may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Todd Jeffrey Kadel,
Filed March 23, 1999
Affirmed in part, reversed in part, and remanded
Otter Tail County District Court
File No. K1962238
David J. Hauser, Otter Tail County Attorney, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This appeal is from a judgment of conviction for first- and second-degree criminal sexual conduct. Minn. Stat. §§ 609.342, subd. 1(a), (h)(iii), 609.343, subd. 1(a), (h)(iii) (1996). We conclude that the trial court did not abuse its discretion in denying appellant's motion for a new trial based on a discovery violation, and did not err in allowing support persons in the courtroom. We also conclude that the prosecutor did not commit prejudicial misconduct. The trial court did err in adjudicating convictions and sentencing on all counts. We affirm in part, reverse in part by vacating judgment of conviction as to all but one count, and remand for resentencing on a single count.
Appellant Todd Kadel was charged with multiple counts of first-degree and second-degree criminal sexual conduct committed against his daughter, A.A., during a period of two to three years ending when A.A. was eight years old.
At a pretrial conference, Kadel argued that the trial court should review in camera the records of A.A.'s counseling with Dr. Mary Ellen Arnold, a clinical psychologist, and the state made a motion to allow two support persons, A.A.'s mother and grandmother, to be in the courtroom during A.A.'s testimony. The prosecution opposed Kadel's request for in camera review, noting that it had disclosed Dr. Arnold as a potential witness and provided copies of "counseling records with the victim." Kadel objected to the presence of support persons, arguing that it could tend to influence the child's testimony.
The trial court granted the state's motion to allow support persons. The court denied Kadel's motion for in camera review, finding that Kadel had not shown that the counseling records were material or that they were likely to be favorable to the defense.
At another pretrial conference, Kadel moved to prevent the state from making any reference to an alleged flight by Kadel following the report of abuse. The prosecutor stated she did not intend to offer any such evidence, only evidence of the investigating officer's efforts to locate Kadel. The trial court ruled that any evidence suggesting Kadel had fled following the abuse report would not be admissible.
Dr. Arnold was the state's first witness. She testified that A.A. was referred to her in November 1996 by her mother, K.A., and that she was still counseling A.A. Dr. Arnold testified that she made a diagnostic assessment following her first two sessions with A.A., relying on her clinical interviews with A.A., K.A.'s report, A.A.'s school history, and a prior psychological evaluation of A.A. Defense counsel objected to this testimony, stating that he did not have discovery concerning the prior psychological evaluation, Arnold's contacts with the school, and other materials. The prosecutor noted that Arnold had brought the material with her to court, and it was decided that defense counsel would review the records while the direct examination of Arnold continued. Defense counsel later cross-examined Arnold based on the reports he had an opportunity to review.
The state's final witness was Detective Carol Hart, who investigated A.A.'s report of abuse. The prosecutor elicited the fact that Hart had attempted, but not completed, an interview with Kadel. The trial court sustained a defense objection and instructed the jury to disregard the answer. On cross-examination, when defense counsel inquired about the failure to seek a search warrant for Kadel's house, Hart replied, "I wished to speak with Mr. Kadel first prior to --." Defense counsel interrupted with an objection, which was sustained with an instruction to disregard the response. When the prosecutor revisited the issue on redirect, eliciting testimony that police generally talk with the suspect before seeking a search warrant, the trial court again sustained a defense objection and instructed the jury to disregard the answer.
The trial court denied Kadel's request for a new trial based on Hart's testimony. The jury found Kadel guilty on all five counts, and the trial court sentenced him to concurrent terms of 110, 88, 146, 65, and 108 months.
If a discovery violation has occurred, the trial court has wide discretion to determine the appropriate remedy. State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995). This court will reverse the trial court's decision only on a showing of a clear abuse of discretion. Id. at 198.
Kadel has not shown a reasonable probability that the outcome would have been different if the notes had been disclosed earlier. See id. (holding that new trial is ordinarily not required unless there is reasonable probability outcome would have been different absent discovery violation). First, the court gave defense counsel an opportunity to review the newly disclosed notes in the middle of trial and counsel accepted this procedure without asking for additional time. Second, defense counsel conducted a highly effective cross-examination of Dr. Arnold despite the delayed disclosure. Finally, although pretrial disclosure of the notes might have altered defense counsel's strategy in opening statement, there were references in other notes that were timely disclosed that also weakened the theory defense counsel proposed in opening statement. Kadel has not made the required showing of prejudice from the delayed disclosure.
The trial court sustained the defense objection to each of Detective Hart's three responses referring to her inability to interview Kadel. The trial court also instructed the jury to disregard each response. Such a curative instruction is ordinarily presumed to be effective in curing any prejudice. See State v. Wellman, 341 N.W.2d 561, 562 (Minn. 1983) (declining to decide whether there was prosecutorial misconduct in eliciting evidence where trial court ordered evidence stricken and instructed jury to disregard it); see also Peterson v. Burlington N. R.R. Co., 399 N.W.2d 175, 177 (Minn. App. 1987) (curative instruction usually will mitigate any prejudice resulting from improper argument), review denied (Minn. Mar. 18, 1987). Although Kadel claims the curative instruction was not sufficient here because there were three prejudicial responses, his own counsel elicited the second response and it does not appear the third response was intentionally elicited by the prosecutor.
Hart's testimony did not create a significant inference that Kadel had fled the area. It may have implied that Kadel refused to talk to police. But Kadel did testify, denying the offense and presenting his story fully to the jury. The prosecutor did not argue Kadel's failure to give a statement to police in her closing argument. Assuming there was prosecutorial misconduct, we conclude that Hart's three responses, one of which was elicited by defense counsel, and all of which were stricken by the court, did not play a substantial part in influencing the jury to convict. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating harmless error standard for less-serious prosecutorial misconduct).
present on noticed motion, evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness.
Id. The court should deny the request for a support person if there is "a substantial risk of influencing or affecting the content of [the minor witness's] testimony." Id.
Kadel contends that there was no evidence that A.A. needed a support person or that a support person would be helpful to A.A., and there was ample evidence that A.A.'s mother posed a "substantial risk" of influencing the child's testimony. The state argues that Kadel failed to object in the trial court and therefore must show plain error in allowing the support persons. But the record shows that at the June 30, 1997, pretrial conference, defense counsel objected to the presence of a support person or persons.
At the pretrial hearing, Kadel opposed the state's motion to allow support persons, arguing that it would tend to influence the child's testimony. In response, the prosecutor stated that she had talked with A.A., who had requested at least one support person. We conclude the statute does not require more. Kadel's argument assumes that a formal hearing is required, with the prosecutor presenting evidence in the form of testimony under oath supporting the need for a support person. The statute requires only a noticed motion and evidence; no hearing is required.
If evidence shows that a support person is desired and will be helpful to the witness, the court is required to grant the request for a support person
unless information presented by the defendant or noticed by the court establishes that the support person's attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony.
Kadel cites testimony at trial that he contends demonstrates that A.A.'s mother's attendance during A.A.'s testimony posed a substantial risk of influencing A.A.'s testimony. However, the testimony that Kadel cites occurred after A.A. testified at trial, and, therefore, did not provide any basis for the trial court to deny the request for support persons.
A defendant may not be convicted of multiple counts of criminal sexual conduct "based on the same evidence and the same acts." State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989). The state concedes that because it could not elicit from A.A. testimony differentiating the sexual acts in the various counts as to time or place, Kadel can be convicted on only one of the counts charged. See e.g. State v. Larson, 520 N.W.2d 456, 463 (Minn. App. 1994) (vacating conviction for sexual contact occurring at relatively same time and place as sexual penetration for which defendant also convicted), review denied (Minn. Oct. 14, 1994). It is within the trial court's discretion to determine on which count to adjudicate and impose sentence. State v. Alt, 529 N.W.2d 727, 731 (Minn. App. 1995), review denied (Minn. July 20, 1995). Accordingly, we remand for this purpose and for resentencing.
Kadel submitted a supplemental pro se brief arguing that there are inconsistencies between A.A.'s testimony and her prior statements as well as discrepancies in the evidence that require reversal of the conviction. But the weight of contradicted evidence is for the jury to determine, and even inconsistencies in the state's case do not require reversal. State v. McAdory, 543 N.W.2d 692, 695-96 (Minn. App. 1996); State v. Plummer, 511 N.W.2d 36, 38 (Minn. App. 1994).
Affirmed in part, reversed in part, and remanded.