This opinion will be unpublished and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

A03-436

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Wallace Brown,

Appellant.

 

 

Filed February 3, 2004

Affirmed

Halbrooks, Judge

 

 

Rice County District Court

File No. K8-01-2009

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Mark B. Levinger, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

G. Paul Beaumaster, Rice County Attorney, 218 Northwest 3rd Street, Faribault, MN 55021 (for respondent)

 

David Hvistendahl, Mary L. Hahn, Hvistendahl, Moersch & Dorsey, P.A., 311 South Water Street, P.O. Box 651, Northfield, MN 55057 (for appellant)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, 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 second-degree criminal sexual conduct and soliciting a child to engage in sexual conduct on the grounds that the district court erred by (1) admitting Spreigl evidence of appellant’s sexual penetration of his biological daughter, (2) denying his motion for a mistrial after the jury saw the victim crying outside the courtroom following her testimony, and (3) excluding a sexually suggestive pencil-holder exhibit that the victim gave to appellant.  Appellant also contends that the district court erred in sentencing him to 117 months and awarding restitution to the victim’s aunt and uncle, who provided the victim with a place to live after the offense.  We affirm.

FACTS

            In 1998, Annette Brown and her three children, S.N., T.N., and J.N., moved into the home of Annette’s boyfriend, appellant John Wallace Brown.  Appellant and 12-year-old J.N. developed a close relationship, and J.N. regarded him as a “father figure.”  But after several months, appellant started making J.N. feel uncomfortable.  J.N. testified that appellant began squeezing her buttocks when they hugged, nicknamed her buttocks “humunga bunga butt” and “Jennifer,” and referred to her breasts as “mosquito bites.”  J.N.’s friends witnessed appellant touching J.N.’s buttocks, and one friend also heard appellant tell J.N. that she had “nice boobs.”  J.N. stated that her mother also witnessed this behavior, but did not discourage it. 

According to J.N., appellant’s inappropriate behavior worsened after her brother moved out of the house.   J.N. was then 14.  J.N. testified that appellant began walking around the house in a t-shirt and no underwear, exposing his genitals.  She also stated that appellant continued touching her buttocks approximately twice a day and began touching her vagina, first over her clothing, but eventually inside her underwear.  J.N. gave extensive testimony about the touching, which occurred in the living room, appellant’s workshop, and J.N.’s bedroom.  During the time that she lived with appellant, J.N. estimated that appellant touched her vagina approximately five times over her underwear and between two and five times inside her underwear. 

J.N. also testified that appellant discussed having sex with her.  J.N. stated that appellant told her that sex would relieve her menstrual cramps and that the boys at school would not know how to do it right, so it would be better if J.N. did it with appellant first.  J.N. stated that appellant had discussions about sex with her approximately four times a week for about a year and a half and sometimes touched her vagina over her clothing while they talked. 

According to J.N., appellant told her that this should stay between them and that “nobody else needs to know.”  Nonetheless, J.N. confided in several of her friends and eventually disclosed the abuse to her siblings, her aunt, and the police.  Shortly thereafter, J.N.’s aunt and uncle, Laurie and Wayne Danberry, acquired temporary custody of J.N.  Appellant was arrested and charged with second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2000).  He was subsequently additionally charged with solicitation of a child to engage in sexual conduct in violation of Minn. Stat. § 609.352, subd. 2 (2000). 

The district court held a pretrial hearing to consider whether to admit evidence that appellant pleaded guilty to second-degree criminal sexual conduct in 1989.  The victim in that case was appellant’s biological daughter, B.J.M., and the misconduct included both sexual touching and intercourse.  The district court stated from the bench that “there is clear and convincing evidence that [appellant] committed . . . criminal sexual conduct with [B.J.M.] . . . I’ll rule on the admissibility of that at trial based on the strength of the State’s case.”  Appellant argued that, because appellant was not charged with penetrating J.N., evidence of sexual penetration involving B.J.M. would be unduly prejudicial.  The district court responded, “[T]here is not to be evidence of penetration but only sexual conduct.”  The court’s order stated that testimony “concerning alleged acts of sexual penetration . . . between . . . [B.J.M.] and [appellant]” would not be allowed.  The district court reserved its ruling on whether the defense would be allowed to introduce a pencil-holder exhibit shaped like buttocks that J.N. gave appellant for his birthday.   

On the second day of trial, appellant’s counsel moved for a mistrial on the ground that the jury had been tainted when several spectators applauded in court after J.N.’s testimony and because the jury saw J.N. and her family embracing and crying in the rotunda of the courthouse after she testified.  The district court denied the motion, but reminded courtroom observers that it was inappropriate for them to applaud or to greet a witness in the courtroom after her testimony.  The court did not comment on J.N.’s emotional display in the rotunda.

During trial, appellant was permitted to admit into evidence a birthday card that J.N. had given appellant.  The card contained references to her love for him and a hand-drawn picture of buttocks with the word “Jennifer” written on it.  But the district court excluded the pencil holder that J.N. gave appellant along with the card, concluding that it was not relevant. 

After the majority of the state’s case had been presented, the district court ruled that B.J.M. would be permitted to testify about appellant’s sexual abuse of her as a child, including testimony about intercourse.  The court instructed the jury prior to B.J.M.’s testimony that the evidence was “being offered for the limited purpose of assisting [them] in determining whether [appellant] committed those acts” for which he was charged, and that they were “not to convict [appellant] on the basis of any occurrence which might have occurred in 1982 through 1986, [as] to do so might result in unjust double punishment.” 

Following B.J.M.’s testimony, appellant again moved for a mistrial, arguing that the court’s mid-trial reversal of its Spreigl ruling had prejudiced his case.  Appellant argued that B.J.M.’s testimony had exceeded its anticipated scope and reiterated that J.N.’s emotional display in the rotunda had prejudiced appellant.  The district court denied the motion.  

The jury found appellant guilty of second-degree criminal sexual conduct and solicitation of a child to engage in sexual conduct.  Appellant moved for a new trial based on the court’s Spreigl ruling, failure to admit the pencil-holder exhibit, and jury tainting.  The district court denied appellant’s motion.  Following a two-day sentencing hearing, appellant was sentenced to a term of 117 months, a double upward departure from the guidelines sentence, and ordered to pay restitution in the amount of $1,839.06 to the Danberrys for counseling costs.  Although the court determined that appellant was not a pattern sex offender, the court concluded that compelling reasons existed to warrant the double upward departure.  This appeal follows.

D E C I S I O N

I.

 

            Appellant argues that the admission of B.J.M.’s testimony about the conduct leading to appellant’s 1989 conviction for second-degree criminal sexual misconduct was reversible error.  We “will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.”  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  Generally, evidence showing that the accused has committed another crime unrelated to the crime for which he or she is on trial is inadmissible.  State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  And evidence of other crimes or bad acts may not be used to prove the propensity of the accused to engage in criminal behavior.  State v. Thieman, 439 N.W.2d 1, 6 (Minn. 1989). 

But such evidence may be admitted under Minn. R. Evid. 404(b) to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  State v. Kates, 616 N.W.2d 296, 299 (Minn. App. 2000), review denied (Minn. Oct. 26, 2000).  In those cases, Spreigl evidence will be admissible if (1) the state gives notice that it intends to use such evidence, (2) the state indicates the purpose for offering the evidence, (3) the evidence is clear and convincing, (4) the evidence is relevant and material, and (5) the probative value of the evidence outweighs its prejudicial effect.  State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002). 

Here, appellant challenges the court’s analysis of the last two factors of the admissibility determination.  Appellant asserts that B.J.M.’s testimony was irrelevant because appellant engaged in sexual intercourse with her, while J.N.’s allegations involved sexual touching.  Appellant also contends that B.J.M.’s testimony was more prejudicial than probative due to its “disturbing, emotionally powerful” nature, which appellant claims caused the jury to convict appellant twice for the same crime – sexually abusing B.J.M.  Finally, appellant argues that the court’s decision in the middle of the trial to admit the Spreigl evidence was highly prejudicial because the state’s case was not weak and it came as “a complete surprise” to the defense.  

            When determining whether Spreigl evidence is relevant, the “trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.”  State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (quoting State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984)).  Absolute similarity is not required, but the greater the similarity, the more likely the Spreigl evidence is relevant.  Id

In this instance, the state offered B.J.M.’s testimony to refute allegations of J.N.’s fabrication and to show appellant’s motive, intent, and a common scheme or plan.  There were numerous similarities between the accounts given by B.J.M. and J.N.  Although B.J.M. was appellant’s biological daughter and J.N. was not, J.N. had a father-daughter relationship with appellant.  Both J.N. and B.J.M. testified that appellant had nicknames for their buttocks.  The girls were approximately the same age at the time the abuse occurred.  Additionally, both girls stated that the inappropriate conduct occurred in appellant’s home, and most notably, in the downstairs bedroom.  Both J.N. and B.J.M. testified that appellant would come into their room with no underwear on, ask them if they were awake, and then crawl into bed with them and fondle their vaginas.  Both testified that they could feel appellant’s erections against their bodies and stated that appellant smelled of cigarettes and “garage smells” such as gasoline or oil. 

            We recognize that while “prior sexual conduct convictions are often probative where the defendant disputes that the sexual conduct occurred or where the defendant asserts the victim is fabricating the allegations,” the admission of such evidence produces significant potential for prejudice.  State v. Duncan, 608 N.W.2d 551, 557 (Minn. App. 2000), review denied (Minn. May 16, 2000).  Here, the danger inherent in admitting evidence of sexual intercourse between appellant and his biological daughter is obvious.  Therefore, before allowing Spreigl evidence, the district court was required to carefully balance the probative value of the evidence against the potential for unfair prejudice.  Kennedy, 585 N.W.2d at 391.  “Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.”  Id. at 391-92 (quotation omitted). 

            The record reveals that, after the prosecution presented the testimony of J.N., a police officer, and five of J.N.’s friends, the court held a bench conference to consider the state’s need for the Spreigl evidence. 

THE COURT:  We were discussing the additional testimony the state has, and Dr. Glass is going to testify, or they are going to proffer her testimony as to attributes of a sexual abuse victim.  We have another, at least a few more friends who will probably talk about observations of [appellant], the brother and sister are going to testify, and . . . Laurie Danberry.  But none of them are going to testify to having observed unambiguous acts of sexual abuse or contact, would that be true?

 

MR. AUDETTE:  None of them certainly would testify to touching, other than touching on the buttocks area.

 

THE COURT:  And that would be over the clothing?

 

MR. AUDETTE:  Correct.

 

THE COURT:  Given that, and that’s the end of State’s case?

 

MR. AUDETTE:  Basically, yes.

 

THE COURT:  I’m going to admit the evidence of the prior sexual contact between [appellant] and his daughter, [B.J.M.].  It seems to me it comes in for three bases: Number one, it shows intent.  The testimony about touching . . . [J.N.’s] butt over her clothing, it’s relevant to the [appellant’s] intent, again, the crime requires it for the intent of his own sexual gratification. 

 

As described in the Wermerskirchen, I believe it shows the design of the [appellant] to commit a sexual offense.  And . . . I think it’s relevant to motive.  I think part of the problems with these cases is most people do not have a motive to become sexual with children living in their home, the claim is, that [appellant] did, and the sexual abuse of [B.J.M.] would be evidence of that motive.  So, I will be admitting that testimony.

 

I’m really rethinking my prior limitation on that, to not show penetration.  Because I do think that it may be relevant to show the intent of the [appellant]. . . .

 

And I will admit evidence of sexual penetration as testified to by [B.J.M.] at the Spreigl hearing. . . . I think that is relevant to determining the [appellant’s] intent in the acts he’s alleged to have committed with [J.N.].   

 

. . . .

 

            My analysis of the strength of the case is that the probative value out weighs the potential prejudicial impact because, again, we ultimately have a one witness case.  What [J.N.] testified is, it appears to me, all we are going to hear, except for the possibly ambiguous testimony of touching of her butt over her clothing.  As to that touching the burden of the State is to show not just that [appellant] touched intimate areas over the clothing but he did it for his own sexual or aggressive intent. . . . So it does go to explain that alleged behavior.  And I think it’s necessary for the State’s case on that. 

 

The court’s mid-trial reconsideration of its Spreigl ruling is reflected in approximately 20 pages of the transcript and includes argument from both parties’ counsel.  The district court accurately weighed the strength of the state’s case and properly determined that there was a need for the Spreigl evidence.  In addition, the court gave the jury a cautionary instruction in order to ensure that the evidence was used for its intended purpose, and “[w]e presume that jurors follow a judge’s instructions.”  See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  Based on this record, we conclude that the district court did not abuse its discretion by admitting Spreigl evidence of appellant’s sexual intercourse with his daughter.

II.

Appellant next argues that he was denied a fair trial because the jury saw J.N. crying in the rotunda as they were leaving the courthouse.  While the accused is guaranteed the right to a fair trial, this guarantee does not require a trial that is perfect in every way.  State v. Reardon, 245 Minn. 509, 513-14, 73 N.W.2d 192, 195 (1955); State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392-93 (1954).  Moreover, if it can be shown beyond a reasonable doubt that the improper influence did not contribute to the verdict, then the error is harmless.  State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982).  The district court is in the best position to assess what effect an outburst had on the jury and to decide whether sufficient prejudice occurred to warrant a mistrial.  State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985).  Consequently, this court will not reverse a district court’s denial of a motion for a mistrial absent a clear abuse of discretion.  Id.

The supreme court has set forth the factors to be considered in cases involving potentially prejudicial matters that inadvertently come before a criminal jury.  Cox, 322 N.W.2d at 559.  When necessary, the reviewing court should conduct an independent evaluation of the verdict, considering “the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of the evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.”  Id.

Because J.N. is not a court official, there is no automatic presumption of prejudice.  See id. at 558.  And because the jury was required to evaluate J.N.’s credibility in light of appellant’s defense that the abuse never occurred, “her status as the complainant carried no extra weight with the jury.”  State v. Halvorson, 506 N.W.2d 331, 336 (Minn. 1993).  While the record indicates that most, if not all, of the jurors witnessed J.N. crying outside the courtroom, the court’s comments also demonstrate that J.N. was “within a sentence” of crying and “struggling to maintain her composure” throughout her testimony.  There is no evidence that the incident was premeditated or intentionally orchestrated for the jury to see.  Finally, because J.N.’s emotional display did not include a statement about appellant’s guilt or innocence, it was sufficiently equivocal not to be prejudicial.  See McDonald v. State, 351 N.W.2d 658, 660-61 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).  Therefore, we conclude that the district court did not abuse its discretion in denying appellant’s mistrial motion. 

III.

            Appellant also argues that the district court erred in ruling that the pencil-holder exhibit was inadmissible.  We review a district court’s evidentiary rulings for abuse of discretion.  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000). 

            The defense sought to introduce a buttocks-shaped pencil holder that J.N. gave appellant for his birthday.  Appellant asserts that the exhibit was relevant because it (1) “was necessary for the jury to have a full and complete picture of the nature of [J.N.’s] relationship with [appellant],” (2) “explained the ‘Jennifer’ references replete in the record,” (3) was necessary to show “that J.N. referred to her own backside as ‘Jennifer’ and made a joke of it,” and (4) supported the defense theory that J.N. made up the allegations out of anger after appellant rebuffed her.  Based on these arguments, appellant asserts that, without the exhibit, he was “unable to put on a full and complete defense.” 

            We disagree.  The testimony established that appellant and J.N. shared a close relationship and explained the “Jennifer” references in the record.  Furthermore, it is irrelevant whether J.N. enjoyed the “Jennifer” references or used this term herself, as J.N.’s consent is not a defense to these charges.  While the exhibit may have been relevant to support the theory that J.N. fabricated the allegations, “relevant evidence may nonetheless be excluded if its probative value is ‘substantially outweighed by . . . considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’”  Shea v. Esensten, 622 N.W.2d 130, 136 (Minn. App. 2001) (quoting Minn. R. Evid. 403). 

            Appellant was permitted to introduce the birthday card containing J.N.’s statements about her love for appellant and a hand-drawn picture of buttocks with the word “Jennifer” written on it.  This evidence was sufficient to support appellant’s theory that J.N. joked about the “Jennifer” reference and may have been motivated to lie about the abuse because appellant rebuffed her affections.  Therefore, even if the exhibit was relevant, the district court did not abuse its discretion in excluding it.

IV.

 

            Appellant also challenges his sentence of 117 months, a double upward departure from the presumptive sentence.  On appeal, we determine whether appellant’s sentence is “inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court.”  Minn. R. Crim. P. 28.05, subd. 2.  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. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).  But an upward durational departure is within the sentencing court’s discretion only if “substantial and compelling” aggravating circumstances are present.  Id.  If the record supports a finding that substantial and compelling circumstances exist, we will not modify the departure unless we have a “strong feeling” that the sentence is disproportional to the offense.  State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (quotation omitted). 

Although the district court determined that appellant was not a “pattern sex offender” under Minn. Stat. § 609.108 (2000), it found two “substantial and compelling” reasons to upwardly depart: (1) appellant’s prior conviction for a sexual offense and (2) the invasion of J.N.’s zone of privacy.  Appellant asserts that the supreme court’s recent decision in Taylor v. State, 670 N.W.2d 584 (Minn. 2003), precludes the court’s departure.  We disagree.  In Taylor, the defendant was convicted of first-degree criminal sexual conduct involving a three-year-old child enrolled in his wife’s home daycare.  Id. at 585.  The supreme court held that it was inappropriate for the district court to consider a “prior uncharged sex offense” in an upward sentencing departure.  Id. at 588-89.  Further, the court held that the victim’s vulnerability due to her age and the defendant’s position of trust were inappropriate bases for departure because “those facts were already taken into account by the legislature in determining the degree of seriousness of the offense.”  Id. at 589. 

This case is distinguishable from Taylor because, here, the district court considered a prior sexual offense for which appellant was charged and convicted.  The sentencing guidelines specifically provide that an aggravating factor exists when “[t]he current conviction is for a criminal sexual conduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a criminal sexual conduct offense or an offense in which the victim was otherwise injured.”  Minn. Sent. Guidelines II.D.2b(3).  This factor alone can justify a departure.  See State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (single factor sufficient to uphold upward departure); State v. Williams, 337 N.W.2d 689, 691 (Minn. 1983) (holding that prior third-degree assault conviction was by itself sufficient to justify double durational departure).  Therefore, we conclude that the district court acted within its discretion by imposing the double departure.

V.

 

            Appellant’s final argument is that the district court erred in awarding $1,839.06 in restitution to the Danberrys, who became J.N.’s guardians after she reported the abuse.  In awarding restitution, the district court must consider “(1) the amount of economic loss sustained by the victim as a result of the offense; and (2) the income, resources, and obligations of the defendant.”  Minn. Stat. § 611A.045, subd. 1(a) (2000).  “A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including medical and therapy costs . . . .”  Minn. Stat. § 611A.04, subd. 1(a) (2000).  Restitution is only proper where the victim’s losses are “directly caused” by the conduct for which the defendant was convicted.  State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986).  The record must provide a factual basis for the restitution award and must also clearly establish the defendant’s liability.  State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984); State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985).  District courts have broad discretion in imposing restitution, and we will reverse a restitution award only for an abuse of that discretion.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). 

            Appellant argues that the Danberrys are not “victims” within the meaning of Minn. Stat. § 611A.01(b) (2000), and that it is not clear that their losses have been “directly caused” by appellant’s conduct.  The term “victim” is defined as “a natural person who incurs loss or harm as a result of a crime.”  Minn. Stat. § 611A.01(b).  Minnesota courts have held that family members may be included as “victims” under the statute if they incur an economic harm as the result of the defendant’s wrongdoing.  See, e.g., State v. Bjork, 610 N.W.2d 632, 638 (Minn. 2000) (upholding order that appellant pay victim’s family for funeral costs, including flowers, photographs, printing of the eulogy, music, and postage); State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (upholding order that appellant pay restitution to murder victim’s parents for losses directly caused by appellant’s actions in attempting to cover up the murder); State v. O’Brien, 459 N.W.2d 131, 135 (Minn. App. 1990) (finding parents, whose daughter married the defendant in reliance on his perjured statement that his first marriage ended in an annulment, were victims under the restitution statute because “they incurred an economic harm as a result of appellant’s perjury”). 

The district court concluded that the Danberrys were “victims” because they incurred economic harm in the form of counseling costs and mileage as a result of appellant’s sexual abuse of J.N.  This conclusion, supported by the Danberrys’ affidavit and Laurie Danberry’s testimony, is within the district court’s discretion. 

We also reject appellant’s argument that “it is unclear whether any of the Danberrys’ counseling costs were a direct result of [appellant’s] criminal conduct.”  The district court reasoned that J.N. “has had to live with the Danberrys rather than in her family home, that is a direct result of this crime.”  Furthermore, the court stated that

not only does J.N. need counseling, but it seems to me foreseeable and rational that the adults taking the position as guardians are also going to need counseling to deal both with the addition to their family of a . . . 17-year-old, and . . . to deal with some of the same issues that arise from the sexual abuse that a child in their care has, that J.N. does.

 

The district court considered the losses suffered by both J.N. and the Danberrys, and properly concluded that those losses were directly caused by appellant’s criminal conduct. 

            Affirmed.