This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-2248

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Paul Ingersoll,

Appellant.

 

Filed December 17, 2002

Affirmed as modified

Halbrooks, Judge

 

Ramsey County District Court

File No. K5011963

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

Melissa Sheridan, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his convictions of two counts of first-degree criminal sexual conduct, on the grounds that the trial court (1) abused its discretion by refusing his request for substitute counsel and by admitting the three-year-old victim’s out-of-court statements, and (2) erred by sentencing appellant to two concurrent 144-month sentences.  Because we conclude that the trial court acted within its discretion in denying appellant’s request for substitute counsel and in admitting the victim’s out-of-court statements, but erred in sentencing appellant on both convictions of first-degree criminal sexual conduct, we affirm as modified.

FACTS

            Appellant Robert Paul Ingersoll and Jennifer Peloquin are the parents of twin girls born June 7, 1997, one of whom is M.P., the victim in this case.  When Peloquin was 14 years old, she had approximately a 10-month romantic relationship with appellant.  The relationship ended soon after Peloquin discovered that she was pregnant.     

            Initially, appellant kept in contact with Peloquin and saw the twins almost every weekend.  But Peloquin cut off contact with appellant after about a year because the girls would be dirty and hungry when they came home.  Appellant’s mother continued to see the twins occasionally.  In early March 2001, when the twins were three years old, Peloquin called appellant’s mother’s house when appellant happened to be there.  Appellant and Peloquin discussed whether appellant could see the twins again and Peloquin agreed.  Appellant visited the twins a few times at Peloquin’s house, and Peloquin agreed to let the twins stay overnight with appellant at his sister’s house on March 9 or 10. 

            The following weekend, the twins were staying overnight with Rory Woods, Peloquin’s mother.  Woods testified that she was standing in the living room when M.P. came up to her and told Woods that “her daddy Rob had her naked and put his private by her private.”  Woods testified that the statement was “spontaneous.”  Woods did not respond to M.P. at the time.  But when Peloquin came to the house, Woods told her what M.P. had said.  Peloquin asked M.P. about the comment, and M.P. told her that “her daddy Rob had put his private in her private and he made her put her leg up.” 

Peloquin took M.P. to the emergency room at United Hospital for an examination.  No evidence of force was found, but the hospital referred Peloquin to Midwest Children’s Resource Center (MCRC) for further treatment. 

            On March 19, 2001, M.P. was examined at MCRC by Beth Carter, a registered nurse.  Carter first spoke briefly with Peloquin and then examined M.P. without her mother present.  The videotaped examination began with an interview and concluded with a physical examination.  Initially, M.P. repeatedly denied that any inappropriate touching had occurred.  But during the physical examination, Carter asked M.P. if she had been sick at all, and M.P. responded that “[u]m, my papa, my dad, Rob made me sick.”  When asked how he made her sick, M.P. replied, “Because he made me all naked.”  When asked where she was naked, M.P. replied, “At my daddy Rob’s house.”  While Carter was examining M.P.’s genital area, she pointed to M.P.’s labium majora and asked if she had been touched there, and M.P. replied that she had been touched there by her “daddy Rob.”  Carter then asked her what she had been touched with and M.P. responded that she had been touched with “daddy Rob’s big private.”  When Carter asked M.P. where she had been touched with the “big private,” M.P. pointed with her finger to an area just inside the labium majora and the labium minora and before the vaginal opening.  After the examination, Carter attempted to get M.P. to sit in the interview chair and look at an adult-male drawing to verify the terminology that M.P. had used, but M.P. was inattentive and left the room.

            On March 23, 2001, Ramsey County child protection worker Donna Etienne interviewed Woods and Peloquin at Peloquin’s home.  While Etienne was speaking with Peloquin, M.P. came into the room and volunteered to Etienne that “her dad made her stick her leg out and he touched her private and her butt.”  Etienne did not follow-up with M.P. because she was not there to interview the children.

            Sergeant Bruce Mead of the St. Paul Police Department interviewed appellant on April 17 and again on April 26, 2001.  During the first interview, appellant denied the allegations of sexual misconduct.  Mead testified that appellant told him that appellant was sleeping in his sister’s bedroom on the day of the alleged incident.  M.P. came in the room and was crying because the sleep mask of her cousin’s doll had somehow gotten wrapped around M.P.’s waist, and it was so tight that it was hurting her.  Appellant told Mead that the only way he could get it off was to take M.P.’s clothes off from the waist down and slide the sleep mask off.  Appellant denied any contact by his penis with M.P. and asked rhetorically why he would do that when he had just gotten the twins back in his life. 

            Mead conducted an audiotaped interview of appellant on April 26 because Mead felt that appellant had not been entirely truthful during the first interview.  Mead again asked appellant if it was true that his penis had contact with M.P.’s vagina.  This time appellant nodded his head affirmatively.  Mead testified at trial that appellant told him that it was not a sexual thing, but he was just trying to get out of having to be involved with the twins.  Mead further stated that appellant told him that his pants had either come unbuttoned or unzipped and he thought his penis did make contact with M.P.  The April 26 interview was admitted into evidence and played for the jury.  

            Appellant elected to testify at trial.  His testimony was consistent with the version of events that he reported to Mead during the April 17 interview.  In explanation of the different answers he had given Mead when Mead interviewed him on April 26, appellant testified that he had misunderstood the questions.  Appellant testified that he did not feel that he had any inappropriate contact with M.P. and that, if he had any contact with M.P.’s vagina, it was unintentional.

            Appellant was charged with first-degree criminal sexual conduct (penetration of a child under 13) in violation of Minn. Stat. § 609.342, subd. 1(a) (2000).  At the trial management conference the prosecutor amended the complaint to add an alternate count of first-degree criminal sexual conduct (bare genital-to-genital contact with a child under 13) under Minn. Stat. § 609.342, subd. 1(a) (2000).  Three-year-old M.P. did not testify at trial because the court found her to be incompetent to do so.  The jury found appellant guilty of both counts of first-degree criminal sexual conduct and the lesser-included offense of second-degree criminal sexual conduct.  Appellant was sentenced to two concurrent 144-month sentences, two concurrent five-year conditional-release terms, and two $50 fines for the two counts of first-degree criminal sexual conduct.  This appeal follows. 

D E C I S I O N

1.         Substitution of Counsel

Appellant asserts that the trial court’s refusal to consider appellant’s request for substitute counsel violated his constitutional right to effective assistance of counsel.  At the trial management conference on August 2, 2001, appellant’s counsel stated the following:

I think I should note for the record a lot of these items [respondent’s counsel] has mentioned this morning have been suddenly given to me this week, just prior to trial and I am strung by the fact that my client is in custody, [sic] has a speedy trial demand.  Normally my preference would be [sic] there is no way I would try to get this thing ready given the short notice of the transcripts, the motions, [appellant’s] intent to file written memoranda.  I may come in Monday and say I am just simply not prepared.

 

            Trial was scheduled to begin on August 6, 2001.  That morning, appellant gave the trial court a letter indicating his request for substitute counsel.  In support of his request, appellant noted his counsel’s “large case load” and his feeling that his case was not getting the attention that it deserved.  Appellant also stated that he felt he had been misled by his counsel regarding whether this was a first- or second-degree case and the length of a sentence for a person convicted of first-degree criminal sexual conduct.  Finally, appellant stated that he felt he would have a better chance if he had counsel without so much on his mind. 

            In response to the letter, appellant’s lawyer stated:

            Well, apparently Mr. Ingersoll feels that I haven’t adequately prepared his case.  I have misrepresented the law to him; and to a large extent, he’s probably right.  I would say that given my case load, which I would consider to be unconscionable, at this point he’s right.  I worked all weekend on his case.  I still don’t feel 100 percent prepared.  And as far as his comments about the potential sentences in this case, he’s absolutely right.  I overlooked the fact that the law has been amended August of last year to make this a presumptive 144-month commit.

 

The following exchange then occurred:

THE COURT:  Mr. Ingersoll, do you want to represent yourself?

 

THE DEFENDANT:  Not really.  But, I would like to seek different counsel, though.

 

THE COURT:  Mr. Ingersoll, you need to understand, you don’t get to pick and choose your public defenders.  If you want some time --

 

THE DEFENDANT:  I guess I have to be represented by Mr. Sarrette.

 

The trial commenced, and the issue was never raised again.        

The decision to appoint a substitute attorney is within the discretion of the trial court.  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  In State v. Vance, the Minnesota Supreme Court said:

                        The U.S. Const. Amend. VI and Minn. Const. art. 1, s. 6 provide a criminal defendant in this state the right to have the assistance of counsel for his defense.  This right includes a fair opportunity to secure counsel of his choice.  An indigent defendant has the right to be provided competent counsel in all criminal proceedings.  However, the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his choice.  Although he may request substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.

 

State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Defendant has the burden of showing the existence of exceptional circumstances.  See State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998).  Exceptional circumstances are those that affect an attorney’s ability or competence to represent his or her client.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  Generally, dissatisfaction or disagreement with appointed counsel does not constitute the exceptional circumstances needed to obtain substitute counsel.  Id. at 279 (finding a lack of exceptional circumstances where defendants claimed they were not being properly represented because their attorney told them they were not likely to win, but were prepared to try the case); see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (finding a lack of exceptional circumstances where personal tension existed between counsel and client). 

            Appellant contends that exceptional circumstances warranting the appointment of substitute counsel existed in this case because his counsel gave him misinformation concerning the law and did not pay enough attention to his case.  In support of his argument, appellant stresses the fact that appellant’s counsel agreed with him.

Appellant’s attorney did initially give appellant incorrect information about the duration of a sentence for a conviction of first-degree criminal sexual conduct and whether this was a first- or second-degree case.  But appellant was not prejudiced by the misinformation because the inaccuracies were cleared up before trial.  The fact that appellant received some incorrect legal information from his attorney that was corrected before trial does not constitute an exceptional circumstance. 

Appellant’s attorney stated that he had worked on the case all weekend prior to trial and that he was not 100% prepared.  While appellant’s attorney may have wanted more time to prepare, the record shows that he was more than adequately prepared to try this case.  Appellant’s attorney filed appropriate motions in limine, made a competent opening statement and closing argument, effectively cross-examined witnesses, called the defense witness suggested by appellant, and properly advised appellant of his right not to testify.  Further, jury selection lasted three days, providing appellant’s counsel with additional preparation time after his Monday morning comment that he was “not 100% prepared.” 

If appellant was truly concerned about the level of his representation, he should not have waited until the day trial was scheduled to begin to make his request for substitute counsel.  Furthermore, the trial court appeared ready to grant appellant a continuance.  But before the court could ask if appellant wanted more time, the court was interrupted by appellant, stating that he was ready to proceed with his present attorney. 

            We conclude that the trial court acted within its discretion by not appointing substitute counsel when no exceptional circumstances were present.

2.         Evidentiary Issues

Appellant contends that the trial court’s admission of M.P.’s out-of-court statements to Woods, Peloquin, Etienne, and Carter violated his constitutional right to confront his accuser.  He asserts that the admission of this evidence was prejudicial and, as a result, his conviction must be reversed.  Because the trial court determined that M.P. was incompetent to testify, it admitted her out-of-court statements as substantive evidence under Minn. Stat. § 595.02, subd. 3 (2000).  Appellate courts largely defer to the trial court’s evidentiary rulings and will not overturn them absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            Minn. Stat. § 595.02, subd. 3, states the following:

            An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * by another, is admissible as substantive evidence if:

            (a) the court * * * finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(b) the child * * * either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

            (c) the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement. 

            For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements.  An unavailable witness includes an incompetent witness. 

 

The statute’s provisions incorporate the constitutional requirements for satisfying the confrontation clause.  State v. Bellotti, 383 N.W.2d 308, 314-15 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986). 

            When determining the reliability of an out-of-court statement, Minnesota courts may consider any relevant factors, including the following:

1.   spontaneity;

2.   consistent repetition;

3.   mental state of the declarant;

4.   use of terminology unexpected of a child of similar age;

5.   lack of motive to fabricate;

6.   knowledge of the declarant;

7.   motives of the declarant and witnesses to speak truthfully;

8.   proximity in time between the statement and the events described;

9.   presence of suggestive or leading questions; and

10.whether the person speaking to the child had a preconceived notion of what the child would say.

 

In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999).

            While the trial court did not separately address the factors of reliability for each of the out-of-court statements at issue, it found that M.P. consistently told the same story to Woods, Peloquin, Etienne, and Carter, and made the statement to Etienne spontaneously. 

            a.         Statement to Woods

 

            When M.P. was at Woods’ home the weekend after the alleged incident, M.P. told Woods that “her daddy Rob had her naked and put his private by her private.”  Appellant admits that the statement M.P. made to Woods was spontaneous, occurred shortly after the incident, and is likely admissible under Minn. Stat. § 595.02, subd. 3.  We conclude that the trial court was within its discretion in finding that M.P.’s statement to Woods was sufficiently reliable to be admissible.

            b.         Statements to Peloquin

 

            Appellant argues that M.P.’s statements to Peloquin (that daddy Rob made her put her leg up and put his private in her private) are not sufficiently reliable because they were the result of Peloquin’s questions to M.P., they were not spontaneous, and Peloquin had a preconceived notion of what M.P. would say, based on what Woods had told her.  But the statements to Peloquin were consistent with the statements M.P. made to Woods, M.P. had no reason to fabricate the story, she relayed the story in terms ordinarily used by a three-year-old, and a three-year-old is likely to tell her mother the truth when asked a direct question.  The trial court attached great significance to the fact that M.P. told a consistent story.  We conclude that the trial court was within its discretion in finding that M.P.’s statements to Peloquin were sufficiently reliable to be admissible.

            c.         Statements to Carter

            M.P. made several statements to Carter during her examination of M.P. at MCRC.  Appellant argues that the statements to Carter were improperly admitted by the trial court under the medical-diagnosis exception to the hearsay rule, Minn. R. Evid. 803(4).  Although the trial court made reference to Minn. R. Evid. 803(4), our reading of the record indicates that the trial court admitted the statements to Carter under Minn. Stat. § 595.02, subd. 3. 

            Appellant contends that Carter had a preconceived idea of what M.P. would say and she used leading and suggestive questions and that Carter did not feel that M.P. understood the importance of telling the truth.  Further, appellant argues that Carter was unwilling to accept M.P’s repeated initial denials that she had been abused. 

            M.P.’s initial disclosure to Carter occurred during the physical examination as a result of Carter asking M.P. if she had been sick at all.  M.P. replied that her daddy Rob had made her sick.  Further disclosures were made during Carter’s examination of M.P.’s genital area when Carter asked M.P. if she had been touched there, and M.P. responded that she had by her daddy Rob.  These statements were not made in response to leading questions.  Further, M.P. had no reason to fabricate a story, her story was consistent with what she told Woods and Peloquin, and she used age appropriate terminology.  We conclude that the trial court was within its discretion in finding that M.P.’s statements to Carter were sufficiently reliable to be admissible.

            d.         Statements to Etienne

            On March 23, 2001, child protection worker Etienne came to Peloquin’s house to interview Woods and Peloquin.  During Etienne’s visit, M.P. volunteered that “her dad made her stick her leg out and he touched her private and her butt.”  Appellant argues that this statement was not truly spontaneous because it was made while Etienne was questioning Peloquin about the incident. 

            While it is likely that M.P.’s statement was the result of the nature of the conversation between Peloquin and Etienne, the statement made by M.P. was spontaneous in the sense that it was not the result of a direct question to M.P.  Again, the statement made was consistent with other statements, it was made in appropriate terms for a child of M.P.’s age, and there was no apparent motive for M.P. to fabricate the story.  The trial court relied on the consistency of the statement in making its determination of reliability.  We conclude that the trial court was within its discretion in finding that M.P.’s statement was sufficiently reliable.

            Because the trial court found M.P. incompetent to testify, she was considered to be unavailable to testify under Minn. Stat. § 595.02, subd. 3.  It is undisputed that the notice requirements of Minn. Stat. § 595.02, subd. 3(c), were met in this case.  When a witness is unavailable to testify, there must be “corroborative evidence of the act.”  Minn. Stat. § 595.02, subd. 3.  The trial court found that there was sufficient corroboration based on appellant’s opportunity to commit the act.  Appellant’s inculpatory statements to Mead at the April 26, 2001 interview provided additional corroboration of the act.  The trial court acted within its discretion in admitting M.P.’s out-of-court statements under Minn. Stat. § 595.02, subd. 3.

3.         Multiple Convictions and Sentences

            Finally, appellant argues that the trial court erred by entering a conviction on both counts of first-degree criminal sexual conduct and imposing two concurrent 144-month sentences and two five-year conditional-release terms.  Appellant asserts that Minn. Stat. § 609.04, subd. 1 (2000), prohibits multiple convictions for the same conduct committed against the same victim.  Respondent counters that Minn. Stat. § 609.04, subd. 1, does not apply in this case because the two counts of first-degree criminal sexual conduct in this case are discrete offenses, and neither is a lesser-included offense of the other.  Respondent argues that count one involves sexual penetration and count two involves bare genital-to-genital contact.  Further, respondent argues that count one does not require that the act be done with sexual or aggressive intent, and count two does require sexual or aggressive intent. 

            Minn. Stat. § 609.04, subd. 1, states the following:

            Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.  An included offense may be any of the following:

            (1) A lesser degree of the same crime; or

            (2) An attempt to commit the crime charged; or

            (3) An attempt to commit a lesser degree of the same crime; or

            (4) A crime necessarily proved if the crime charged were proved; or

            (5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.

 

In State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989), the supreme court addressed the application of Minn. Stat. § 609.04, subd. 1, to a defendant’s conviction of multiple counts of first-degree criminal sexual conduct.  The supreme court held the following:

            As we have interpreted Minn. Stat. § 609.04 (1988), a defendant may not be convicted of two counts of criminal sexual conduct (different sections of the statute or different subsections) on the basis of the same act or unitary course of conduct.    

 

Id. 

            Here, appellant was convicted of two counts of criminal sexual conduct on the basis of the same act or unitary course of conduct.  As a result, we vacate appellant’s conviction of criminal sexual conduct in the first-degree for bare genital-to-genital contact with a child under 13 under Minn. Stat. § 609.342, subd. 1(a), and the accompanying sentence.  We leave in place appellant’s conviction of criminal sexual conduct in the first-degree for sexual penetration of a child under 13 under Minn. Stat. § 609.342, subd. 1(a), and the accompanying sentence.

            Affirmed as modified.