This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jack Vance Gibbs,
Filed April 24, 2007
Olmsted County District Court
File No. K2-03-3958
Lori Swanson, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street S.E., Rochester, MN 55904 (for respondent)
John M. Stuart, State Public
Defender, Sharon E. Jacks, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Jack Gibbs challenges his conviction of first-degree criminal sexual conduct with a child under 13, arguing that T.V.’s uncorroborated testimony that Gibbs sexually abused her was insufficient to support his conviction. Gibbs also argues that the district court abused its discretion by declining to conduct in camera review of statements T.V. made to victim services. Gibbs further maintains that the court abused its discretion by admitting T.V.’s videotaped statement to police and by allowing the jury to hear about 13 unadmitted photographs of T.V. posing that were found on Gibbs’s computer. Because we conclude that the evidence is sufficient to sustain the conviction, the district court did not abuse its discretion in discovery or evidentiary rulings, and any error in allowing the jury to hear descriptions of the unadmitted photographs was harmless, we affirm.
The state charged appellant Jack Gibbs under Minn. Stat. § 609.342, subd. 1(a) (2002), with first-degree criminal sexual conduct involving a person under 13 years of age when the actor is more than 36 months older than the complainant.
In June 2003,
eight-year-old T.V. reported that Gibbs, her mother’s boyfriend at the time,
had sexually abused her one early morning at her mother’s house on
Gibbs was charged with first-degree criminal sexual conduct and waived his right to a speedy trial. At Gibbs’s jury trial in August 2005, T.V. testified that the incident occurred after she and Gibbs had gone biking in the rain to a nearby cemetery. She testified that they got wet and got thorns in their hair, that Gibbs picked the thorns out of her hair, and that she went to sleep on the basement couch. She testified that when she woke up, Gibbs was rubbing her back, that “he started getting lower and lower and lower” and that he finally touched her private parts. She testified that Gibbs got under the blankets, “put his tongue on [her] private parts,” moved her underwear to the side, and “kept asking [her] if that felt good.” She testified that Gibbs then got up and said “I f--ked up.” He told her that she could tell if she wanted, but that he would have to leave and her mother “might do something bad.” T.V. did not immediately report the abuse because she “didn’t want [her] mom to get hurt.” She testified that she could not remember whether it was warm or cold outside at the time of the incident, but that it “probably wasn’t in the winter time” because of the bike riding.
T.V.’s mother testified
that she lived in the house on
The state also presented testimony from T.V.’s treating psychologist that T.V. reported that Gibbs touched her on the inside of one of her thighs and “placed his lips on her vagina.” The defense called no witnesses.
Before trial, the district
court denied a defense motion that the court review in camera any documents
about the case possessed by the Dodge-Fillmore-Olmsted Community Corrections Victim
Services Department. At a hearing, the
director of victim services testified that the organization takes only general
notes and makes recommendations, but does not take statements from
victims. The defense was provided with
psychological records of T.V.’s treatment at
The defense also moved to exclude the videotape of T.V.’s statement to police, arguing that the videotaped statement was hearsay, that the defense did not receive proper notice, and that the statement was unfairly prejudicial to the defense. The district court denied the motion and admitted the videotape as a prior consistent statement.
During trial, T.V.’s mother testified that she found several photos of T.V. on Gibbs’s computer after he moved out and that she turned the computer over to the Kasson police department. The defense objected to the introduction of photographs taken from the computer, arguing that they lacked foundation and their probative value was outweighed by their prejudicial impact. The district court ultimately admitted a total of nine photographs identified by the mother but declined to admit 13 others on the ground that they lacked foundation because the forensic officer who had obtained them from the computer was unavailable to testify. Before the district court made its ruling, the prosecution asked the mother in the jury’s presence to identify a number of the unadmitted photographs, including pictures of appellant with T.V. and pictures of T.V.’s underwear. The jury found appellant guilty, and this appeal follows.
D E C I S I O N
In a challenge to
the sufficiency of the evidence, an appellate court’s role is limited to
“ascertaining whether the jury could reasonably find the defendant guilty,
given the facts in evidence and the legitimate inferences which could be drawn
from those facts.” State v. Miles, 585 N.W.2d 368, 372 (
Gibbs argues that
the evidence is insufficient to sustain his conviction because T.V.’s testimony
on the abuse was not credible and the state did not sufficiently corroborate
her version of events.
testimony may be insufficient to convict a defendant if there are “additional
reasons to question the victim’s credibility.”
State v. Foreman, 680 N.W.2d
536, 539 (
Gibbs argues that
additional reasons to question T.V.’s testimony existed because her version of
events was inconsistent. She testified
that the abuse occurred after she rode bicycles in the rain with Gibbs from the
district court has broad discretion in ruling on discovery and the admission of
evidence. State v. Wildenberg, 573 N.W.2d 692, 696 (
Gibbs argues that the
district court impaired his right to present a complete defense by failing to
conduct in camera review of T.V.’s victim-services records. Although Minn. Stat. § 595.02, subd.
1(k) (2006), prohibits unauthorized disclosure of privileged information given
to sexual-assault counselors, a defendant may request that the district court
screen the confidential material in camera to determine whether it is necessary
to the defense. State v. Hummel, 483 N.W.2d 68, 71-72 (
The defense requested discovery of T.V.’s victim services records on the ground that they might contain an inconsistent statement by T.V. that would be helpful for impeachment purposes, such as information that another person may have abused her. But the director of Dodge-Fillmore-Olmsted Community Corrections Victim Services Program testified that victim-services advocates take only general notes on the relationship between the victim and the person who is alleged to have committed the abuse; they do not take statements from the victim. On this record, the district court properly exercised its discretion by determining that no victim statements existed in victim-services records and by declining in camera review of those records.
Admission of videotaped interview
Gibbs challenges the
district court’s admission of T.V.’s videotaped interview with police, taken
using the CornerHouse protocol for interviewing children, on the grounds that
it was cumulative and unduly prejudicial to the defense. See
The defense initially moved to exclude any out-of-court statements by T.V. on the grounds of hearsay and lack of notice to the defense. The defense also moved specifically to exclude T.V.’s videotaped interview with police, arguing that the videotape was cumulative and “so unduly suggestive that . . . it creates unfair prejudice.” The district court admitted T.V.’s videotaped interview as a prior consistent statement. See Minn.R. Evid. 801(d) (providing exception to hearsay rule for a statement that is “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness”). When the court admitted the videotape, the defense stated, “No objection your honor.”
The state argues that
appellant, by failing to renew his objection on the ground of prejudice,
improperly failed to preserve the objection, so that the plain-error standard
of review applies. See State v. Strommen, 648 N.W.2d 681, 686 (
The Minnesota Supreme Court
has cautioned defense counsel to be “vigilant in preserving their objections
for appellate review.” State v. Ray, 659 N.W.2d 736, 746 n.3 (
Allowing jury to hear information about excluded photographs
Gibbs argues that the district court abused its discretion by allowing the jury to hear information about the content of certain photographs that were recovered from his computer but were not admitted into evidence. The district court allowed into evidence only nine of the photographs offered by the state, sustaining a defense objection to 13 additional photographs on the ground of insufficient foundation. The defense also objected to the admission of the photographs on the ground that their probative value was outweighed by their prejudicial impact. T.V.’s mother testified that the excluded photographs included pictures of Gibbs with T.V. and pictures of pairs of T.V.’s underwear in a laundry room.
The defense could properly
have objected to the descriptions of the photographs on the basis of the “best
Even if we were to consider Gibbs’s objection as properly raised, only two or three of the descriptions of photographs indicated content that could be deemed prejudicial to the defense. And any prejudice was minimized because the district court cautioned the jury that if certain evidence is not allowed, “[y]ou should not speculate about what the evidence would have been if [the court] had allowed it.” Thus, any error in allowing the jury to hear the descriptions was harmless, and we affirm.
CornerHouse is an organization whose employees conduct videotaped interviews of
alleged victims of abuse. State v. Johnson, 659 N.W.2d 819, 820
n.1 (Minn. App. 2003), review denied (