This opinion will be unpublished and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
Jerry Wayne Gedney,
Filed July 9, 2002
Robert H. Schumacher, Judge
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert D. Miller, Sherri D. Hawley, Robert D. Miller and Associates, 111 Marquette Avenue South, Suite 3102, Minneapolis, MN 55401 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Jerry Wayne Gedney appeals from convictions of third- and fourth-degree criminal sexual conduct, arguing the trial court abused its discretion in admitting pornographic images from appellant's computer disks, in admitting a pornographic video the victim identified and rejecting Gedney's offer to stipulate to it, and by excluding under the rape shield law cross-examination of the victim's sexual history. We affirm.
The victim, E.Z., is 15-years-old and lived with her parents. E.Z. testified that shortly after Gedney moved into the neighborhood, he engaged in sexual flirting with her, including sexual comments and inappropriate behavior. On September 9, 2000, E.Z. went over to Gedney's house around noon for a driving lesson. Gedney told E.Z. he wanted to show her something in his basement. Gedney pulled up a number of pornographic pictures. In the first video stream he showed her, a girl was giving oral sex to a man, and Gedney said the girl reminded him of her. He showed E.Z. other pornographic pictures, then turned to her and asked if they "could do that." E.Z. did not respond.
Gedney then went to E.Z., unzipped his pants and forced his penis into her mouth. E.Z. turned her head. E.Z. testified that penetration occurred, although just "barely." Gedney then asked if he could kiss her. Although E.Z. said no, Gedney kissed her neck and stomach. E.Z. said she wanted to check if her parents were home, and she left. Later, Gedney came over to E.Z.'s house and asked if E.Z.'s parents were home. When E.Z. said no, Gedney forced his way in and forcibly engaged in sexual intercourse with her.
E.Z. testified that she did not tell her parents because she just wanted to "push it out of [her] mind." While E.Z. was telling a friend about the incident, a teacher overheard the conversation and reported it to the counselor's office. The counselor contacted police, and E.Z. told an officer the full story. After giving a taped interview, E.Z. telephoned Gedney. An officer recorded the conversation. Gedney admitted showing E.Z. pictures.
A search of Gedney's home found approximately 150 pornographic pictures on disks, some of which were obtained from websites advertised as teen sex web sites. Ten of those pictures were admitted into evidence with intimate body parts blurred. Gedney's counsel objected to the introduction of the photos. A deleted file in the hard drive of Gedney's computer contained a video of a girl performing oral sex on a man. It was determined that the stream was created on the hard drive on August 31, 2000 and deleted on October 18, 2000. It was introduced into evidence at trial despite Gedney's offer to stipulate to its contents and over objection. After the incident, E.Z. became concerned about becoming pregnant. She purchased several pregnancy tests and took a pregnancy test at the doctor's office. After his pre-trial motion was denied, Gedney attempted at trial to question E.Z. about how she believed she had become pregnant; the court did not allow this line of questioning.
Gedney testified E.Z. came over to his house, and although he took her down to the basement to show her some jokes on the computer, he did not show her any pornographic pictures or videos. Gedney denied any sexual contact with E.Z.
1. Gedney argues the pornographic photographs should have been excluded from evidence because their probative value did not substantially outweigh their unfair prejudice. District courts have "wide discretion in determining relevance and the probative value of evidence." State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989). We "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.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Minn. R. Evid. 401. Any evidence is relevant which logically tends to prove or disprove a material fact in issue. Boland v. Morrill, 270 Minn. 86, 98-99, 132 N.W.2d 711, 719 (1965). However, Minn. R. Evid. 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury * * *.
Gedney contends that the photographs were not relevant because E.Z. did not testify that she had ever viewed them. He also argues that the photographs caused unfair prejudice to him because the file names all contained the word "teen", so that the only purpose for introducing them was to show that Gedney was interested in sex with teenagers.
The state argues that the photographs were introduced to prove an element of the offenses for which Gedney was convicted. We agree. Minn. Stat. § 609.341, subd. 11 (2000) defines "sexual contact" as touching "committed with sexual or aggressive intent." Criminal sexual conduct in the fourth degree requires sexual contact. Minn. Stat. § 609.345, subd. 1 (2000).
In State v. Bates, 507 N.W.2d 847, 851-52 (Minn. App. 1993) review denied (Minn. Dec. 27, 1993), we affirmed the district court's admission of evidence showing the defendant's interest in young children. The evidence included testimony that the defendant admitted being attracted to young children and a pornographic magazine depicting men raping young boys found in the defendant's possession. Id.. The court explained:
Criminal sexual conduct involves acts committed for the purpose of satisfying the actor's sexual or aggressive impulses. Bates testified that he did not have sexual contact with the victims, and any touching was accidental. Given that testimony, evidence of Bates' sexual interest in young children was relevant to prove whether an element of the crime was present in his contact with [the victims].
Id. (citation omitted). Because Gedney denies having any sexual contact with E.Z., evidence of the pornographic pictures is relevant to show Gedney's sexual and aggressive impulses.
In addition, the district court at Gedney's trial instructed the jury:
The court has admitted into evidence a series of still photographs allegedly identified as 'teen' files from [Gedney's] computer. You are to consider these photographs only for the purpose of determining whether [Gedney's] acts were committed with sexual or aggressive intent.
Any prejudicial effect on the jury was lessened by the court's instructions to the jury to consider the photos only for purposes of determining whether Gedney's acts were committed with sexual or aggressive intent.
The district court has wide discretion in determining the probative value of evidence, and we cannot find that the district court clearly abused that discretion.
2. Gedney argues that the district court erred by introducing the 12-second video stream E.Z. claims she viewed on Gedney's computer, because Gedney offered to stipulate that the video found on his computer was the same one E.Z. had seen. Gedney contends that by actually showing the video to the jury, its prejudicial effect was stronger than its purpose of corroboration, which could have been equally achieved by stipulation.
Offering the video in this case, however, allowed a greater amount of corroboration than could have been achieved by stipulation because E.Z. testified that Gedney told her he liked that particular video because the girl on the video reminded him of her. Viewing the video gave the jury an opportunity to assess whether the girl in the video actually did look like E.Z., thereby corroborating her story. See State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993) (allowing admission of Playboy magazine shown to victim by defendant for purposes of corroboration). The district court did not clearly abuse its discretion by allowing admission of the video stream.
3. The abuse of discretion standard of review with respect to evidentiary issues in general also applies 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).
A criminal defendant has the right to confront the witnesses against him. U.S. Const. amend VI. The primary right guaranteed by the Confrontation Clause is the opportunity to cross-examine and impeach witnesses. State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995). Embodied in the right to due process is the right of the accused to present a complete defense. State v. Voorhees, 596 N.W.2d 241, 249 (Minn. 1999). The right guarantees the ability to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. State v. Goldstein, 505 N.W.2d 332, 340 (Minn. App. 1993) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967)), review denied (Minn. Oct. 19, 1993). The trial court obviously must allow the defendant to present evidence that is material to his defense. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).
But a defendant has no right to introduce evidence that does not comply with established rules of evidence. State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000). In a prosecution for criminal sexual conduct, the rape shield law provides that evidence of a victim's previous sexual conduct is inadmissible except by court order. Minn. Stat. § 609.347, subd. 3 (2000) (stating that victim's previous sexual conduct inadmissible unless more probative than prejudicial and either consent is defense to show common plan or scheme of false accusations or prosecution's case includes evidence of semen, pregnancy, or disease at time of incident to show source of semen, pregnancy, or disease); Minn. R. Evid. 412 (same).
Gedney contends that the rape shield law did not protect E.Z. from introduction of evidence regarding her belief that she was pregnant because the prosecution's case involved evidence of pregnancy. Minn. Stat. § 609.347, subd. 3. The prosecution, however, did not introduce evidence of pregnancy but merely the fact that E.Z. had sought pregnancy testing. The purpose was not to show the source of the pregnancy, but that E.Z. believed she was pregnant as a result of the sexual assault. We conclude the rape shield law protects E.Z.
In certain cases the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded by the rape shield law. State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992). Evidence of a victim's sexual history in a sexual assault prosecution is normally irrelevant. Crims, 540 N.W.2d at 867-68. The burden of establishing its relevancy is on the defendant. Id. Gedney argues that evidence of E.Z.'s beliefs about how she became pregnant was relevant to show that she may have had prior sexual relations, and that her motivation to accuse Gedney of sexual assault was to cover up her sexual relations with someone else.
Even if the evidence crossed the threshold of relevance, however, it may still be excluded if its prejudicial effect outweighs its probative value. Crims, 540 N.W.2d at 868-69; Minn. R. Evid. 403 (excluding relevant evidence when its probative value is substantially outweighed by danger of unfair prejudice). While evidence of the possibility that E.Z. may have become pregnant by someone else may not be totally irrelevant to the issue of motive, the probative value of the evidence would be substantially outweighed by its prejudicial nature.
Additionally, the state argues that because Gedney made no offer of proof as required by Minn. R. Evid. 103(a)(2) about what his witnesses would testify, the evidence cannot be admitted. We agree. 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, 90 (1975); Kobow, 466 N.W.2d at 751.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.