may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed November 24, 1998
Mower County District Court
File No. J1-97-50716
Patrick A. Oman, Mower County Attorney, Katherine M. Sachs, Assistant County Attorney, Mower County Courthouse, Austin, MN 55912 (for respondent)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Foley, Judge.
K.J.T., a juvenile, appeals from an order adjudicating him delinquent for committing second-degree criminal sexual conduct. We affirm.
Sometime during the summer or fall of 1996, L.M.T. (age 5) and her brother (age 8), spent the night at their grandparents' home. Appellant K.J.T. (age 11), the children's uncle, lived there with his parents. K.J.T.'s father watched the children by himself. That night, all three children slept in K.J.T.'s bedroom, using a set of bunk beds and the floor. There were no immediate allegations of sexual abuse.
In April 1997, L.M.T.'s father asked L.M.T. if something had happened between her and K.J.T. on the night she and her brother had stayed at their grandparents' home. She reluctantly told her father that K.J.T. had done "naughty" things to her. The matter was referred to the Mower County Sheriff's Office.
In a videotaped interview of L.M.T. conducted by former Deputy Sheriff Dale Russell on April 24, 1997, L.M.T. stated that she had been sexually abused by K.J.T. Using age-appropriate language, she told Deputy Russell that: (1) she initially had her clothes on, but K.J.T. pulled down her pants; (2) K.J.T. also had his pants down, and she could see his "wiener"; (3) K.J.T. touched her "bottom" with his "wiener" and his mouth; and (4) K.J.T. put his "wiener" in her "bottom," and it did not feel good.
Earlier in the interview, L.M.T. explained that a "wiener" was a boy's penis, and a "bottom" was a girl's vagina. She also indicated that before the alleged abuse occurred, K.J.T. used a "medicine thing" to squirt her with "pee." While K.J.T. has adamantly denied sexually abusing L.M.T., he does admit to spraying L.M.T. with water from the toilet using a syringe-like device.
On October 24, 1997, the district court heard the matter of K.J.T.'s delinquency petition alleging six counts of criminal sexual conduct. K.J.T. objected to the admission of L.M.T.'s videotaped interview as substantive evidence. The district court preserved this objection, allowing both sides to submit briefs on the issue at the close of the hearing. Concluding that the tape was admissible pursuant to Minn. Stat. § 595.02, subd. 3 (1996), the district court found that K.J.T. had committed second-degree criminal sexual conduct and adjudicated him delinquent.
"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). This court, therefore, will not reverse the ruling unless the district court abused its discretion. State v. Lonergan, 505 N.W.2d 349, 353 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).
The district court admitted, pursuant to statute, the videotaped interview of L.M.T. as substantive evidence in K.J.T.'s delinquency proceeding. The statute states:
An out-of-court statement 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 * * *, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:
(a) the court * * * finds, in a hearing * * * , that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and
(b) the child * * * either:
(i) testifies at the proceedings; or
(ii) is unavailable as a witness and there is corroborative evidence of the act.
Minn. Stat. § 595.02, subd. 3. The statute also requires notice by the proponent to the adverse party. Id., subd. 3(c). Satisfaction of the notice requirement is undisputed.
A. Sufficient Indicia of Reliability
K.J.T. claims that the time, content, and circumstances of the videotaped interview of L.M.T. do not provide sufficient indicia of reliability. This claim is based largely on the timing of the interview because the incident allegedly took place in the summer or fall of 1996, but the report and interview did not occur until April 1997. Nevertheless, there were detailed findings in support of the interview's reliability.
The district court found that former Deputy Russell had extensive training in interviewing victims of sexual abuse. One technique is to avoid the use of leading questions. Another important aspect of interviewing is to determine whether the victim is able to communicate effectively. This includes an awareness of the victim's emotions, mannerisms, and the use of age-appropriate language.
After reviewing the interview, the district court concluded that the criteria for reliability had been met. The district court based this conclusion on several findings: (1) Deputy Russell did not use leading questions in an inappropriate manner; (2) although reluctant, L.M.T. did provide answers to Deputy Russell's questions; and (3) L.M.T. used her own words and age-appropriate language in relating the specifics of the incident.
Additionally, the district court found that L.M.T.'s statement remained consistent. In fact, she corrected Deputy Russell when he identified another as the alleged abuser. Finally, there was testimony that L.M.T. was reluctant to stay at K.J.T.'s house during the early fall of 1996 and that it is not unusual for a victim of sexual abuse to delay in reporting the incident.
This court has analyzed the sufficiency of a statement's reliability on several occasions. See Lonergan, 505 N.W.2d at 355 (basing reliability on use of non-leading questions, victim's age-appropriate language and good memory of details, and defense's opportunity to cross-examine interviewing officer); State v. Struss, 404 N.W.2d 811, 816 (Minn. App. 1987) (concluding statements were properly admitted where answers were spontaneous, not the product of lengthy interrogation, and victim did not want to stay with alleged abuser following incident), review denied (Minn. June 9, 1987); State v. Bellotti, 383 N.W.2d 308, 312-13 (Minn. App. 1986) (finding sufficient reliability based on, inter alia, victim's use of terminology typical for age, reluctance to speak of incident, consistency of statement, and fact that victim did not agree with everything questioners asked), review denied (Minn. Apr. 24, 1986).
Thus, we conclude that the record supports the district court's finding that the time, content, and circumstances of the videotaped interview of L.M.T. provided sufficient indicia of reliability.
K.J.T. claims that L.M.T. was not unavailable to testify as a witness in his delinquency proceeding. This court has stated:
A witness is unavailable if he "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so."
Lonergan, 505 N.W.2d at 353 (quoting Minn. R. Evid. 804(a)(2)).
According to the district court's findings, the prosecutor had spoken with L.M.T. and felt that she would be able to testify; but when her time came, she refused. The district court noted that L.M.T.'s response was the same even after the state's motion to allow her to testify by an alternative method, indicating that she was too uncomfortable or frightened. Thus, the district court concluded that L.M.T. was unavailable. See Minn. R. Evid. 804 1989 comm. cmt. ("If the declarant * * * cannot testify * * * for any reason, whether justified or not, the declarant is deemed to be unavailable * * *.").
Despite K.J.T's attempt to distinguish Lonergan from the facts here, we conclude that the record supports the district court's finding that L.M.T. was unavailable to testify as a witness in the delinquency proceeding.
C. Corroborative Evidence of the Act
K.J.T. claims that there was no corroborative evidence of the alleged sexual abuse. In support of this claim, K.J.T. cites State v. Carver, 380 N.W.2d 821 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986), where a "review of the record disclose[d] scant corroboration." Id. at 826 (noting that district court "did little more than recite the elements of Minn. Stat. § 595.02, subd. 3 and made no specific findings in making its decision"). But unlike the district court in Carver, the district court explained the bases for its decision here.
The district court found corroborative evidence of the alleged sexual abuse from two sources. First, the alleged abuse took place on a night that L.M.T. and her brother slept at K.J.T.'s house. Specifically, all three children slept in K.J.T.'s bedroom. Second, L.M.T. also alleged that K.J.T. squirted her with "pee" using a "medicine thing" that same night. Although K.J.T. adamantly denies sexually abusing L.M.T., he does admit to spraying L.M.T. with water from the toilet using a syringe-like device. Other evidence included testimony by L.M.T.'s father concerning L.M.T.'s reluctance to visit K.J.T.'s house following the alleged incident and her statement to him that K.J.T. had done "naughty" things to her.
We conclude that the record supports the district court's finding that there was corroborative evidence of the act. Consequently, the district court did not abuse its discretion in admitting, pursuant to Minn. Stat. § 595.02, subd. 3, the videotaped interview of L.M.T. as substantive evidence in K.J.T.'s delinquency proceeding.
K.J.T. also contends that there was insufficient evidence for the district court to adjudicate him delinquent for second-degree criminal sexual conduct. In reviewing such a contention, this court will affirm the order if the district court,
giving due regard to the presumption of innocence and to petitioner's burden of proving fault beyond a reasonable doubt, could reasonably have reached its conclusion on the facts in the record and any legitimate inferences that can be drawn from them.
In re Welfare of W.W.M., 400 N.W.2d 203, 205 (Minn. App. 1987) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)). This court will view the evidence "in the light most favorable to petitioner and * * * assume that the trial judge believed petitioner's witnesses and disbelieved any contrary evidence." Id. (citing Merrill, 274 N.W.2d at 111).
This court must assume that the district court believed L.M.T.'s allegations admitted into evidence through her videotaped interview and disbelieved K.J.T.'s contrary testimony. As a result, it was reasonable for the district court to conclude, beyond a reasonable doubt, that K.J.T. committed second-degree criminal sexual conduct in violation of Minn. Stat. 609.343, subd. 1(a) (1996) (requiring sexual contact, not penetration, of complainant under age 13 and actor more than 36 months older). We therefore conclude that there was sufficient evidence to adjudicate K.J.T. delinquent for second-degree criminal sexual conduct.
[*]Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.