This opinion will be unpublished and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
State of Minnesota,
Richard Allan Rymer,
Filed April 9, 2002
Stearns County District Court
File No. K6002392
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)
William G. Selman, Arthur R. Martinez, Martinez & Andrade, LLC, 301 Fourth Avenue South, Suite 377, Minneapolis, MN 55415 (for appellant)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of second-degree criminal sexual conduct, arguing that the district court erred by admitting two videotaped statements into evidence and that the prosecutor committed prejudicial misconduct during closing and rebuttal arguments. Because the district court did not err and the prosecutor did not engage in prejudicial misconduct, we affirm.
In October 1999, K.F. reported to a Saint Cloud sexual assault center that her six-year-old daughter, S.J.F., told her that K.F.’s live-in boyfriend, appellant Richard A. Rymer, had touched her inappropriately. The center referred the case to Saint Cloud police officer Michael Rowley. That same day, Officer Rowley interviewed S.J.F. on videotape.
During the interview, S.J.F. said that appellant touched her while K.F. was at work and that it happened more than once. S.J.F. told Officer Rowley that during those times she lay flat on a blanket on the floor and wore a shirt and socks. Officer Rowley asked S.J.F. if she also wore pants and underwear. She indicated that she did. S.J.F. said that appellant wore a shirt, socks, and pants. Officer Rowley asked, “[D]oes he take his clothes off?”, and S.J.F. answered, “No.” S.J.F. indicated that appellant then lay on top of her while she was face down and rubbed up and down on her buttocks in what S.J.F. said appellant called “tugs.” S.J.F. said appellant told her to tell no one about “tugs.”
About two months later, K.F. called Officer Rowley and told him that S.J.F. “sort of * * * lied to” him during the interview, “that she hadn’t told [him] everything.” Concerned, Officer Rowley interviewed S.J.F. a second time on videotape. That time, S.J.F. related the same basic story but said that during “tugs” appellant took her underwear off and that appellant wore nothing under his robe. S.J.F. also said that after “tugs” she wiped “slime” off her buttocks with a towel.
Appellant was charged with two counts of second-degree criminal sexual conduct, one count involving S.J.F. and the second involving another girl. At trial, S.J.F. testified that appellant gave her a “bad touch” and that when he touched her he wore a robe but no underwear. S.J.F. further testified that she took her underwear off, that appellant lay down on top of S.J.F. and moved up and down, and that the bad touches happened on the floor. K.F. testified that S.J.F. “told me that [appellant] had pumped on her butt with his privates.”
After S.J.F. and K.F. had testified, the prosecution asked the district court to admit into evidence the videotaped interviews of S.J.F. and the other girl under Minn. R. Evid. 801(d)(1)(B) as prior consistent statements or, alternatively, under Minn. Stat. § 595.02, subd. 3 (1998), as out-of-court statements made by a child under the age of ten. Over appellant’s objection, the court allowed both of S.J.F.’s videotaped statements under Minn. R. Evid. 801(d)(1)(B), finding them helpful to the jury and consistent with S.J.F.’s trial testimony.
During closing and rebuttal arguments, the prosecutor stated several times that S.J.F. had to wipe “slime” off her buttocks after appellant “pumped her butt.” The prosecutor stated that he had no physical evidence, like “slime,” against appellant, and he reminded the jury that closing argument is not evidence.
Appellant did not object during the prosecution’s closing or rebuttal arguments. During appellant’s closing argument, appellant attacked S.J.F.’s credibility by arguing the differences between the first and second videotapes. Before deliberations, the court instructed the jury that attorney arguments do not constitute evidence.
The jury found appellant guilty of one count of second-degree criminal sexual conduct involving S.J.F. and not guilty of the second count involving the other girl. This appeal follows.
Appellant contends that the district court erred when it admitted into evidence two videotaped interviews with victim S.J.F. as prior consistent statements under Minn. R. Evid. R. 801(d)(1)(B). This court largely defers to the district court’s evidentiary rulings and will not overturn those rulings absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). “On appeal, the defendant has the burden of proving both that the [district] court abused its discretion in admitting the evidence and that the defendant was thereby prejudiced.” State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).
Under Minn. R. Evid. 801(d)(1)(B), a witness’s prior statement that is consistent with his trial testimony is admissible as nonhearsay evidence if the statement is helpful to the trier of fact in evaluating the witness’s credibility, and if the witness testifies at trial and is subject to cross- examination about the statement. An 801(d)(1)(B) statement operates as substantive evidence.
State v. Bakken, 604 N.W.2d 106,108-09 (Minn. App. 2000) (citation omitted), review denied (Minn. Feb. 24, 2000); see Nunn, 561 N.W.2d at 909 (holding that a statement admitted under Minn. R. Evid. R. 801(d)(1)(B) need not bear “significant indicia of reliability” to be admitted). As a threshold issue, before a court will admit a statement as a prior consistent statement,
the witness’ credibility must have been challenged, and the statement must bolster the witness’ credibility with respect to that aspect of the witness’ credibility that was challenged.
Nunn, 561 N.W.2d at 909.
In Bakken, this court reviewed a district court’s decision to admit a victim’s videotaped interview as a prior consistent statement under circumstances similar to this case; the defendant had been charged with first- and third-degree criminal sexual conduct involving a minor. 604 N.W.2d at 107-08. Although the videotaped statement met other criteria for admission as a prior consistent statement under Minn. R. Evid. 801(d)(1)(B), this court determined that the statement was not consistent with the victim’s trial testimony, and we concluded, therefore, that the district court erred in admitting it. Id. at 109-10. This court nevertheless affirmed the defendant’s conviction, finding there was no reversible error because the videotaped statement had not substantially influenced the jury to convict. Id. at 111.
Here, appellant testified that he had no sexual contact with either S.J.F. or the other girl. As in Bakken, the only direct evidence to support the charges was the victim’s testimony. See id. at 109, 111. S.J.F.’s credibility was, therefore, “central to the case.” See id. at 109.
In Bakken, on the issue of whether a prior consistent statement would tend to bolster the victim’s credibility, this court concluded:
It is unlikely that mere repetition of a statement implies veracity. But a prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.
Id. (citations omitted). The videotaped interview of the victim in that case, a 13-year-old boy, included details about how the victim’s clothes were removed, about the use of a knife to cut the victim’s arm, and about spitting out semen, all of which differed from the victim’s trial testimony. Id. at 108. The victim had testified at trial that he did not remember some of the details that he had related in prior statements. This court concluded that, considering the victim’s “sketchy recollection at trial,” the videotape “would tend to bolster” his credibility and would aid the jury in assessing the victim’s veracity. Id. at 109.
Likewise, here, S.J.F. testified at trial that she could not recall some details about what had happened to her. The passage of time apparently confused her; she recalled one videotaped interview but not the other. Under the circumstances, the videotapes tended to bolster S.J.F.’s credibility and helped the jury to assess her veracity.
Appellant contends that he had no opportunity to cross-examine S.J.F. about the videotaped statements. He argues that he was subjected to “unfair surprise,” because the district court admitted the videotapes after appellant had completed cross-examining S.J.F. The timing, appellant continues, meant that the prosecution did not raise details described in the second videotape during its direct examination of S.J.F., and, thus, appellant had no opportunity to cross-examine her with respect to those issues.
The district court, however, admitted the videotaped statements after it determined that they were consistent with S.J.F.’s trial testimony. S.J.F. had to testify before the district court could make that determination. Once the district court admitted the videotapes, appellant made no attempt to recall S.J.F.
Finally, appellant argues that the videotaped statements were not consistent with S.J.F.’s trial testimony. Minn. R. Evid. 801(d)(1)(B) requires the court to analyze individual statements in the videotapes and trial testimony for consistency. Id. But to be consistent, “[t]he trial testimony and the prior statement[s] need not be verbatim.” Id. (citations omitted); see In re Welfare of K.A.S., 585 N.W.2d 71, 75-76 (Minn. App. 1998) (affirming district court’s ruling admitting victim’s videotaped statement, even though statement included more detail than victim’s trial testimony and included additional significant facts about another alleged perpetrator).
In Bakken, this court noted that the victim’s trial testimony and videotaped statement were not consistent as to the defendant’s “alleged threat, use of a knife, cutting of [the victim’s] arm, and ripping off of [the victim’s] clothes.” 604 N.W.2d at 110. Those inconsistencies, if believed, would have escalated the charge against the defendant from third-degree to first-degree criminal sexual conduct. Id. The Bakken court concluded that the district court erred, therefore, in allowing the statements into evidence. Id.
Appellant has not presented a statement-by-statement analysis of the consistency between the videotaped statements and trial testimony. But appellant acknowledged that the district court had the opportunity to review the videotapes. The record shows that the district court found that, while the videotapes did not exactly match S.J.F.’s trial testimony, they were, nevertheless, consistent with that testimony. And none of the inconsistencies among the statements, if believed, would have escalated the charge against appellant. The district court did not err in determining that the videotaped statements and trial testimony were sufficiently consistent, under Bakken, to be admissible.
Given that appellant challenged S.J.F.’s credibility at trial, that the videotaped statements helped the jury evaluate S.J.F.’s credibility, that appellant had an opportunity to cross-examine S.J.F. at trial, and that the videotapes were consistent with S.J.F.’s trial testimony, the district court did not err by admitting the videotapes under Minn. R. Evid. 801(d)(1)(B). But even if the district court erred in admitting the videotapes, this court would not reverse unless the error substantially influenced the jury’s verdict. Id.
In Bakken, the inconsistent portions of the statement, if believed, would have escalated the charge against the defendant from third-degree to first-degree criminal sexual conduct. Id. This court noted that “where inconsistencies directly affect the elements of the criminal charge,” a district court errs by admitting those statements as prior consistent statements under Minn. R. Evid. 801(d)(1)(B). Id. But the Bakken jury convicted the defendant on the lesser charge and, therefore, the inconsistent statements did not influence the jury to convict, and this court concluded that the district court committed no reversible error. Id.
To convict a defendant of second-degree criminal sexual conduct, the state must prove, among other things, that the defendant intentionally touched the victim’s intimate parts, including the buttocks, bare or clothed, and that the defendant acted with “sexual or aggressive intent.” Minn. Stat. §§ 609.341, subds. 5, 11, .343, subd. 1(a) (1998). The consistent portions of the videotaped interviews and S.J.F.’s trial testimony support the jury’s guilty verdict. Moreover, defense counsel argued the inconsistencies in the videotaped statements to the jury. Therefore, even if it was error, the district court’s evidentiary ruling was not reversible error.
Appellant also argues against admission of the videotapes under Minn. Stat. § 595.02, subd. 3 (1998), or under Minn. R. Evid. 803(24), the residual hearsay exception. Because the district court properly admitted the videotapes under Minn. R. Evid. 801(d)(1)(B), this court need not consider the statements’ admissibility under either the Minnesota statute or the residual hearsay exception.
Appellant argues that the prosecutor’s use of inflammatory language, that is, “pumped [S.J.F.’s] butt” and “slime,” during closing and rebuttal arguments prevented appellant from receiving a fair trial. But appellant did not object during either the prosecutor’s closing or rebuttal arguments. A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions “is deemed to have forfeited [the] right to have the issue considered on appeal.” State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).
This court may reverse, however, despite the defendant’s failure to preserve the issue if the misconduct affected the jury’s verdict. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). We consider whether the parties’ arguments and the district court’s instructions corrected the effects of a prosecutor’s improper comments. State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988) (finding no reversible error because of prosecutor’s improper closing argument where district court’s curative jury instructions tempered the effects of that argument); State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).
Here, S.J.F.’s statements in both videotapes, as well as her testimony at trial, consistently supported the jury’s verdict. The prosecutor took the language that he used in his closing and rebuttal arguments from the videotaped statements that the district court had admitted into evidence and from trial testimony. The prosecutor then noted in his closing argument that his argument was not evidence. Appellant addressed the differences between the two videotapes in his closing argument. Further, the district court instructed the jury that “the arguments or other remarks of an attorney are not evidence” and that the jurors should rely solely on their own memory about what the evidence is. See Wahlberg, 296 N.W.2d at 420 (finding no reversible error because of prosecutor’s improper closing where district court gave curative jury instructions, prosecutor told jury in closing argument that his argument did not constitute evidence, and defendant noted prosecutor’s improprieties in his closing argument). Given the circumstances, the parties’ statements during argument and the court’s instructions mitigated any adverse effects that the prosecutor’s language, if improper, had on the jury’s verdict.
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.