may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Jon Robert Soleta,
Cottonwood County District Court
File No. KX0130
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)
John M. Stuart, State Public Defender, Bradford W. Colbert, Assistant Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree criminal sexual conduct, appellant Jon Robert Soleta argues that (1) the district court erred by admitting the child victim’s out-of-court statement to a nurse because admitting the statement denied appellant his constitutional right to confront the witnesses against him and because the statement was unreliable and inconsistent with the victim’s trial testimony; and (2) he is entitled to reversal of his conviction because it is supported only by the unreliable prior inconsistent statement. We affirm.
A.N. was born in May 1995. On Friday, January 5, 2001, A.N. went to spend the weekend with her godmother, Michele Soleta (Soleta). At about 1:00 p.m. on January 6, 2001, Soleta brought A.N. and Sadie, Soleta’s dog, to visit appellant, who is A.N.’s godfather.
At the request of appellant and A.N., Soleta agreed to leave A.N. to spend some time alone with appellant. Soleta instructed appellant to return A.N. to her apartment at 2:00 p.m. When they did not arrive on time, Soleta went to appellant’s home. Soleta testified that she knocked on the door, no one answered, and she left without going inside. Soleta testified that appellant’s truck was gone.
Soleta returned to appellant’s home at 2:18 p.m., saw his truck parked there, and went inside. Soleta was angry because appellant was late returning A.N., so she yelled at A.N. to go and get into the car. The next morning, A.N. asked Soleta if she was still mad at her. Soleta said “no,” explained why she had been upset, and asked why A.N. had been late. A.N. said because appellant had made her take a bath. Soleta was surprised because A.N. had showered at Michele Soleta’s apartment that morning. Soleta asked if appellant got into the tub with A.N., and A.N. said “yes.” Soleta contacted A.N.’s parents and the police.
On January 12, 2001, Kristine Clarke, a nurse at Midwest Children’s Resource Center, conducted a videotaped interview of A.N. At the beginning of the interview, Clarke showed A.N. a toy mouse and asked if A.N. knew what it was. After A.N. answered that it was a mouse, Clarke asked if saying the object was an elephant would be the truth or a lie, and A.N. responded that it would be a lie. Clarke then explained that during this interview, “we want to talk about things that you know are real.”
After asking A.N. some preliminary questions, Clarke asked A.N. if she knew why she was at the resource center. A.N. replied, “Because I am suppose to tell you that [appellant] tried to hurt me and stuff.” Clarke asked what appellant tried to do, and A.N. said, “He was in the bath with me, and he touched me where he – where you are not suppose to be touched.” A.N. stated that it happened a “long time ago” at appellant’s house.
Clarke showed A.N. an anatomically correct picture of a girl and labeled it with A.N.’s name. A.N. identified specified parts on the picture as hair, eyes, nose, mouth, “boobies” for chest, belly button, hand, “butt that you are not suppose to touch,” “[p]ee-pee” for the vaginal area, leg, feet, and back. Clarke then said, “Now you were telling me before that [appellant] tried to hurt you?” Pointing to the vaginal area, A.N. said, “he touched me right there.”
Clarke asked A.N. about what happened that day at appellant’s house. A.N. stated: Michele Soleta brought her to appellant’s home and left her there. Appellant was supposed to bring her “home” in “two hours” but did not bring her there on time. Appellant turned on the hot water in the bathtub and told A.N. to take off her clothes and get into the bathtub. Appellant was in the bathtub with his clothes off, and he grabbed A.N. and pulled her in. A.N. did not usually take a bath when she was at appellant’s house. In the bathtub, appellant touched A.N. on the “pee-pee.” A.N. did not know what touched her on the pee-pee. The dog named Sadie was in the bathtub too.
Clarke showed A.N. an anatomically correct picture of a boy and labeled it with appellant’s first name. A.N. identified specified parts on the picture as hair, eyes, mouth, “boobies” for chest, hand, butt, “[w]ee-wee” for the penis, feet, and back. Clarke asked what part of appellant touched A.N. on her pee-pee, and A.N. said that appellant touched her pee-pee with his hand. A.N. said that appellant’s “wee-wee” did not touch her anyplace. When Clarke asked about whether appellant’s mouth touched A.N., A.N. replied that when she got out of the bathtub and stood on a vanity so she could see to brush her hair, appellant licked her pee-pee and her butt with his tongue. A.N. said that when appellant did that, it felt a “little weird.” Clarke asked if appellant wanted A.N. to touch his wee-wee, and A.N. said that appellant wanted her to touch his wee-wee with her tongue. When A.N. said no, appellant grabbed her and put his wee-wee in her mouth. A.N. said that appellant’s wee-wee went “[a]ll the way down” in her mouth, “[p]ee” came out of his wee-wee into her mouth, and the pee tasted like lemon and was gross. A.N. said that it felt “miserable” and “gross” when appellant’s wee-wee was in her mouth. A.N. said that that happened in the bathtub and that she spit the pee out of her mouth into the water. Later during the interview, Clarke asked whether appellant’s wee-wee ever touched A.N. anywhere other than in her mouth. A.N. replied that it touched her hair, feet, and boobies. A.N. also reported that appellant had the dog touch her with its tongue someplace that she did not like and that it hurt. A.N. said that no one else had ever touched her in places that she did not like.
A.N. testified at trial that she and appellant took a bath together. A.N. testified that appellant touched her more than once in places that she did not want to be touched. Using a picture of an anatomically correct girl, A.N. identified the vagina as the place where appellant touched her first and said that he touched her there with his hand. When asked whether he used his whole hand or part of his hand, A.N. responded that he touched her with part of his hand. In response to further questioning, A.N. stated that he used part of his hand, identified the part as fingers, and then said that he used more than one finger. After describing the touching of her vagina, A.N. denied that there were any other bad touches or touches that she did not like and said that appellant did not touch her when she was on the vanity. A.N. did not recall how she got into the bathtub or whether appellant ever touched her with his penis. A.N. did not recall previously being interviewed by a woman.
A.N.’s father testified that he received a letter from appellant after A.N. made the allegations against him. In the letter, appellant admitted taking a bath with A.N. but denied doing anything inappropriate.
Appellant testified at trial as follows: Soleta left A.N. with him and was supposed to return at 2:00 to pick her up. Shortly before 2:00, while A.N. watched a cartoon, appellant took a bath. When appellant was in the tub, A.N. came into the bathroom and started jumping up and down and said she wanted to get into the tub too. Appellant let A.N. get into the tub with him, and the dog came in too, repeatedly jumping in and out of the tub. A.N. got behind appellant because she wanted to wash his back. After A.N. washed appellant’s back, he reached around behind and washed her back. A.N. then got in front of appellant, and the two of them had a splash fight. While they were in the tub, Michele Soleta came to the house and knocked on the door. Appellant had left the door open, but A.N. shut it, causing it to lock. Appellant got out of the tub to go and answer the door, but by the time he got there, Michele Soleta had left. Michele Soleta came back again and picked up A.N.
Appellant denied touching any of A.N.’s private areas with any part of his body. Appellant testified, “The dog might have, but I didn’t.” On cross-examination, appellant admitted that he could have unintentionally touched A.N. on the vagina while reaching for soap. Appellant denied ever telling anyone that he kissed A.N. on the butt when she was on the vanity.
The state called Windom Police Officer Kent Kelly as a rebuttal witness. Kelly testified that when he interviewed appellant on January 24, 2001, appellant said that while A.N. was standing on a vanity in the bathroom, he kissed her in the stomach and in the buttocks area. Appellant denied to Kelly that the kissing was sexual and denied licking A.N.’s private parts.
Appellant was charged by amended complaint with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2000) (sexual penetration when victim is under age 13 and defendant is more than 36 months older); and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2000) (sexual contact when victim is under age 13 and defendant is more than 36 months older). A jury found appellant guilty as charged. The district court sentenced appellant to the presumptive term of 144 months in prison.
1. Victim’s out-of-court statement
Appellant argues that the admission of A.N.’s out-of-court statement to Clarke violated his constitutional right to confront the witnesses against him.
Appellate courts largely defer to the district 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). Although Confrontation Clause analysis involves questions of both law and fact, the ultimate question of whether the admission of evidence violated a defendant’s confrontation rights is a question of law subject to de novo review. State v. King, 622 N.W.2d 800, 806 (Minn. 2001). See State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999) (explaining standard of review applicable to the application of constitutional provisions).
The Confrontation Clause guarantees that a criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; Minn. Const. art. 1, § 6. Minnesota law provides that
[a]n 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 . . . (i) testifies at the proceeding[.] . . .
For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.
Minn. Stat. § 595.02, subd. 3 (2000). 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) (interpreting 1984 and (Supp. 1985) version of the statute), review denied (Minn. Apr. 24, 1986), and abrogated in part on other grounds by State v. Larson, 453 N.W.2d 42, 46 n. 4 (Minn. 1990).
When determining the reliability of an out-of-court statement, Minnesota courts may consider any relevant factors, including: spontaneity; consistent repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; lack of motive to fabricate; knowledge of the declarant; motives of the declarant and witnesses to speak truthfully; proximity in time between the statement and the events described; presence of suggestive or leading questions; and 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).
The district court found:
Since the interview occurred in less than one week [after the offense], it was conducted in a timely manner.
The content and circumstances of the interview also demonstrate reliability. A.N. reaffirmed what she had originally non-verbally told the [police] officer [who elicited nonverbal responses using leading and suggestive questions], yet added more detail. She used terminology of a child of her age, for instance, referring to certain body parts as a “wee-wee” or a “pee-pee.” Her remarks answered open-ended questions presented by the nurse-interviewer. Sometimes, she would also spontaneously offer pieces of information of the events as well. Nothing revealed any reason for A.N. to fabricate the information she provided.
These statements are also reliable due to A.N.’s use of detail in describing the events. . . . A.N. described in detail that [appellant] “peed” in her mouth and she . . . had to “spit it out.”
The interviewer is reliable. She has experience working with children in similar situations. Before interviewing, she determined that A.N. could differentiate between and made it clear for A.N. to tell the truth instead of lies. Further, [Clarke] did not suggest answers through leading questions, but instead asked open-ended questions and permitted A.N. to choose her own answer and describe events in her own terms. Later, [Clarke] would return to information that A.N. previously gave and verify it. This showed that A.N. was, at the minimum, substantially consistent in the information she provided.
Appellant argues that unreliability is indicated by A.N.’s response to Clarke’s question about whether she knew why she was being interviewed. A.N. responded, “Because I am suppose to tell you that [appellant] tried to hurt me and stuff.” Appellant also argues that unreliability is indicated by A.N.’s statement that “he touched me where he – where you are not suppose to be touched” because it is not the sort of spontaneous statement expected of a child her age. But A.N. specifically described in detail to Clarke the acts of sexual abuse committed by appellant, including a description of oral sex showing a knowledge unusual for a five-year old, and nothing in the record suggests that A.N. was coached as to what information to provide regarding the details of the abuse. In light of the specific descriptions of the acts of sexual abuse, the general statements indicating that A.N. understood the reason for the interview do not tend to undercut the reliability of her statement to Clarke.
Appellant also argues that A.N.’s statement to Clarke was internally inconsistent because she stated that Soleta was not present during the abuse and also stated that Soleta was present. Initially, A.N. stated that Michele Soleta was not present. Later, the following exchange took place:
Q . . . Now when you were in the bathtub with him, did he ever – did he want you –
A Oh, and Michele was in there, too.
A Somebody else was in there, too.
Q In where?
A The bathtub. I don’t know who it was. It was a dog named Sadie.
A.N. then described the dog in detail. The following exchange occurred during a discussion about the oral sex:
Q The wee-wee went in your mouth?
A No, he put my mouth into there.
Q I see.
A And he peed in there. Uhg-uhg-uhg.
Q It was gross. Okay. Okay.
A And there were some more people in there. It was Michele.
Q I thought you told me Michele left there?
A Well, she was in there, too. She was in there, too.
Q In where?
Q Did she see [appellant] do this to you?
A No. She know’d, though. She cried.
. . . .
A Michele wasn’t really there.
Q Michele wasn’t there? Okay. But did everything else you told me really happen? Huh? Michele wasn’t in there, though? Okay. Just you and [appellant]. And how about the dog?
A The dog was in there, too.
A I think (inaudible).
The inconsistency about Soleta’s presence is insignificant. The context of A.N.’s first statement that Soleta was in the tub indicates that A.N. meant to say that the dog was in the tub and made a mistake when she said it was Soleta. After the second statement that Soleta was in the tub, A.N. explained that “Michele wasn’t really there,” indicating that A.N., whatever the reason for the second misstatement, understood the importance of being truthful during the interview.
Appellant also argues that A.N.’s statement to Clarke was unreliable because it was inconsistent with her trial testimony. Inconsistency between trial testimony and a prior out-of-court statement does not make the out-of-court statement inadmissible. See State v. Serna, 290 N.W.2d 446, 448 (Minn. 1980) (upholding admission of child victim’s statements to an examining doctor and a nurse that an act of fellatio had occurred, although victim testified at trial only to acts of vaginal intercourse and cunnilingus); see also State v. Struss, 404 N.W.2d 811, 816-17 (Minn. App. 1987) (stating when trial testimony and out-of-court statements are substantially consistent, it is the jury’s role to weigh credibility in light of inconsistencies), review denied (Minn. June 9, 1987).
We also note that the differences between A.N.’s out-of-court statement and her trial testimony could reflect A.N.’s language comprehension and communication skills rather than indicating her statement to Clarke was unreliable. For example, A.N. may not have understood that questions about touches were intended to include contact by appellant’s penis and tongue. Also, while the prosecutor used the term “penis” in questioning A.N., A.N. identified the penis as a “wee-wee,” and Clarke used that term during the interview.
The evidence supports the district court’s findings on the factors indicating reliability, and those findings are sufficient to support the admission of A.N.’s statement to Clarke under Minn. Stat. § 595.02, subd. 3. See State v. Lanam, 459 N.W.2d 656, 657, 661 (Minn. 1990) (upholding admission of statement when child described appellant as having “peed” in her mouth and said that afterward she “spitted it out,” activities and language with which a three-year old would not be expected to be familiar with absent abuse); State v. Lonergan, 505 N.W.2d 349, 355 (Minn. App. 1993) (upholding admission of statement to police officer when child used age-appropriate words such as “wienie,” “butt,” and “white stuff;” related graphic details of oral sex, ejaculation, and other sexual acts that a child his age would not be expected to know unless he had experienced them; provided a detailed account of how offense occurred; and statement was consistent with another out-of-court statement), review denied (Minn. Oct. 19, 1993).
2. Sufficiency of evidence
In considering a claim of insufficient evidence, this court’s review is limited to a “painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, [is] sufficient to allow the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). “[A]ll inconsistencies in the evidence are also resolved in favor of the state.” State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990). The reviewing court “will not disturb the verdict if the jury, acting with due regard for the presumption of innocence” and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant argues that the evidence was insufficient to support his first-degree criminal sexual conduct conviction because the only evidence of sexual penetration was A.N.’s out-of-court statement to Clarke. Testimony by a complainant in sexual-assault cases does not require corroboration, and a conviction can rest on the uncorroborated evidence of a single credible witness. Minn. Stat. § 609.347, subd. 1 (2000); State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). “Corroboration of an allegation of sexual abuse of a child is required only if the evidence otherwise adduced is insufficient to sustain conviction.” State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984).
A.N.’s statement to Clarke was admitted as substantive evidence. During that statement, A.N. described an act of oral sex and ejaculation in detail that a five-year-old child would not be expected to know. Appellant argues that the statement cannot support his conviction because it was inconsistent with her trial testimony. At trial, A.N. identified the vagina as the area where appellant touched her and testified that he touched her with his fingers. She denied that any other bad touches occurred. Minnesota’s appellate courts have upheld sexual-assault convictions despite inconsistencies in the victim’s accounts of what happened. See, e.g., State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (when victim’s accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (when child victim told officer that she had been sexually abused by defendant on five or more occasions but at trial testified to only three incidents, inconsistency between testimony and the prior statement was for jury to consider in weighing victim’s credibility). Also, as already discussed, the differences between A.N.’s trial testimony and her out-of-court statement could reflect A.N.’s language comprehension and communication skills rather than indicating unreliability of her statement to Clarke.
Appellant cites State v. White Water, 634 P.2d 636 (Mont. 1981), to support the position that A.N.’s statement to Clarke was insufficient to support the first-degree conviction. White Water is factually distinguishable from this case. On the day of the offense in White Water, the victim, who had a learning disability, made a statement to a police officer, which the officer wrote down in his own handwriting. Id. at 637. At trial, the victim disputed the sheriff’s account of her statement, claiming that he “did not understand . . . (what she told him and) twisted . . . (her statements) around a little bit here and there.” Id. The court concluded that the circumstances under which the out-of-court statement was made indicated its unreliability. Id. at 638.
Here, in contrast, the evidence supports the district court’s finding that the victim’s statement to Clarke was reliable. Also, Clarke made a videotape recording of the statement, which was played to the jury. It was reasonable for the jury to conclude that the out-of-court statement, made just six days after the offense, was more accurate than the victim’s trial testimony.
Appellant also cites Bridges v. Wixson, 326 U.S. 135, 65 S. Ct. 1443 (1945). Bridges is not on point. The Bridges court held that a deportation order could not be based on a witness’s prior, unsigned, unsworn statements when the rules of the Immigration and Naturalization Service required all such statements to be under oath and signed by the person making them. Id. at 149-55, 65 S. Ct. at 1450-53. Here, the district court followed all of the procedural requirements for admitting A.N.’s statement to Clarke.
In a pro se supplemental brief, appellant argues that he received ineffective assistance of counsel. To prevail on an ineffective-assistance claim, appellant must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). The facts cited by appellant are insufficient to show that his attorney’s performance fell below an objective standard of reasonableness.
 In the argument heading of his brief, Soleta asserts that the district court violated his confrontation rights by admitting the hearsay statements of the “complaint.” Appellant’s argument, however, addresses only A.N.’s out-of-court statement to Clarke. The reference to “complaint” appears to be a typographical error.