This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





David Allan Smith,



Filed January 25, 2005

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge


Hennepin County District Court

File No. 02045506


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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction and sentence for first-degree criminal sexual conduct claiming that (1) the evidence is insufficient to support the verdict; (2) the district court erred in several evidentiary rulings; and (3) the district court erred by sentencing appellant to an upward departure from the presumptive sentence in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm in part, reverse in part, and remand for resentencing.




            Appellant argues that the evidence is insufficient to support the verdict because the state failed to prove that the offense occurred within the time period alleged in the complaint.  When 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 the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            While timing is not an element of the above-charged offense, the supreme court has indicated that a complaint charging intrafamilial sexual abuse[1] must state a reasonable and specific period to provide adequate notice to give the defendant an opportunity to defend against the charges.  State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984).  The court of appeals has approved of complaints charging that a defendant had engaged in sexual penetration “over an extended period of time,” especially when the defendant’s only defense was fabrication and thus, the lack of specific dates did not materially prejudice the defendant.  See State v. Williams, 363 N.W.2d 911, 914 (Minn. App. 1985), review denied (Minn. May 1, 1985). 

            Here, the two-count complaint alleged two specific time periods that abuse occurred, including May 1 to September 1, 2001, for the first count.  We conclude that the complaint provided appellant adequate notice of the charges as indicated by the fact that he raised fabrication and impossibility defenses based on the dates alleged.  And evidence in the record contradicts appellant’s impossibility defense since the victim’s mother and foster mother both testified that appellant transported the victim to and from her foster home during the summer and the victim testified that appellant engaged in sexual intercourse with her when she was 13 and living in her foster mother’s home.  In addition, appellant’s brother-in-law testified that appellant confessed to him and other family members sometime during the winter of 2001-02 that appellant had earlier engaged in sexual intercourse with the victim.  We conclude that the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that appellant was guilty of the charged offense and that the complaint provided adequate notice to give appellant the opportunity to defend himself.



            Appellant also argues that the district court made several erroneous evidentiary rulings.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

            1.         Statement made by appellant’s sister and father to police investigator


            Appellant argues that the district court erred by allowing into evidence a tape-recorded hearsay statement made by appellant’s sister and father to a police investigator under the hearsay “catch-all” exception.  See Minn. R. Evid. 803(24) (providing that a statement not covered by a specific hearsay exception may be admitted if there are circumstantial guarantees of trustworthiness).  The inherent reliability of a hearsay statement is reviewed de novo as a question of law.  State v. Salazar, 504 N.W.2d 774, 776-77 (Minn. 1993).  The supreme court has indicated the requirements for admission under the hearsay “catch-all” exception:  (1) the declarant testified; (2) during testimony, the declarant admitted making the prior statement; (3) the defense had an opportunity to cross-examine the declarant; (4) there is no dispute as to whether declarant made the statement or what it contained; (5) the statement had guarantees of reliability; and (6) the statement was consistent with the other evidence the state introduced which pointed strongly toward defendant’s guilt.  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). 

            When a declarant is available at trial, opportunity to cross-examine the declarant avoids confrontation clause problems normally apparent with hearsay evidence.  Id.  But the declarant’s prior statement must also be reliable.  One indicator of reliability is when the declarant speaks against penal interests.  Id.  This court has determined that when a declarant, who has a personal relationship with the defendant, makes a statement against the interests of the defendant but is later supportive of the defendant and hostile to the prosecution, the statement satisfies the Ortlepp requirement for indicia of reliability.  State v. Plantin, 682 N.W.2d 653, 659 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004) (concluding that the district court did not abuse its discretion by admitting under Minn. R. Evid. 803(24) victim’s statement to police officer which she later recanted because she wanted to reconcile a romantic relationship with the defendant); see also State v. Whiteside, 400 N.W.2d 140, 146 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987) (concluding that the district court did not abuse its discretion by admitting under Minn. R. Evid. 803(24) victim’s mother’s statement that incriminated mother’s boyfriend, even though the statement was not against the mother’s penal interests but was made to a child protection worker who supported the prosecution).

            Here:  (1) appellant’s sister and father both testified and acknowledged that it was their voices which were heard on the investigator’s tape; (2) appellant had an opportunity to cross-examine both witnesses; (3) the statements were taped and, therefore, no one disputed what was said; and (4) the statements were consistent with the other evidence that the state introduced pointing toward defendant’s guilt.  We conclude that because the statements made by appellant’s sister and father to the police investigator were against the familial interest, the statements had sufficient indicia of reliability justifying admission.  Thus, the district court did not abuse its discretion in admitting the statements under rule 803(24), the “catch-all” hearsay exception.

            2.         Admission of a pornographic magazine

            Appellant also challenges the admission of a pornographic magazine as constituting inadmissible character evidence.  Minn. R. Evid. 404(b) states that evidence offered in a criminal prosecution to prove motive, opportunity, intent, or for other offers of proof excepted from the general rule, will not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence.   Minn. R. Evid. 404(b).  The courts have allowed submission of pornographic magazines in some limited circumstances.  See State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993) (Playboy magazine admitted as relevant for corroboration purposes, and to show ongoing pattern of desensitization).

            Appellant, relying on State v. Goldenstein, 505 N.W.2d 332, 345 (Minn. App. 1993), argues that the appropriate rule requires that appellant put his good character at issue before inflammatory evidence like a pornographic magazine is admitted.  But in Goldenstein, the state’s only purpose for admission was to show defendant’s character.  Here, the district court admitted the magazine to corroborate the victim’s testimony concerning the magazine’s location and context and to corroborate evidence that appellant was grooming her to have sex.

            We reject appellant’s argument that admitting the magazine would cause the jury to punish appellant for his sexual habits.  See State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (holding district court erred in allowing evidence that the defendant masturbated while looking at a newspaper photo of the deceased victim).  Here, the district court admitted the magazine to corroborate the victim’s account, not to depict appellant as a sexual deviant and gave the jury an appropriate curative instruction.  We conclude that the district court did not err in admitting the pornographic magazine as corroboration of the victim’s account of sexual abuse.

            3.         Evidence excluded as cumulative


            To further his defense of fabrication, appellant sought to admit evidence that the victim had alternate sources of knowledge about sexual conduct.  The district court excluded some of the proffered evidence as cumulative under Minn. R. Evid. 403, which gives the district court discretion to exclude relevant evidence if its admission would be a “needless presentation of cumulative evidence.”  Minn. R. Evid. 403.

            Here, the record indicates that the district court allowed appellant to present other evidence to show the victim’s alternate sources of sexual knowledge.  Specifically, appellant was permitted to testify that the victim had viewed Internet sites with adult sexual content contrary to the wishes of appellant and the victim’s mother.  We conclude that the district court’s decision to exclude other evidence as cumulative was not an abuse of discretion. 

            4.         Evidence excluded as past conduct of a sex offense victim

            Appellant sought to offer evidence regarding what he claimed to be incidents of the victim’s past false allegations of sexual misconduct to show the victim’s fabrication of the allegations.  This court has held that a victim’s prior allegations of sexual abuse come within the provisions of the rape shield laws when the victim made no statement during direct examination on the issue of prior allegations of abuse.  State v. Kobow, 466 N.W.2d 747, 751 (Minn. App. 1991), review denied (Apr. 18, 1991).  Therefore, the evidence appellant sought to alter is not admissible to show common scheme or plan as a result of fabrication under either Minn. R. Evid. 412 or Minn. Stat. § 609.347, subd. 3 (2002), because it does not fit within the exceptions to the rule or statute.  Rule 412 disallows such evidence unless consent of the victim is a defense or the prosecution raises evidence of semen, pregnancy, or disease.  Minn. R. Evid. 412(1)(A), (B).  Minnesota law also places a similar bar on admission of victim’s past sexual conduct.  Minn. Stat. § 609.347, subd. 3(a), (b).  

            We recognize that “[i]n rare cases, the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence not specifically described in Rule 412.”  Minn. R. Evid 412 1989 comm. cmt.  And here, the district court allowed appellant to make several offers of proof on the victim’s past allegations.

            But for each proffered evidentiary item, appellant either failed to prove that the victim’s allegation was false, and thus the proffer was not probative, or appellant failed to preserve the issue by making an offer of proof.  We therefore conclude that the district court did not abuse its discretion by determining that appellant’s proffered evidence was more prejudicial than probative.



            This court has held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the Minnesota Sentencing Guidelines.  See State v. Saue, 688 N.W.2d 337, 341 (Minn. App. 2004).  Based on Blakely, any sentencing facts “‘essential to lawful imposition of the penalty,’ or sentence, must be decided by the jury.”  Id. at 344 (quoting Blakely, 124 S. Ct. at 2540).

            The district court sentenced appellant to an upward durational departure of 36 months from a presumptive sentence of 144 months citing (1) the victim’s young age; (2)  the victim’s developmental delay; (3) the victim’s prior sexual abuse by other persons; (4) the victim’s mother’s mental illness rendering the victim particularly vulnerable; and (5) appellant’s lack of remorse.  But the jury did not make findings in this case, nor did appellant enter a plea of guilty admitting facts used by the district court to justify the upward durational departure.  Therefore, under Blakely and Saue, the district court’s upward durational departure must be vacated and the matter remanded to the district court for resentencingin such proceedings as the district court deems appropriate.

            Affirmed in part, reversed in part, and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The legislature repealed the statute criminalizing intrafamilial sexual abuse, Minn. Stat. § 609.3641.  Criminal sex acts against family members are now charged under Minn. Stat. § 609.342.