This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-1564

State of Minnesota,

Respondent,

vs.

Bennie Edward Davis, Jr.,

Appellant.

Filed May 21, 1996

Affirmed

Short, Judge

Hennepin County District Court

File No. 94061560

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin

Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

At a Rasmussen hearing, Bennie Edward Davis, Jr., sought exclusion of two videotaped statements, one of the child complainant and the other of a child witness. The trial court found the complainant's statement was sufficiently trustworthy and admitted it pursuant to the hearsay exception in Minn. Stat. § 595.02, subd. 3. The trial court also admitted the statement of the witness as a prior consistent statement under Minn. R. Evid. 801(d)(1)(B). A jury subsequently convicted Davis of one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (penetration), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (sexual contact). The trial court sentenced Davis according to the guidelines on his first-degree criminal sexual conduct conviction. On appeal, Davis argues the trial court denied him a fair trial by admitting the videotaped statements of the complainant and the witness. We affirm.

D E C I S I O N

Rulings on evidentiary matters generally rest within the sound discretion of the trial court. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990); State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990) (quoting Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984)). However, whether hearsay statements possess particular guarantees of trustworthiness presents a question of law, which we review de novo. State v. Salazar, 504 N.W.2d 774, 776-77 (Minn. 1993) (quoting Idaho v. Wright, 497 U.S. 805, 814-17, 110 S. Ct. 3139, 3145-48 (1990), and stating reliability is a question of law); Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (reviewing legal questions de novo).

I.

In certain circumstances, trial courts may admit as substantive evidence the hearsay statements of a child under the age of ten that allege, explain, deny, or describe an act of sexual contact or penetration performed on the child. Minn. Stat. § 595.02, subd. 3 (1994). This statutory exception to the hearsay rule requires both a finding of the statement's reliability and its inadmissibility under any other statute or rule of evidence. Id. Because the statement's reliability renders it admissible under the Minnesota Rules of Evidence, we review its admissibility pursuant to the rules rather than the statute. See Minn. R. Evid. 803(24) (permitting the introduction of hearsay statements made with circumstantial guarantees of trustworthiness, regardless of declarant's availability); State v. Edwards, 485 N.W.2d 911, 915 (Minn. 1992) (noting the analyses of admissibility under section 595.02, subdivision 3, and rule 803(24) are essentially the same and reviewing the admissibility of a child's out-of-court statement, which was denied admission by the trial court under the statutory exception, pursuant to rule 803(24)).

Reliability is based on the totality of the circumstances surrounding the making of a statement. Wright, 497 U.S. at 820, 110 S. Ct. at 3149. In determining the reliability of a child's hearsay statement regarding abuse, a trial court may consider: (1) the spontaneity and consistency of the statements; (2) an interviewer's preconceived idea of what the child should say; (3) the use of leading or suggestive questions; (4) the child's lack of a motive to lie; and (5) the likelihood that a child of the declarant's age would fabricate the type of statements the declarant made. State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990), cert. denied, 498 U.S. 1033 (1991). The record demonstrates: (1) the complainant's story remained basically consistent, varying only when she discussed whether she had clothes on during the abuse and whether Davis touched her clothes or her skin; (2) the interviewer asked leading questions only when she was clarifying a response, her questions did not suggest the existence of a desired response, and the complainant corrected the interviewer once when she erroneously summarized the complainant's statements; (3) the complainant spontaneously told the interviewer that Davis touched her; (4) the complainant graphically demonstrated digital penetration, on an anatomical doll, which a three-year-old generally could not do absent some familiarity with such conduct; and (5) no apparent motive to fabricate exists. While the interviewer had some prior knowledge of the alleged abuse and the complainant did not speak with the interviewer until three weeks after the incident, we cannot say the trial court erred in determining the complainant's hearsay statement exhibited sufficient indicia of reliability based on the totality of circumstances. See State v. Goldenstein, 505 N.W.2d 332, 344 (Minn. App. 1993) (acknowledging the therapists knew of the sexual abuse allegations before speaking to the children, but affirming the admission of the children's statements based on the totality of the circumstances), review denied (Minn. Oct. 19, 1993); cf. In re Welfare of M.S.M., 387 N.W.2d 194, 196-97, 199 (Minn. App. 1986) (affirming the admission of a child's videotaped statement under Minn. Stat. § 595.02, subd. 3 that were made several weeks after the alleged abuse occurred).

In addition to a showing of circumstantial guarantees of trustworthiness, Minn. R. Evid. 803(24) requires:

(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The complainant's statement meets these additional requirements. First, the videotape was offered as evidence that Davis committed the acts underlying criminal sexual conduct in the first and second degrees. Second, because the complainant was unable to remember what she talked about in the interview and discuss the incident at trial, the videotaped testimony was more probative than the other available evidence--mostly hearsay statements presented through the testimony of other witnesses and circumstantial evidence. And third, introduction of the statement serves the purposes of the evidentiary rules and the interests of justice.

Davis also argues the trial court failed to exclude certain irrelevant and prejudicial statements that the complainant made during the videotaped interview. However, Davis cannot now complain when he failed to raise this issue upon viewing the tape at the Rasmussen hearing, but waited instead until after the jury viewed the videotape to move for a new trial. Cf. State v. Landro, 504 N.W.2d 741, 746 (Minn. 1993) (holding a defendant waives any issues to which counsel did not object at trial), cert. denied, 114 S. Ct. 1059 (1994); Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (stating error in the admission of evidence is waived if the party fails to make a timely objection).

II.

The witness's videotaped hearsay statement contained allegations of penetration to which the witness did not testify at trial. Thus, while generally consistent with her trial testimony, the statement inappropriately described events not presented to the jury by the witness. See Minn. R. Evid. 801(d)(1)(B) (requiring the statement's consistency with the declarant's testimony); 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 405, at 181-82 (2d ed. 1994) (stating the similar federal rule is not intended to enable a party to prove points not covered in the declarant's trial testimony); cf. State v. Bellotti, 383 N.W.2d 308, 313 (Minn. App. 1986) (noting a statement about penile-genital contact might be (1) inconsistent with previous statements because the child declarant did not make a similar statement at trial or any other time, and (2) inadmissible under Minn. Stat. § 595.02, subd. 3), review denied (Minn. Apr. 24, 1986).

Even if the trial court abused its discretion by admitting the witness's videotaped statement as a prior consistent statement, the error was harmless beyond a reasonable doubt because overwhelming evidence sustains Davis's conviction for first-degree criminal sexual conduct. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967) (applying this standard to constitutional errors); State v. Scott, 501 N.W.2d 608, 619 (Minn. 1993) (reviewing the improper admission of a hearsay statement for harmless error). The record shows: (1) the complainant, in her videotaped statement, described digital penetration to the interviewer and demonstrated this abuse on an anatomical doll; (2) the witness told her grandmother there was blood on a tissue with which she wiped the complainant after the complainant went to the bathroom; (3) at trial, the witness testified that Davis touched the complainant's "private spot," under her clothes and on her skin; and (4) a pediatrician testified she performed a physical examination on the complainant and that her medical findings supported the theory of penetration. Given these facts, we are satisfied beyond a reasonable doubt that the trial court's error did not substantially affect the verdict. See Scott, 501 N.W.2d at 619 (requiring the error not to have been "a significant factor in the jury's decision to convict").

Affirmed.