This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1565

Bruce Edwin Holmgren, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed March 4, 1997

Affirmed

Harten, Judge

Pennington County District Court

File No. K8-94-684

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

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

David M. Olin, Pennington County Attorney, Pennington County Courthouse, 210 N. LaBree Avenue, P.O. Box 396, Thief River Falls, MN 56701-0396 (for Respondent)

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

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

HARTEN, Judge

This appeal is from an order denying appellant Bruce Holmgren's postconviction petition wherein he challenged his conviction and sentence for first-degree criminal sexual conduct. Minn. Stat. § 609.342, subd. 1(a) (1994). We affirm.

FACTS

Appellant Bruce Holmgren was charged with one count of first-degree and one count of third-degree criminal sexual conduct for engaging in sexual penetration with 12-year-old A.L.M. in August 1994. The complaint alleged that Holmgren sexually penetrated A.L.M. while she was in her bed and that K.L., a girlfriend of A.L.M. who was sleeping over with her that night, had also identified Holmgren as the man she saw in the bed. Both girls had seen Holmgren, who occasionally stayed next door, the previous evening as he drank beer with A.L.M.'s mother.

Before trial, the trial court granted the state's motion to introduce evidence that Holmgren had fondled A.L.M. on several occasions during the summer of 1994.

At trial, both A.L.M. and K.L. identified Holmgren as the man who had been in their bed that night. A.L.M.'s mother testified that she saw Holmgren leaving from the back door of her mobile home at about 5:15 a.m. Although Holmgren presented an alibi defense and testimony that he was suffering from a poison ivy rash at the time of the alleged offense, the jury found him guilty of first-degree criminal sexual conduct. Citing Holmgren's invasion of A.L.M.'s zone of privacy to support the departure, the trial court sentenced him to 110 months in prison, an upward departure from the presumptive sentence of 86 months. The trial court also denied Holmgren's motion for a Schwartz hearing regarding alleged jury misconduct.

Holmgren filed a postconviction petition seeking a new trial based on alleged recantations by A.L.M. and K.L. After hearing testimony from A.L.M. and K.L., the postconviction court denied the petition.

D E C I S I O N

We review a postconviction proceeding only to determine whether there is sufficient evidence in the record to sustain the findings of the postconviction court. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

1. Holmgren argues that the postconviction court abused its discretion in denying his postconviction petition for a new trial based on a claim that A.L.M. and K.L. had recanted their trial testimony. Whether to grant a new trial on the basis of an alleged recantation is within the discretion of the postconviction court. State v. Harris, 407 N.W.2d 456, 462 (Minn. App. 1987), review denied (Minn. July 31, 1987). The court should grant a new trial based on recanted trial testimony only if it is reasonably certain that the recantation is genuine. State v. Walker, 358 N.W.2d 660, 661 (Minn. 1984).

Neither A.L.M. nor K.L. "recanted" more than a small detail of their trial testimony. They still identified Holmgren as the perpetrator of the offense, although with slightly diminished certainty. Moreover, A.L.M. testified that she attributed to Holmgren's supporters the harassment that she had experienced after the trial. The postconviction court, which had the opportunity to observe the demeanor of each girl, both at trial and in the postconviction hearing, was well within its discretion in questioning the reliability of the alleged "recantations."

2. Holmgren argues that the trial court abused its discretion in admitting evidence concerning Holmgren's past conduct with A.L.M. The decision to admit evidence of prior bad acts lies within the discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).

Evidence concerning prior bad acts against A.L.M. was not Spreigl evidence because it involved Holmgren's relationship with the victim of the charged offense and was admissible on that basis. State v. Kanniainen, 367 N.W.2d 104, 106 (Minn. App. 1985). The prior incidents of inappropriate touching or attempted sexual fondling of A.L.M. were plainly relevant and admissible to show both identity and Holmgren's intent. Although one witness recanted his statement about a later incident of Holmgren fondling A.L.M., this was cumulative to the properly admitted earlier incidents.

3. Holmgren argues that the trial court erred in denying his request for a Schwartz hearing based on alleged juror misconduct. The granting of a Schwartz hearing is within the discretion of the trial court. State v. Hicks, 432 N.W.2d 487, 490 (Minn. App. 1988), review denied (Minn. Jan. 26, 1989).

Holmgren's attorney filed a post-trial affidavit stating that one juror had approached him with a concern about the comments of a fellow juror during deliberations stating that the Holmgren family had a tendency to "stick together." Although Holmgren implies that the juror in question must have testified falsely on voir dire that he did not know the Holmgren family, the juror just as easily could have been speaking from secondhand or thirdhand information. As the trial court noted, the comment was neither coercive nor the type of extraneous information that would warrant a new trial. Cf. id. at 490-91 (juror's drawing of a map of neighborhood where assault took place did not require a new trial).

4. Holmgren argues that the trial court abused its discretion in its upward departure to 110 months from the 86-month presumptive sentence. The trial court has broad discretion to depart if substantial and compelling aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).

The trial court cited Holmgren's invasion of the victim's zone of privacy to support the departure. Invasion of the zone of privacy is an established aggravating factor. See, e.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985). Nevertheless, Holmgren cites State v. Gist, 358 N.W.2d 664, 667-68 (Minn. 1984), for the proposition that invasion of the zone of privacy alone will not normally support a departure. Gist, however, does not state this as a general rule, but only as an observation on the facts of that case. There, the attempted robbery occurred in part on the curtilage of the victim's home, the trial court did not cite zone of privacy as an aggravating factor, and the location of the crime "arguably helped [the victim] prevent completion of the contemplated offense." Id. at 668. Here, the trial court's departure was amply supported by Holmgren's commission of the offense in A.L.M.'s bedroom, a well-recognized "zone of privacy" obviously distinguishable from the curtilage of a home.

Affirmed.