at 393-94.† Nonetheless, the supreme court refused to find reversible error because the offer of proof was inadequate:

The juvenile argues that the state failed to make a sufficient offer of proof.† The state offered to introduce statements bearing on the circumstances of the offense and the juvenile's state of mind.† The offer was conclusory in its characterization of the statements, and no specifics were offered as to the circumstances of the offense.† We do not know how relevant or important the evidence would be and must rule the offer of proof was insufficient.† Even though the court ruled that circumstances of the offense would not be admissible, the prosecution should have attempted to make an adequate offer of proof.† We are persuaded that the offer of proof was inadequate and that in light of all the evidence received, it would not change the result.

 

Id. at 394.

Similarly, we find in the present case the offer of proof was insufficient.† When the offer of proof fails to indicate that the proffered evidence can withstand a threshold inquiry as to reliability, the district court has discretion to reject the evidence.† J.N. Sullivan & Assocs., Inc. v. F.D. Chapman Constr. Co., 304 Minn. 334, 338, 231 N.W.2d 87, 89 (1975); Kabow, 466 N.W.2d at 751.† Additionally, the district court can exclude even relevant evidence with the potential for prejudice is significant. †State v. Davis, 546 N.W.2d 30, 35 (Minn. App. 1996), review denied (Minn. Apr. 2, 1996).

Deleon's allegation in the statement was unclear.† He was unable to offer corroboration.† More importantly, there was no evidence offered to show that N. knew of Deleon's alleged statement to her mother.† Moreover, a careful review of Deleon's statement to Berg indicates that even if Deleon's assertion were true, he nonetheless conceded that N.'s mother and family were already aware of this rumor at the time he purportedly related it to the mother.† This would seem to negate any possible animosity on the part of N., even if Deleon had told N.'s mother.

Furthermore, the possibility that this evidence would have confused the issues and the danger the jury might misuse this evidence was palpable.† The nebulous offer of proof, in conjunction with the questionable reliability of this unsupported allegation, as contrasted with the potential prejudice of this type of evidence, establish that the trial court did not abuse its discretion by excluding this evidence.††

††††††††††† 2.†††††††† Deleon contends that the district court erred in ordering him to pay $157 to N.'s parents for the cost of transporting N. from Texas to Minnesota in order to testify at trial.† The trial court has wide discretion in ordering restitution.† State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990).† Its decision will not be overturned absent an abuse of this discretion.† State v. Fader, 358 N.W.2d 42, 47-48 (Minn. 1984).† The parties submitted briefs, and the trial court carefully considered the matter.† The trial court refused to include the cost of relocating N. to Texas following the incident in the reimbursement order, although N.'s parents had requested this amount as well.† The trial court determined that the costs of transporting N. to Minnesota were "directly related" to Deleon's conduct and a proper expense for which restitution was owed.† This was not an abuse of discretion.

Affirmed.

 

 

KLAPHAKE, Judge (dissenting)

I respectfully dissent.† I believe that the offer of proof was adequate and that, had the district court continued its inquiry, it would have found the evidence admissible.† Given the distinct likelihood that exclusion of this evidence prejudiced Deleon and violated his constitutional rights, I would reverse and remand for a new trial.

As the majority notes, case law establishes that a district court is obligated to inquire, when faced with evidence that references a complainantís prior sexual history, not only whether the evidence falls within one of the two exceptions to Minn. R. Evid. 412, but also whether any constitutional concerns might require admission of the evidence.† State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).

[E]xclusion of evidence that the [complainant] is predisposed to fabricate a charge of rape, where the potential for unfair prejudice does not substantially outweigh the probative value of the evidence, risks violating the defendantís rights to due process, to confrontation, and to present evidence in his defense.

 

State v. Enger, 539 N.W.2d 259, 263 (Minn. App. 1995) (citing State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982)), review denied (Minn. Dec. 20, 1995).† The majority never considers the constitutional implications, however, and merely concludes that it need not do so because the offer of proof was inadequate.† I disagree.

While the offer of proof could have been more exact, it was not so deficient as to warrant exclusion of this important piece of defense evidence without further inquiry by the district court.† Unlike the offers of proof found to be inadequate in the cases cited by the majority, the offer here summarized the testimony, the potential witnesses who could offer testimony on the issue, and the basis upon which the defense believed the evidence was relevant.† Cf. Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000) (defendant failed to provide adequate foundation for admission of reverse-Spreigl evidence); State v. Richards, 495 N.W.2d 187, 195 (Minn. 1992) (witnesses properly stricken if defendant made inadequate offer, admitted he had no idea what particular witness would say, or indicated that witnessí whereabouts were unknown); In re Welfare of W.J.R., 264 N.W.2d 391, 394 (Minn. 1978) (stateís offer to introduce statements was conclusory, contained no specifics, and failed to establish relevancy or importance to prosecution); State v. Anderson, 395 N.W.2d 83, 85 (Minn. App. 1986) (defendant failed to preserve challenge to exclusion of videotape where he failed to make specific offer of proof relative to contents of tape and its probative impact).† In addition, the district court here never reached the issue of the adequacy of the offer because it excluded the evidence solely under rule 412.† Thus, we may consider this issue without regard to any discretion a district courtís ruling might be afforded.† Finally, given the serious constitutional implications, I would conclude that the offer was sufficient and that the district court should have continued with its inquiry into the admissibility of this evidence.† Cf. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995) (in event of conflict between constitutional rights and rape shield law, defendantís constitutional rights require admission of evidence excluded by rape shield law), review denied (Minn. Jan. 23, 1996).

That inquiry, I believe, could have led the court to conclude that the evidence was reliable and probative.† Since his first interview with police, Deleon consistently denied any improper conduct and suggested that the complainant might hold some animosity toward him because he had informed her mother that she had been sexually active with a juvenile male whom Deleon identified.† The proffered evidence appears inherently reliable, given Deleonís early and consistent statements, the details provided, and the possibility for corroboration.

The proffered evidence further appears probative and not unduly prejudicial to the complainant.† See Minn. R. Evid. 403 (relevant evidence ďmay be excluded if its probative value is substantially outweighed by the danger of unfair prejudiceĒ).† The probative value of this evidence lies not in an attack on the complainantís character by suggesting promiscuity or a history of sexual conduct; rather, the defense sought to admit this evidence solely to shed light on the complainantís possible bias toward him or to suggest that she had a motive to fabricate the allegations against him.† Moreover, while the state insists that there is a danger that the jury would misuse the evidence to improperly conclude that the complainant consented to have sex with Deleon, consent is not a defense to any of the charges here and the jury presumably was so instructed.† Thus, any additional prejudice could be minimized by a cautionary instruction on the use of the evidence.

Finally, I believe that the exclusion of this evidence severely prejudiced Deleonís defense.† The stateís evidence was not overwhelming.† It had no physical evidence and, besides the largely uncorroborated testimony of the complainant, no eyewitnesses.† As with most criminal sexual conduct cases, the jury was faced with determining whose version of the events was credible.† Yet once Deleonís proffered evidence was excluded, the jury was left with little or no reason to doubt the complainant.† Tellingly, the jury may have rejected some of the complainantís allegations, as demonstrated by its decision to acquit Deleon of the more serious first-degree charges.† Because the complainantís credibility was such a critical factor in Deleonís conviction and because the defense had little other evidence on which to challenge that credibility, I believe that the erroneous exclusion of the proffered evidence substantially and unfairly prejudiced Deleon.

I would therefore reverse and remand for a new trial.