This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Welfare of: A.P.A.
Hennepin County District Court
File No. J60164825
Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN 55487 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
A.P.A. appeals from an adjudication of delinquency for first- and fifth-degree criminal sexual conduct. Along with other arguments, A.P.A. contends that the evidence is insufficient to support a finding that he committed the charged offenses. We reverse.
On June 3, 2001, between approximately 2:00 p.m. and 6:00 p.m., three-year-old M.W.’s parents left her and her five-year-old brother, W.W., in the care of Kids Quest daycare center at the Mall of America. Approximately six weeks later, M.W. told her father, D.W., about an incident that happened on June 3. While the family was visiting the home of a relative, M.W. walked into the bathroom while D.W. was closing his pants. M.W. said “that’s daddy’s penis.” D.W. responded “yeah, but we don’t need to talk about that.” M.W. then responded, “well, the boy at Camp Snoopy told me to suck on his penis.” D.W. spoke to her briefly in the bathroom and was able to determine that M.W. was speaking about Kids Quest, which is near Camp Snoopy at the Mall of America.
D.W. waited until leaving the relative’s home to discuss M.W.’s comments with his wife, B.W. As the family drove home, after W.W. fell asleep, B.W. asked M.W. about the discussion in the bathroom. M.W. again discussed “a boy telling her that she could suck on his penis.” M.W. told her parents that the boy told her that there was apple juice inside and that “it would taste good.” At that point, M.W. indicated that the boy at Kids Quest resembled the character Syd from the movie Toy Story. M.W. told her parents that the boy was bigger than W.W., but not as big as a 13-year-old neighbor or D.W.
During the subsequent investigation, M.W. was interviewed twice, once in a session videotaped by Cornerhouse, an agency that assists with sexual abuse investigations, and once by Detective Richard Grellis of the Bloomington Police Department. Police determined that appellant A.P.A. was at Kids Quest on June 3. The state filed a delinquency petition on September 13, 2001, alleging that A.P.A., who was 11 years old on the offense date, committed one count of fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(2) (2000). When appellant did not plead guilty to the fifth-degree charge, the state filed an amended petition on February 22, 2002, alleging that A.P.A. committed attempted first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2000).
On the day of trial, the district court held a competency hearing and found M.W. competent to testify. After a bench trial, the district court adjudicated A.P.A. delinquent. Although the state charged A.P.A. with attempted first-degree criminal sexual conduct, in its order, the district court found that A.P.A. committed first-degree criminal sexual conduct. The district court also found that A.P.A. committed fifth-degree criminal sexual conduct.
At the disposition hearing on June 3, 2002, A.P.A. requested a stay of adjudication, so that he would not have to register as a sex offender and provide a DNA sample. The district court denied A.P.A.’s request. This appeal followed.
Along with other arguments, A.P.A. argues that the delinquency adjudication should be reversed, because (1) M.W. was not competent to testify, (2) hearsay evidence introduced at trial was inadmissible, and (3) the evidence was not sufficient to support the finding that he committed first- and fifth-degree criminal sexual conduct.
A. Witness competency
A.P.A. argues that the district court erred when it found M.W. competent to testify. While we are troubled by the process the district court used to determine that M.W. was competent, A.P.A.’s failure to object to M.W.’s competency at trial results in a waiver of this issue on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In light of the serious problems surrounding the competency determination, a brief discussion is nevertheless warranted here.
When the district court concluded that M.W. was competent, it had not yet questioned M.W. on an essential element for finding a child competent to testify— namely, whether that child has the capacity to tell the truth. State v. Brovold,477 N.W.2d 775, 778 (Minn. App. 1992) (stating that district court “must conclude the child witness has: (1) the capacity to tell the truth, and (2) the ability to recall the facts”), review denied (Minn. Jan. 17, 1992). Such questioning should have taken place prior to any determination regarding competency. Further, during the pretrial competency hearing, the district court questioned M.W. about the events that occurred at Kids Quest on the day of the alleged offense. “In a competency hearing, a child is not to be questioned about the specifics of the anticipated testimony.” State v. Scott, 501 N.W.2d 608, 615 (Minn. 1993); see alsoState v. Lanam, 459 N.W.2d 656, 659-60 (Minn. 1990). It was improper for the district court to inquire into the particulars of the day of the incident during the competency hearing. Although we have identified these procedural defects relating to the competency determination, A.P.A.’s waiver of this issue precludes us from engaging in a substantive review on the merits. We, therefore, proceed with our analysis without disturbing the presumption that M.W. was competent to testify. See Minn. Stat. § 595.02, subd. 1(m) (2000) (stating that “[a] child under ten years of age is a competent witness unless the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined.”).
B. Admissibility of hearsay testimony
A.P.A. challenges the admission of (1) the videotaped Cornerhouse interview with M.W., (2) Detective Grellis’s testimony regarding his interview with M.W., and (3) documents from Kids Quest, arguing that each contains inadmissible hearsay. A.P.A.’s trial counsel did not object to the introduction of the video or to Detective Grellis’s testimony, nor did A.P.A.’s counsel request a hearing to determine the credibility of either. As to this evidence, A.P.A.’s failure to object at trial constitutes a waiver of this issue on appeal. Roby, 547 N.W.2d at 357; In re Welfare of W.W.M., 400 N.W.2d 203, 206 (Minn. App. 1987).
A.P.A. contends that the district court erred in admitting the attendance records from Kids Quest, because they were not reliable under the business records exception to the hearsay rule. We defer to a 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). Hearsay is
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Minn. R. Evid. 801. Although generally inadmissible, Minn. R. Evid. 802, hearsay statements may be admissible under one of several exceptions, including the business records exception at issue here. Minn. R. Evid. 803(6) permits the admission of records
kept in the course of a regularly conducted business activity * * * unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
The rule provides that the record-keeping practices must be shown to be trustworthy by a custodian, and that a record “prepared for litigation is not admissible under this exception.” Id.
Darcy Folger, the executive director of Kids Quest at the time of trial, testified as the records custodian regarding attendance records produced by Kids Quest. Through Folger, who did not work for Kids Quest at the time of the incident, the state introduced exhibits 3 and 4, which are the sign-in sheets used by parents when dropping off their children, and exhibits 5 and 6, which are printouts from a computer database maintained by Kids Quest. After comparing the papers from the sign-in sheets with the names in a computer database, she corrected the date on exhibits 3 and 4 by changing it from June 2, 2001, to June 3, 2001. Over A.P.A.’s objection, the district court ruled that exhibits 3 and 4 were admissible, because “the witness has explained how the date came to be.” A.P.A. did not object to exhibits 5 and 6, which reflect that M.W. and A.P.A. were present at Kids Quest on June 3. Although Folger’s alteration of the date may reduce the weight and credibility of exhibits 3 and 4, we conclude that the change did not render them so unreliable as to be inadmissible, particularly in light of the witness’s availability to explain the change. Further, exhibits 5 and 6 corroborate the reliability of the challenged records. The district court did not err in admitting exhibits 3 and 4.
A.P.A. argues that the evidence was insufficient to support the district court’s finding that he committed both first- and fifth-degree criminal sexual conduct. This court’s review of a claim of insufficient evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). When the sufficiency of the evidence is raised on appeal, a reviewing court’s standard of review is the same for bench trials as it is for jury trials. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998). We will uphold the verdict if the fact-finder, giving due regard to the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, could have reasonably found the defendant guilty of the offense charged. State v. Thomas,590 N.W.2d 755, 757-58 (Minn. 1999).
1. Attempted first-degree criminal sexual conduct
A.P.A. first asserts that the district court mistakenly found that he committed first-degree criminal sexual conduct, instead of attempted first-degree criminal sexual conduct. The state concedes the district court’s error. We appreciate the state’s candor, and we agree.
A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age * * * is guilty of criminal sexual conduct in the first degree if * * * the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.
Minn. Stat. § 609.342, subds. 1, 1(a) (2000). Since there is an absence of any evidence of sexual penetration or contact between M.W. and A.P.A., the evidence was indeed insufficient to support the adjudication of delinquency for first-degree criminal sexual conduct.
A.P.A. next argues that the evidence is insufficient to establish that he attempted to commit first-degree criminal sexual conduct.
Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.
Minn. Stat. § 609.17, subd. 1 (2000).
A.P.A. argues that the conduct, even if proven, is not sufficient to constitute a substantial step towards sexual contact or penetration, as required by the attempt statute. The state presented evidence that A.P.A. “opened up his pants,” exposed himself, and said “want to suck my penis[?]” Even when viewing this evidence in the light most favorable to the verdict, we conclude that A.P.A.’s conduct fails to establish a substantial step toward committing first-degree criminal sexual conduct.
When compared to other cases where Minnesota courts have concluded that sufficient evidence supported an attempted first-degree criminal sexual conduct conviction, A.P.A.’s alleged conduct is inadequate to constitute a step toward sexual contact or penetration, much less a substantial one. See, e.g., State v. Wallace, 558 N.W.2d 469, 472-73 (Minn. 1997) (evidence sufficient when “[a]ppellant lured [victim] into his empty apartment, locked the door, directed her into his bedroom at the back of his apartment, forced her onto a bed, held her down, threatened her with a knife to her neck, told her to shut up, used bed sheets to bind her wrists and gag her, and unbuckled and began to remove the belt on his pants.”); Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (determining evidence sufficient where “[offender] placed [victim] in a headlock; threatened to kill her unless she had sex with him; told her he had a knife; poked her with some object; forcibly restrained [victim]; and ripped the clothes from her upper body * * * [and] caused her to suffer abrasions on her neck and knee and a contusion on her lip.”). While these cases involved adult victims and offenses that require evidence of force, they nevertheless are instructive of what constitutes a substantial step.
There is no evidence whatsoever that A.P.A. touched M.W., tried to touch her, or otherwise confronted her physically. The elements of attempted first-degree criminal sexual conduct clearly require the state to prove that the accused performed some act as a substantial step toward sexual penetration or contact that amounts to more than mere preparation. See Minn. Stat. § 609.342, subd. 1 (requiring “sexual penetration” or “sexual contact”). Neither the evidence nor caselaw supports the conclusion that the conduct here, which is devoid of any contact or attempt to physically induce contact, can be a substantial step toward an offense requiring sexual penetration or sexual contact. See State v. Meemken, 597 N.W.2d 582, 586 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999). Rather, the evidence establishes that A.P.A. solicited sexual penetration and nothing more.
In distinguishing between an attempt and solicitation, our analysis in Meemken, which involved analogous facts in the prosecution of attempted second-degree criminal sexual conduct, is particularly helpful here. The appellant in Meemken “touched the child on the leg while at the same time asking, ‘can I touch you?’” Id. at 583. This court held that this conduct was sufficient to constitute attempted second-degree criminal sexual conduct. In response to Meemken’s argument that his conduct constituted mere solicitation, we stated “[a]sking the child if he could ‘touch’ her was more than ‘mere solicitation’ because the solicitation involved the act of touching the child.” Id. at 586. In Meemken, physical contact, which is not present here, was an important factor in determining whether a substantial step was taken.
Even accepting as true that A.P.A. intended to entice three-year-old M.W. into engaging in sexual contact or penetration by telling her that his penis contained apple juice, without more evidence of actions taken to induce M.W.’s compliance, the evidence is insufficient to permit the fact-finder to conclude beyond a reasonable doubt that A.P.A. took a substantial step toward sexual contact or penetration involving M.W. In short, we conclude that A.P.A.’s conduct constitutes mere solicitation and is not sufficient to support a finding that he committed attempted first-degree criminal sexual conduct.
2. Fifth-degree criminal sexual conduct
We next examine whether the state presented sufficient evidence to prove that A.P.A. committed fifth-degree criminal sexual conduct. A person is guilty of fifth-degree criminal sexual conduct
[if] the person engages in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.
Minn. Stat. § 609.3451 subd. 1(2) (2000). Thus, the crux of the issue before us is whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to permit a fact-finder, giving due regard for the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, to reasonably conclude that A.P.A. committed fifth-degree criminal sexual conduct by exposing his penis to M.W.
At trial, neither M.W. nor her father, to whom she first disclosed the incident, testified that A.P.A. exposed his penis. When the prosecutor asked M.W. whether she talked to any boys at Camp Snoopy, M.W. first stated that she did not, and then stated that she talked to her brother. When asked whether any boys talked to her, M.W. stated that her brother did, but she did not mention anyone else. Eventually, after a series of leading questions, M.W. stated that A.P.A. “wants to show me his penis.” M.W. did not testify that A.P.A. actually showed her his penis. M.W.’s father testified that a boy told M.W. to suck on his penis, but he did not testify that the boy exposed himself to her.
The only evidence arguably sufficient to support a finding that A.P.A. committed fifth-degree criminal sexual conduct was contained in the Cornerhouse video and in Detective Grellis’s testimony. During the Cornerhouse interview, M.W. stated that A.P.A. “opened up his pants and then showed it to me.” But the interviewer’s leading questions and the responses they elicited severely diminish the statement’s evidentiary value. The interviewer asked M.W. whether she had seen anyone’s penis besides her father’s. In response, M.W. stated that a boy at Camp Snoopy wanted her to suck his penis. We note here that at no point during the ongoing interview had M.W. volunteered or responded that the boy had shown her his penis. M.W. then appeared to change the subject and began recounting an event at Kids Quest involving a boy who apparently took another boy’s sock, at which point the interviewer interjected and introduced the proposition that M.W. had seen the boy’s penis with the following set of leading questions:
Q. Okay. And when did you see that boy’s penis?
A. Well, he just showed it to me.
Q. He showed it to you?
* * * *
Q. When that boy showed you his penis, did he say anything?
A. He said, want to suck on my penis.
* * * *
Q. Did he tell you what would happen if you sucked on his penis?
A. I did not suck on it.
* * * *
Q. Okay. And when that boy showed you his penis did he have clothes on or not?
A. Clothes on.
Q. He had clothes on. How did you see his penis?
A. Well, he showed it to me.
Q. How did he do that?
A. He opened up his pants and then showed it to me.
This exchange between the interviewer and M.W. demonstrates that the interviewer used suggestive and leading questions with three-year-old M.W., and that M.W.’s statements were not spontaneous.
The only evidence of A.P.A.’s exposure other than the Cornerhouse video was presented through Detective Grellis, who testified that M.W.’s father reported that a boy exposed his penis to M.W. and asked her to suck his penis. Detective Grellis also testified that when he presented a photographic lineup including a photo of A.P.A. to M.W., Detective Grellis stated
I said that the person who she saw at the Mall that asked her to suck her [sic] penis might be in one of the pictures and that she should look at it and tell me if she could tell me if he was in it.
Detective Grellis testified that, after M.W. selected A.P.A.’s photo from the lineup, she said A.P.A. “exposed his penis and asked her to suck his penis.” Detective Grellis’s testimony regarding the presentation of the photo lineup to M.W. strongly suggests that leading questions and suggestive statements influenced M.W.’s responses regarding A.P.A.’s conduct. While Detective Grellis’s testimony proves that M.W. chose A.P.A.’s photo from the lineup, it does not constitute substantive evidence of what happened between A.P.A. and M.W. at Kids Quest. Further, the state conceded at oral argument that Detective Grellis’s testimony need not be used as substantive evidence of A.P.A.’s alleged exposure, only of M.W.’s identification of A.P.A. in the lineup.
We conclude that, when taken together and viewed in the light most favorable to the verdict, the evidence regarding A.P.A.’s alleged exposure of his penis to M.W. is not sufficient to conclude beyond a reasonable doubt that A.P.A. committed fifth-degree criminal sexual conduct. The videotaped statements made by three-year-old M.W. were initiated by a leading question that suggested the offense before she told of its occurrence. This suggestive, leading questioning, while still troubling, would not be fatal if it were accompanied by other evidence. But the remainder of the evidence is devoid of any probative value as to whether A.P.A. exposed himself to M.W. We, therefore, reverse A.P.A.’s delinquency adjudication for fifth-degree criminal sexual conduct.
Because we reverse A.P.A.’s delinquency adjudication, we need not address A.P.A.’s arguments regarding the amendment of the complaint before trial, whether there was probable cause to support the attempted first-degree criminal sexual conduct count added in the amendment, the administration of the oath to M.W., and whether the determination of the disposition without findings relating to the best interests of the child was proper.
The state asserts that this court should correct this “clerical error,” but we decline to do so in light of our conclusion infra that the evidence also does not support an adjudication of delinquency for attempted first-degree criminal sexual conduct.