This opinion will be unpublished and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
C9-95-2155

State of Minnesota,
Respondent,

vs.

Kenneth Sherwood Lucht,
Appellant.

Filed July 30, 1996
Affirmed
Toussaint, Chief Judge

Carlton County District Court
File No. K8-95-177

Hubert H. Humphrey III, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101 (for respondent)

Marvin E. Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, Minnesota 55718 (for respondent)

Keith M. Carlson, Newby, Lindgren, Carlson & Skare, Ltd., P.O. Box 760, 1219 - 14th Street, Cloquet, Minnesota 55720-0760 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Norton, Judge, and Stone, Judge.*

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

TOUSSAINT, Chief Judge

Kenneth Sherwood Lucht appeals his conviction on two counts of fourth-degree criminal sexual conduct. Lucht argues (1) the evidence was insufficient to support the verdict, (2) his constitutional rights were violated because he was not present when the jury's verdict was read, and (3) the district court erred in excluding certain evidence of the victim's propensity for making false accusations. We affirm.

D E C I S I O N

I.

In reviewing a sufficiency of the evidence claim, this court is limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.

State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). The evidence must be viewed in the light most favorable to the verdict, and the reviewing court must assume the jury believed the state's witnesses and disbelieved any contradictory evidence. Id.

Lucht was convicted of fourth-degree criminal sexual conduct under Minn. Stat. ' 609.345, subd. 1(b) (1992), which provides:

[a] person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if ... the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant

Id. "Sexual contact" is defined as "intentional touching by the actor of the complainant's intimate parts" or "the touching of the clothing covering the immediate area of the intimate parts" when committed with sexual or aggressive intent. Minn. Stat. ' 609.341, subd. 11(a) (i) and (iv) (1992). At the time of the assaults, the victim, AAW, was 15 years old and Lucht was in his fifties. Lucht insists that the assaults were fabricated or, if there was touching, it was unintentional and without sexual or aggressive intent.

The evidence presented at trial provides a sufficient basis for the jury's verdict. AAW testified that during the first assault in June 1993, AAW awoke in the middle of the night to discover that Lucht had unzipped AAW's jeans and placed his hand inside AAW's underwear to touch AAW's penis. AAW testified that when he confronted Lucht, Lucht apologized and prayed for forgiveness.

AAW testified that during the second assault in July 1993, he and Lucht were sleeping on a sectional sofa, perpendicular to one another. AAW testified that he woke up to find Lucht's hand inside his pants, on top of AAW's underwear, fondling AAW's genitals. AAW testified that Lucht again apologized when AAW confronted him.

While Lucht's testimony contradicted AAW's, an appellate court must view the evidence in the light most favorable to the verdict and assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. See Pierson, 530 N.W.2d at 787. Moreover, the testimony of the victim need not be corroborated. Minn. Stat. ' 609.347, subd. 1 (1992). Based on AAW's testimony alone, the jury could reasonably infer that Lucht intended to and did touch AAW and that such intent was sexual or aggressive in nature. Lucht's challenge to the sufficiency of the evidence fails.

II.

A defendant has a constitutionally protected right to be present at every critical stage during trial. State v. Grey, 256 N.W.2d 74, 76 (Minn. 1977). Minn. R. Crim. P. 26.03, subd. 1(1) requires a defendant to be present at trial. The purpose of the rule against trial in absentia is to guard "against involuntary deprivation of confrontation and testamentary rights due to lack of notice." State v. Johnson, 483 N.W.2d 109, 110 (Minn. App. 1992), review denied (Minn. June 10, 1992).

Under federal law, upon which rule 26.03 is based,

[t]he decision as to whether the defendant's voluntary absence from the trial amounts to a waiver is thus vested in the sound discretion of the trial judge, who is usually in a superior position to evaluate the evidence

United States v. Pastor, 557 F.2d 930, 934 (2d Cir. 1977). Any factual findings that form the basis of the court's decision should not be disturbed unless clearly erroneous. Id.

Even if a defendant's right to be present is violated, "the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt." State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1993). To determine whether the error was harmless, a court must examine facts such as whether the evidence against the defendant was overwhelming, what the defendant would have contributed to his defense if he had been present, and whether a cautionary instruction was given. See State v. Bouwman, 354 N.W.2d 1, (Minn. 1984) (trial in absentia harmless error when evidence of defendant's guilt is overwhelming); see also State v. DelCastillo, 411 N.W.2d 602, 604 (Minn. App. 1987) (trial in absentia harmless error when defendant only missed closing arguments and court gave cautionary instruction explaining defendant's absence). An error will be considered prejudicial only if there is a reasonable possibility that it might have contributed to the conviction. State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986).

Further, Minn. R. Crim. P. 26.03, subd. 1 provides:

(2) Continued Presence Not Required. The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:

1. a defendant voluntarily and without justification absents himself after trial has commenced

Id. When a defendant voluntarily absents himself after trial has begun, his act must constitute a waiver of the right to be present because

[t]he defendant cannot take advantage of his own willful wrong to defeat the ends of justice, and must be held to have waived, by his misconduct, his right to be present when the verdict was received

State ex rel. Shetsky v. Utecht, 228 Minn. 44, 48, 36 N.W.2d 126, 128 (1949)(quoting State v. Gorman, 113 Minn. 401, 403, 129 N.W. 589, 589 (1911))(emphasis omitted). The right to be present is not easily waived. Grey, 256 N.W.2d at 76. Before trial can continue in the defendant's absence, "it must be clear that the defendant himself is intentionally abandoning a known right." DelCastillo, 411 N.W.2d at 604. Nevertheless, it is not necessary for the defendant to state on the record that he knew the trial would continue in his absence. Id.

The following excerpt from the trial transcript indicates how the district court concluded that Lucht waived his right to be present:

THE COURT: [T]he jury has reached a verdict in the matter. The jury is standing in front of me. Parties present are the prosecutor and the defense counsel. The defendant is not present and the record should note that. The reason for that is, I understand, the miscommunication between defense counsel and the defendant as to whether there would be a verdict tonight. Under the circumstances and because of the case, however, I'm going to deem the defendant's presence be waived for purposes of taking the verdict.

Defendant's counsel did not object or disclose the nature of the miscommunication.

This excerpt from the trial transcript does not clearly indicate that Lucht intentionally abandoned his right to be present. Lucht did, however, voluntarily make himself unavailable or unreachable, based upon an indication that the jury would not reach a verdict that night. Even though he thought a verdict was unlikely that night, Lucht could have told defense counsel how to reach him in case the jury did reach a verdict. See, e.g., DelCastillo, 411 N.W.2d at 604 (defendant voluntarily waived right to be present when he did not ask for complete directions to new location for closing arguments). Thus, the district court did not abuse its discretion in concluding that Lucht waived his right to be present.

Moreover, even if the district court did err, the error was harmless. On this record, Lucht has not shown beyond a reasonable doubt that his absence during the reading of the verdict contributed to his conviction. The jury reached its verdict before Lucht's presence was deemed waived.

III.

[E]very criminal defendant has the right to be treated with fundamental fairness and "afforded a meaningful opportunity to present a complete defense."

State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992)(quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984)). The right to present a defense includes the defendant's right to present his own version of the facts so the jury can determine where the truth lies. State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995)(citations omitted) review denied (Minn. Jan. 25, 1996). Appellate courts defer to the district court in evidentiary matters, and absent an abuse of discretion, the district court's ruling will stand. State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993)(citations omitted), review denied (Minn.Oct. 19, 1993).

If exclusion of evidence did violate defendant's right to present a defense, the appellate court will not reverse the decision if the error is found to be harmless beyond a reasonable doubt.

Id. The error is prejudicial if it might have been a factor in the conviction. Larson, 389 N.W.2d at 875.

Lucht argues that the district court erred in excluding allegations that AAW had been involved in a sexually-charged, name-calling incident. The defense attempted to admit this evidence to impeach AAW or to show AAW's propensity for false accusation. The district court excluded the evidence because it was irrelevant, confusing, misleading, and prejudicial. The court concluded that after trying to determine whether the allegation was actually false, the jury would be "so far down the rocky path that [it would be] hopelessly lost."

The district court did not abuse its discretion in excluding this evidence. An allegation of name-calling is clearly irrelevant in a sexual abuse case. See Minn. Rule Evid. 402 (irrelevant evidence not admissible at trial). Even if relevant, the allegation was properly excluded as confusing or misleading. See Minn. Rule Evid. 403.

Lucht also argues that the district court erred in excluding evidence of incidents of sexual harassment by AAW and sexually explicit writings by AAW. Lucht conceded that such evidence would not be admissible in his case in chief, but argued that the evidence was admissible to challenge AAW's credibility. Lucht wanted to "cross examine the prosecution witnesses as to whether their opinion of AAW would change if they knew that AAW had committed these acts."

The district court excluded this evidence on the grounds that it was irrelevant. It concluded that the harassment incidents and sexually explicit writings were not probative because they did not go to credibility. The court indicated that, though vulgar, the actions were not probative of AAW's propensity for honesty or dishonesty, but were simply evidence of bad character.

The district court properly excluded this evidence, because (1) the evidence is not relevant, and (2) it is not probative of credibility or any other fact at issue in this case. Thus, Minn. Rule Evid. 402, which excludes irrelevant evidence, prohibits its admission. Moreover, this evidence would be highly prejudicial in the eyes of a jury because of its vulgar nature. Thus, it is excludable pursuant to Minn. Rule Evid. 403.

Basically, as the district court stated, the evidence Lucht sought to admit was simply evidence of bad character. This type of evidence is not admissible under Minn. Rule Evid. 404. While Minn. Rule Evid. 608(b) allows evidence of character and conduct of witnesses in the form of specific instances of conduct on cross-examination of the witness, the specific instances must relate to the credibility of the witness. Evidence of sexual harassment and sexually explicit writings does not pertain to truthfulness. Thus, the district court properly excluded the evidence, and Lucht's final challenge to his conviction also fails.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.