This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


State of Minnesota,


Michael Patrick Newcombe,

Filed August 27, 1996
Affirmed in part and remanded in part
Harten, Judge

Rice County District Court
File No. K3-95-643

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

Jeffrey D. Thompson, Rice County Attorney, 218 N.W. Third St., Faribault, MN 55021 (for Respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St.MN 55105 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Harten, Judge.


HARTEN , Judge
Appellant, who was convicted of second-degree criminal sexual conduct and indecent exposure, challenges sufficiency of the evidence, evidentiary rulings, jury instructions, and sentence. We affirm the conviction, but remand for findings on appellant's ability to pay the fine or for alteration of the fine.
Appellant Michael Patrick Newcombe was charged with having sexual contact with, and exposing himself to, his 12-year-old stepdaughter, M.B. The evidence may be summarized as follows:
M.B.'s mother often worked evenings, and Newcombe stayed at home to look after M.B. and her two younger brothers. On one occasion in 1993, Newcombe put the boys to bed early. After making M.B. two drinks of Bacardi rum and Coke, he touched M.B.'s breasts over her clothing until she told him to stop. About a week later, Newcombe again gave M.B. several drinks, then put his hands up her shirt and touched her breasts. He also put his hands inside her underwear and touched her pubic hair. About a week after that, after remarking to M.B. about masturbation, he opened his bathrobe and exposed himself to her. Each incident occurred while M.B.'s mother was at work and her brothers were upstairs in bed.
At trial, M.B. testified to the above events. Newcombe testified that they had never occurred. A jury convicted Newcombe of second-degree criminal sexual conduct and indecent exposure. He was sentenced to serve 54 months in prison and to pay $6,025 in fines and surcharges. Newcombe appeals his conviction and sentence.
1. Sufficiency of the Evidence
In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. We cannot retry the facts, but must take the view of the evidence most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. If the jury, giving due regard to the presumption of innocence and to the state's burden of proving the defendant's guilt beyond a reasonable doubt, could reasonably have found the defendant guilty, that verdict will not be reversed.

State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted).
Newcombe argues that he has no prior history of criminal sexual conduct, that his conviction was based entirely on M.B.'s allegations, that her statements were not corroborated, that there was no physical evidence, and that she had numerous reasons to fabricate her testimony. Newcombe further argues that there were inconsistencies in M.B.'s statement.
Corroboration of a victim's testimony is not required in a prosecution for second-degree criminal sexual conduct. Minn. Stat. §subd. 1 (1992). The defendant's opportunity to commit sexual abuse is a form of corroborating evidence. State v. Luna , 320 N.W.2d 87, 89 (Minn. 1982). M.B.'s mother testified that Newcombe took care of her children while she was at work. Newcombe was alone with M.B. in the evenings while her mother was working and her brothers were in bed. Thus, there was evidence that Newcombe had the opportunity to commit the crime.
The absence of physical evidence does not prevent a jury from convicting an accused of sexual abuse. State v. Mosby , 450 N.W.2d 629, 635 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). Here, there being no allegation of penetration, the absence of physical evidence is reasonably understandable. The fact that M.B. did not immediately report the incident does not necessarily render her testimony unreliable. Sexually abused juveniles often will not report abuse, although they may disclose it at school, at group sessions, or in treatment. See State v. Sandberg , 406 N.W.2d 506, 511 (Minn. 1987). The testimony in this case was contradictory. The jury, however, chose to believe M.B.'s testimony over that of Newcombe. Despite Newcombe's arguments, there are no major inconsistencies in M.B.'s testimony. She stated that she knew it was warm outside when the abuse occurred. A specific time designation is not a material element in a sexual abuse case. State v. Warborg , 395 N.W.2d 368, 370 (Minn. App. 1986). Moreover, inconsistencies in a witness's testimony are not a basis for reversal. State v. Stufflebean , 329 N.W.2d 314, 319 (Minn. 1983). The jury determines the weight and credibility of the evidence. State v. Bias , 419 N.W.2d 480, 484 (Minn. 1988).
We conclude that the evidence was sufficient to support the conviction.
2. Evidentiary Ruling - Mental Hospital
M.B. first made the allegations against Newcombe in a tape-recorded interview, which was played for the jury. Part of the taped discussion was as follows:
Q: Ok. Ah, where's Mike [Newcombe] now? Do you know?

A: Ah, last I heard he was like in some mental hospital or something. Something like that. I don't know. I just, I overheard my mom talking about it and he was down in Iowa right now.

Q: Iowa? Does he know somebody down there or?
The trial court overruled Newcombe's request that the reference to the mental hospital not be played for the jury because it was harmful and irrelevant. The question of whether to admit or exclude evidence rests within the broad discretion of the trial court. Uselman v. Uselman , 464 N.W.2d 130, 138 (Minn. 1990). A party claiming that the trial court erred in receiving evidence has the burden of showing both the error and the prejudice resulting from the error. State v. Loebach , 310 N.W.2d 58, 64 (Minn. 1981). A reversal is only warranted when the error substantially influenced the jury to convict. Id.
Newcombe argues that the only issue was whether he committed sexual abuse in 1993; where he was in March of 1995 was irrelevant. He also asserts that the evidence may have led the jury to conclude that he was mentally unstable and dangerous, and thus lacked credibility. The state responds that the fact that Newcombe was no longer in the community was relevant to M.B.'s willingness to come forward and report the assaults. Also, the reference to the mental hospital was brief and not mentioned in closing arguments.
Even if the trial court erred in allowing reference to a mental hospital by admitting the hospital reference, we conclude that the error did not substantially influence the jury to convict Newcombe.
3. Evidentiary Ruling - Defendant's Silence
Newcombe argues that he is entitled to a new trial because the trial court refused to exclude evidence of his post-arrest silence and because it refused to impose discovery sanctions against the state for not disclosing evidence of a statement. On direct examination, Newcombe's attorney asked Newcombe:
Q: * * * Did you ever talk to the police about these allegations?
A: About what's happening here? No. Nobody has ever talked to me either. Oh, yes, I guess I did, kind of.

Q: Did you give a statement to Investigator Sletten?
A: No; just talking to a jailer and stuff like that. But nothing.
Q: So you never gave your side of things to the police?
A: Nobody ever asked me to. I requested it one day as a matter of fact to Tom Trump and nothing ever happened.

[Defense Attorney]: Thank you. Nothing further.
The state later called Officer Sletten as a rebuttal witness. His testimony included:
Q: Did you make any efforts to take a statement from Mr. Newcombe or speak to Mr. Newcombe at that time [when he was being held in the Rice County Law Enforcement Center]?

A: I requested that one of the jail staff tell Mike Newcombe that if he wanted to he could give me a statement.

Q: Did you get any type of response or reply?

A: No, none.

Defense counsel then cross-examined Sletten, asking:

Q: Do you know if that message was communicated to Mr. Newcombe?

A: Yes, it was.

Q: How do you know that?

A: Because I got back to the jailer the next day or two and asked if Newcombe had given him an answer and he said, no, he didn't want to give a statement.

Newcombe's attorney then objected to the whole line of questioning on the basis of surprise, nondisclosure during discovery, and hearsay. The trial court overruled the objection, finding that Newcombe had opened the door and that the state's testimony was admissible to rebut appellant's answers.
Due process of law is violated if the state uses a defendant's post-arrest silence, after a Miranda warning, to impeach the defendant. Doyle v. Ohio , 426 U.S. 610, 619, 96 S.Ct. 2240, 2245 (1976). Subsequent to Doyle , the Minnesota Supreme Court held that the use of evidence of defendant's post-arrest silence is proper to rebut an impression created by defendant that the police had not let him give a complete version of what happened. State v. Hjerstrom , 287 N.W.2d 625, 628 (Minn. 1979); see also State v. Goar , 295 N.W.2d 633, 635 (Minn. 1980) (prosecutor's eliciting evidence regarding a defendant's post- Miranda silence proper when defendant had earlier testified that he had fully cooperated with police in their investigation). 1

Where evidence of a defendant's post-arrest silence is elicited by defense counsel, however, the defendant cannot claim prejudice as a result of introducing "otherwise objectionable evidence." State v. Skinner , 450 N.W.2d 648, 652 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). We hold that reference to the absence of a statement to the police did not violate due process of law in these circumstances.
Newcombe further argues that the prosecutor knew that Newcombe had given a "statement" to the police but did not disclose it during discovery because the state intended to surprise the defense at trial. Minn. R. Crim. P. 9.01, subd. 1(2), requires the prosecutor to disclose any relevant written or recorded statements and the substance of any oral statements related to the case. The prosecutor told the trial court that all pertinent reports had been given to defense counsel prior to trial.
The trial court found there was no need to disclose what did not happen; the testimony merely showed that Newcombe would have had the opportunity to talk to police had he wanted to. When a violation of this discovery rule occurs, a defendant is entitled to a new trial only "if there is a reasonable probability that had the evidence been disclosed to the defense, the outcome of the trial might have been different." State v. Ramos , 492 N.W.2d 557, 560 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). We conclude that here there was no such reasonable probability.

4. Jury Instructions
Before closing arguments, the trial court gave both parties a copy of its final jury instructions. The instructions provided that the state must prove beyond a reasonable doubt that the offense occurred "between May and August of 1993." Neither party requested changes nor objected to the instructions. During closing argument, Newcombe's attorney argued that the state had not proven that the offenses occurred between May and August. After closing arguments, the trial court stated that it had reread the complaint and intended to modify its jury instruction to state "in or about May through August of 1993." The trial court overruled defense counsel's objection to the proposed modification.
Before closing arguments, the trial court shall inform counsel of the proposed instructions. Minn. R. Crim. P. 26.03, subd. 18(2). Formulating jury instructions and determining which instructions to give are within the trial court's discretion. State v. Daniels , 361 N.W.2d 819, 831 (Minn. 1985). The trial court has broad discretion in determining the propriety of a specific instruction. State v. Hysell , 449 N.W.2d 741, 744 (Minn. App. 1990), review denied (Minn. Mar. 15, 1990). An instruction should be given only if it is justified by the facts and relevant legal authority. State v. McCuiston , 514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994). A trial court is not required to give an instruction that misstates the law. State v. Evans , 347 N.W.2d 813, 817 (Minn. App. 1984), review denied (Minn. July 26, 1984).
The state argues that a minor change was necessary to make the instructions conform to the complaint and the applicable law. See State v. Becker , 351 N.W.2d 923, 927 (Minn. 1984) (a particular time period is not material element of first-degree criminal sexual conduct); Warborg , 395 N.W.2d at 370 (evidence of past criminal sexual conduct sufficient when victim could only recall that incident occurred "in the summertime"); see also Minn. Stat. §(1992) (precise time of offense need not be stated in indictment). Here, the state was required to prove that the offense occurred before M.B.'s thirteenth birthday (December 1993). See Minn. Stat. §subd. 1(a) (1992) (complainant must be under 13 years of age and actor more than 36 months older than complainant). We conclude that the trial court did not abuse its discretion by altering the jury instructions to conform to the complaint.
5. Sentence
In addition to prison time, the trial court imposed a $5,000 fine, a $1,000 surcharge, and a $25 assessment, but failed to make findings on Newcombe's ability to pay. The $5,000 fine exceeded the $300 minimum fine for second-degree criminal sexual conduct. See Minn. Stat. §subd. 2(2) (1992). We have held that a trial court must make findings on the defendant's ability to pay if it imposes a fine greater than the statutory minimum. Perkins v. State , 540 N.W.2d 908, 912 (Minn. App. 1995), review granted (Minn. Feb. 27, 1996). In Perkins , the trial court imposed a fine greater than the statutory minimum without making findings; we remanded for findings or alteration of the fine. Id. We likewise remand for findings on Newcombe's ability to pay the fine or for alteration of the fine. 2

Affirmed in part and remanded in part.

1 There is no evidence in the record as to whether Newcombe was ever given Miranda warnings.

2 We are aware that the supreme court has granted review of Perkins . Notwithstanding the pending review, Perkins is currently binding on this court.