This opinion will be unpublished and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,
Tammy Jean Gruber,
Martin County District Court
File No. K999445
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Terry W. Viesselman, Martin County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)
John M. Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Hanson, Judge.
Appellant Tammy Jean Gruber challenges her convictions of first-degree and second-degree criminal sexual conduct, arguing that the trial court committed plain error by admitting into evidence a statement that appellant made to police outside the presence of her attorney. Appellant also contends that the evidence was insufficient to convict her because the testimony of the victim and the victim’s family was inconsistent and, therefore, lacked credibility. Because the trial court did not err in admitting the statement and the evidence was sufficient to support appellant’s convictions, we affirm.
In May 1999, Jean Ferguson arranged to have her three daughters, J.L., A.L., and E.L., spend the night with their aunt, appellant Tammy Jean Gruber. Appellant had taken care of her nieces many times in the past and usually saw them daily.
Sometime during the evening, appellant entered the bathroom while 14-year-old J.L. was taking a bath and told J.L. to lay down on the living room floor without putting on her clothes. Appellant also instructed 13-year-old A.L. to take off her clothes and go to the living room. E.L. went to bed.
Appellant removed her clothes and joined J.L. and A.L. in the living room. When appellant asked J.L. to touch her, J.L. refused. Appellant then got on top of J.L. and licked J.L.’s vagina. A.L. remained in the room and observed appellant’s actions but was not assaulted by appellant.
A.L. reported the incident to her mother, who contacted the Fairmont Police Department. The case was assigned to Detective Brad Hady for investigation. Detective Hady conducted interviews of all three girls and sought an interview from appellant. She initially refused, telling Detective Hady that her attorney had advised her to not speak with him. But appellant later contacted Detective Hady and stated that she wanted to talk with him. Appellant then voluntarily appeared for an interview. Before questioning appellant, Detective Hady asked her if she still wanted to talk, despite her attorney’s advice. She replied that she did. Appellant maintained her innocence throughout the interview. But toward the end, appellant started crying and told Detective Hady that she did not want to say any more for fear that she would lose her kids.
Appellant was charged with two counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(b) (position of authority), (g) (significant relationship) (1998). The state later amended the charges to include two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(b) (position of authority), (g) (significant relationship) (1998). At the conclusion of trial, appellant was convicted of all charges and sentenced to 110 months. This appeal follows.
D E C I S I O N
Appellant contends that the trial court erred by admitting Detective Hady’s interview with appellant into evidence. Appellant did not object to this evidence at trial, but now asserts that it was error because Minn. R. Prof. Conduct 4.2 prohibits an attorney from interviewing a represented party outside the presence of the individual’s attorney unless the attorney has consented to the interview. While appellant acknowledges that this interview was conducted by law enforcement, she claims that rule 4.2 is applicable because the county attorney ratified the procedure by introducing the interview at trial.
Minn. R. Prof. Conduct 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Minn. R. Prof. Conduct 4.2 seeks “to protect the represented individual from the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.” State v. Miller, 600 N.W.2d 457, 463 (Minn. 1999) (quotation omitted). Because the right belongs to the party’s attorney, only the attorney can approve the contact or waive the right to be present during a communication between his or her client and opposing counsel. Id. at 464.
The supreme court held in Miller that Minn. R. Prof. Conduct 4.2 may apply to a statement taken in a voluntary, noncustodial interview occurring before criminal charges are filed. Id. at 467. Therefore, our analysis of whether Minn. R. Prof. Conduct 4.2 was violated must begin with a determination of whether the state ratified the investigator’s conduct.
It is undisputed that appellant was interviewed by Detective Hady without her counsel present. Hady, who is not an attorney, knew that appellant was represented. And a lawyer is responsible for the conduct of an associated nonlawyer if the lawyer ratifies the nonlawyer’s conduct. Minn. R. Prof. Conduct. 5.3(c)(1).
Appellant contends that the prosecutor ratified Detective Hady’s conduct when the prosecutor moved the admission of appellant’s statement into evidence. Miller is instructive on the issue of prosecutorial ratification. In Miller, the county attorney’s office was one of several agencies investigating a sanitary-landfill company and its general manager for suspected waste-disposal violations. Id. at 460-61. The county attorneys knew that the company and general manager had legal counsel. Id. at 460. Upon executing a search warrant at the company, an investigator interviewed the general manager outside the presence of his attorney. Before beginning the interview, the manager was allowed to fax a copy of the warrant to his attorney and to telephone the attorney’s office to let him know that the fax had been sent. Id. at 461. When the attorney representing the company learned of the search, he called the investigator to ask that no statements be taken unless he was present. The attorney also asked to speak to the manager.
The investigator advised the attorney that the manager was being interviewed and refused to terminate the interview or inform the manager that his attorney wanted to reach him. Id. The investigator also informed the attorney that he would not be permitted in the office area because it was a crime scene while the warrant was being executed. Id.
After speaking to Miller’s attorney, the investigator called the county attorney to ask whether he had to terminate the interview or allow Miller’s attorney on the premises. Id. The county attorney responded that the interview could continue and that Miller’s attorney could be kept off company premises. Id. Miller’s attorney also called the county attorney and was told that he would not be allowed to go inside the building or talk to any employees without their request for counsel. Id. When Miller’s attorney went to the property, the investigator met him in the parking lot. Id. Miller’s interview had been completed by this time but the investigator continued to bar Miller’s attorney from entering the building or initiating contact with any other employee. Id. at 461-62.
The Minnesota Supreme Court found a violation of Minn. R. Prof. Conduct 4.2 because the county attorney knew that Miller was represented by counsel and that the attorney objected to the proceedings but still ratified the investigator’s refusal to terminate the interview or allow communication between Miller and his counsel. Id. at 464.
Here, although Detective Hady knew that appellant was represented by counsel when he interviewed her, there is no evidence that the county attorney’s office was aware he was questioning a suspect represented by counsel. Before questioning appellant, Hady asked her if she still wanted to talk to him, in light of her attorney’s advice. She stated that she did. Appellant concedes that there is nothing in the record to indicate that the prosecutor ordered the interview or was aware of it until the decision to charge appellant was made. Based on this record, we conclude that there was no violation of Minn. R. Prof. Conduct 4.2. As a result, the trial court did not err in admitting the statement into evidence.
Appellant also argues that the evidence is insufficient because her nieces’ trial testimony was inconsistent and conflicted with their prior statements. When reviewing a challenge to the sufficiency of the evidence, we examine the record in the light most favorable to the findings and determine whether the fact-finder, in accordance with the principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found as it did. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). We defer to the fact-finder on its assessment of a witness’s credibility because the fact-finder is in the best position to make such a determination. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999). Thus, we assume the fact-finder believed the state’s witnesses and disbelieved all evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Appellant’s attack on the evidence focuses on the credibility of J.L. and her sisters. While there were some inconsistencies in their testimony, both J.L. and A.L. testified that appellant’s tongue contacted J.L.’s vagina. The testimony, on the whole, supported the trial court’s findings that appellant was in a position of authority, had a significant relationship with J.L., and engaged in sexual penetration and conduct with her. See State v. Thao, 634 N.W.2d 245, 248-49 (Minn. App. 2001)(stating that evidence sufficiently supports a conviction when the testimony taken as a whole is consistent and credible as to the appellant’s guilt).