This opinion will be unpublished and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

C5-96-896

State of Minnesota,

Respondent,

vs.

Michael Darnell Burns,

Appellant.

Filed March 4, 1997

Affirmed

Huspeni, Judge

Ramsey County District Court

File No. K5-95-2696

Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

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

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Asst. County Attorney, 50 West Kellogg Blvd., #315, St. Paul, MN 55102 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

HUSPENI, Judge

Appellant challenges (1) the sufficiency of the evidence to support his conviction of first-degree criminal sexual conduct, (2) the allowance of out-of-court statements, and (3) the limited discovery of confidential medical reports. Because we find the evidence sufficient to support appellant's conviction and because we find no abuse of discretion in either the limiting of discovery of confidential medical reports or the admission of out-of-court statements made by a six-year-old alleging sexual abuse, we affirm.

FACTS

Appellant and D.S. are the parents of two children: six-year-old M.B. and her eight-year-old brother. Appellant and D.S. maintain separate residences in St. Paul. The children live with D.S., but sometimes visit and stay overnight at appellant's apartment.

In early July, the children were to stay with appellant. M.B. was sitting in the living room at her mother's residence when K.S., M.B.'s 16-year-old aunt, asked if M.B. wanted to go visit her dad. When M.B. said no, K.S. asked why. M.B. responded that she did not want to go because her father made her "suck his dick." M.B. started crying and requested that K.S. not tell her mother. K.S. did tell D.S., who then called police. Appellant was subsequently arrested.

After the initial report was taken, M.B. recounted her story to several people investigating the incident: Mary Bastian, a child abuse intake worker; Ann Carlson, a psychologist at River City Clinic in St. Paul; and Kim Martinez, a pediatric nurse practitioner at Midwest Children's Resource Center.

In response to appellant's pretrial objections to M.B.'s out-of-court statements, the trial court conducted a hearing, out of the presence of the jury, for the purpose of determining whether M.B.'s out-of-court statements would be admissible pursuant to Minn. Stat. § 595.02, subd. 3 (1994). Carlson testified at this hearing that M.B. correctly identified male and female body parts on figures and with a marker drew a line from a boy's penis to a girl's mouth, then said, "You did not ask me about sucking my dad's dick." When asked to tell Carlson about the incident, M.B. said her dad was taking a shower, wanted M.B. to shower with him and wash his body, including his dick and butt, and suck his dick. M.B. stated she could not see anything, but there was a "dick smell"; appellant told her not to tell her mom "'cuz I will kill you." K.S. testified about her conversation with M.B. and why M.B. did not want to go to appellant's home to visit. Bastian testified that M.B. said that while her brother was in the living room, M.B. and appellant took a shower together, that their clothes were off, that appellant rubbed and touched her vaginal area with his hand and penis, that appellant wanted M.B. to suck his penis, that M.B. said no liquid came out of appellant's penis, and that this happened five times.

The trial judge viewed a videotape interview of M.B. by Martinez, in which M.B. stated that appellant made her suck his "thing," that it happened in the shower at appellant's apartment while her brother was in the front room, that appellant asked her to "wash him up," that she sucked appellant's penis with her mouth, that she could not swallow, that nothing came out, that it "tasted like dick" and some "nasty stuff," that after she sucked her dad's "thing," they went to appellant's bed, that appellant asked her to get on top and move back and forth, that appellant's "thing" touched her "coochie," that nothing came out of appellant's penis, but her "coochie" got wet with some white slimy stuff. M.B. said she did not know how she got wet or where the slimy stuff came from, that it happened in the shower five times, and that she did not tell her mother because she was scared.

The trial court ruled that pursuant to Minn. Stat. § 595.02, subd. 3 (1994), and relevant case law, M.B.'s out-of-court statements were admissible.

During discovery, in response to appellant's request that notes and records of M.B.'s therapy with Carlson be made available to the defense, the trial court ordered an in camera review by another district court judge. The reviewing court turned over the following paragraph:

[M.B.] spent much time trying to decide what characters to use in her story. ([e.g. "]perfectionism") She started to tell story re the abuse got anxious, put characters back, chose white people. Told story of Dad asking girl if he could molest her. Girl said no, Mom got mad at the Dad -- [e.g.] the whole molesting thing never happened.

Appellant requested the trial judge conduct another review of the file, arguing that appellant required the complete report of the therapist's interview in order to evaluate the paragraph in context and prepare cross-examination. The trial judge refused to make another review.

M.B. and M.B.'s brother both testified at trial, as did Carlson, K.S., Bastian, and Martinez. The testimony of M.B., her brother, K.S., and Bastian was duplicative of their statements made at the pretrial hearing. Martinez testified that after interviewing M.B. and after the videotape was off, M.B. asked her what would happen if she told a lie. Martinez told M.B. that it was important to tell the truth, and at that point M.B. "retracted the information that her mother did not know." Appellant testified on his own behalf and stated that the incident never occurred and that he believed M.B. was coerced by her mother to make the allegations because appellant was going to seek custody of the children. There was no evidence presented that M.B.'s mother was aware that appellant might be seeking custody of the children.

D E C I S I O N

1. Out-of-court statements.

Minn. Stat. § 595.02, subd. 3 (1994), permits admission of

out-of-court statement[s] made by a child under the age of ten years, * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * *, not otherwise admissible by statute or rule of evidence, * * * if:

(a) the court finds * * * that the time, content, and circumstances of the statement and the reliability of the person to whom the statement was made provide sufficient indica of reliability; and

(b) the child * * *

(i) testifies at the proceedings; * * *

In determining whether there are sufficient indicia of reliability, the court must consider, among other things, the spontaneity of the statements, the consistency of the statements, the motive to fabricate, the victim's mental state, the use of age-appropriate terminology, and the proximity in time between the statement and the events described. State v. Conklin, 444 N.W.2d 268, 276 (Minn. 1989); State v. Bates, 507 N.W.2d 847, 852 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993); State v. Lonergan, 505 N.W.2d 349, 355 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Rulings on evidentiary matters rest within the sound discretion of the trial court. Bates, 507 N.W.2d at 852.

Appellant argues that the trial court abused its discretion by erroneously admitting M.B.'s out-of-court statement because the time, the content, the circumstances of the statements, and the reliability of the persons to whom the statements were made did not provide sufficient indicia of reliability. We disagree. The trial court specifically determined that appellant had an opportunity to commit the assault, that M.B. had no motive to fabricate, that M.B.'s statements were reasonably spontaneous, that the statements of M.B. were not the product of a lengthy interrogation or leading questions, beyond what was appropriate and necessary for a child of her age, that the statements were generally consistent and that the inconsistencies were not particularly relevant to reliability, and that the statements were given relatively soon after the incidents.

The record clearly supports the trial court's determination. M.B.'s statements were made close in time to the incidents alleged; although they vary in some particulars, such as the number of occurrences, they were consistent in all critical aspects. Further, M.B.'s statements appear spontaneous. In her conversation with K.S. and in all of the interviews with professionals, M.B. brought up the incident with her father and freely discussed it using age-appropriate terminology.[1] We conclude that the trial court did not abuse its discretion by admitting M.B.'s out-of-court statements; there were sufficient indicia of reliability.

2. Sufficiency of the evidence.

Where there is a challenge to the sufficiency of the evidence, the review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that 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).

Corroboration of a complainant's testimony in a prosecution for criminal sexual conduct is generally not required. Minn. Stat. § 609.347, subd. 1 (1994); State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993). Corroboration of a child's allegations of sexual abuse is necessary only when the evidence is otherwise insufficient to sustain the conviction. Id. Appellant argues that the evidence was insufficient for a conviction because M.B.'s statements were inconsistent. We disagree. While M.B.'s recollection of the details may have been inconsistent, M.B. has consistently described appellant's behavior and threats. Any inconsistencies would go to M.B.'s credibility, an issue for the jury to determine.

3. In camera review and the right to discovery.

Finally, appellant argues that because he was not given complete access to all the confidential notes and records of Carlson's therapy sessions with M.B., he was denied the right to confront witnesses and defend himself. Appellant argues that the unreleased portion of Carlson's file may indicate that M.B. retracted her allegation and that, because he was unable to look at the entire file with an advocate's eye, he could not effectively cross-examine Carlson. Again, we disagree. Rulings on evidentiary matters rest within the sound discretion of the trial court. Bates, 507 N.W.2d at 852. After this court's independent review of the sealed notes and records, we find no abuse of discretion in disclosing only those portions of the files the trial court found relevant to appellant's defense. Further, appellant was afforded the opportunity to cross-examine Carlson fully regarding M.B.'s treatment and therapy, and, in fact, asked Carlson about her notes, the context of M.B.'s statements, and whether or not M.B. had retracted. Limited discovery of Carlson's confidential reports did not deny appellant the right to a fair trial or the right to confrontation.

Affirmed.

[ ]1We note that appellant's argument that the word "dick" is not age appropriate is without support in the record.