may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Ramsey County District Court
File No. K7-03-1659
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Presiding; Shumaker, Judge; and Halbrooks, Judge.
GORDON W. SHUMAKER, Judge
Appellant Willie Adell appeals his conviction of criminal sexual conduct, arguing that the court failed to give a specific unanimity instruction; failed to get his approval before instructing the jury on his right not to testify; improperly admitted certain pretrial statements; and improperly departed from the sentencing guidelines. We affirm in part, reverse in part, and remand.
The state charged appellant Willie Adell with first-degree criminal sexual conduct against C.F., his 14-year-old stepdaughter.
At Adell’s jury trial, C.F. testified that, between November 2002 and March 2003, Adell penetrated her mouth and vagina with his penis and her vagina with his finger six to eight times. One incident happened in a car and the rest in C.F.’s mother’s house.
C.F. told her friend, A.H., about the incidents and told Cheryl Stevenson, her father’s friend, that she might be pregnant. Eventually, C.F. reported Adell’s conduct to the police. Officer Sara Bailey interviewed her, and Ann Schminski, a nurse at Midwest Children’s Resource Center, examined her. Schminski concluded that C.F. was not pregnant but that she did have trichomonas and a narrowing of the hymen that could be consistent with healed trauma.
Over defense objection at trial, the district court admitted C.F.’s statements to Bailey, Schminski, and A.H. as prior consistent statements. The court also ruled that C.F.’s statements to Schminski were for purposes of medical diagnosis and, therefore, admissible.
At the conclusion of the trial, the court instructed the jury on the elements of criminal sexual conduct and instructed that the verdict “must be unanimous” and that “each juror must agree with that verdict.” The court also informed the jury of Adell’s right not to testify, but did not obtain Adell’s prior consent to that instruction.
The jury found Adell guilty as charged. Upon polling, each juror stated that he or she agreed with the verdict of guilty.
Citing nine aggravating factors, the court sentenced Adell to a double upward durational departure from the presumptive sentence under the sentencing guidelines. Adell appealed.
1. Unanimity Instruction
Adell argues on appeal that the district court erred by not giving a specific unanimity instruction, telling the jury that it must be unanimous as to which of the alleged multiple acts Adell committed before Adell could be found guilty. Because Adell neither objected to the court’s unanimity instruction nor requested a specific unanimity instruction, we review the court’s instruction for plain error. See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (explaining that failure to object entitles appellant only to review for plain error). Before an appellate court can review an issue for plain error, three criteria must be met: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Criminal defendants have a constitutional right to a unanimous jury verdict. Burns v. State, 621 N.W.2d 55, 61 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001). The jury must unanimously agree on whether a defendant committed the act or acts that constitute the charged crime. State v. Stempf, 627 N.W.2d 352, 359 (Minn. App. 2001). However, in cases charging criminal sexual conduct, specific dates of multiple acts need not be charged or proved. State v. Poole, 489 N.W.2d 537, 543 (Minn. App. 1992), aff’d, 449 N.W.2d 31 (Minn. 1993).
The state charged Adell with multiple acts of ongoing criminal sexual conduct against a single victim over a specific period of time. Particular dates within that defined time period are not essential elements of the offense. Rather, the “time” element is satisfied by charging a circumscribed duration, which then becomes an essential element of the offense. Thus, the jurors had to unanimously agree that Adell committed criminal sexual conduct during the defined time period. The district court’s unanimity instruction was proper and adequate to ensure a unanimous verdict. As an additional safeguard, the court polled the jurors to determine whether each agreed with the verdict of guilty. See State v. Plantin, 682 N.W.2d 653, 661 (Minn. App. 2004) (concluding that polling the jury sufficiently safeguards the constitutional right to a unanimous verdict), review denied (Minn. Sept. 29, 2004).
This case is distinguishable from Stempf, on which Adell relies. There, each act of possession of methamphetamine allegedly occurred at a different time, in a different place, and by different means. The state charged only a single count of possession but introduced evidence of both incidents of alleged possession and argued to the jury that it would be sufficient if some jurors found that Stempf possessed methamphetamine on one date and others found that the possession occurred on the other date. Stempf, 627 N.W.2d at 358. Because the act of possession was an essential element of the crime with which Stempf was charged, we held that the jury had to agree unanimously as to which event constituted the unlawful possession. Id. at 357.
Under the circumstances of this case, where the state alleged ongoing criminal conduct circumscribed by specific dates, the district court properly instructed the jury on the requirement of a unanimous verdict without instructing that the jurors must agree on a specific act or acts.
2. “Right Not to Testify” Instruction
Adell argues that the district court erred in failing to obtain his approval before instructing the jury that the “defendant has the right not to testify.” Because Adell failed to object to the instruction at trial, this court reviews for plain error. Griller, 583 N.W.2d at 740. If plain error arises out of jury instructions, this court will reverse only if the instructions were “misleading or confusing on fundamental points of law.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).
An instruction on the defendant’s right not to testify should not ordinarily be given unless the defendant requests the instruction on the record. McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002). Failure to obtain the defendant’s consent on the record is error. State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000). However, giving the instruction without the defendant’s permission is harmless unless the defendant can demonstrate that it significantly affected the jury’s verdict. Darris, 648 N.W.2d at 240.
Here, the weight of the evidence more than adequately supports the jury’s verdict, and Adell has not demonstrated in what respect the instruction was prejudicial.
3. Admission of Pretrial Statements
With one exception discussed below, Adell does not challenge the pretrial statements as inadmissible hearsay, but rather contends that the district court failed to balance the probative value against the danger of unfair prejudice as required by Minn. R. Evid. 403 and failed to ensure relevancy under Minn. R. Evid. 401.
The admission of evidence at trial is within the discretion of the district court and appellate courts will not lightly reverse evidentiary rulings. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Evidentiary rulings will not be reversed absent a clear abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). The appellant must demonstrate both a clear abuse of discretion and that he was prejudiced by the admission of the statements before this court will reverse. Id.
As each statement was offered and an objection was made, the district court considered and examined each statement individually. There was nothing perfunctory about the court’s rulings. Rule 403 does not require fact-finding as to the balancing procedure. In determining whether the district court failed to perform the balancing test or performed it improperly, we rely on the appellant to point to and demonstrate the evidentiary error. Adell claims that the repetition of prior statements and the inclusion of irrelevant statements reveal the substantial prejudice of the statements. It is within the court’s discretion to allow the repetition of prior statements so as to test a witness’s credibility. And if, as here, the opponent had an unfettered opportunity to cross-examine the witness about the nature, substance, and repetition of the statements, we fail to see how the accused is unfairly prejudiced by the evidence.
Adell argues that certain statements in a video-taped interview of C.F. were irrelevant and unfairly prejudicial. Under Minn. R. Evid. 401, evidence is relevant if it has “any tendency” to make a consequential fact either more probable or less probable. Adell contends that C.F.’s statement that she missed an entire softball season because she overdosed on medication and cut her wrist, stomach, and leg was inflammatory because it invited the jury to assume that Adell’s sexual abuse caused C.F. to try to commit suicide. Although arguably this evidence was of marginal relevance on the issue of direct proof of the crime, it did tend to show the “whole person” of C.F. and that showing provided a filter for assessing her credibility. Credibility was both a consequential and a central fact in this case. The court did not err in allowing this statement.
Finally, Adell contends that certain prior consistent statements did not satisfy Minn. R. Evid. 801(d)(1)(B) and, therefore, were inadmissible hearsay. His specific concern is that, even though C.F.’s testimony was challenged, her prior statements did not “bolster her credibility.”
Rule 801(d)(1)(B) requires that the prior statement be “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.” Repeated prior statements can have at least two effects on the declarant’s credibility. They can bolster the declarant’s testimony by suggesting that the declarant is truthful because she related the same information consistently to various people under various circumstances. Or, depending on the content of the prior statements, they can suggest a memorized script told and retold to gain ostensible corroboration. Adell has not shown how C.F.’s prior consistent statements were irrelevant to her credibility and, therefore, has failed to persuade us that their admission was error.
4. Sentence Departure
The presumptive sentence for Adell’s crime was 144 months. Based on aggravating factors that the district court found, the court doubled the presumptive duration and imposed a sentence of 288 months. Adell contends that, under Blakely v. Washington, 124 S. Ct. 2531 (2004), the departure was unconstitutional and that he is entitled to the presumptive sentence.
Blakely held that a presumptive guidelines sentence is the “statutory maximum” sentence and that a defendant’s sentence may not exceed the statutory maximum unless the defendant has been given an opportunity to have a jury trial on the factors that provide the basis for the departure.
We have held that Blakely applies to upward durational departures from the sentencingguidelines. State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), pet. for review filed (Minn. Nov. 10, 2004). Because Adell was not given an opportunity to have a jury trial on the departure factors, the sentence must be reversed and the matter remanded on the issue of sentencing.
Affirmed in part, reversed in part, and remanded.