This opinion will be unpublished and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

A03-301

 

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Phillip Scacchetti,

Appellant.

 

 

Filed June 1, 2004

Affirmed

Robert H. Schumacher, Judge

 

Crow Wing County District Court

File No. K1021716

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Anthony Phillip Scacchetti challenges his conviction of first-degree criminal sexual conduct, arguing there was insufficient evidence to support the conviction, the district court erred in admitting evidence, the prosecutor committed prejudicial misconduct, and his right to a speedy trial was violated. We affirm.

FACTS

In May 2002, Scacchetti began living with his girlfriend, K.J., and her three-year-old daughter, R.J. After a few weeks, Scacchetti began providing care to R.J. while K.J. was working. While caring for R.J., Scacchetti spanked her with a belt and there was an incident when R.J. said she had fallen down the stairs to explain marks on her face.

In late June, K.J. arrived home from work and found R.J. with a number of bruises on her body and a swollen face. Scacchetti said R.J. had fallen in the bathtub. K.J. also found a number of items around the house with blood on them, including R.J.'s underwear, R.J.'s pillow case, and a washcloth. R.J. told her mother that it hurt when she urinated.

Laurel Edinburgh, a pediatric nurse practitioner at Children's Hospitals, examined R.J. Photographs taken by Edinburgh show bruising on R.J.'s face, including her cheeks, chin, ears, and under her eye; a possible cigarette burn on her nipple; and bruising on her arms, chest, back, hip, buttocks, upper thighs, and legs. There was also an oblong bruise next to R.J.'s anal opening. While examining R.J.'s vaginal area and anus, Edinburgh asked R.J. if anything ever happened to that area. R.J. said, "Yes." Edinburgh asked, "What touched there?" and R.J. said, "Tony's pee-pee."

During a second examination with Edinburgh and Dr. Carolyn Levitt, R.J. identified a picture of a penis with the term "pee-pee." During the beginning of this examination, R.J. repeatedly said Scacchetti had hit her on her butt with a belt, denied being otherwise touched by Scacchetti on her butt, denied being touched with Scacchetti's "pee-pee," stated she had never seen Scacchetti without his clothes on, but also said, "He had his clothes off."

When Edinburgh took off R.J.'s underwear, R.J. began to cry and started asking for her mother. She nevertheless continued to answer questions and said that Scacchetti touched her vaginal and anal areas with his hand. When asked if he put his hand in her anus, R.J. said, "He put his hands right in there," while motioning upward with one finger. Later in the interview, R.J. said Scacchetti had touched her with his "pee-pee," had taken off her clothes and his clothes, and that this had happened in her mother's bedroom and on her mother's bed. R.J. also said she did not know what Scacchetti had done with his "pee-pee."

Edinburgh testified that the oblong bruise next to R.J.'s anus was not overlying a bone and therefore was not consistent with falling but was consistent with a hand or penis being put in the anal area. Edinburgh found no medical explanation for the blood in R.J.'s underwear or for the pain R.J. felt when she urinated. Based on her training and experience, Edinburgh said she would not expect a child of R.J.'s age to have the type of sexual knowledge described by R.J. during the examinations. Edinburgh also stated that, in her opinion, R.J. had been physically and sexually abused. Dr. Levitt also testified and concurred with Edinburgh's determination that abuse had occurred.

A daycare worker testified that while R.J. was in her care in July 2002, R.J. repeatedly said, "Please don't let Tony get me," and asked, "Will Tony come here?" and "If Tony comes here, will you call the police?" The daycare worker also testified to R.J.'s statement that Scacchetti hurts her and "made her eat poop."

Scacchetti testified in his defense. He admitted that he and K.J. neglected R.J. and admitted to striking R.J. with a belt. He also admitted he may have caused some of R.J.'s bruises because he does not "know [his] own strength sometimes" and "may have hit her a little hard." He denied penetrating R.J.'s anus or vagina.

On this record, a jury found Scacchetti guilty of first-degree criminal sexual conduct in violation of Minn. Stat.  609.342, subd. 1 (2000), malicious punishment of a child in violation of Minn. Stat.  609.377, subd. 4 (2000), and third-degree assault in violation of Minn. Stat.  609.223, subd. 3 (2000). The district court sentenced Scacchetti to 144 months in prison.

D E C I S I O N

1. Scacchetti argues the district court erred in admitting R.J.'s videotaped statement. He claims this was a violation of the confrontation clause of the Sixth Amendment. U.S. Const. amend. VI. Evidentiary rulings rest within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Scacchetti's trial counsel did not object when the videotape was received in evidence at trial. Failure to make a timely objection to the admission of evidence is a bar to appeal. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); Minn. R. Evid. 103(a)(1). Nevertheless, if the admission constitutes plain error it may be reviewed. Miller, 573 N.W.2d at 675; Minn. R. Crim. P. 31.02. Here, Scacchetti has not provided any argument on appeal that there was plain error. Issues not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

2. Scacchetti argues the district court erred in admitting testimony by the daycare worker regarding R.J.'s out-of-court statement that Scacchetti made her "eat poop." Scacchetti contends this testimony was unrelated to the charged offense and amounted to inadmissible Spreigl evidence. State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965) (generally evidence showing that accused has committed another crime unrelated to crime for which he or she is on trial is inadmissible). Scacchetti did not object to the daycare worker's testimony on direct examination and failed to brief the issue of plain error on appeal. Thus, this issue is not properly before us, and we decline to address it. Miller, 573 N.W.2d at 675 (failure to make timely objection to admission of evidence is bar to appeal unless there was plain error); Butcher, 563 N.W.2d at 780 (issues not briefed on appeal are waived).

3. Scacchetti argues the district court erred in admitting Dr. Levitt's and Edinburgh's expert testimony. "The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion." State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (citation omitted).

Scacchetti contends the district court abused its discretion because the testimony by Dr. Levitt and Edinburgh amounted to impermissible vouching. See State v. Maurer, 491 N.W.2d 661, 662 (Minn. 1992) (noting it is generally objectionable for state on direct to elicit opinion evidence as to truthfulness of victim's allegation of rape). But both experts gave admissible testimony regarding their opinion of whether R.J. had been sexually abused and did not testify as to whether they believed R.J. was telling the truth. See State v. Campa, 390 N.W.2d 333, 335 (Minn. App. 1986) (stating expert witness may provide opinion testimony on whether child had been sexually abused), review denied (Minn. Aug. 27, 1986).

Scacchetti also argues Dr. Levitt's testimony was duplicative of Edinburgh's testimony and was irrelevant. We disagree. Dr. Levitt provided relevant, admissible testimony concerning the characteristics of sexually abused children. See State v. Myers, 359 N.W.2d 604, 610-11 (Minn. 1984) (stating expert witness may be allowed to testify concerning characteristics of sexually abused children). Moreover, it is undisputed that both experts were qualified to testify. Minn. R. Evid. 702. Even if portions of Dr. Levitt's testimony were cumulative of Edinburgh's, any error that may have occurred was harmless. See State v. Warndahl, 436 N.W.2d 770, 776 (Minn. 1989) (error is harmless where record contains overwhelming evidence of guilt and statement was merely cumulative and could not have played significant role in conviction).

4. Scacchetti contends there was insufficient evidence to support the conviction of first-degree criminal sexual conduct. In considering a claim of insufficient evidence, we review the evidence and any inferences from it in a light most favorable to the verdict. State v. DeWald, 463 N.W.2d 741, 748 (Minn. 1990). We assume the jury believed the state's witnesses and disbelieved testimony to the contrary. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).

A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration or sexual contact with a complainant who is under 13 years of age and he or she is more than 36 months older than the complainant. Minn. Stat.  609.342, subd. 1 (2000). Sexual contact with a person under 13 years of age includes "the intentional touching of the complainant's bare genitals or anal opening by the actor's bare genitals or anal opening with sexual or aggressive intent[.]" Minn. Stat.  609.341, subd. 11(c) (2000). Sexual penetration includes, among other things, "any intrusion however slight into the genital or anal openings." Minn. Stat.  609.341, subd. 12(2) (2000).

Scacchetti contends there is insufficient evidence because R.J. did not testify. Nevertheless, R.J.'s out-of-court statements may be sufficient to sustain a conviction of first-degree criminal sexual conduct. See State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990) (holding evidence consisting largely of four-year-old victim's out-of-court statement identifying defendant as perpetrator was sufficient to sustain defendant's conviction of first-degree criminal sexual conduct).

Scacchetti also contends there was insufficient evidence because R.J., in her second medical examination, denied any sexual contact until pressed by the interviewer and because the only statement of sexual penetration came in response to repetitive, leading questions. But even when a child's statements are inconsistent, such evidence standing alone may support a conviction. See State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (holding despite numerous inconsistencies in child's testimony, such testimony standing alone supported jury's verdict). Furthermore, the weight and credibility of witnesses' testimony are the province of the fact-finder. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).

Here, R.J. made out-of-court statements that Scacchetti had touched her with his penis in her vaginal and anal area and had penetrated her anus with his hand. R.J. also made statements regarding Scacchetti taking his and her clothing off in her mother's bedroom. The bruise next to her anus was consistent with a hand or penis being forcibly placed in her anal area. Finally, R.J. is not of the age to have the type of sexual knowledge that she described during the medical examinations. On this record, there is sufficient evidence to support the conclusion that Scacchetti committed first-degree criminal sexual conduct by touching his bare genitals to R.J.'s and by sexually penetrating her.

5. Scacchetti claims he is entitled to a new trial, contending the prosecutor committed misconduct by asking Scacchetti on cross-examination about a prior felony conviction without giving prior notice of his intent to do so. Scacchetti concedes he did not object at trial but argues the prosecutor's conduct amounts to plain error. Miller, 573 N.W.2d at 675 (even if not objected to at trial, if admission constitutes plain error it may be reviewed on appeal). The decision whether to grant a new trial because of prosecutorial misconduct lies in the discretion of the district court and will not be reversed, unless the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial has been denied. State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987).

Here, the prosecutor did not give Scacchetti prior notice of his intent to ask about the prior conviction during cross-examination. See Minn. R. Crim. P. 9.01, subd. 1(5) ("The prosecuting attorney shall inform defense counsel of the records of prior convictions of the defendant . . . that are known to the prosecuting attorney provided the defense counsel informs the prosecuting attorney of any such records known to the defendant."). Nevertheless, the prosecutor asked Scacchetti on cross-examination if he had a felony conviction of motor-vehicle theft. Scacchetti said, "Yes" and agreed that it was a felony conviction.

Even if misconduct is present, a defendant is not entitled to a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Ashby, 567 N.W.2d 21, 27-28 (Minn. 1997). Because the questioning here was brief and the prosecutor did not unduly emphasize it to the jury, we conclude the error was harmless. See State v. Caldwell, 322 N.W.2d 574, 590 n.16 (Minn. 1982).

6. Scacchetti argues the prosecutor committed prejudicial misconduct by making the following statements during closing argument:

In opening statements, the defense stated that upon the close of evidence . . . there would be no physical evidence that the defendant did any of the things he's charged with. And I wonder if defense counsel is confusing this case with another case[.]

 

. . . .

 

As a society we need to listen to what our children say or they're going to stop talking all together.

 

Scacchetti did not object to either statement and did not request a cautionary instruction.

Generally, a defendant who fails to object to the prosecutor's closing argument or to seek a cautionary instruction waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Only when the misconduct complained of is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). We conclude, based on the record before us, that the statements complained of here were not unduly prejudicial.

7. In his pro se supplemental brief, Scacchetti raises an additional argument, contending his right to a speedy trial was violated. Once a defendant makes a demand for a speedy trial, a trial must commence within 60 days after the demand unless good cause is shown. Minn. R. Crim. P. 11.10. This court reviews the record to determine whether the district court abused its discretion when deciding there was good cause for the delay. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).

Scacchetti demanded a speedy trial on August 5, 2002, and trial was set for September 17, 2002. Trial was continued twice on September 17 and October 15, 2002, to enable both parties to obtain results from ongoing DNA testing. Trial was then continued on November 14, 2002, due to the unavailability of both the prosecution and defense attorneys. Trial commenced thereafter on December 9, 2002.

Delaying trial to allow DNA evidence to be processed is usually within the district court's discretion because DNA evidence can either inculpate or exculpate the accused. State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990). The unavailablity of a defendant's attorney may also be a valid reason for delay. See State v. Traylor, 641 N.W.2d 335, 343 (Minn. App. 2002) (finding defendant's speedy trial rights were not violated when much of delay was attributable to DNA testing and unavailability of defendant's attorney), rev'd on other grounds, 656 N.W.2d 885 (Minn. 2003).

We conclude the district court did not abuse its discretion in delaying trial because of the processing of DNA evidence and the unavailability of both attorneys.

Affirmed.