This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Richard James Dargon,
Polk County District Court
File No. K100765
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Wayne H. Swanson, Polk County Attorney, Andrew R.K. Johnson, Assistant County Attorney, Crookston Professional Center, 223 East 7th Street, Suite 101, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
Appellant Richard James Dargon challenges his conviction of second-degree criminal sexual conduct, arguing the trial court violated the separation-of-powers doctrine and Minn. R. Crim. P. 17.05 by convicting him for conduct occurring “in either April or September 1998” when the complaint charged him for conduct occurring “on or about April 6, 1998.” Appellant also disputes the sufficiency of the evidence and contends that the trial court erred by denying him access to the complainant’s social services file. Appellant failed to secure the social services file for our review and thus we do not reach that issue. Because the trial court did not err, and the record supports the conviction, we affirm.
One afternoon in either April or September 1998, appellant and Fred Haltli drank beer for several hours at Haltli’s home before going to a bar in Gully, Minnesota. Appellant and Haltli met Andrea Young at the bar, and Haltli told her that they were celebrating his birthday, which is April 6. Sometime between 11:00 p.m. and 1:00 a.m., the three went to Young’s house and continued to drink in the kitchen.
Two of Young’s children, S.Y., age 8, and E.Y., age 6, were asleep in the first floor bedroom. S.Y. and E.Y. slept on two love seats that were pushed together to form a bed. The access to the only bathroom in the house was through S.Y. and E.Y.’s bedroom and, at some point, appellant walked through the children’s bedroom to use the bathroom.
S.Y. testified that appellant sat down by her as she was sleeping, put his hand beneath her underwear, and placed his finger “inside” the “back of [her] butt.” When S.Y. woke up, appellant left the room. S.Y. also testified that appellant returned a second time and touched her again. E.Y. woke up when S.Y. called his name and saw appellant standing next to the loveseat. S.Y. told E.Y. what had happened shortly afterward.
When Young noticed that appellant had been gone awhile, she looked for him and found him standing next to the children’s bed. Appellant told her that he was admiring her children, and they left the room to avoid waking the children. Before the adults went to sleep, Young noticed some blood on appellant’s finger, but she could not recall what he said it was from. Young later found some blood on the crotch of S.Y.’s underwear. When asked about it, S.Y. told Young that it was from falling on a bike.
Two years later, while watching a segment about child molestation on The Sally Jesse Raphael Show, S.Y. told her older sister, J.L., that “Richard” had done that to her. J.L. relayed this information to Young and Young reported it to the Polk County Social Services.
Appellant was charged with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(a), 2 (1996). The complaint alleged that the offending conduct occurred “on or about April 4, 1998.” The complaint was amended twice, to state “on or about April 6, 1998” and to include a charge of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subds. 1(a), 2 (1996). Appellant moved the trial court to disclose the social services records on S.Y. and her family, but the court denied the motion after reviewing the records in camera and finding them to be irrelevant. Appellant waived his right to a jury trial and tried the matter to the court.
Appellant admitted to the circumstances leading up to the alleged criminal conduct, including meeting Young at the bar and going back to her home, but he denied ever touching S.Y. in a sexual manner. Appellant and his wife claimed that the night in question occurred in September, not April. They argued that he could not have been at Young’s home on April 6, 1998, because he was out of town with his wife and her children at a baptism on April 4 and 5 and did not return until late on April 6. But the children’s school-attendance records showed that at least one of them was in school on the 6th.
The trial court acquitted appellant of first-degree criminal sexual conduct but found appellant guilty of second-degree criminal sexual conduct for his actions “in either April or September 1998.” The court later amended its findings regarding appellant’s alibi evidence, but still concluded that appellant was in town on the morning of April 6. The court denied appellant’s motions for a new trial. Appellant was sentenced to 21 months, stayed, with 25 years of probation and 9 months in the county jail. This appeal follows.
D E C I S I O N
Appellant argues that the trial court amended the complaint sua sponte by finding him guilty of conduct in September when the complaint only alleged conduct “on or about April 6.” Appellant contends that this violated the separation-of-powers doctrine by invading the executive branch’s power to charge and prosecute a crime.
The separation-of-powers doctrine is premised on the belief that “too much power in the hands of one governmental branch invites corruption and tyranny.” Wulff v. Tax Court of Appeals, 288 N.W.2d. 221, 223 (Minn. 1979). Thus, the judiciary generally cannot interfere with the prosecutor’s charging authority because that power is solely delegated to the executive branch. State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996). “Notwithstanding the separation of powers doctrine, there has never been an absolute division of governmental functions in this country, nor was such even intended.” Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 137 (Minn. 1999) (quotation omitted). For example, although a court cannot interfere with the prosecutor’s charging authority, it retains broad discretion over how the case proceeds once it is filed. State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994). This includes the power to grant or deny the prosecutor’s request to amend the complaint. Id.; Minn. R. Crim. P. 17.05 (providing that courts “may” permit amendments to the complaint).
In Krotzer, the prosecutor investigated the defendant, filed charges, obtained a plea agreement, and recommended a disposition to the district court. Krotzer, 548 N.W.2d at 254. The district court ordered a stay of adjudication over the state’s objection. On appeal, the state challenged the district court’s authority to override the prosecutor’s sentencing recommendation, framing the issue as a violation of the separation-of-powers doctrine. Id. The Minnesota Supreme Court held that the district court’s order did not violate the separation-of-powers doctrine because it acted within its “inherent judicial power” and did not infringe on the prosecutor’s power to file charges and prosecute an individual. Id. at 254-55.
A similar challenge was present in Johnson, where the issue before the court was whether the certification process by which a misdemeanor offense is treated as a petty misdemeanor is a matter of procedural or substantive law. 514 N.W.2d at 552. If a case is certified as a petty misdemeanor, a defendant loses his right to a jury trial. The supreme court ruled that the certification process is a matter of procedural law governed by Minn. R. Crim. P. 23.04. Therefore, the district court was precluded from approving a change in the way the charge was certified unless the defendant approved of the change. The court held the rule does not violate the separation-of-powers doctrine because the prosecutor retains the authority to charge, request a trial continuance, or to seek to amend the complaint. Id. at 556.
As in Krotzer and Johnson, the prosecutor here had the authority to charge appellant. The charges were amended on two occasions. The trial court did not interfere with the prosecutor’s charging decisions. The court’s amendment served to conform the charges to the evidence presented at trial, which it has discretion to do upon the prosecutor’s motion. See Ruberg v. State, 428 N.W.2d 488, 490 (Minn. App. 1988) (allowing the prosecutor to amend the dates on the complaint to conform to the evidence at trial), review denied (Minn. Oct. 26, 1988). While the prosecutor made no such motion here, the trial court acted within its inherent powers by sua sponte amending the complaint to conform to the evidence. See State v. Ostrem, 535 N.W.2d 916, 922-23 (Minn. 1995) (finding that a district court had authority to amend the complaint sua sponte to include an aiding and abetting charge so long as it acted within the bounds of Minn. R. Crim. P. 17.05). Because the trial court acted within its inherent powers and did not usurp the prosecutor’s charging power, we find no violation of the separation-of-powers doctrine on this record.
Appellant also contends that the court’s amendment of the complaint violated Minn. R. Crim. P. 17.05 because it charged a different and additional offense by changing the date of the crime after he presented an alibi defense. Appellant claims that this affected his substantial rights because he was not given a chance to defend his conduct in September.
Minn. R. Crim. P. 17.05 provides:
The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
When the date of a crime is not an essential element of the charged offense, changing the date in the original complaint to conform to the evidence presented at trial does not charge an additional or different crime. Ruberg, 428 N.W.2d at 490. In Ruberg, the state was allowed to amend a criminal sexual conduct complaint to conform to the evidence because the dates were not essential elements of criminal sexual conduct. Id. at 490-91.
This same premise holds true when the defendant presents an alibi defense. State v. Eggert, 358 N.W.2d 156, 160 (Minn. App. 1984). In Eggert, the defendant offered alibis to each of several counts of first-degree intrafamilial sexual abuse. Id. at 159-60. The defendant appealed his convictions on the ground that the trial court did not require the jury to find that the offenses were committed on the dates alleged by the state, thereby depriving him of his alibi defenses. Id. at 159. After finding that the specific date of an alleged sexual offense is not an essential element of the crime, we stated:
Moreover, a precise date need not be alleged and proven simply because the date is made an essential element of the defense where the date is not an essential element of the crime charged.
Id. at 160 (emphasis in original).
Because this is a criminal sexual conduct case, like Ruberg, the date is not an essential element of the crime. And, as we stated in Eggert, appellant cannot make it an essential element simply by raising an alibi defense. Thus, changing the date did not add or charge a new offense. It follows that appellant’s substantial rights were not affected. See Ostrem, 535 N.W.2d at 923 (finding that the defendant’s substantial rights are not prejudiced if the amendment does not add or charge a different offense). Therefore, we find no violation of Minn. R. Crim. P. 17.05.
Appellant contends that the evidence was insufficient to support his conviction based on his arguments that S.Y. waited 22 months to report the abuse, Young acted “abnormally and bizarrely,” S.Y. and E.Y. were manipulated, and the authorities conducted a shoddy and incomplete investigation. When reviewing the sufficiency of the evidence, we carefully examine the record and determine whether the evidence, viewed in the light most favorable to the conviction, reasonably supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). “Significant deference is accorded the [fact-finder’s] decision.” State v. Jones, 556 N.W.2d 903, 913 (Minn. 1996) (citation omitted). As a result, we leave credibility determinations to the fact-finder and assume that the fact-finder believed the state’s evidence and disbelieved evidence to the contrary. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). Inconsistencies in the testimony do not warrant reversal if, on the whole, the testimony is consistent. State v. Folkers, 562 N.W.2d 5, 9 (Minn. App. 1997).
Appellant’s attack on the record fails on each point he raises. His complaints about S.Y.’s delay in reporting the incident, Young’s behavior, and alleged manipulation of the children are veiled attacks on the family’s credibility. Because we leave credibility to the fact-finder and the testimony is largely consistent, these arguments are not grounds for a reversal. Dale, 535 N.W.2d at 623; see State v. Dudrey, 330 N.W.2d 719, 720-21 (Minn. 1983) (finding that a delay in reporting abuse is not grounds for reversal when there is no reason to believe the complainant is lying). Further, appellant’s claim that a more complete investigation would have either shown or prevented an alleged fabrication of the incident, again, attacks credibility.
Here, the evidence established that appellant, Haltli, and Young drank together for several hours, first at the bar and later at Young’s home. S.Y. and E.Y. were asleep in a bedroom on the same floor, and appellant entered the children’s room twice. S.Y. testified that appellant touched her twice by putting his hand beneath her underwear. E.Y. corroborated his sister’s testimony by testifying that he saw appellant doing something around S.Y.’s legs, and that S.Y. told him that appellant touched her. Young stated that when she realized that appellant had been in the children’s room for an unusually long time, she found him standing by the children’s bed, staring at them. Young also testified that she saw blood on appellant’s finger and blood in the crotch of S.Y.’s underwear a few days later. This record sufficiently supports a conviction of second-degree criminal sexual conduct.
Finally, appellant urges this court to review the social-services file that the trial court ruled was irrelevant. This file was not a part of the trial court record transmitted on appeal. Because appellant is responsible for preserving the record for our review and has failed to do so, we decline to address this claim. State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn. App. 1992) (finding that appellants forfeited their claim to appellate review of some materials reviewed in camera by the trial court by failing to secure the materials for the appellate record), review denied (Minn. Mar. 19, 1992).