Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Scott County District Court
File No. 9715918
Thomas J. Harbinson, Scott County Attorney, Thomas W. Haines, Assistant County Attorney, Mary M. Pieper, Assistant County Attorney, 428 South Holmes Street, Courthouse 206, Shakopee, MN 55379 (for appellant)
John M. Stuart, State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for respondent)
Rick E. Mattox, Assistant First Judicial District Public Defender, 16670 Franklin Trail S.E., Suite 250, Prior Lake, MN 55372 (for respondent)
Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge
Appellant State of Minnesota appeals from the district court's pretrial suppression of certain out-of-court statements made by an alleged child victim of sexual abuse. We affirm.
Respondent L.E.P. is charged as a juvenile with first-degree criminal sexual conduct in the alleged sexual penetration of 7-year-old K.P. Appellant alleges that, on the night of the incident, K.P. told her mother that L.E.P. touched her breasts and kissed her. Three days later, K.P. indicated to her mother that she had not told the entire truth and that L.E.P. had "put his wiener between her legs" and had moved up and down. Several days later, K.P.'s mother had K.P. examined and interviewed by a pediatric nurse practitioner experienced in forensic examinations and interviews. The nurse practitioner videotaped the process, during which K.P. made statements descriptive of sexual penetration by L.E.P.
At a pretrial hearing, the district court ruled that K.P.'s statements about the incident to her mother and her sister were admissible but that the statements during the nurse practitioner's videotaped interview were inadmissible because they were not reliable and did not fit the Minn. R. Evid. 803(4) hearsay exception.
In a pretrial appeal, the state must show clearly and unequivocally that the district court erred in its judgment and that, unless the ruling is reversed, the error will have critical impact on the outcome of the prosecution. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). Critical impact is shown where the suppression of evidence "significantly reduces the likelihood of a successful prosecution." Id. at 551. This "depends in large part on the nature of the state's evidence against the accused." State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995).
The state argues that K.P. told her story to an impartial medical witness in a setting more comfortable than a courtroom and that it "is impossible to predict how K.P. will respond when testifying at trial. She could be too terrified to speak at all
* * * ." The state notes that, without the videotaped statement, it will be left with K.P.'s statements to her mother and sister and the medical opinion of the nurse practitioner and a physician.
The state's concern at this point is entirely speculative. The state offered no evidence that K.P. will not testify or that her testimony will not be consistent with her prior statements. Furthermore, K.P.'s videotaped statements are both inculpatory and exculpatory of L.E.P., a fact that tends to diminish the critical impact of the suppression. Cf. State v. Recio-Arecibia, 404 N.W.2d 853, 855 (Minn. App. 1987) (holding that suppression of defendant's statement denying offense but corroborating some details of victim's story would not have critical impact). Thus, we hold that the state has failed to carry its burden at this pretrial stage of showing that the suppressed statements will have a critical impact on the outcome of the prosecution. We do not reach the issue of the correctness of the district court's evidentiary rulings and only note that the district court may modify its evidentiary rulings if necessary and appropriate during the trial.