may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
William Elmer Kelley,
Mille Lacs County District Court
File No. K403246
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jan Kolb, Mille Lacs County Attorney, Courthouse,
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant
Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree criminal sexual conduct, appellant argues that (1) the district court committed plain error by admitting Spreigl evidence when notice requirements were not met and no cautionary instruction was given to the jury; and (2) the evidence is insufficient to sustain the guilty verdict. We affirm.
In June 2001, A.M.K. and her brother spent the weekend with their father, appellant William Elmer Kelley. A.M.K. slept on a bed in the living room, and her brother slept on a couch in the living room. A.M.K. was approximately 15 years old at the time, and her brother was approximately 13 years old. A.M.K. testified that she was awakened during the night by appellant taking off her pants. Appellant crawled on top of her and put “his private part” inside “[her] private part.” Afterwards, A.M.K. went into the bathroom and stayed there for the rest of the night. A.M.K. did not tell her mother about the incident until June 2002. In February 2003, appellant was charged with three counts of first-degree criminal sexual conduct.
A.M.K. also testified that appellant had done this many times before, beginning when she was six years old, and she never told anyone because appellant threatened to kill her if she said anything. After A.M.K. testified, the state offered as a prior consistent statement a videotaped, out-of-court statement made by A.M.K. Appellant objected, asserting that the videotape was unduly cumulative and prejudicial. On the videotape, A.M.K. stated that something similar had happened to her cousin and that she and her brother always went to her father’s house together because her mother did not trust appellant “from what he did to my cousin.” The second reference to A.M.K.’s cousin was deliberately muted so that the jury would not hear or understand what A.M.K. said. Appellant’s attorney consented to playing the first reference to A.M.K.’s cousin to the jury because the reference did not identify appellant in any particular way.
A.M.K.’s teacher testified that A.M.K. is cognitively impaired and that due to a learning disability, she receives special-education instruction to aid her academic performance. A.M.K.’s brother testified that he slept through the night in question and he did not remember anything unusual about the night.
Appellant testified at trial that he never had sexual relations with his daughter. Appellant testified that he suffers from severe osteoporosis and has extensive injuries to his back and neck from a work-related fall several years ago. His condition has worsened over the years, and he walks with a cane and takes prescription medication to manage the pain from his injuries.
The jury found appellant guilty of one count of first-degree criminal sexual conduct and acquitted him of two counts. This appeal followed.
Appellant argues that A.M.K’s references to her cousin during the videotaped statement are Spreigl evidence and that the district court committed plain error by admitting the references without the required notice and without providing a cautionary instruction to the jury. Appellant objected to the admission of the entire taped statement at trial as unduly cumulative and prejudicial, but he did not specifically object to the references to A.M.K.’s cousin.
To prevail on appeal on a claim
of wrongfully admitted evidence, an appellant must show error and that prejudice
resulted from the error. State v. Loebach, 310 N.W.2d 58, 64 (
But when a defendant fails to object to the
admission of evidence, appellate review is under the plain-error standard.
The supreme court has provided a five-prong test for evaluating when to admit Spreigl evidence:
(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.
Asfeld, 662 N.W.2d at 542. Also, when requested by the defendant, the
district court must instruct the jury that the evidence is admitted for a
limited purpose. State v. Forsman,
260 N.W.2d 160, 169 (
Appellant claims that because these safeguards were not followed, the district court committed plain error by admitting the references to A.M.K.’s cousin. But the record demonstrates that the state included the videotape on the witness-and-exhibit list that it provided to appellant before trial, and appellant’s counsel agreed to permit the jury to hear the first reference because it did not identify appellant as the perpetrator and to deliberately mute the second reference when the tape was played to the jury. Under these circumstances, the first reference is not Spreigl evidence because it did not identify appellant. See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (Minn. 1965) (holding that “where the state seeks to prove that an accused has been guilty of additional crimes and misconduct on other occasions, although such evidence is otherwise admissible under some exception to the general exclusionary rule, it shall not hereafter be received unless within a reasonable time before trial the state furnishes defendant in writing a statement of the offenses it intends to show he has committed”) (emphasis added)). And because the second reference to A.M.K.’s cousin was muted and the jury did not hear it, there is no reasonable possibility that the verdict might have been more favorable to appellant without the evidence, and any error in admitting the evidence was not prejudicial.
Appellant also argues
that the evidence presented at trial was insufficient to support his
conviction. In 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 (
Appellant was convicted under section 609.342, subdivision 1(g), which provides that a person is guilty of first-degree criminal sexual conduct if he engages in sexual penetration with a victim who is under 16 years of age at the time and the actor has a significant relationship to the victim. Minn. Stat. § 609.342, subd. 1(g) (2000).
Appellant argues that given his physical disabilities, A.M.K.’s claim that he got on top of her and sexually assaulted her is not credible, and because his conviction rests almost exclusively on A.M.K.’s testimony, the evidence is insufficient to support his conviction. Appellant also argues that A.M.K.’s testimony changed with each telling and that due to her cognitive limitations, she was likely influenced by her mother’s comments and the social worker’s leading questions during the videotaped interview.
The record reveals inconsistencies in A.M.K.’s testimony and that she
was not able to remember certain facts—such as where she usually slept when she
stayed at appellant’s one-room apartment, what year the incident occurred,
whether appellant had his clothes on, who was at the apartment that night,
whether appellant said anything during the incident, and what time it
occurred. But the jury heard all of the
testimony at trial and was aware of any inconsistencies. Weighing the credibility of witnesses is the
province of the jury, and it is free to accept part and reject part of a
witness’s testimony. State v. Johnson,
568 N.W.2d 426, 436 (
Appellant also contends that A.M.K.’s brother’s testimony that he was sleeping in the same
room when the incident occurred but did not hear or see anything does not
support A.M.K.’s claims. But appellant
mischaracterizes the brother’s testimony.
The brother testified that he was not aware that anything occurred
because he was sleeping. Furthermore, a
criminal-sexual-conduct conviction can rest on the victim’s uncorroborated
testimony. Minn. Stat. § 609.347, subd.
1 (2000). And inconsistencies or
conflicts between one state witness and another do not necessarily constitute
false testimony or the basis for reversal.
State v. Daniels, 361 N.W.2d 819, 826 (
 The children’s mother was awarded sole legal and physical custody of the children following her divorce from appellant in 2000. The children often spent weekends with appellant.
 At the time of trial in December 2003, A.M.K. was 17 years old, and her brother was 15 years old.