This opinion will be unpublished and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

C8-01-1234

 

State of Minnesota,
Respondent,

vs.

Robert James Ahearn,
Appellant.

 

Filed September 10, 2002

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 99113483

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Randall, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

On appeal from a conviction of five counts of first-degree criminal sexual conduct, one count of second-degree criminal sexual conduct, and one count of child endangerment, appellant Robert James Ahearn argues that the district court abused its discretion by admitting into evidence sexual devices possessed by appellant and his girlfriend, who was the mother of the two child-victims, and by admitting sexually explicit photographs that did not depict the child-victims.  Appellant also raises various pro se arguments on appeal.  Because there is not a reasonable possibility that the district court’s error in admitting the challenged evidence significantly affected the verdict and appellant’s pro se arguments lack merit, we affirm.

FACTS

 

Appellant began living with his girlfriend, Stella Anderson, and her two children, S.M. and C.A., in 1986. [1]  After approximately two moves, appellant, Anderson, S.M., and C.A. settled at 734 Monroe Street in Minneapolis.  

In November 1999, when S.M. was no longer residing with her family, she reported to Sergeant Jim Spencer of the Minneapolis Police Department that she had been sexually abused by appellant and Anderson, and she reported concern that C.A. had also been abused.  Sgt. Spencer interviewed C.A. at his school.  C.A. told Sgt. Spencer about abuse he had endured from appellant and Anderson.

S.M. testified that when she was ten or eleven years old, she had to bathe appellant, including his genitals, because, she was told, he was sick and needed help.   S.M. testified that she had to perform oral sex on appellant, she had to watch pornographic movies, she had to allow appellant to inspect her body including her vaginal area,[2] and she had to watch her mother and appellant have sex.  According to S.M., appellant told her that he engaged her in some of these activities so she would know what to do in case she was ever raped. 

S.M. testified that appellant and her mother kept pornographic videos in the couple’s unlocked entertainment center and in their bedroom.  S.M. further testified that she had found pictures of appellant and her mother engaging in sexual acts and that she knew of photo albums stored in the entertainment center containing additional photographs of appellant and her mother engaging in sexual acts.  S.M. also testified that there were “sex toys” in the home and that some had been offered to her for her use. 

C.A. testified that appellant began to sexually abuse him when he was approximately nine years old.  C.A. testified that appellant had C.A. perform oral sex on appellant and that appellant performed oral sex on C.A.  C.A. testified that during oral sex, pornographic videos would be playing in the background.  C.A. further testified that photographs were taken of him performing sexual acts.  C.A. testified about touching his mother while appellant watched him and also indicated that appellant had C.A. dress in female clothing and undress in front of appellant and others.

C.A. testified that appellant kept pornographic videos in the VCR cupboard and in appellant’s bedroom and that the videos were not kept in locked containers.  C.A. also testified that he was aware that sexual devices were kept in the home.      

After speaking with C.A., Sgt. Spencer obtained a search warrant to search appellant’s 734 Monroe Street residence and executed it with two other Minneapolis Police Officers.  Photographs, two binders of photographs, videotapes, a video camera, and numerous sexual devices were obtained during the search. 

At trial, S.A. identified five photographs and five sexual devices that were admitted into evidence over appellant’s objection.  Appellant stipulated that the photographs seized were “pornographic in nature,” and Sgt. Spencer described the photographs to the jury.  The parties also stipulated that the 109 videos seized were pornographic, and Sgt. Spencer described the videos in general terms as videos depicting adults having multiple forms of sexual contact, but the videos were not admitted into evidence.  Sgt. Spencer also testified in detail about 23 sexual devices found during the search, and the jury was allowed to view each of these items.

On redirect examination, Sgt. Spencer identified the two binders of sexually explicit, captioned photographs of appellant and Anderson that were found in a locked cabinet during the search, and the binders were admitted into evidence without objection by counsel for appellant.  Counsel for appellant later objected to the introduction of the binders, explaining that when they were introduced he did not realize the photographs were still in the binders.  His objection was overruled.                         

Respondent State of Minnesota initially charged appellant with six counts of criminal sexual conduct in the first degree but, before trial, amended the complaint to add a charge of felony child endangerment.  After a jury trial, appellant was found guilty of five counts of criminal sexual conduct in the first degree, one count of the lesser crime of criminal sexual conduct in the second-degree, and one count of child endangerment.  The district court, in a double durational departure, sentenced appellant to 292 months with respect to count one and to 172 months consecutively with respect to count five.  This appeal followed.

D E C I S I O N

 

I.            Admission of the Sexual Devices and Photographs

            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If a district court errs by admitting evidence, a reviewing court must determine “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

            Relevance

            Appellant argues that the district court abused its discretion by admitting the sexual devices and the binders containing sexually explicit photographs because the devices and photographs, admitted through the testimony of Sgt. Spencer, were irrelevant to the proceeding.[3]  We disagree.

Evidence is relevant when it has

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. 

Corroboration of S.M. and C.A.’s Testimony

Evidence is generally admissible when it corroborates a victim’s testimony regarding an incident.  See State v. Wiskow, 501 N.W.2d 657, 658, 660 (Minn. App. 1993) (noting that a Playboy magazine was probative as corroboration of a child’s testimony that her father showed her a Playboy magazine).  In State v. Hanson, 355 N.W.2d 328, 328-29 (Minn. App. 1984), a nine-year-old child alleged that the respondent read her a “naked book.”  This court noted that the discovery of sexually explicit magazines in the defendant’s apartment may be relevant to the jury’s assessment of the child’s credibility.  Id. at 329.          

S.M. testified that she found pornographic pictures depicting appellant and her mother engaged in sexual acts and that she knew of photo albums that were stored in the entertainment center depicting appellant and her mother engaged in sexual acts.  And both S.M. and C.A. testified that sexual toys/devices were present in the home.[4]  The challenged evidence corroborates S.M. and C.A.’s testimony and the standard of review requires the panel to defer to the district court’s determination of relevancy. 

Furthermore, the challenged evidence is relevant to the child-endangerment charge against appellant.  A caretaker is guilty of child endangerment if he

intentionally or recklessly caus[es] or permit[s] a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health.

 

Minn. Stat. § 609.378, subd. 1(b)(1) (2000).

            Here, the presence of sexual devices and binders containing sexually explicit photographs is relevant to determining whether appellant intentionally or recklessly caused S.M. and C.A. to be placed in situations likely to substantially harm their emotional health.  See id.  Both C.A. and S.M. testified that they were aware of the presence of sexual devices in the home.  As respondent contends, the presence of these devices may have served to desensitize C.A. and S.M. to sexual acts with their caretakers, and, therefore, the devices are relevant to the endangerment claim. 

            In addition, although appellant contends that the binders were locked in a cupboard and were therefore not a part of the environment, S.M.’s testimony indicates that she knew of photo albums that were stored in the entertainment center depicting appellant and her mother engaged in sexual acts.  The presence of these photographs made up the environment of appellant’s home and is relevant to determining whether appellant endangered S.M.’s emotional health.   

            The district court did not abuse its discretion by finding the challenged evidence relevant. 

            Prejudice

            Appellant argues that even if the challenged evidence is relevant, the probative value of the evidence was outweighed by the unfair prejudicial impact of the evidence.  We agree. 

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice * * * or [by] needless presentation of cumulative evidence.

 

Minn. R. Evid. 403. 

Unfair prejudice

does not mean the damage to the opponent’s case that results from the legitimate probative force of the evidence but refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.

 

State v. Axford, 417 N.W.2d 88, 92 n.1 (Minn. 1987) (citation and quotation omitted). 

Neither child was asked to identify the sexual devices displayed by Sgt. Spencer.  The photographs depicted appellant and Anderson engaging in multiple forms of penetration and display, in the home, in an automobile, and in what appear to be public settings.  None of the photographs depicts the children and there is no evidence that the children were present when the photographs were taken or were forced to look at the photographs.  The photographs in the binders are cumulative to the five photographs identified by S.M. and introduced through her testimony.  The additional sexual devices are cumulative to the devices introduced through S.M.  The probative value of this cumulative evidence was outweighed by the prejudicial nature of the evidence and the district court abused its discretion by admitting it.

Effect of error on verdict

Nonetheless, respondent contends that even if the introduction of the evidence was unfairly prejudicial, the error was not so prejudicial to entitle appellant to a new trial.  We agree.

            An error is not so prejudicial as to entitle a party to a new trial if “the verdict actually rendered was surely unattributable to the error.”  State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)(quotation omitted).  In determining whether the verdict is “surely unattributable” to the error, a reviewing court must conduct a “thorough examination of the evidence.”  Id. 

            Here, appellant’s guilty verdicts are surely unattributable to the admission of the sexual devices and the binders of sexually explicit photographs.  Both S.M. and C.A. gave extensive testimony regarding the sexual abuse they suffered at the hands of appellant.  S.M. identified sexual devices, not challenged on appeal, and similarly sexually explicit photographs, not challenged on appeal, that were in the home at the time that she was abused.  C.A. also stated that sexual devices were present in the home.  The presence of these devices corroborated S.M. and C.A.’s testimony, thereby, lending credibility to their claims.  The children’s testimony about what occurred in the home was clear and consistent.  The prejudicial evidence was merely cumulative and did not provide the jury with any additional foundation or proof for the verdict.  S.M. and C.A.’s testimony overwhelmingly supports the jury’s verdict, and therefore the jury’s verdict is surely unattributable to the erroneously admitted evidence.  The admission of the evidence was not so prejudicial as to entitle appellant to a new trial.       

II.        Pro Se Arguments

            Appellant raises various pro se arguments in his pro se supplemental brief, all of which are without merit. 

            Juror Claims

            Appellant lists 11 problems with his jury but the gist of appellant’s argument is that his jury was biased.  In order to prevail on a juror bias appeal,

an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant. 

 

State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983) (citations omitted).

            Here, appellant failed to specifically identify which jurors he believed were biased.  He further failed to allege that the jurors were challenged for cause, he failed to argue that actual prejudice resulted, and he failed to identify or show where in the record he appropriately objected to the challenged jurors.  Because appellant’s claim of juror bias is wholly inadequate, his claim fails on procedural grounds. 

            Appellant’s claim also fails on substantive grounds.  A juror may be challenged for cause if the state of mind of the juror “satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.”  Minn. R. Crim. P. 26.02, subd. 5(1)1.  A juror may also be challenged for cause because of a “physical or mental defect which renders the juror incapable of performing the duties of a juror.”  Minn. R. Crim. P. 26.02, subd. 5(1)4. 

            Here, appellant simply makes bald assertions that his jurors possessed a state of mind or defect that rendered them biased.  He fails to cite any evidence supporting his positions.  His claim is without merit. 

            Child Endangerment

            Appellant alleges that the jury was not informed of count seven, child endangerment, until the conclusion of the trial; he was never arraigned on count seven; and he failed to enter a plea with regard to count seven.  Respondent amended appellant’s complaint to add a charge of felony child endangerment approximately four months before the trial began.  Appellant’s apparent claim that the child-endangerment count was not disclosed until after the trial is clearly without merit. 

            Appellant waived his argument that he was not arraigned on the child-endangerment count because he did not raise this issue before the district court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts “generally will not decide issues which were not raised before the district court”).

            Search Warrant

            Appellant claims that the search warrant, issued to search appellant’s home, should never have been signed.  But appellant fails to give any explanation as to why the search warrant was signed in error. 

            A search warrant may only issue if it is based upon a finding of probable cause by a “neutral and detached magistrate.”  State v. Papadakis, 643 N.W.2d 349, 355 (Minn. App. 2002) (citations omitted).  Here, Sgt. Spencer applied for a search warrant after interviewing S.M. and C.A. and learning of possible sexual abuse by appellant, which provided sufficient probable cause for the search warrant.  A neutral magistrate issued the search warrant after making a finding of probable cause.  Appellant’s claim about the search warrant is without merit. 

            False Testimony

            Appellant alleges that S.M., C.A., and Sgt. Spencer lied during their testimony at trial.  “Weighing the credibility of witnesses is the province of the jury.”  State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002).  The jury was in the best position to weigh the credibility of the witnesses, and it is clear by its verdict that the jury believed S.M., C.A., and Sgt. Spencer.   

            Additional Pro Se Arguments are Meritless

            Appellant raises several additional pro se arguments which, after careful review of the record, we find to be entirely without merit.

Affirmed.

 



[1] S.M. was six-years-old and C.A. was approximately three years old when appellant moved into their home.

[2] S.M. testified that she found a videotape of herself being inspected by appellant and testified that she tried to kill herself. 

[3] Appellant does not challenge on appeal the admission of the five photographs and sexual devices identified by S.M.

[4] But it should be noted that the devices introduced through Sgt. Spencer were not identified by S.M. or C.A. as the devices they were exposed to while they lived with appellant.