This opinion will be unpublished and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
State of Minnesota,
Hiram James Douglas,
Ramsey County District Court
File No. K401383
John Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
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, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.
As a result of events occurring on January 28, 2001, appellant Hiram Douglas was charged with two counts of first-degree criminal sexual conduct—one count alleging sexual penetration of a child under 13 and one count alleging sexual contact with a child under 13, both in violation of Minn. Stat. § 609.342, subd. 1(a) (2000). The evidence adduced at trial established that Douglas had been living at the home of his girlfriend, E.D, for more than a year. Also living in the home was E.D.’s 12-year-old daughter, A.F.
A.F. testified to the following version of events. While A.F. was watching a movie in the living room, Douglas was watching the Superbowl on the television in the den. E.D. was watching television upstairs. Douglas, who was lying on the couch, was wearing pants and a shirt underneath a robe. When A.F. went into the den to get another movie, Douglas grabbed her around the waist, pulled her on top of him, and pulled down her shorts and underwear. With Douglas and A.F. facing each other, Douglas then unzipped his pants and put his penis into A.F.’s vagina for a few seconds. When E.D. came into the den unexpectedly, Douglas pushed A.F. off of him. A.F. then pulled up her shorts and went into the bathroom near the den. Douglas went into the kitchen where E.D. had retreated. E.D. later asked A.F. about what had occurred in the den. After A.F. told E.D. about Douglas’s conduct, E.D. called the police.
In Douglas’s version, A.F. was the aggressor. Douglas testified that, while he was watching the pre-game show of the Superbowl, A.F. came into the den, sat on the couch, and touched Douglas’s inner thigh. Douglas then sat up, lit a cigarette, blew the smoke in A.F.’s face, and told her to go away. While Douglas attempted to keep A.F.’s hands off of him, A.F. wrestled with Douglas and tried to reach his belt buckle. A.F. then pulled her shorts down “a little bit,” jumped on Douglas, and straddled him. As he pushed A.F. off of him, E.D. peeked into the den. A.F. went into the bathroom near the den and Douglas went into the kitchen. He was in shock and spoke with E.D. briefly before A.F. came out of the bathroom. A.F. then went upstairs and E.D. followed her. Eventually A.F. and E.D. came back downstairs, and E.D. asked Douglas questions about what had occurred in the den. E.D. then asked A.F. if Douglas had “entered her,” to which A.F. responded “yes.” E.D. asked Douglas how he could “have done that to [A.F.],” and E.D. called the police. Douglas also testified regarding A.F.’s sexual behavior toward him prior to January 28.
E.D. testified that, as she was walking past the den, she saw A.F. straddling Douglas’s lap, facing him. A.F.’s clothes were down and Douglas’s clothes were open. A.F. jumped off of Douglas and pulled up her clothes. Because she could not “process it,” E.D. walked back to the kitchen. Douglas came out of the den with his clothes fastened, but his robe was open. E.D. noticed that Douglas still had an erection. Douglas was nervous and began to babble. Later, when E.D. spoke with A.F., A.F. looked “horrified” and was screaming and crying. A.F. repeatedly stated, “mama he made me do it.” E.D. confronted Douglas, who responded “it’s not my fault, it’s her fault too, she offered it to me.”
St. Paul Police Officer Franklin Judge responded to E.D.’s call and interviewed Douglas, E.D., and A.F. Douglas’s statement to Judge was consistent with Douglas’s testimony at trial. A.F. was crying when Judge spoke to her. A.F.’s statement to Judge was consistent with her testimony in all respects, except she told Judge that Douglas forced his penis in her vagina for what seemed like “a few minutes.” When Judge interviewed E.D., she was shaking, trembling, and crying. E.D.’s statement to Judge also was consistent with her testimony at trial.
Two physicians testified that, upon examining A.F., they observed evidence of possible sexual abuse. Other witnesses testified regarding the comments made by Douglas and E.D. regarding the offense.
A jury found Douglas guilty of count I, engaging in sexual contact with A.F., in violation of Minn. Stat. § 609.342, subd. 1(a), and found him not guilty of count II, the sexual penetration charge. For Douglas, the presumptive sentence for first-degree criminal sexual conduct (sexual contact with a child under 13) is 144 months’ imprisonment. Douglas moved for a downward dispositional departure to probation or, in the alternative, a downward durational departure. The district court granted a downward durational departure, sentencing Douglas to 120 months’ imprisonment but denied the downward dispositional departure. Douglas now appeals.
Douglas first argues that the district court abused its discretion when it refused to admit evidence that A.F. had accused others of sexual abuse in the past. “Absent a clear abuse of discretion, evidentiary rulings generally rest within the trial court’s discretion.” State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). Prior to trial, upon Douglas’s motion, the district court conducted an in camera review of records and police reports from these prior incidents of alleged abuse and ordered the records released to the defense.
Investigation into the prior allegations produced police reports and a Midwest Children’s Resource Center (MCRC) report and interview with A.F. These reports describe a 1994 incident involving a teenaged babysitter and a 1998 incident involving E.D.’s boyfriend at that time. In the 1994 incident, the babysitter allegedly touched A.F.’s genitals over her clothes. In the 1998 incident, E.D.’s boyfriend allegedly asked A.F. to engage in oral sex. The police reports provide an account of the investigation and describe A.F.’s statements regarding the alleged incidents of sexual abuse. Both individuals denied the allegations. The police reports neither credit nor discredit any of the witnesses’ statements. The MCRC report indicates that A.F. disclosed the two incidents, but it does not offer an opinion on the credibility or veracity of her allegations. Neither case was prosecuted.
At trial, Douglas moved to introduce evidence that, on two prior occasions, A.F. alleged that she had been sexually abused by individuals other than Douglas. The district court ruled this evidence inadmissible.
Douglas argues that evidence of the two prior allegations is admissible under the Confrontation Clause of the United States and Minnesota Constitutions and as an exception to the Minnesota Rape Shield Law. U.S. Const. amend. VI; Minn. Const. art. I, § 6; Minn. Stat. § 609.347, subd. 3 (2000). “The Confrontation Clauses of the Federal and Minnesota Constitutions serve the same purpose, affording a defendant the opportunity to advance his or her theory of the case by revealing an adverse witness’s bias or disposition to lie.” State v. Crims, 540 N.W.2d 860, 865-66 (Minn. App. 1995) (quotation and citations omitted), review denied (Minn. Jan. 23, 1996). Presentation of evidence that is material and favorable to the defense of the case must be allowed to vindicate the defendant’s due process and Confrontation Clause rights. Id. But the Confrontation Clause does not endow a defendant with the right to introduce irrelevant evidence or evidence whose prejudicial effect outweighs its probative value. Id. In a prosecution for criminal sexual conduct, evidence of a victim’s previous sexual conduct is inadmissible except by court order, because a victim’s sexual history is generally irrelevant. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1); State v. Morris, 606 N.W.2d 430, 435 (Minn. 2000); Crims, 540 N.W.2d at 867-68. The burden of establishing the relevance of a victim’s sexual history is on the defendant. See Crims, 540 N.W.2d at 868 (stating that “[u]nless and until a defendant shows the victim’s sexual history to be relevant to the facts at bar, this particular form of character evidence simply is not admissible under the normal rules of evidence”). Even if the evidence is relevant, it still may be excluded if its prejudicial effect outweighs its probative value. Id. at 868-69; Minn. R. Evid. 403 (excluding relevant evidence when probative value is substantially outweighed by danger of unfair prejudice).
In certain cases, however, the defendant’s right to confront accusers or the defendant’s 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). “[P]rior accusations of [sexual abuse] are relevant only to the victim’s propensity to be truthful if there has been a determination that the prior accusations were indeed fabricated.” State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In such cases, before admitting evidence of prior accusations of sexual abuse, the district court must determine that a “reasonable probability” of falsehood exists. Id. If the falsity of the prior allegations is clear, the allegations may be admitted to impeach the accuser’s other testimony. Id.
Douglas argues that A.F.’s past allegations were “material and favorable” to his theory of the case. He asserts that the jury may have been reluctant to accept his characterization of A.F.’s sexual behavior without knowing of her prior allegations of sexual abuse. He also argues that, because the jury did not know about A.F.’s prior allegations, it may have mistakenly concluded that Douglas caused A.F.’s sexual behavior. Thus, Douglas argues, the prior abuse allegations would have given the jury a context for A.F.’s conduct. We disagree.
Perhaps this evidence would be material and favorable if consent were a defense to the allegations against Douglas. But consent is not a defense to allegations of criminal sexual conduct involving a victim under the age of 13. Minn. Stat. § 609.342, subd. 1(a) (2000). Further, evidence of prior sexual conduct is admissible under Minnesota’s rape shield law only when consent is at issue. Minn. Stat. § 609.347, subd. 3(a). Because a defense of consent is not available to Douglas, his arguments regarding the origins of the victim’s sexual behavior are unpersuasive.
Douglas also argues that he should have been permitted to introduce the evidence of prior sexual abuse allegations to show that A.F. fabricated her accusation against Douglas. He asserts that A.F.’s earlier allegations of sexual abuse were probative evidence supporting the defense theory that A.F. falsely accused Douglas of sexually assaulting her to avoid the negative repercussions of her own conduct. Douglas also argues that the proffered evidence establishes that E.D. was “predisposed to misinterpreting” what she observed.
Douglas has failed to meet his burden of establishing a “reasonable probability” that the accusations were false, and are, therefore, relevant. Goldenstein, 505 N.W.2d at 340. In support of his claim that there is a “reasonable possibility” that A.F.’s prior allegations were false, Douglas offers several circumstantial reasons: A.F.’s delayed reporting, the circumstances in which the allegations first arose, A.F.’s inconsistent statements, the denials by the alleged perpetrators, the lack of prosecution, and A.F.’s “proclivity to accuse her mother’s boyfriends of sexual abuse.”
Our review of the record establishes that, contrary to Douglas’s argument, the police and MCRC reports fail to provide sufficient evidence to reasonably conclude that A.F.’s accusations were false. Neither the police report nor the MCRC report offers an indication that A.F.’s allegations were probably false. Without a reasonable probability of falsehood, the evidence of prior accusations does not rise to the level of relevance necessary to implicate the Confrontation Clause.
Likewise, Douglas’s claim that the evidence was erroneously excluded because it was probative of E.D.’s predisposition to misinterpret what she observed in the den is without merit. Aside from the statement itself, Douglas has not demonstrated that E.D.’s observations on the day of the incident were affected by the prior accusations. The district court did not abuse its discretion when it excluded evidence of A.F.’s prior accusations of sexual misconduct.
Douglas next argues that this case should be remanded for resentencing because the district court abused its discretion by declining to impose a probationary sentence—a dispositional departure from the applicable sentencing guidelines. The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Unless a case presents substantial and compelling circumstances warranting a departure from the sentencing guidelines, the presumptive sentence shall be imposed. State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001) (interpreting Minn. Sent. Guidelines II.D). Only in the “rare case” will a reviewing court reverse an imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Generally, probation may be imposed instead of an executed sentence if the defendant is particularly amenable to probation. State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). The “Trog factors” assist the district court in determining amenability to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). They include the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support from friends or family. Id. In criminal-sexual-conduct cases, admitting guilt is often a prerequisite for sex-offender treatment, without which amenability to probation often will not be found. Cf. State v. Schwartz, 598 N.W.2d 7, 9 (Minn. App. 1999) (holding that district court’s decision to revoke probation requiring sex-offender treatment because probationer failed to admit guilt did not violate defendant’s constitutional rights), review denied (Minn. Sept. 28, 1999).
Douglas argues that the district court improperly denied his motion for a dispositional departure because Douglas maintained his innocence. Regarding the issue of amenability, the district court stated at the sentencing hearing:
[T]hat would be the test that I have to find exists in order to grant your departure, but here Mr. Douglas doesn’t admit that there’s anything broken so there’s nothing to fix. And what he argues by way of the Pre-Sentence Investigation is that he’s not guilty and therefore I ought not to sentence him for that which he believes himself innocent.
Well, I have to give full faith and credit to the jury’s verdict.
Here, the district court exercised its discretion and departed durationally by sentencing Douglas to 120 months’ imprisonment, rather than the presumptive 144 months’ imprisonment. While Douglas argues that the district court believed that he was not amenable to treatment, it is not clear whether the district court was referring to amenability to probation or to sex-offender treatment. Regardless, after a thorough review of the record, we conclude that Douglas did not meet his burden to demonstrate that probation would be appropriate in this case according to the Trog factors. The district court did not abuse its discretion in declining to grant the dispositional departure to probation. This is not the “rare case” that requires reversal, particularly in light of the district court’s decision to grant the downward durational departure. Kindem, 313 N.W.2d at 7.