This opinion will be unpublished and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,
John Melvin Karnes,
Mower County District Court
File No. K5991281
Mike Hatch, Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Patrick A. Oman, Mower County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent)
John M. Stuart, State Public Defender, Roy George Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
John Karnes appeals from his judgment of conviction and sentence for first-degree criminal sexual conduct. Karnes argues he (1) was denied a fair trial due to prosecutorial misconduct and the trial court’s admission of evidence of a prior conviction; and (2) that the trial court abused its discretion in imposing an upward durational departure based on vulnerability due to age and invasion of the zone of privacy. Because the record reveals that the alleged prosecutorial misconduct was harmless and the trial court did not abuse its discretion in its evidentiary ruling or in sentencing, we affirm.
During the early morning, on August 27, 1999, appellant John Karnes began pounding on the apartment door of V.T. and her boyfriend C.D. The pounding woke a neighbor who thought the “obviously drunk” Karnes might break the door down, but who decided against phoning the police when she recognized Karnes as one of the couple’s friends. The couple eventually woke up and reluctantly allowed Karnes into the apartment.
Karnes (1) told the couple that he had been in a fight at a bar and had passed out earlier in the evening; (2) later asked C.D. if he could lick V.T.’s toes and feet; and (3) then offered C.D. money to have sex with V.T. Karnes finally settled down. C.D. convinced Karnes to sleep on the couch and returned to his bedroom, locking the bedroom door behind him.
In the morning, Karnes was still in the apartment. As V.T. was walking into the bathroom, her five-year-old daughter J.T. exited her bedroom and asked, “Mommy, why was a man in my room?” V.T. assumed Karnes had entered the child’s room, mistaking it for the bathroom.
That same morning, and again the next evening, Karnes told both V.T. and C.D. that he had done something and wanted to kill himself over it, but did not explain it any further. After Karnes’ late night appearance at their home, J.T. began waking up in the middle of the night crying and having nightmares. Because of Karnes’s statements, C.D. began suspecting that Karnes and V.T. might have had a sexual encounter. He eventually confronted V.T. about his suspicion. V.T. told him about J.T.’s comment about a man in her room. C.D. then asked J.T. about it. J.T. eventually explained that “John” was in her room, pulled [her] panties down, licked her “down there,” and, when she yelled for her mother, he “bonked” [her] head against the wall.
After V.T. filed a report against Karnes, and after the initial investigation, J.T. was scheduled for a “Cornerhouse Interview.” In the videotaped interview, which the jury viewed, J.T. described the incident, identified the place as her bedroom, and the person as “[C.D.]’s friend.” V.T. arranged to have J.T. visit with a child psychology specialist, Dr. Vernon Lewis. During the interview, J.T. again described the incident, which Dr. Lewis then reported to the Mower County Attorney’s Office. On a second visit with Dr. Lewis, on November 16th, J.T. described the same incident.
Karnes was arrested, charged, and tried for two counts of criminal sexual conduct. At his trial Karnes testified and admitted that he was at J.T.’s home that night, but denied the charges. After the jury found Karnes guilty of first- and second-degree criminal sexual conduct, he was sentenced to an executed term of 108 months, an upward departure from the 86-month presumptive sentence.
Karnes appeals from the judgment of conviction and order for sentencing through his attorney and pro se.
D E C I S I O N
Whether prosecutorial misconduct requires a new trial is “governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.” State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citing State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980)). Misconduct is harmless if the verdict was surely unattributable to the error. State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). When a defendant fails to object to the prosecutor’s statements or to seek specific curative instructions, it weighs heavily against him because the trial court might have been able to ameliorate the effect of the statement on the trial. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994).
a. Prosecutor’s Argument Regarding Additional Victims
Karnes argues that the prosecutor inflamed the passions of the jury when in rebuttal closing argument, he sarcastically stated “wouldn’t it be nice if we had a pattern.” He said: “Forget [J.T.]. Let’s get a few more victims, let’s get a few more five-year-olds on the stand * * *. Then we got a case.”
Where credibility is a central issue, this court pays special attention to a prosecutor’s statements that might inflame or prejudice a jury. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). In light of the comment’s context, however, the prosecutor’s commentary did not inflame the jury’s passions. First, on three occasions, defense counsel himself distinguished a patterned sex offender from a one-time offender, and therefore, invited a response. Second, the prosecutor’s response was direct and brief. Third, no objection was made. Fourth, no curative instruction was requested.
b. Vouching Testimony
i. Dr. Lewis’s Testimony
Karnes argues that the prosecutor committed misconduct by asking Dr. Lewis to give an opinion about J.T.’s veracity. Before trial, the court ruled that Dr. Lewis could not testify regarding J.T.’s truthfulness. Later, the court reiterated this ruling and added: “[p]resumably, counsel for defense will be alert to those particular issues and how the questions are asked.” The state then questioned Dr. Lewis about his two sessions with J.T., and defense counsel cross-examined him. Defense counsel’s only objection was to the admissibility of the doctor’s report, which the court sustained because it was cumulative. Karnes now complains that the state’s question about the child’s demeanor intentionally elicited the doctor’s opinion regarding J.T.’s truthfulness.
The doctor did not directly state whether he believed J.T. The doctor simply elaborated on his opinion that J.T. had spoken to him spontaneously. This is evidence that only an expert can provide and that is particularly helpful to jurors who likely have no background in child psychology in abuse cases. See State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) (expert’s explanation of “emotional antecedents of the victim’s conduct” can assist jury). The doctor opined that spontaneity was consistent with truthfulness, but he did not equate it with truthfulness. Under these circumstances, Karnes was not prejudiced, and the jury would not have been unduly influenced by the doctor’s words. See, e.g., State v. Campa, 390 N.W.2d 333, 335 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986) (expert’s statement that she believed report on child “to be true” was not error mandating new trial where no objection was made, opinion was volunteered, remark was of “passing nature,” and evidence was overwhelming against defendant).
ii. Mother’s Testimony
Karnes also argues that the prosecutor improperly asked V.T. whether she believed her daughter. A prosecutor may not intentionally elicit vouching testimony when credibility is a central issue and then use it to bolster credibility in closing argument. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).
The offending question followed the prosecutor’s inquiry regarding J.T.’s exposure to sex acts or objects in the home. V.T. answered several specific questions indicating that J.T. had no such exposure, followed by the prosecutor asking generally, “Do you have any reason to believe that [J.T.] is making this up?” Defense counsel objected to this last question as “an improper question to the witness,” and the court overruled the objection.
Read in context, the state was attempting to elicit a response ruling out any reason to believe that J.T. might have fabricated the sexual incident with Karnes. J.T.’s credibility was central to the case. Karnes had also implied that C.D. should have been a suspect. The question apparently was posed to eliminate any reason not covered by the preceding specific questions. While the question comes close to asking the mother to vouch for her daughter’s truthfulness, the line of questioning was helpful to jurors in understanding the home environment. Any damage caused by V.T.’s answer to the question was mitigated by the context, the fact that she was the victim’s mother, and, therefore, likely to be biased in favor of her daughter, and the fact that the state did not subsequently highlight it as proof of truthfulness. Furthermore, defense counsel had the opportunity to cross-examine the mother.
c. Question Eliciting Karnes’ Refusal to Speak to an Officer
Karnes argues that the prosecutor improperly elicited the fact that Karnes had refused to speak to an officer. Placing the offending question in context, it followed a long line of defense counsel’s questions concerning the investigation. Defense counsel’s questions clearly implied that the detective had failed to investigate and talk to other suspects. On redirect, the prosecutor asked the detective who the suspect was. When the detective responded that Karnes was the only suspect, the prosecutor asked if the detective had tried to talk to Karnes. The detective answered that he had tried to talk to Karnes, but Karnes didn’t want to speak to him without a lawyer.
The state properly attempted to rehabilitate the detective after defense counsel had implied that the investigation was faulty. See State v. Goar, 295 N.W.2d 633, 634-35 (Minn. 1980) (prosecutor properly elicited defendant’s refusal to give statement after defendant earlier elicited evidence that he fully cooperated with police). Furthermore, any suggestion that Karnes had something to hide was ameliorated when Karnes took the stand. Again, defense counsel did not object or request a specific curative instruction on this issue. See State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999) (failure to object or request cautionary instruction ordinarily waives issue on appeal).
d. Cumulative Effect of Alleged Misconduct
Viewing the alleged misconduct in the context of the trial as a whole, Karnes was not denied a fair trial. The record reveals that none of the alleged misconduct received undue emphasis or attention and the focus remained on the credibility battle between a five-year-old and her alleged molester. Except for one objection to the question asked of J.T.’s mother, the conduct now argued as “misconduct” received neither an objection nor a request for a specific curative instruction. Under these circumstances, the alleged misconduct was harmless.
Karnes’s Prior Conviction
Karnes argues that over his objection, the trial court ruled that if he testified, he could be impeached with evidence of his prior conviction.
The record indicates that defense counsel brought motions in limine to exclude evidence of Karnes’ prior conviction and for an order clarifying evidence regarding C.D.’s prior felonies. When the court heard the motions on the day of trial, defense counsel requested a ruling on the admissibility of both Karnes’s and C.D.’s convictions but focused his argument on C.D.’s prior convictions. The prosecutor responded that the prior convictions were “highly prejudicial” and should not be “delved into.”
The trial court stated that past felony records would ordinarily be admissible on the issue of credibility subject to impeachment only when they involve veracity such as prior charges of perjury. The court specifically questioned the relevance of the prior convictions. Defense counsel clarified that he just wanted a ruling in limine so that he would not be admonished at trial if he called the defendant or other witnesses and questioned him about his records. The court later ruled that “any past convictions of the defendant are admissible for purposes of impeachment only. Any other witnesses must be cautioned by the prosecution not to reference any such convictions.” See Minn. R. Evid. 609 (a)(1).
In his opening statement, defense counsel told the jurors that Karnes and C.D. had felony records. He then elicited a detailed description of Karnes’ prior drug possession felony during Karnes’s direct examination. The state did not cross-examine Karnes regarding the felony. It was not until the state’s closing argument that the prosecutor commented on Karnes’s record, when he stated “[C.D.] testified he didn’t even dream that his friend, a convicted felon, would violate this five-year-old girl.”
Defense counsel did not follow the trial court’s ruling when he elicited Karnes’s testimony on his prior felony. Had it been used as contemplated by the court, and the defense did not agree, defense counsel could have objected and offered proof that it did not meet the standards under Minnesota law. See State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (setting out factors to be considered in determining whether probative value outweighs the prejudicial effect of admitting prior conviction). In any case, the court was careful to include a specific curative instruction regarding the use of previous convictions, and a reviewing court assumes that the jury follows the district court’s curative instructions. State v. Miller, 573 N.W.2d 661, 675-76 (Minn. 1998). Under these circumstances, the court did not abuse its discretion.
Upward Durational Departure
The court (1) departed upward from the presumptive 86-month sentence and imposed a 108-month sentence; and (2) based the departure on the age of the victim and the invasion of her zone of privacy. Defense counsel argues that the bases for departure are inappropriate because the age of the victim is an element of the crime and the zone of privacy is not atypical for this crime.
When substantial and compelling circumstances exist, the judge may depart from the sentencing guidelines. Minn. Sent. Guidelines II.D. The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
A victim’s age can be considered in departing in first-degree criminal sexual conduct cases. State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). Age may be considered “in connection with other facts in determining if the conduct underlying the offense was sufficiently different from the typical conduct so as to justify an upward departure.” Id. (quoting State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990)); see also State v. Johnson, 450 N.W.2d 134, 135 (Minn. 1990) (age of victim and invasion of her zone of privacy were among other bases justifying upward departure in sentencing in attempted first-degree criminal sexual conduct case). One’s bedroom is in one’s zone of privacy. See State v. Behl, 547 N.W.2d 382, 386 (Minn. App. 1996), rev’d on other grounds, 564 N.W.2d 560 (Minn. 1997); State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). Additional factors showing a “particularly vulnerable” victim are also present here: discrepancy in size and age of victim and perpetrator, see Skinner, 450 N.W.2d at 654; (10 year-old victim and 28 year-old perpetrator) attack in the middle of the night when victim and parents were sleeping, see State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992); a level of trust between the victim and perpetrator, see Skinner, 450 N.W.2d at 654; and psychological impact on the victim, see State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). The trial court did not abuse its discretion in departing from the presumptive sentence.
Appellant’s Pro Se Arguments
This court has considered appellant’s pro se arguments on appeal, and is satisfied that none provide a basis for reversal of the judgment of conviction.