This opinion will be unpublished and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
State of Minnesota,
Jeffrey Thomas Peterson,
Chippewa County District Court
File No. K6-04-380
John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Dwayne Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265 (for respondent)
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Ross, Judge.
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court (1) violated the right to a public trial by sequestering witnesses, (2) violated the right to confrontation when it allowed a change in courtroom setup during the complainant’s testimony, and (3) allowed improper vouching and opinion testimony from an expert witness. Appellant also contends that the evidence was insufficient to sustain the conviction and that the district court abused its discretion when it denied his request for a downward-dispositional departure without making detailed findings of fact. We affirm.
Appellant Jeffrey Peterson challenges his conviction of first-degree criminal sexual conduct involving his daughter, K.P. In 2002, K.P. began performing poorly in school, was experimenting with smoking and alcohol, and was having conflicts with Peterson over her group of friends. In the fall, Peterson found a note written by K.P. that expressed thoughts of suicide. In November, Peterson arranged for K.P. to move to Wyoming and live with her aunt and uncle. While K.P. lived with her aunt and uncle, her disciplinary problems disappeared and her grades improved.
early 2004, K.P.’s uncle was deployed to
K.P.’s aunt contacted local authorities, who arranged for K.P. to be interviewed by a child advocate. During the interview, K.P. repeated what she had told her aunt and also indicated that Peterson used a flavored gel at least once when he made her perform oral sex. K.P. told the interviewer that Peterson had shown her Polaroid photographs of her mother (Peterson’s ex-wife) and step-sister, both naked. According to K.P., Peterson told her that he would stop the abuse if she let him take pictures of her naked. But she refused.
Based on K.P.’s statements, police executed a search warrant at Peterson’s residence in Minnesota and seized a Polaroid camera and a container of Body Heat, a flavored gel. In September 2004, Peterson was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b), (g) (2004). Peterson waived his right to a jury trial. After a bench trial, the district court found Peterson guilty of both counts and sentenced Peterson to 144 months’ imprisonment. This appeal followed.
D E C I S I O N
Peterson first argues that (1)
his Sixth Amendment rights to a public trial and confrontation of witnesses
were violated, and (2) the district court erroneously admitted testimony from
an expert witness. But Peterson did not
object to any of these alleged errors during trial. We review unobjected-to error under the plain-error standard and may correct such error only if it implicates the
fairness and integrity of the judicial proceedings.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant a “speedy and public trial,” during which the defendant has the right “to be confronted with the witnesses against him.” Peterson argues that his Sixth Amendment rights were violated by the sequestration of witnesses prior to their testimony and by a change in the courtroom configuration during K.P.’s testimony. Both arguments are without merit.
Prior to trial, Peterson
moved to sequester all witnesses in the case.
The district court granted the motion and ordered the exclusion of witnesses
from the courtroom until they testified.
Peterson now contends that witnesses were selectively excluded, creating
an apparent bias toward K.P. There is no
support for this contention in the record.
Moreover, it is unclear how any bias might have been created in light of
the fact that the judge who issued the sequestration order presided over the
bench trial. It was within the district
court’s discretion to sequester witnesses until they had completed their testimony.
The state called K.P. as a witness at trial. Prior to K.P.’s testimony, the prosecutor noted that, because of the configuration of the small courtroom, Peterson was seated directly between K.P. and the prosecutor who would be conducting the direct examination. The prosecutor asked to change the seating to allow him to effectively question K.P. When the district court suggested that the parties switch counsel tables, Peterson did not object. Peterson now argues that this seating change denied him the right to confront his accuser.
The Sixth Amendment right to confrontation may be violated, for example, when a witness testifies via video monitor, rather than being physically present in the courtroom when testifying, State v. Peterson, 530 N.W.2d 843, 847 (Minn. App. 1995), or when a screen is placed between a witness and the defendant, Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 2803 (1988). But similar practices were not employed here. K.P. testified in open court. Peterson was present in the courtroom for her testimony. There is no suggestion in the record that Peterson could not see or hear K.P.’s testimony or that K.P. was shielded from seeing Peterson. Accordingly, Peterson’s Sixth Amendment right to confrontation was not violated.
During trial, the state introduced the testimony of Dr.
Richard Ascano, a forensic psychologist.
Peterson argues that Dr. Ascano’s testimony included impermissible
vouching and opinion evidence. Expert
testimony is admissible if it will “assist the trier of fact to understand the evidence
or to determine a fact in issue.”
Dr. Ascano testified about
common behavior observed in children who are abused by a caretaker over an
extended period of time, such as acting out, attempts to maintain the
appearance of a happy relationship with the abuser, and feelings of guilt and
shame. Peterson argues that this
testimony was impermissible vouching because the behavior Dr. Ascano
described closely matched other evidence about K.P.’s behavior. The Minnesota Supreme Court has rejected this
argument, noting in Myers that “[m]uch
expert testimony tends to show that another witness either is or is not telling
the truth. That fact, by itself, does
not render the testimony inadmissible.”
Peterson also maintains that the evidence presented at
trial was insufficient to sustain his conviction. When reviewing a challenge to the
sufficiency of the evidence, we conduct a painstaking analysis of the record to
determine whether the jury reasonably could find the defendant guilty of the
offense based on the facts in the record and the legitimate inferences that can
be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477
(Minn. 1999). In doing so, we view the
evidence in the light most favorable to the verdict and assume that the jury
believed the evidence supporting the verdict and disbelieved any contrary
First-degree criminal sexual
conduct is defined as intentional sexual penetration, including oral penetration,
of a complainant between 13 and 16 years of age by a perpetrator in a position
of authority over the complainant who is more than 48 months older than the
complainant. Minn. Stat.
§ 609.342, subd. 1(b) (2004). The district court made
findings of fact related to each element of the offense. Our review of the record supports those
findings. K.P. was 14 years old at the
time of the last episode of sexual abuse.
K.P. testified that her father began abusing her when she was in the
fifth grade. The abuse included Peterson
forcing K.P. to perform oral sex. K.P.’s
testimony at trial was consistent with statements she made to her aunt and to the
child advocate, as well as with evidence found in a search of Peterson’s
home. It is well established in
Peterson also maintains that we should remand for resentencing because the district court failed to make adequate findings of fact when it denied his motion for a downward dispositional departure from the sentencing guidelines. After a sentencing hearing in which members of Peterson’s family testified about the financial and emotional hardships that would result if Peterson were imprisoned, the district court imposed a sentence under Minn. Stat. § 609.342, subd. 1(b), criminal sexual conduct by a person in a position of authority over the complainant. The district court denied Peterson’s motion for a downward-dispositional departure and imposed an executed sentence of 144 months’ imprisonment, the presumptive guidelines sentence. In doing so, the district court stated that it “reluctantly found no legally acceptable reasons for departure.”
Peterson argues that he qualified for a downward-dispositional departure authorized by Minn. Stat. § 609.342, subd. 3(a) (2004). Subdivision 3(a) provides that, when a person is convicted under Minn. Stat. § 609.342, subd. 1(g), the district court has the discretion to stay execution of the sentence if it finds that a stay would be in the best interests of the complainant or the family unit and if the offender is amenable to treatment. But the district court adjudicated Peterson’s guilt and imposed sentence under subdivision 1(b), not under subdivision 1(g). Accordingly, Peterson is not eligible for this type of departure.
Peterson nevertheless argues
that the district court should have made detailed findings of fact to explain
its denial of his departure request. “When
departing from the presumptive sentence, a judge must provide written reasons
which specify the substantial and compelling nature of the circumstances”
justifying the departure.
Peterson argues that the different fact-finding requirements that apply to granting a departure versus denying a departure are constitutionally infirm under the United States Supreme Court’s recent jurisprudence in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We disagree.
In Blakely, the United States Supreme Court
held that the greatest sentence a district court can
impose is “the maximum sentence solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” 542 U.S. at ___, 124 S. Ct. at 2537 (emphasis
omitted). A defendant, therefore, has a
Sixth Amendment right to a jury determination of any fact, except the fact of a
prior conviction, that increases the
sentence above the statutory presumptive guidelines sentence.
The crux of Peterson’s
argument is that the lack of detailed findings here suggests that the district court
did not seriously consider the defense motion for a downward-dispositional departure. This argument is unavailing. The district court is not required to provide
an explanation when it imposes the presumptive guidelines sentence after
considering a downward departure motion.
Van Ruler, 378 N.W.2d at
80. We are mindful that our role in
reviewing a district court’s denial of a motion for a downward-dispositional
departure is limited. Even when
substantial and compelling circumstances are present, the decision to depart rests
within the district court’s discretion.
The sentencing record here makes
evident that the district court fulfilled its obligation to consider Peterson’s
request for a dispositional departure. The
district court heard testimony from ten defense witnesses during a sentencing
hearing that extended over two days. See Minn. R. Crim. P. 27.03, subd. 1(F)
(permitting sentencing record to be supplemented with testimony at the discretion
of district court). The testimony addressed the severe consequences
of Peterson’s incarceration for his family, including his daughter, K.P. But the district court is barred from considering
employment, living arrangements, or marital status when evaluating whether to
grant a departure from the sentencing guidelines.
 For the first time at oral argument, Peterson raised the requirement in Minn. R. Crim. P. 27.03, subd.1(F), that the district court issue findings of fact on the record at the conclusion of the sentencing hearing or written findings within 20 days. Because the issue was not briefed on appeal, and, without notice, the state was not given an opportunity to respond to this argument, this argument is waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). We note, however, that when subdivision 1(F) is read in light of other provisions in the same rule, specifically subdivisions 6 and 4, the record establishes that the district court complied with the requirements of rule 27.03. Subdivision 6 explains the minimum requirements for a sentencing order, whereas subdivision 4 makes clear that, when a district court chooses to depart, findings of fact supporting that departure must be stated on the record.