This opinion will be unpublished and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,
Scott Lee Edmundson,
Scott County District Court
File No. 2001-02165
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Diane M. Hanson, Assistant County Attorneys, 200 West Fourth Street, Shakopee, MN 55379 (for respondent)
Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.
On January 13, 2000, 17-year-old M.C.S. reported to law enforcement that her stepfather, appellant Scott Lee Edmundson, had sexually abused her for many years. The abuse began when M.C.S. was approximately four or five years old and occurred on a weekly basis between 1986 and 1998.
The contact began as hugging and touching but quickly turned sexual. M.C.S. testified that Edmundson typically entered her bedroom while she was asleep and regularly performed oral sex on her, touched her vagina with his fingers, and rubbed his penis against her. During the sexual contact, M.C.S. pretended to be asleep. After Edmundson left the room, she would cry. When M.C.S. was older, she often spent the night at a friend’s house or stayed out late to avoid Edmundson.
When she was 17 years old, M.C.S. told her boyfriend that her stepfather had sexually abused her for years. M.C.S. then disclosed the abuse to her mother, who did not believe M.C.S. and accused her of lying. Shortly thereafter, Edmundson and M.C.S.’s mother moved to Arizona. M.C.S. subsequently moved in with her boyfriend’s family. M.C.S.’s mother advised M.C.S.’s father, a former police officer, about the allegations. He encouraged M.C.S. to report the abuse to the police.
M.C.S. reported the abuse to Detective Tom Gibbs of the Carver County Sheriff’s Department, who videotaped her statements. Gibbs referred the case to the Shakopee Police Department because the most recent sexual abuse had occurred in that jurisdiction. Detective Gregg Tucci conducted additional interviews with M.C.S. and arranged for Edmundson to be questioned in Arizona. Edmundson denied the accusations.
In January 2001, Edmundson was charged with five counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a), (g), (h)(iii) (2000). Edmundson pleaded not guilty, and the case went to trial in October 2002. Prior to trial, the state moved to admit the expert testimony of Dr. Susan Phipps-Yonas, a licensed psychologist, regarding the characteristics of child-victim disclosure of intra-familial sexual abuse. The district court granted the motion, concluding that the information would be more probative than prejudicial.
On October 23, 2002, a jury found Edmundson guilty of five counts of first-degree criminal sexual conduct. The district court sentenced Edmundson concurrently on each count under the Hernandez rule. As to Count V, the district court departed from the presumptive sentence of 158 months and imposed a sentence of 360 months’ imprisonment. This appeal followed.
D E C I S I O N
As an initial matter, the state contends that the scope of this appeal should be limited to the sentencing issue because Edmundson’s notice of appeal indicates that the appeal is taken from the sentencing order. Rule 28.02 provides that “[t]he notice of appeal shall . . . designate the judgment or order from which appeal is taken.” Minn. R. Crim. P. 28.02, subd. 4(2). The Minnesota Supreme Court, however, has consistently held that “notices of appeal are to be liberally construed in favor of their sufficiency.” Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985).
The notice states that Edmundson appeals from the “Order of the Trial Court filed on January 10, 2003.” Our review of the record establishes that the statement of the case accompanying the notice of appeal identified with specificity the issues to be litigated. We decline to conclude that designation of the sentencing order in the notice of appeal limits the scope of the appeal to the sentencing issue when, as here, the notice of appeal in conjunction with the statement of the case sufficiently and timely apprised the state of the issues to be litigated. As the state’s brief thoroughly addresses all of the issues raised by Edmundson, the state has not been prejudiced by any deficiencies in the notice of appeal. Accordingly, we consider all of the issues raised herein.
Edmundson argues that the district court abused its discretion by imposing a sentence of 360 months’ imprisonment, which is approximately 2.3 times greater than the presumptive sentence. We review the district court’s departure from the applicable presumptive sentence under an abuse-of-discretion standard. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). To justify a departure, substantial and compelling circumstances must be present in the record. Id. If the record supports the district court’s findings that substantial and compelling circumstances exist, we will not modify the departure absent a strong indication that the sentence is disproportional to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984). “If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).
When aggravating circumstances exist, the upper limit of a durational departure is usually double the maximum presumptive sentence. State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). If severe aggravating circumstances exist, the only absolute limit on the departure is the statutory maximum sentence. Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997). We determine the existence of severe aggravating circumstances “based on our collective, collegial experience in reviewing” many criminal appeals from the district courts. Glaraton, 425 N.W.2d at 834.
Here, the district court found the following aggravating factors to support an upward durational departure: (1) victim vulnerability due to age; (2) abuse of a position of trust; (3) invasion of the victim’s zone of privacy; (4) the psychological and emotional effect on the victim; and (5) the use of multiple forms of sexual abuse.
In a recent Minnesota Supreme Court case, Taylor v. State, Taylor entered a guilty plea to first-degree criminal sexual conduct for engaging in sexual conduct with a three-year-old child who was in a daycare program operated by Taylor’s wife. 670 N.W.2d 584, 585 (Minn. 2003). The district court departed durationally from the presumptive sentence of 144 months to 180 months, citing as reasons for the departure multiple incidents of abuse, the victim’s vulnerability due to her age, and Taylor’s abuse of a position of trust. Id. at 586. The supreme court concluded that the victim’s vulnerability due to her age and Taylor’s abuse of trust were “inappropriate bases for departure where those factors were already taken into account by the legislature in determining the degree of seriousness of the offense.” Id. at 589.
Two of the aggravating factors the district court relied on here are implicated by the Taylor decision. Among other aggravating factors, the district court relied on the victim’s vulnerability due to her age and Edmundson’s abuse of his position of trust. Because Edmundson’s offenses are based, in part, on the victim’s age and his relationship to the victim, these factors do not render his conduct atypical for a first-degree criminal sexual conduct offense. Thus, the district court improperly used these factors as a basis for departure. Id.; see also State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982) (stating that the legislature has taken vulnerability into account when distinguishing degrees).
The district court, however, based its departure decision on three additional aggravating factors—Edmundson’s invasion of the victim’s zone of privacy, the psychological injury to the victim, and the multiple forms of sexual abuse suffered by the victim. Courts have consistently found that invading a victim’s zone of privacy can be an aggravating factor in a sentencing departure. State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992); see also State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (holding that victim’s zone of privacy was invaded when defendant raped victim in her home because it was no longer victim’s “island of security”); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (appellant invaded victim’s zone of privacy by sexually assaulting her in her home), review denied (Minn. Jan. 16, 1992). Here, the record establishes that Edmundson sexually abused M.C.S. in her bedroom after she had gone to sleep. Thus, the district court did not abuse its discretion by identifying the invasion of the victim’s zone of privacy as an aggravating factor supporting the sentencing departure.
The psychological impact of the crime on the victim has also been recognized as an aggravating factor supporting a durational departure. See State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (victim’s need for future psychological counseling as a result of offense supported upward departure), review denied (Minn. Mar. 31, 1994). The record demonstrates that the sexual abuse caused M.C.S. to suffer severe psychological trauma, resulting in significant problems with personal and sexual relationships, self-esteem, and substance abuse. Trauma of this nature justifies a sentencing departure. State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). Accordingly, the district court did not abuse its discretion in considering this aggravating factor.
The sexual abuse committed by Edmundson involved multiple methods of penetration, which, after the Taylor decision, still constitutes an appropriate basis for an upward departure. Taylor, 670 N.W.2d at 588; see also Van Gorden, 326 N.W.2d at 635 (multiple methods); State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (multiple acts), review denied (Minn. June 19, 1996). Edmundson at times committed multiple forms and incidents of vaginal penetration during a single episode of sexual abuse. Thus, the district court’s reliance on this aggravating factor likewise does not constitute an abuse of discretion.
In light of the supreme court’s holding in Taylor, the district court erred in basing its decision to depart upward on the victim’s vulnerability due to age and Edmundson’s abuse of a position of trust. We, therefore, remand for resentencing based on the remaining aggravating factors. In sentencing Edmundson on remand, the district court is directed by Taylor to consider the statutory increases in presumptive and mandatory sentences for sex offenders, as well as other statutory provisions bearing on sex offenses. Taylor, 670 N.W.2d at 589-90 (identifying statutory changes creating risk-management tools such as minimum conditional release terms, mandatory registration, community notification, DNA sample requirements, and expanded possibility of civil commitment).
“A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion.” Benson v. N. Gopher Enters., Inc.,455 N.W.2d 444, 446 (Minn. 1990). The district court determines whether the evidence has probative value, and we will not reverse the district court’s evidentiary ruling “unless [the evidence] is so remote in point of time or space as to be of no probative value and is so prejudicial that in all probability it did influence the outcome of the case.” Atkinson v. Mock,271 Minn. 393, 396, 135 N.W.2d 892, 894 (1965).
Edmundson argues that the district court erred in admitting expert testimony regarding the characteristics of child-victim disclosure of intra-familial sexual abuse because M.C.S. was 18 years old when she testified in court. Citing State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987), Edmundson argues that expert witnesses are normally allowed to testify when victims are less than the “age of puberty” and have difficulty testifying in court. But the ruling in Sandberg does not lead us to conclude that an abuse of discretion occurred here. In Sandberg, the Minnesota Supreme Court upheld the admission of testimony by a qualified expert as to the delayed reporting by teenage victims of sexual abuse. Id. Moreover, in cases where the victim of sexual assault is an adolescent, the admissibility of expert testimony concerning the behavioral characteristics typically displayed by adolescent sexual assault victims is a matter resting in the discretion of the trial court. State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987).
The district court carefully considered whether it would be more prejudicial or probative to allow the expert testimony. Although M.C.S. was 18 years old when she testified, she was a victim of sexual assault during her childhood through her adolescence. In light of the circumstances of the abuse and M.C.S.’s delayed disclosure, the district court concluded that the expert’s testimony would be predominantly educational because the expert would be speaking from a general perspective. We conclude that the district court did not abuse its discretion in admitting the expert testimony.
Edmundson next contends that the prosecutor’s statements resulted in shifting the burden of proof to him. Edmundson claims that the state shifted the burden when the prosecutor emphasized that Edmundson moved to Arizona after M.C.S.’s disclosure and Edmundson submitted to questioning only after numerous contacts by law enforcement. In reviewing a claim of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)). In determining whether prosecutorial misconduct deprived a defendant of a fair trial, there are two distinct standards. Id. In cases in which the misconduct was serious, the standard is whether the misconduct is harmless beyond a reasonable doubt. Id. “[M]isconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” Id. (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)). In cases involving less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict. Id.
Edmundson does not cite specific instances in the record where the state shifted the burden of proof. Rather, he contends that it occurred throughout the trial. Failure to cite to the record is a violation of Minn. R. Civ. App. P. 128.03 and can be deemed a waiver of the issue. State ex rel. Barrett v. Korbel, 300 Minn. 563, 563, 221 N.W.2d 125, 125 (1974). We note from our review of the entire record, however, that, under either standard for prosecutorial misconduct, any error was harmless beyond a reasonable doubt given the substantial evidence of Edmundson’s guilt.
Rulings on evidentiary matters rest within the sound discretion of the district court. State v. Riley, 568 N.W.2d 518, 527 (Minn. 1997). Absent a clear abuse of discretion, we will not reverse a district court’s evidentiary ruling. Id.
Edmundson argues that the district court abused its discretion by admitting a videotaped police interview of M.C.S. Prior to trial, Edmundson’s counsel moved to exclude this evidence, arguing that the statements were inadmissible hearsay. The district court ruled that the videotaped interview was admissible under Minn. R. Evid. 801(d)(1)(B), as a prior consistent statement, and under Minn. R. Evid. 803(24), the residual-hearsay exception.
An out-of-court statement is not hearsay if the statement is consistent with the declarant’s testimony and helpful to the trier of fact in determining whether the declarant is credible. Minn. R. Evid. 801(d)(1)(B). Such statements, however, are not automatically admissible. State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997). An out-of-court statement is admissible under Rule 801(d)(1)(B) only if the witness’s credibility has been challenged and the statement bolsters the witness’s credibility on the subject of the challenge. Id.; see also State v. Manley, 664 N.W.2d 275, 287-88 (Minn. 2003).
During M.C.S.’s trial testimony, Edmundson’s counsel challenged M.C.S.’s credibility, implying that she fabricated the allegations of sexual abuse to avoid moving to Arizona. M.C.S.’s videotaped statements support her testimony and bolster her credibility. Accordingly, the district court did not abuse its discretion in admitting the videotaped interview.
Edmundson also argues that the victim’s statement on the videotape that she was willing to take a lie detector test prejudiced him. In Minnesota, the results of a polygraph test, as well as any direct or indirect reference to taking or refusing to take such a test, are inadmissible. State v. Fenney, 448 N.W.2d 54, 61 (Minn. 1989).
It was error to admit the unredacted reference to the lie detector test. But not every judicial error warrants reversal. An error is harmless “[i]f the verdict actually rendered was surely unattributable to the error . . . .” State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). We conclude that the error was harmless for three reasons: (1) it was a fleeting reference; (2) M.C.S.’s testimony was otherwise consistent with her videotaped statements; and (3) there was substantial additional evidence of guilt. See State v. Bauer, 598 N.W.2d 352, 367 (Minn. 1999) (holding that when evidence was erroneously admitted, such error was harmless when the evidence was insignificant and cumulative).
Edmundson further argues that allowing the jury to view the videotape in deliberations unduly emphasized the videotaped statements. We conclude that a second viewing of the videotape does not warrant reversal where, after the jury inadvertently viewed a portion of the videotape during deliberations, the district court permitted the jury to view the videotape in its entirety. Rather, we presume that the jury followed the cautionary instruction it was given, and we conclude that any error was harmless.
Affirmed in part, reversed in part, and remanded.