This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Affirmed in part, and reversed in part, and remanded
Olmsted County District Court
File No. KX021736
Attorney General, James B. Early, Assistant Attorney General, Suite 1800,
Raymond F. Schmitz, Olmsted County Attorney, Olmsted County
John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
Appellant Vernon Pugh challenges his
conviction of two counts of criminal sexual conduct in the first degree,
arguing that cumulative evidentiary errors deprived him of a fair trial. Appellant also challenges his
upward-departure sentence as invalid under Taylor v. State, 670 N.W.2d
a. Expert witness’s opinion that M.B. was sexually abused
Appellant asserts that the district court abused its discretion by admitting Spreiglevidence and by allowing the state’s expert to express his opinion that appellant’s 12-year-old stepdaughter, M.B., had been sexually abused. He argues that the cumulative effect of these erroneous evidentiary rulings deprived him of a fair trial.
“The admission of expert testimony is within the broad
discretion accorded a district court, and rulings regarding materiality,
foundation, remoteness, relevancy, or the cumulative nature of the evidence may
be reversed only if the district court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (
The state’s expert witness, Dr. William Friedrich of the
Mayo Clinic Department of Psychiatry and Psychology, did not interview M.B.
personally, but he reviewed the videotape of M.B.’s detailed “Cornerhouse-type”
interview by a social-services worker and an
Appellant asserts that Dr. Friedrich’s testimony went to
the ultimate issue, amounted to “vouching” for M.B., and was highly
prejudicial. The state argues that
because appellant only objected to questioning Dr. Friedrich on the basis of
foundation at trial, appellant has waived any other objection on appeal. Generally, a party waives his right to challenge
an evidentiary ruling if he did not object to the ruling at trial. State v. Wellman, 341 N.W.2d 561, 564
“Vouching” occurs when a witness testifies that another
witness is telling the truth or that the witness believes one witness over the
Appellant appears to also be claiming on appeal that the prosecutor vouched for Dr. Friedrich’s testimony in closing argument by referring to Dr. Friedrich’s curriculum vitae and his many accomplishments. But appellant failed to object to the prosecutor’s closing argument, and failing to object or seek a cautionary instruction to a prosecutor’s statement ordinarily waives the right to have the issue considered on appeal. State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). We therefore decline to address this newly asserted claim.
b. Spreigl evidence
Prior to trial, the state moved to admit as modus-operandi evidence of appellant’s 1987 conviction of fourth-degree criminal sexual conduct against an adult and the victim’s testimony about appellant’s threat to penetrate her anally if she did not comply because appellant also threatened M.B. with anal penetration if she did not comply. The district court allowed admission of the conviction and the threat, but excluded testimony from the adult victim that appellant tortured her with a telephone cord during the 1987 assault.
The admission of Spreigl evidence lies within the
sound discretion of the district court and will not be reversed absent a clear
abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (
Generally, evidence of a person’s character or of other
crimes or wrongful acts is not admissible “in order to show action in
conformity therewith,” but may be admissible in order to show motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake; the evidence must be clear and convincing.
Appellant argued to the district court and on appeal that because the 1987 incident involved an adult acquaintance, rather than a child for whom appellant was a caretaker or had a position of authority as in the incident involving M.B., the 1987 incident was not sufficiently relevant or material to be admissible. Appellant argued that the 1987 incident and M.B.’s allegations were not related in time, place, or modus operandi, and the prejudice from admission of the Spreigl evidence therefore outweighed any probative value.
“In determining the relevance and materiality of the Spreigl
evidence, the district 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.” Kennedy, 585 N.W.2d at 390 (quotation
omitted). The supreme court has “never
held that there must be a close temporal relationship between the charged
offense and the other crime.” State
v. Wermerskirchen, 497 N.W.2d 235, 242 n. 3 (
Appellant argued that there was no need for the evidence because M.B. was an older child when she gave her initial interview, was capable of testifying, and, at the time the evidence was admitted, appellant had not yet testified that no sexual conduct occurred, making the probative value of the evidence slight in light of the strength of the state’s case. But, as respondent points out, there was no physical evidence. M.B.’s mother had burned M.B.’s diary in which M.B. had written about the abuse. Several witnesses testified about M.B.’s possible motivations to lie. M.B.’s mother testified that M.B. hated appellant and resented being disciplined by him. There was testimony that M.B. may have fabricated the story after watching some television shows. Appellant’s mother testified that M.B. lied often. M.B.’s brother testified that he never noticed anything going on even though he shared a room with M.B. The district court did not abuse its discretion by concluding that the probative value of the evidence outweighed its prejudicial value.
The district court restricted the Spreigl evidence to the fact of the conviction and the nature of the threat and gave the required cautionary and limiting instructions when the evidence was admitted and during final instructions. We conclude that the district court did not abuse its discretion by admitting the Spreigl evidence.
Because we have rejected appellant’s arguments that the court’s evidentiary rulings were erroneous, there is no merit in appellant’s arguments that the cumulative effect of the errors compels reversal, and we affirm the convictions.
Appellant’s presumptive sentence under the guidelines was 144 months, but the court sentenced appellant to 180 months, citing aggravating factors of multiple types of penetration, multiple incidents of abuse, violation of M.B.’s zone of privacy, particular cruelty based on threats, and long-term psychological damage. Appellant asserts that some of these factors, because they are elements of the offense charged, cannot be used to aggravate a sentence under Taylor v. State, 670 N.W.2d 584 (Minn. 2003). And appellant argues that because the jury did not determine any of the facts supporting the aggravating factors, the upward departure violates his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004).
The state argues that appellant has waived the right to
assert Blakely, Blakely does not apply to
Appellant has not waived his right to assert Blakely. “[A] new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past.” Griffith v.
Under Taylor v. State, a district court may not
base an upward departure on factors that the legislature has incorporated in
defining the charged offense. 670 N.W.2d
at 589. In
Affirmed in part, reversed in part, and remanded.