This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-2068

State of Minnesota,
Respondent,

vs.

Eric Leon Gates,
Appellant.

Filed November 30, 1999
Affirmed
Lansing, Judge

Kanabec County District Court
File No. K898156

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Norman K. Loren, Kanabec County Attorney, 19 North Vine Street, Mora, MN 55051 (for respondent)

Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from conviction for first-degree criminal sexual conduct, Eric Gates challenges the sufficiency of identification evidence, the admissibility of expert testimony on the effects of sexual assault, the trial conduct of the prosecutor, and Gatesí exclusion from an in-chambers conference. We find no abuse of the district courtís discretion in its evidentiary and procedural rulings and conclude that the evidence identitifying Gates was sufficient to support the juryís guilty verdict. We affirm.

FACTS

A jury convicted Eric Gates, 19, of sexual penetration of C.M.D., a 12 year old. The two were at a friendís house in January 1998 drinking beer with other youths when C.M.D. became intoxicated and went to lie down in a bedroom. C.M.D. testified that Gates entered the bedroom a short time later and lay down next to her on the bed, lowered his pants, and requested that she perform fellatio on him. C.M.D. complied. Gates also digitally penetrated her vagina; C.M.D told him to stop because he was hurting her. After Gates left the bedroom, C.M.D. got up, left the house, and began walking home. Gates, passing by in a car, stopped and gave her a ride home.

A police liaison at C.M.D.ís school contacted C.M.D. in March 1988 because C.M.D.ís friends reported that she may have been sexually assaulted. After preliminary questions, the officer conducted a videotaped interview in which C.M.D. stated that she performed fellatio on Gates and that he digitally penetrated her.

At trial, in addition to C.M.D.ís testimony, the state introduced the videotape of the interview and an expert witness who testified on the effect of sexual abuse on adolescents. The expert testimony addressed the trauma characteristically experienced by sexually abused adolescents and how that trauma may delay reporting. Gates testified that he had no sexual contact with C.M.D. His defense of mistaken identification also relied on C.M.D.ís failure to testify about his distinguishing personal features, including long fingernails, jewelry, scars, and tattoos. Gates showed the jury a large tattoo on his abdomen that spelled "CRIPS."

During deliberations the jury, apparently because of the "CRIPS" tattoo, expressed safety concerns to the bailiff and asked that their names and addresses be withheld from the defendant. The district court excluded Gates from an in-chambers conference at which he informed the attorneys of the bailiffís report. The district court determined that no extra precautions were necessary.

Gates appeals his conviction, raising four issues: (1) the sufficiency of the identification evidence; (2) the admission of the expert testimony on the effects of sexual abuse on adolescents; (3) the prosecutorís conduct in cross-examination, opening statement, and summation; and (4) the exclusion of Gates from the in-chambers conference.

D E C I S I O N

I

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences drawn from those facts, a jury reasonably could conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We do not retry the facts, but instead view the evidence in the light most favorable to the juryís verdict and assume the jury believed the evidence that supported the verdict and disbelieved the evidence that did not. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

The jury convicted Gates of first-degree criminal sexual assault in violation of Minn. Stat. ß 609.342, subd. 1(a) (1996). The jury found that Gates had sexually penetrated C.M.D. and that Gates was more than 36 months older than C.M.D., who was under 13 years of age. Gates does not challenge the sufficiency of evidence on the statutory elements, but he disputes identity. He contends that C.M.D.ís uncorroborated testimony does not establish beyond a reasonable doubt that he was the person who committed the criminal sexual penetration.

Minnesota does not require corroboration of the testimony of a complaining witness in a sexual misconduct case. Minn. Stat. ß 609.347, subd. 1 (1996). A conviction can rest on the positive and consistent testimony of a single credible witness. Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995); see also State v. Shoop, 441 N.W.2d 475, 478 n.2 (Minn. 1989) (explaining that corroboration requirement in sexual assault prosecutions limited to single-witness identifications that are based on fleeting or limited observations).

C.M.D. testified that although the room was dark, she saw Gatesí face in the light from the hallway twice: once when he opened the door and entered the room and again while Gates was lying next to her and someone came in to ask for a cigarette. She also testified that she recognized Gatesí voice in the hall before he entered the room and that she knew it was Gates because the other male in the house who was awake at the time had longer hair. Additionally, Gates was not a stranger to C.M.D.; she had seen him earlier in the evening and she had met him earlier, "before Christmas." Although Gates denied that he was the person who entered the room, it is the jury, not the reviewing court, that determines whether to accept or reject conflicting testimony. State v. Larson, 281 N.W.2d 481, 487 (Minn. 1979). C.M.D.ís testimony provided a sufficient basis for the juryís determination on identification. See State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969) (listing factors for jury consideration in evaluating eyewitness identification reliability); State v. Titworth, 381 N.W.2d 510, 511 (Minn. App. 1986) (victimís identification sustainable when she briefly saw attackerís face, had prior familiarity with him, and recognized his voice), review denied (Minn. Apr. 18, 1986).

II

The district court admitted, over defense counselís broad relevancy objection, testimony on the effects of sexual abuse on adolescents. This court will reverse a ruling on the admissibility of evidence only if the district court abused its discretion and the ruling resulted in prejudice. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). Without establishing a categorical rule of admissibility for all expert testimony on the impact of sexual abuse on children, the supreme court has upheld admission of testimony when it is helpful to the trier of fact. State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987) (expert testimony is generally admissible if it assists trier of fact, has a reasonable basis, is relevant, and its probative value outweighs potential for prejudice).

The expert testified about a range of adverse behavioral, cognitive, and psychological effects. Generally, this type of evidence is relevant when the state seeks to establish that sexual abuse actually occurred. See State v. Meyers, 359 N.W.2d 604, 609 (Minn. 1984). Expert testimony on the effects of sexual abuse is also relevant in explaining a delay in reporting the abuse. See, e.g., State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987). We agree that because only identity and not the existence of the abuse was contested, the evidence should have been limited to the delay-in-reporting issue. But we see no reversible error in the overbroad scope of the testimony. The evidence was only a small part of the stateís case, it related to adolescents generally, and did not provide any specific connection to C.M.D. or Gates, neither of whom the expert had met. We discern no reasonable probability that the verdict would have been more favorable to Gates if the evidence had not been admitted. See State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995) (listing factors of harmless-error analysis).

III

Gatesí claim of prosecutorial misconduct rests on three questions propounded during the trial together with the prosecutorís remarks in his opening statement and summation. On cross-examination, the prosecutor asked Gates about gang membership and his sexually-transmitted disease history. A prosecution witness also made a reference to Gatesí other "victims."

We are not persuaded that any of the prosecutorís questions were improper. The question about gang membership followed Gatesí display of his CRIPS tattoo; a question about sexually-transmitted diseases was also within the scope of cross-examination, and no evidence indicates that the witnessís response referring to "other victims" was intentionally elicited.

Remarks in closing argument characterizing Gates as a predator were fair arguments based on the evidence, but the metaphors relying on animals went beyond the bounds of proper cross-examination. See State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994) (using fable of "scorpion" improper character reference); State v. Merrill, 428 N.W.2d 361, 372 (Minn. 1988) (characterization of defendant as "an animal" improper). But the references, which constitute six sentences in an eleven-page closing, do not rise to reversible misconduct. Significantly, the defense objected to none of the comments or questions at trial. By failing to object to any of the alleged misconduct, failing to seek cautionary instructions, and failing to establish that the comments were unduly prejudicial, Gates cannot prevail on an argument of prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 451 (Minn. 1997).

IV

Under the Minnesota Rules of Criminal Procedure, criminal defendants have a right to be present at every stage of their trial. Minn. R. Crim. P. 26.03, subd. 1; State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993). The right to be present under this rule is broader than the federal constitutional right to be present at all critical stages of trial. Ware, 498 N.W.2d at 457. An in-chambers conference is a trial stage when it is for the purpose of determining whether a defendant threatened a witness. State v. Keeton, 589 N.W.2d 85, 88 (Minn. 1998). An in-chambers conference on an issue of law, on the other hand, is not a trial stage at which the defendant has a right to be present. State v. Bouwman, 354 N.W.2d 1, 8-9 (Minn. 1984).

On this record, we are not persuaded that the brief discussion among the judge and the attorneys in which the judge reported the jurorsí safety concern was a stage of trial. In any event, a new trial is not required because of a trial-stage exclusion unless the exclusion was prejudicial. Ware, 498 N.W.2d at 457-58. The district court only reported the concern and told counsel and the bailiff that he would follow the standard procedures, which did not allow defendants access to jurorsí names and addresses. The court took no action that affected the conduct of the trial, and an argument of prejudice cannot be predicated on Gatesí exclusion from this limited in-chambers conference.

Affirmed.