This opinion will be unpublished and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

C7-95-1991

State of Minnesota,

Respondent,

vs.

Kenneth Paul Thumma,

Appellant.

Filed June 4, 1996

Affirmed

Huspeni, Judge

Becker County District Court

File No. K0941082

Hubert H. Humphrey, III, Attorney General, James P. Spencer, Asst. Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Joseph A. Evans, Becker County Attorney, P. O. Box 743, Detroit Lakes, MN 56502 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.

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

HUSPENI, Judge

Appellant was found guilty of first-, second-, and third-degree criminal sexual conduct. He claims that the trial court abused its discretion in suppressing evidence regarding the prior sexual history of one of the complainants and in denying appellant the opportunity to explain the circumstances surrounding his prior felony conviction. Because we conclude that the trial court did not abuse its discretion in excluding the evidence, we affirm.

FACTS

This case arose out of allegations that appellant Kenneth Paul Thumma had sexually molested two girls who were overnight guests at his home during a sleepover birthday party for his 12-year-old stepdaughter in June 1994. According to J.V., who was 12 years old at the time of the birthday party, appellant laid his head on a pillow on her lap and fondled her crotch with his hand beneath the pillow. J.V. testified that she did not say anything at the time because she did not want to make appellant mad, but she did get off the love seat where she was sitting.

L.P., who was 13 years old at the time of the party, testified that she saw appellant's hand beneath the pillow but did not see appellant's hand touching J.V. L.P. also indicated that J.V. looked as though something was wrong and seemed afraid. Another girl testified that she saw appellant's hand under the pillow as he laid on J.V.'s lap.

M.W., who was 13 years old at the time of the party, testified that after appellant had been lying on the couch with J.V., he lay on the floor on a sleeping bag between M.W. and another girl. Later that evening, appellant removed his clothes and M.W.'s shorts and had sexual intercourse with M.W. twice and oral sex once. J.V. testified that she saw appellant naked and on top of M.W.

Although neither J.V. nor M.W. told any adult that appellant had molested them until more than two months later, several teenage friends testified that the girls had told them of the incident within a couple of days of the party.

In July 1994, appellant's wife's son was seriously injured when a dog owned by M.W.'s family attacked him and bit him in the face. Appellant's family rejected an offer from M.W.'s family to pay the medical bills and filed suit against M.W.'s family.

Appellant was subsequently charged with and convicted of first-, second-, and third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342-.345 (1992). 

D E C I S I O N

Standard of Review

Appellate courts defer largely to the trial court's exercise of discretion in evidentiary matters and will not overturn a trial court's ruling absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

1. The victim's prior sexual history

Appellant asserts that the exclusion of the evidence of M.W.'s prior sexual history was in derogation of his constitutional right to due process, to his right to confrontation, and to his right to present a defense. We disagree.

The supreme court has held that despite the prohibition of the rape shield laws:

[A] trial court has discretion to admit evidence tending to establish a source of knowledge of or familiarity with sexual matters in circumstances where the jury otherwise would likely infer that the defendant was the source of the knowledge.

State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986). The trial court, however, must balance the probative value of the evidence against its potential for causing unfair prejudice. Id.

In Jackson v. State, 447 N.W.2d 430 (Minn. App. 1989), this court upheld the trial court's exclusion of such evidence involving a 14-year-old victim when the defendant sought to question her about prior sexual abuse in an attempt to show that she had an alternative source of knowledge of sexual matters. This court stated:

This is not a case where the jury would likely infer that [the victim's] knowledge about sexual matters could have been obtained only from the alleged incidents with appellant. [The victim] made no claim to previous chastity. There is nothing in the record to indicate that evidence of her previous sexual conduct would have demonstrated her propensity to lie or be biased or prejudiced, or to harbor ulterior motives relating to sexual matters or to appellant.

Jackson, 447 N.W.2d at 435-36 (citation omitted).

In the present case, M.W., like the victim in Jackson, made no claim to previous chastity. Moreover, the nature of her description of what happened was very general; M.W.'s description was limited to stating that appellant's "penis" was "inside" her "crotch" and that appellant then "performed oral sex with [her]." Therefore, it is unlikely that the jury would assume that M.W. would have been unable to describe the incident but for the events occurring as alleged. Further, such evidence would not likely have produced a different result and cannot be the basis for ordering a new trial.

Appellant alleges that the girls fabricated the stories in retaliation for appellant's family bringing the civil tort action against M.W.'s family. The jury, however, heard substantial testimony regarding the civil suit and was aware of any motive to fabricate the charges. Yet the jury still convicted appellant.

2. Appellant's prior felony conviction.

Appellant argues that the trial court erred in denying him the opportunity to explain the circumstances behind his prior felony conviction when it was admitted for purposes of impeachment. Again, we disagree.

A defendant should be allowed to give his or her version of the facts underlying the prior felony conviction and to explain the circumstances relating to the conviction. State v. Frisinger, 484 N.W.2d 27, 33 (Minn. 1992). "[A]ny error in refusing to allow the defendant to do so is subject to harmless error impact analysis." Id.

Appellant concedes that this error alone "may not have substantially influenced the jury verdict" but argues that in conjunction with the alleged error of excluding evidence of M.W.'s prior sexual conduct, a new trial must be ordered. Because we have determined that the exclusion of the evidence regarding M.W.'s prior sexual conduct was not erroneous, even if we assume that there was error with respect to the prior felony conviction, [1] it was harmless.

3. Appellant's pro se supplemental brief.

After careful review of appellant's pro se brief, we conclude that none of the issues raised there has merit. The majority of appellant's pro se arguments question the credibility of the state's witnesses. A reviewing court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Further, the credibility of individual witnesses is for the jury to determine. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Thus, this court cannot reweigh the jury's determinations with respect to the credibility of witnesses.

Appellant also included a number of documents pertaining to the civil suit against M.W.'s family for the dog bite injuries. We do not consider such evidence in the present criminal case.

Affirmed.


Footnotes

[1] Appellant was allowed to testify that he had pleaded no contest to the prior felony conviction, that he did not have a jury trial, that he did not have an attorney, and that he had paid restitution to the victims. He made no offer of proof as to what additional information he wished to present. It is doubtful absent such an offer that the issue is even preserved for appeal. Minn. R. Evid. 103(a)(2).