This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Robert Elie Villanueva,
November 20, 2007
Hennepin County District Court
File No. 05062014
Lori Swanson, Attorney General, 1800
Michael O. Freeman,
Jeffrey C. Dean, Dean Law Office, 700 Lumber Exchange
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
Late one night in February 2004, A.J., K.S., and E.D., who were sixteen or seventeen-year-old girls, visited appellant Robert Elie Villanueva and his friend Nicholas Dawson at Dawson’s grandparents’ house in Plymouth. The group engaged in a drinking game, and A.J. became intoxicated and passed out. Appellant then engaged in sexual intercourse with A.J. Subsequently, A.J. was taken to the hospital and given a sexual assault examination.
Law enforcement investigated the matter, which included interviews of appellant and Dawson. Following Dawson’s second interview by a police detective he gave a recorded statement. Appellant was later charged with third-degree criminal sexual conduct and attempted third-degree criminal sexual conduct.
At trial, A.J. testified that she remembered going to Dawson’s house and playing a drinking game until she passed out, but nothing else until she woke up at the hospital. A.J. stated that she did not consent to have sex with appellant.
K.S. testified that she did not drink alcohol at Dawson’s house, and that after the drinking game concluded she saw appellant grab A.J.’s ankles and pull her off the bed. Subsequently she saw appellant have sexual intercourse with A.J., who was unconscious. K.S. left the room because what he was doing “scared [her],” but returned and stated “What the hell are you doing?” She told him that what he was doing was wrong, that they needed to put A.J.’s clothes on, and that they needed to leave.
With the help of appellant and Dawson, K.S. moved E.D., who was also intoxicated, through the basement window and into her car. When K.S. returned, appellant and Dawson told her that they would move A.J. up the stairs. After waiting several minutes, K.S. returned to the bedroom window and saw that A.J. was naked from the waist down, and that appellant was standing between her legs. Appellant stated “[A.J.’s] been so horny, she’s taking her clothes off.” K.S. then dressed A.J., moved her to the car, and drove her to the hospital.
At the hospital, A.J.’s eyes did not focus, she did not respond to pain, and a toxicological screen showed her blood alcohol content was .31. A sexual assault exam was conducted and semen matching appellant’s DNA was found inside her anus and on her perineum, and semen consistent with appellant’s DNA was found inside her vagina. Also, there was a small bruise on A.J.’s hymen.
Dawson recalled drinking and playing cards and observing A.J. lying on the floor without pants or underwear and appellant standing near her. Dawson remembered helping move E.D. out of the basement and that K.S. returned to get A.J., but denied any recollection of the next confrontation between K.S. and appellant. When his recollection was not refreshed by his statement to the police, the state introduced, over defense counsel’s objection, portions of Dawson’s statement. Specifically, Dawson read from the statement that he saw appellant on top of A.J., who was passed out, having sex with her, and that appellant told him to say that he is gay. On cross-examination, defense counsel questioned Dawson about his lack of memory of the events and the conflicting statements he made to police.
Appellant testified that he was drunk and did not recall having sex with A.J., that he is gay, but that he could have had sex with A.J. thinking she was Dawson. Following trial, appellant was convicted of one count of third-degree criminal sexual conduct and one count of attempted third-degree criminal sexual conduct. This appeal follows.
Appellant argues that the admission of portions of Dawson’s statement was improper under the Sixth Amendment to the United States Constitution. We review de novo whether admitted testimony violates a defendant’s right to confrontation. State v. King, 622 N.W.2d 800, 806 (Minn. 2001).
The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The primary purpose of the Confrontation Clause is to afford the accused the opportunity to cross-examine the witness, and to compel the witness to “stand face to face with the jury in order that they may . . . judge . . . whether he is worthy of belief.” State v. Byers, 570 N.W.2d 487, 494 (Minn. 1997) (quoting Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339-40 (1895)); see Crawford v. Washington, 541 U.S. 36, 57, 124 S. Ct. 1354, 1367-68 (2004).
In Crawford v. Washington, the Supreme Court considered whether the defendant’s Confrontation Clause rights were violated when the prosecution played for the jury the witness’s tape-recorded statement to police even though she did not testify at trial and, therefore, was not subject to cross-examination. 541 U.S. at 38-42, 124 S. Ct. at 1356-59. The Court held that out-of-court, testimonial statements of non-testifying witnesses are barred under the Confrontation Clause unless the witness is “unavailable” and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the district court found such statements reliable. Id. at 68-69, 124 S. Ct. at 1374.
Appellant argues that “Dawson had no memory whatsoever of the sexual act” and that Crawford requires that a witness must not only be present in court but must also be able to defend and explain the statement. Appellant misconstrues Crawford. The Crawford Court specifically stated that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 59-60 n.9, 124 S. Ct. 1369 n.9 (citation omitted). Likewise, this court recently held that where an out-of-court declarant appears for cross-examination, “the Confrontation Clause guarantees only an opportunity for effective cross-examination” and the fact that the witness suffered a lapse in memory does not deny a defendant that opportunity. State v. Plantin, 682 N.W.2d 653, 659-60 (Minn. App. 2004) (quotations omitted), review denied (Minn. Sept. 29, 2004).
Appellant contends that Plantin is factually distinguishable because the witness had more recall of her statement than Dawson, and that her memory lapses benefited the defendant. We disagree. The Plantin court noted that the Confrontation Clause “guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Id. (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987) (other quotation omitted)). Like the witness in Plantin, Dawson testified and was subject to cross-examination regarding his statement. Thus, appellant’s Confrontation Clause rights were not violated.
Appellant argues that Dawson was “unavailable” under Minn. R. Evid. 804(a)(3) and, therefore, should also be deemed “unavailable” under Crawford. The district court admitted portions of Dawson’s statement under the recorded recollection exception to the hearsay rule. Minn. R. Evid. 803(5). Under this exception to the hearsay rule, availability of the declarant is immaterial. Id. Appellant nonetheless argues that because Dawson met the definition of unavailable under Minn. R. Evid. 804(a)(3), that is, he “testifie[d] to a lack of memory of the subject matter of the declarant’s statement,” that he was also unavailable under Crawford. We disagree.
Clearly, witness availability under Crawford implicates the right of confrontation, which is a separate inquiry from considerations of admissibility under an exception to the hearsay rule. We read Crawford to require that “the declarant appears for cross-examination at trial” regardless of whether the declarant has memory lapses. Crawford, 541 U.S. at 59-60 n.9, 124 S. Ct. at 1369 n.9; Plantin, 682 N.W.2d at 660 n.2 (quotation omitted). Here, the witness appeared at trial and was subject to cross-examination. Thus, we see no Crawford violation.
Finally, appellant argues for the first time in his reply brief that the admission of Dawson’s statements violated the Confrontation Clause of the Minnesota Constitution. We decline to address issues first raised in a reply brief. In re Silicone Implant Ins. Coverage Litig., 652 N.W.2d 46, 64 (Minn. App. 2002) (stating that “this court will not consider arguments made for the first time in a reply brief”), rev’d on other grounds, 667 N.W.2d 405 (Minn. 2003); see, e.g., Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (“argument fails because [it] appears for the first time in [appellant’s] reply brief, and is therefore not properly before us”), review denied (Minn. Oct. 24, 2001); Shepherd of the Valley Lutheran Church v. Hope Lutheran Church, 626 N.W.2d 436, 443 (Minn. App. 2001) (“argument fails [because] . . . issues not raised or argued in an appellant’s brief cannot be revived in a reply brief”), review denied (Minn. July 24, 2001). But even if we did reach this issue, we would conclude that appellant’s right to confrontation under the Minnesota Constitution was not violated. State v. Henderson, 620 N.W.2d 688, 695 (Minn. 2001) (stating that “[t]he Minnesota Constitution affords the same fundamental right” as the Sixth Amendment Confrontation Clause, and the analysis under each is the same).
Appellant contends that the evidence was not sufficient to support the convictions. On review, we are limited to conducting a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the jury believed the state’s evidence and did not believe evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). In evaluating the reasonableness of the jury’s decision to convict, we defer to the jury regarding the credibility of witnesses and the weight to be given to each witness’s testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).
The parties stipulated that appellant was the source of the semen found on A.J.’s perineum and in her anus, and could not be ruled out as the source of the semen found in her vagina. A.J. testified that she passed out shortly after the drinking game and did not consent to sex with appellant. K.S. testified that she saw appellant having sex with A.J., who was unconscious. Though appellant challenged some inconsistencies in K.S.’s testimony, those inconsistencies were minor. See State v. Higgins, 422 N.W.2d 277, 281 (Minn. App. 1988) (“Minor inconsistencies in a complainant’s testimony, or between her testimony and previous statements, do not deprive a verdict of sufficient support if the complainant’s testimony, taken as a whole, is consistent and credible.”). Also, Dawson testified that after the drinking game concluded, he saw A.J. lying on the floor without pants and underwear and that he heard appellant say to K.S., “I’m sorry, I’m sorry. I won’t do it again. It’s not that big of a deal.” K.S. testified that a second confrontation occurred when she returned to the bedroom window to get A.J. and saw that she was naked from the waist down and that appellant was standing between her legs. Dawson testified that he saw appellant on top of A.J. and concluded that he was having sex with her.
Viewing the evidence in the light most favorable to the conviction, we conclude that there was sufficient evidence to allow a jury to convict appellant of third-degree criminal sexual conduct and attempted third-degree criminal sexual conduct.