may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dennis Duane Rusco,
Filed December 23, 1997
Crow Wing County District Court
File No. K196698
Donald F. Ryan, Crow Wing County Attorney, Courthouse, 326 Laurel Street, Brainerd, MN 56401 (for Respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Willis, Presiding Judge, Norton, Judge, and Schumacher, Judge.
Appellant Dennis Rusco challenges the sufficiency of the evidence for his conviction for first-degree criminal sexual conduct, the district court's use of sentencing guidelines enacted after the conduct began, and the imposition of a 50% upward durational departure. We affirm.
The primary defense witness at trial was Rusco's wife, who testified that after the 1986 incident, Rusco refused to touch his children or to be alone with any of them. A family friend corroborated this testimony. Rusco's wife testified that police arrived at the Rusco home on Christmas 1995 in response to a call from N.R. falsely alleging that Rusco had threatened to kill R.R. Rusco's sister-in-law, with whom his wife was on the phone at the time of the alleged incident, testified that she had heard no commotion. The defense argued that the children regularly used false abuse claims to manipulate their parents and noted that R.R. made her allegations shortly after a family fight, presenting testimony from J.R. that R.R. had called him asking for N.R.'s phone number so she could learn what she had to say to get her father arrested. The defense also argued that R.R.'s belligerent behavior toward her parents and her willingness to report the physical abuse that resulted in numerous removals from her parents' home were inconsistent with her claim that she delayed reporting the sexual abuse out of fear of her father.
The state offered the testimony of the officer to whom R.R. had first reported the abuse in a recorded statement that was largely consistent with her trial testimony and also offered the testimony of the Ruscos' ongoing child protection worker, who stated that the county had "substantiated" various physical abuse allegations, although she personally had done none of the investigation. The worker also described the Ruscos as uncooperative. The state argued that Rusco's wife showed a pattern of minimizing his abusive behavior and that R.R.'s delay in bringing the charges was not unusual for a physically and sexually abused child.
The defense did not request a special interrogatory regarding the date of the offense. The court found no reasonable probability that all the offenses had taken place before August 1, 1989, and applied the sentencing guidelines in effect after that date. The court then imposed a 147-month sentence, which is a 50% upward durational departure from the presumptive sentence, based on four grounds: (1) Rusco's prior criminal sexual conduct conviction, (2) that both oral and digital penetration occurred, (3) that the abuse took place over a long period of time and for much of that time R.R. was under age 13, and (4) the psychological effects of the abuse on R.R. The court explained the last point at the sentencing hearing:
Now, I went over the transcript of the victim's testimony and other witnesses' testimony, and I did not find any evidence to support the claim that there's been severe psychological effects on the victim. I'm saying I didn't find any testimony to that effect. But, I can take notice from my involvement in the CHIPS case involved with this family that there has been a history of turmoil and upheaval in this family, and specifically in the life of [R.R.], which during most of the time that the case was being dealt with did not address issues of sexual abuse.
But, now in hindsight, the Court can see and appreciate the grave psychological effect that this had on [R.R.], and how it contributed to her dysfunction as a member of that family, and her dysfunction as a citizen. And I do find this to be an aggravating circumstance, as well.
On appeal, Rusco challenges the sufficiency of the evidence, the court's use of the August 1989 guidelines, and the grounds for departure. He also filed a pro se supplemental brief describing exculpatory evidence that was not discussed at trial. We affirm.
In a sufficiency of the evidence case, 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 which they did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The test is whether "the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A reviewing court must assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
"[I]nconsistencies in the state's case will not require a reversal of the jury verdict." State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). "[W]eighing the credibility of witnesses is the exclusive function of the jury." Id. The existence of contradictory or exculpatory evidence will not render the verdict improper if the victim's testimony establishes all the elements of the crime. See Marshall v. State, 395 N.W.2d 362, 365-66 (Minn. App. 1986) (upholding sufficiency of evidence for intrafamilial sexual abuse where defendant provided corroborated testimony that he was out of town on day incident allegedly occurred), review denied (Minn. Dec. 17, 1986); Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995) (upholding sufficiency of evidence based solely on rape victim's testimony). Minnesota courts have repeatedly upheld juries' decisions to believe witnesses whose veracity appeared questionable. See Pieschke, 295 N.W.2d at 584 (citing cases); but cf. State v. Kemp, 272 Minn. 447, 449-50, 138 N.W.2d 610, 611-12 (1965) (reversing where single witness was of "dubious veracity," and defense failed to present witness's prior inconsistent statements and evidence corroborating defendant's alibi).
Here, the jury was required to believe either R.R.'s account of events or that of Rusco and his wife. While Rusco presented considerable evidence attacking R.R.'s credibility, a reasonable jury might have believed that R.R. and N.R. hated Rusco because of the abuse they had suffered, and therefore possibly fabricated the Christmas 1995 incident, and a reasonable jury might have believed the state's theory that Rusco's wife ignored evidence that reflected negatively on Rusco. The record contains sufficient evidence from which a jury could have found Rusco guilty beyond a reasonable doubt.
Use of August 1989 Sentencing Guidelines
Where multiple offenses are an element of a crime, sentencing is imposed according to the guidelines in effect on the date of the earliest offense. Minnesota Sentencing Guidelines, comment II.A.02.b. But this rule does not apply where a crime requiring only a single offense occurs on an uncertain date within a defined time period. State v. Goldenstein, 505 N.W.2d 332, 347 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In such cases, the defendant has a right to have the jury determine the date of the offense, and the jury must resolve any reasonable doubt in favor of the defendant. State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992). The defendant must exercise this right by requesting a special interrogatory, and failure to do so gives the court the right to resolve the issue for sentencing purposes. State v. Murray, 495 N.W.2d 412, 412-13 (Minn. 1993). But failure to request an interrogatory is "excusable" where no testimony relates to the date of the offense, and in that circumstance doubt should be resolved in the defendant's favor. Goldenstein, 505 N.W.2d at 348. Where the court makes the determination in a sexual abuse case, the court may apply the later sentencing guideline "only if there is no reasonable likelihood that all of [the defendant's] multiple acts of penetration of the child in question * * * occurred before the statute became effective." Murray, 495 N.W.2d at 413 (emphasis in original).
In Goldenstein, this court found the failure to request a special interrogatory excusable because the conviction was based entirely on hearsay statements that were vague as to whether a single or multiple incidents had occurred and gave no information as to timing. Goldenstein, 505 N.W.2d at 337-39, 348. This court also addressed this issue in State v. Lunsford, 507 N.W.2d 239 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993). But in Lunsford, the testimony implied multiple incidents of penetration and stated that the abuse took place during "the summer of 1989." Id. at 241. This court held that the defendant's failure to request an interrogatory was not excusable because trial testimony addressed the dates of the offense and remanded for findings by the court on the probability that all the incidents took place before August 1. Id. at 243-44.
We conclude that Lunsford governs this case. R.R.'s statement to police, which was in evidence at trial, indicates that oral penetration occurred for the last time shortly before her first removal from Rusco's home, which the record places in 1992. R.R. testified consistently with her statement as to the dates of the abuse as a whole, but was less specific as to the dates of penetration. Because trial testimony addressed the dates of the offense and Rusco did not request a special interrogatory, we hold that the court had the authority to determine whether there was any reasonable likelihood that all the incidents of penetration took place before August 1989.
Several cases have noted the court's broad power to determine facts related to sentencing, but those cases have not established a general standard of review for such findings. See, e.g., State v. Olson, 379 N.W.2d 524, 527 (Minn. 1986) (upholding sentencing based on value of stolen property, which jury had not established). The two situations in which courts most frequently exercise this authority are reviewed under an abuse of discretion standard. State v. Terpstra, 534 N.W.2d 554, 556 (Minn. App. 1995) (determination of restitution), aff'd, 546 N.W.2d 280 (Minn. 1996); Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989) (calculation of criminal history score). In civil cases, a trial court's findings of fact are reversed only where clearly erroneous. Minn. R. Civ. P. 52.01. Under either standard, R.R.'s testimony provides sufficient support for the court's finding that there was no reasonable likelihood that all acts of penetration occurred before the August 1, 1989, sentencing guideline modification; we therefore affirm the court's decision to sentence Rusco under the guidelines in effect after that date.
A court may depart upward from the presumptive sentence only if aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). The standard for a departure is
whether [defendant's] conduct somehow may be said to be significantly more serious than typically involved in the commission of the offense * * * .
Id. This court reviews a departure under an abuse of discretion standard. State v. Dokken, 487 N.W.2d 914, 916 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). The sentencing guidelines provide a non-exhaustive list of aggravating circumstances. Minn. Sent. Guidelines II.D.2.b. Even if the district court's stated reasons for departure are improper, the reviewing court may affirm if the record contains other grounds to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
The district court here relied on four factors in imposing a 50% upward departure: (1) Rusco's prior criminal sexual conduct conviction; (2) multiple forms of penetration; (3) the long period of time over which the abuse occurred, during most of which R.R. was under age 13; and (4) the psychological effects on R.R. Rusco concedes that the first factor is specifically listed in the guidelines. Minn. Sent. Guidelines II.D.2.b(3). This court has previously held this factor alone sufficient to justify an upward departure. State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). But Rusco challenges the other stated bases, alleging that the second and third listed circumstances are typical of the type of first-degree criminal sexual conduct of which Rusco was convicted and that the district court improperly relied on evidence obtained in a closed hearing in departing based on psychological damage.
a. Multiple penetrations, multiple incidents, and age of victim
Rusco argues that multiple types of penetration, multiple incidents of abuse, and the young age of the victim are all typical of first-degree criminal sexual conduct under Minnesota law which criminalizes sexual penetration where "the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration." Minn. Stat. § 609.342, subd. 1(g) (1996). Rusco notes the presence of these factors in several reported cases involving this statute, but they are cases in which departures were not at issue on appeal. It was within the discretion of the district courts in those cases not to impose departures, and case law has specifically addressed the applicability of the aggravating circumstances cited here by the district court.
Minnesota courts have repeatedly upheld the use of multiple forms of penetration as an aggravating circumstance in child sexual abuse cases. See, e.g., State v. Dietz, 344 N.W.2d 386, 389 (Minn. 1984); State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). Similarly, the supreme court has held that while a child's age alone is normally not sufficient grounds for departure because age is an element of the offense, age may be considered in combination with other factors in determining the seriousness of the offense. State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984). The use of age has been upheld in cases involving victims of R.R.'s age. See Dietz, 344 N.W.2d at 389 (nine-year-old child); State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (ten-year-old child), review denied (Minn. Feb. 28, 1990).
The length of the ongoing conduct presents a closer question. "[O]rdinarily at least, there must be more than just an ongoing course of sexual abuse of a single family member to justify a durational departure * * * ." Dietz, 344 N.W.2d at 389. Moreover, a section of the first-degree criminal sexual conduct statute under which Rusco was not charged includes "multiple acts committed over an extended period of time" as an element of the offense. Minn. Stat. § 609.342, subd. 1(h)(iii) (1996). Generally, a court may not depart from the presumptive sentence on the ground that the defendant could have been charged with a more serious offense. State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984). But the court may depart when a departure could have been imposed even for the more serious charge. Id. In any event, although courts have stated that multiple offenses may be typical of intrafamilial sexual abuse cases, they have allowed extremely prolonged conduct to qualify as an aggravating circumstance. See, e.g., State v. Casady, 392 N.W.2d 629, 635 (Minn. App. 1986) (seven or eight years), review denied (Minn. Sept. 24, 1986); Kilcoyne v. State, 344 N.W.2d 394, 397 (Minn. 1984) (four years).
b. Psychological damage
Minnesota courts have upheld the use of psychological damage as a departure factor, but only in cases where the record shows that the victim required counseling or medication. Compare Allen, 482 N.W.2d at 233, and Skinner, 450 N.W.2d at 654, with State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995) (stating fact that rape victim "scared a lot" and thinks someone is behind her insufficient to warrant departure), review denied (Minn. Apr. 18, 1995). Here, the record contains no evidence of this type of psychological damage to R.R.
The judge based his determination of psychological harm on taking "notice" of the history of the family based on his involvement in juvenile delinquency cases involving the Rusco children. "Criminal cases are not normally the appropriate setting for judicial notice * * * ." State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). Even when applicable, judicial notice may be taken only of "facts of common knowledge not in dispute, and those for which neither expertise nor foundation is needed." Id.; see also Minn. R. Evid. 201(b) (judicial notice in civil cases may be taken of facts generally known in jurisdiction or readily capable of accurate determination by resort to unimpeachable sources). Information obtained in closed juvenile court proceedings is clearly not common knowledge or readily capable of corroboration.
In Pierson, this court declined an invitation to take judicial notice, for sentencing departure purposes, of permanent harm to an elderly burglary victim based on emotional distress, although it left open the possibility that a court could take notice that the victim suffered "'an' injury or 'some' harm." Pierson, 368 N.W.2d at 434. Here, to the extent that it is "generally known" that sexual abuse of a child can cause psychological harm leading to dysfunctional behavior such as R.R.'s, the harm is probably typical of the offense and thus not a proper departure factor. But because of Rusco's prior conviction and the multiple forms of penetration, in combination with R.R.'s age, the district court did not abuse its discretion in imposing a 50% upward departure in sentencing Rusco.
Issues Raised in Pro Se Supplemental Brief
Although issues not raised at trial are normally waived on appeal, in sexual abuse cases Minnesota courts have frequently considered issues raised by pro se defendants. See, e.g., Dale, 535 N.W.2d at 624. Much of the evidence Rusco discusses in his pro se supplemental brief, if it exists, is relevant to and probative of such issues as Rusco's opportunity to commit the abuse, bias of the investigating officer, the nature and extent of the investigations by child protective services, and even possible bias of the trial judge. The record contains no written evidentiary motions, and none of the evidence Rusco cites was mentioned at the omnibus hearing or in any on-record discussion with the court. It is most likely, therefore, that if there is any fault in failing to raise these issues, it lies with either Rusco or his attorney, and Rusco's claim is best characterized as one of ineffective assistance of counsel.
The record contains no information as to whether Rusco informed his attorney of any of the facts he alleges. Because we lack sufficient information to determine whether Rusco's attorney was in fact responsible for the failure to produce the evidence, we conclude that the appropriate forum, if any, for these issues would be a postconviction proceeding under Minn. Stat. § 590.01 (1996). See State v. Banks, 379 N.W.2d 168, 174 (Minn. App. 1985) (affirming on record before court but noting availability of postconviction relief), review denied (Minn. Feb. 14, 1986). In the event of such a proceeding, the postconviction court should not consider Rusco to have waived any claims based on the evidence he discusses in his pro se supplemental brief.
Judge Bruce D. Willis
[ ]1 The state cites Kilcoyne as a case in which psychological injury was used as an aggravating circumstance. That case, in which the defendant was the victim's mother's boyfriend, noted that the abuse resulted in the victim's total estrangement from her family. 344 N.W.2d at 398. In Kilcoyne, however, the child's mother had participated in the abuse, and the court cited numerous other aggravating factors, including the victim's age, the length of the conduct, multiple types of penetration, the fact that the defendant photographed the victim's genitalia, particular cruelty due to psychological torture during the abuse, and the fact that the defendant infected the victim with a venereal disease. Id. at 397.