This opinion will be unpublished and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

C3-96-329

State of Minnesota,

Respondent,

vs.

Fred Charles Koerner,

Appellant.

Filed November 5, 1996

Affirmed

Norton, Judge

Anoka County District Court

File No. K7-93-251

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

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414 (for Appellant)

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

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

NORTON, Judge

Appellant challenges the propriety of his convictions and sentencing. He contends the trial court committed fundamental error in its instructions to the jury, exaggerated the criminality of his offense by imposing sentences for third-degree criminal sexual conduct and the lesser included offense of fourth-degree criminal sexual conduct, and erred in ordering consecutive sentences. In his pro se brief, appellant argues that the trial court erred when it admitted into evidence the videotaped interview of the victim. He also contends the prosecutor committed misconduct by referring to appellant's prior conviction. We affirm.

FACTS

On April 19, 1995, appellant's wife gathered her children together and told them that appellant would no longer be living with them. A friend and her two daughters, D.S. and J.S., were also present when this conversation occurred. Appellant's wife asked the girls if appellant had ever touched them sexually. J.S. felt "relieved" and immediately responded, "Yes." D.S. and appellant's daughter, A.K., allegedly reported that appellant also had engaged in sexual contact with them.

The mothers called the police and an investigation followed. A patrol officer interviewed each girl that night; a sheriff's investigator conducted videotaped interviews eight days later. The two families had known each other for many years. J.S. reported that the abuse had occurred in Fridley and also in Brooklyn Center, where appellant and his family had resided several years earlier.

Appellant was charged with five counts of criminal sexual conduct, three of which pertained to the incidents with J.S.: Second-, third- and fourth-degree criminal sexual conduct in violation of Minn. Stat. SSSS 609.343, subds. 1(a) and 2; 609.344, subd. 1(b); and 609.345, subd. 1(b) (1994).

At trial, J.S. described incidents where appellant touched her breasts and her vagina over her clothing while in a bedroom and computer room of his Brooklyn Center home when J.S. was under 13 years of age. After J.S. and her family moved to Coon Rapids, appellant did not have the opportunity to molest her. But when she and her family moved to the same mobile park in Fridley where appellant and his family then lived, J.S. claimed that appellant abused her approximately 40 times. Although J.S. described to the sheriff's investigator two incidents where appellant had digitally penetrated her vagina, she testified at trial that she could not remember these incidents. The trial court allowed the prosecutor to play for the jury J.S.'s videotaped interview in which she told of the digital penetration.

The jury acquitted appellant of the charge related to A.K., did not reach a verdict on the charge related to D.S., and convicted appellant of all three charges involving J.S.

In sentencing appellant, the trial court departed from the Minnesota Sentencing Guidelines based on a finding that he is a patterned sex offender. The trial court sentenced him to prison terms of 52, 72 and 72 months to be served concurrently among themselves, but consecutively to the sentence imposed in a prior conviction appellant had for criminal sexual misconduct. At the time of sentencing here, no sentence had yet been imposed for the prior conviction. The revocation hearing in the prior conviction was held before another judge three weeks after the sentencing here. The judge at that hearing was aware of the order for consecutive sentencing.[1]

D E C I S I O N

1. Jury instruction

For the first time on appeal, appellant objects to the jury instruction on the factors for the jury to consider when determining the credibility of witnesses. See 10 Minnesota Practice, CRIMJIG 3.12 (1990). Generally, under Minn. R. Crim. P. 26.03, subd. 18(3) and case law, the defendant waives any objection to an instruction raised for the first time after trial. See State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984). A defendant who fails to object to an instruction at trial may, however, object posttrial based on "[a]n error in the instructions with respect to fundamental law or controlling principle." Minn. R. Crim. P. 26.03, subd. 18(3). The appellate court may review an issue regarding a jury instruction raised for the first time on appeal only if the assigned error in the instruction is an "error as to fundamental law." LaForge, 347 N.W.2d at 251. Appellant contends that such an error occurred here, because the trial court did not read CRIMJIG 3.12 verbatim in its charge to the jury, but instead read it as a preliminary instruction and then summarized it after the close of evidence. We disagree.

The trial court read verbatim the instruction at issue here before the trial began. At the close of evidence, the trial court gave each juror a copy of all instructions and summarized CRIMJIG 3.12, while referring the jury to specific pages in the packet of instructions. This procedure does not offend rule 26.03, which requires only that, in charging the jury, the court "shall state all matters of law which are necessary for the jury's information in rendering a verdict." Minn. R. Crim. P. 26.03, subd. 18(5).

While the court failed to read the instruction verbatim again after the close of trial, its action does not constitute error, because it summarized the instruction for the jury. See State v. McKenzie, 532 N.W.2d 210, 222 (Minn. 1995) (instructions as a whole must convey accurate statement of law), cert. denied, 116 S. Ct. 327 (1995). Even if error had occurred, appellant has failed to show any prejudice and therefore has failed to demonstrate reversible error where the court gave this instruction verbatim pretrial, in summary at the close of trial, and also provided a written copy for each juror's reference. See State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (under plain error doctrine, appellate court may review alleged error to which defendant failed to object only if error seriously affected substantial right and was prejudicial).

2. Conviction of lesser included offense

Appellant contends his convictions for third- and fourth-degree criminal sexual conduct violate Minn. Stat. § 609.04, subd. 1 (1994). That statute provides that a defendant "may be convicted of either the crime charged or an included offense, but not both." Id. The statute defines "included offense" as: "[a] lesser degree of the same crime; or * * * [a] crime necessarily proved if the crime charged were proved." Id., subd. 1(1), (4). The purpose of the statute is twofold: (1) to prevent a defendant from being "convicted twice of the same offense * * * based on the same act or course of conduct," State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986); and (2) to bar "the prosecutor from exaggerating the criminality of the defendant's conduct by obtaining two convictions of the same offense simply because the defendant's single act violated two different provisions of the same statute," State v. Patch, 329 N.W.2d 833, 837 (Minn. 1983).

A comparison of the definitions of third and fourth-degree criminal sexual conduct demonstrate that the charge against appellant for fourth-degree criminal sexual conduct is includable in the third-degree offense charged. Compare Minn. Stat. § 609.344, subd. 1(b) (1994) (third-degree criminal sexual conduct defined as sexual penetration where complainant is at least 13 but less than 16 years of age and actor is more than 24 months older than complainant) with Minn. Stat. § 609.345, subd. 1(b) (1994) (criminal sexual conduct in fourth-degree defined as "sexual contact" where complainant is at least 13 but less than 16 years of age and actor is more than 48 months older than complainant).

But we look further than the offense definitions here, because the charges against appellant were for separate acts occurring on separate occasions.[2] Cf. State v. Hesse, 281 N.W.2d 491, 493 (Minn. 1979) (vacating conviction of lesser-included offense of second-degree criminal sexual conduct where fondling was incidental to penetration and occurred in same behavioral incident). Unlike Hesse, appellant's convictions are not based on the same incident and crime. J.S. testified that appellant had sexual contact with her on at least 45 separate occasions over a period of years, but had penetrated her on only two of those occasions. Thus, appellant's multiple convictions for criminal sexual conduct do not violate Minn. Stat. § 609.04, because they are for separate acts of sexual conduct committed on separate occasions over a period of years where only two of those occasions meet the criteria for a conviction of the third-degree offense.

3. Consecutive sentence

Appellant argues that the trial court lacked authority to order consecutive sentences when the sentence for the prior conviction had yet to be imposed. We disagree that the sentence must be vacated. While "[t]he option of consecutive sentencing should be reserved to the judge last sentencing the defendant," we may affirm the sentence, because a remand is "unnecessary" when, as here, the sentencing judge at the revocation hearing was aware of the consecutive sentence. See State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985) (declining to reverse and remand for technical error; affirming consecutive sentence, even though not in statutorily-prescribed order, where defendant was not prejudiced, second judge was informed of consecutive sentence, and result was "certainly within his intent"). As in this case, Stafford involved a prior conviction for which there had been a stay of imposition of sentence, rather than a stay of execution of an imposed sentence. Id. We decline to vacate the trial court's sentence.

4. Videotape

In his pro se brief, appellant contends that the trial court committed reversible error when it admitted into evidence the videotape of J.S.'s interview with the police investigator. We disagree. Rulings on evidentiary issues rest within the trial court's discretion. See State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990).

We hold that the videotaped statements regarding penetration were admissible as substantive evidence under the "catchall" hearsay exception, Minn. R. Evid. 803(24), as applied in State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985) and State v. Soukup, 376 N.W.2d 498, 501 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).[3] That rule allows the court to admit hearsay in cases where the declarant testifies, so long as the evidence has circumstantial guarantees of trustworthiness equivalent to evidence admitted under the other hearsay exceptions in rule 803. Ortlepp, 363 N.W.2d at 44.

Because no important factual issues exist over the admissibility of these statements, it is appropriate that we make the legal determination regarding the admissibility under the "catchall" clause rather than to remand to the trial court to decide this issue under the applicable rule. See State v. Edwards, 485 N.W.2d 911, 915 (Minn. 1992) (determining admissibility under rule 803(24) even though trial court had not first done so). Although the state did not formally comply with the notice requirement of rule 803(24), appellant's trial counsel had notice, because he stipulated to obtain access to the videotaped interviews several months prior to trial. See Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (holding actual notice was sufficient under rule 803(24)).

Rule 803(24) applies here, because the statements prove the material fact of penetration and, because J.S. could not remember the incidents of penetration when she testified at trial, the statements are more probative of this point than other evidence. See Minn. R. Evid. 803(24)(A), (B) (requiring these conditions for admissibility). The admission of the taped statements as substantive evidence does not present a confrontation problem, because J.S. testified and was available for cross-examination by defense counsel. Ortlepp, 363 N.W.2d at 44. In addition, the videotaped statements were consistent with J.S.'s trial testimony; she also testified that the statements to the investigator were true. Under these conditions, we hold that the videotaped statements are particularly reliable and are therefore admissible under Minn. R. Evid. 803(24).

5. Prosecutor misconduct

Finally, appellant argues in his pro se brief that the prosecutor committed misconduct in her final argument when she mentioned his 1993 conviction of fourth-degree criminal sexual conduct with a 14-year-old girl. He claims that the trial court had ruled this evidence inadmissible and had admonished the prosecutor when appellant's wife mentioned the prior conviction in her testimony. To the contrary, the trial court had admitted this evidence during trial.

The prior conviction was not admissible for impeachment of appellant, because he did not testify. The trial court ruled, however, that the state could elicit testimony from appellant's wife regarding his prior conviction for the limited purpose of showing her state of mind when she had asked A.K., D.S., and J.S. whether appellant had abused them. In so ruling, the court noted the unusual circumstances here:

[A]ny reasonable fact-finder, like I think our jury is, might start to wonder why these allegations were first made by the kids, in our case, on the very day that Ms. Koerner decided to end [her] relationship [with appellant] and ask a question like that at that time.

Appellant's wife testified before the jury that she had questioned the girls "because of [appellant's] prior conviction [of criminal sexual misconduct] * * * [o]f a 14-year-old minor." The trial court then gave an appropriate instruction to the jury regarding the limited use of this evidence. In her final argument, the prosecutor referred to the prior conviction in the limited context for which the trial court had admitted it. Under these conditions, the prosecutor did not commit misconduct in her final argument.

Affirmed.

[ ]1 Without objection from appellant, we have accepted the state's supplementation of the record on appeal to provide a transcript from the revocation hearing.

[ ]2 Significantly, the state did not charge appellant with "multiple acts committed over an extended period of time" under Minn. Stat. § 609.344, subd. 1(g).

[ ]3 We note, for the record, that the trial court erroneously ruled that these video statements were not hearsay. The videotaped statements regarding digital penetration offered a new fact into evidence and were offered to prove the element of penetration. As such, the statements were hearsay. See Minn. R. Evid. 801(c) (defining hearsay as out of court statement offered to prove truth of matter asserted). The court also erroneously classified the videotape as admissible hearsay under the recorded recollections exception, Minn. R. Evid. 803(5). That rule does not apply here, where J.S. did not make the record, but merely responded to questions of the investigator.