This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).




State of Minnesota,



Lew Arthur Schlief,


Filed June 18, 1996


Lansing, Judge

Todd County District Court

File No. K994581

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent).

Charles G. Rasmussen, Todd County Attorney, Courthouse, 119 Third Street South, Long Prairie, MN 56347 (for Respondent).

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for Appellant).

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N


Lew Schlief challenges a jury conviction for third degree criminal sexual assault. We conclude that the district court acted within its discretion to exclude evidence of the victim's writings, that the evidence was sufficient to support the verdict, and that Schlief waived his objection to pay restitution for the victim's counseling. We affirm.


In September 1994 the state charged Lew Schlief with two counts of third degree criminal sexual conduct in violation of section 609.344, subd. 1 (b). S.D., a fourteen-year-old girl, accused Schlief, thirty-six, of vaginal penetration in October and December 1993 when she was babysitting at his home.

S.D. testified at trial that both times Schlief sat down on the couch with her, began kissing her, and they then went into Schlief's bedroom where he vaginally penetrated her. The state presented evidence of two videotaped police interviews with S.D. from September 13 and September 15, 1994.

Schlief denied any sexual contact with S.D. Schlief, his girlfriend, and his two daughters testified that S.D. rarely babysat. All four testified that Schlief was never at home when S.D. babysat.

The jury convicted Schlief on both counts of criminal sexual conduct. The court sentenced Schlief to concurrent prison sentences, fined him, and ordered him to pay $165.78 and the costs of S.D.'s future counseling as restitution. Schlief appeals, challenging an evidentiary ruling, the sufficiency of the evidence, and the restitution for future counseling.



Schlief challenges the district court's decision to exclude from evidence several of S.D.'s writings. Rulings on evidentiary matters lie in the district court's discretion and should not be reversed without an abuse of that discretion. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981). S.D.'s writings included an assertion that her brother gave her lies that worked and several statements that she was unhappy with her family and wanted to run away. The district court found these writings irrelevant.

The district court did not abuse its discretion in excluding the writings. A defendant does not have a right to introduce irrelevant or otherwise inadmissible evidence. State v. Hanninen, 533 N.W.2d 660, 661-62 (Minn. App. 1995), review denied (Minn. Sep. 28, 1995). S.D.'s writings are not probative of whether S.D. and Schlief had sexual intercourse. Schlief argues that S.D.'s comment about lies undermines her credibility. But that comment does not tend to prove or disprove a material fact in the present case. See State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984) (holding district court correctly excluded evidence in sexual abuse case that seven-year-old victim lied about taking combs from a neighbor); State v. Stafford, 404 N.W.2d 918, 922 (Minn. App. 1987) (holding, in rape action, that court properly excluded evidence that victim allegedly made a false rape claim in past), review denied (Minn. June 26, 1987).


In evaluating the sufficiency of the evidence, we must review the record and the legitimate inferences from the record in a light most favorable to the conviction to determine whether a jury could reasonably conclude the defendant was guilty of the charged offense. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). We must assume the jury believed the state's witnesses and rejected contradictory evidence. Id.

A person, over twenty-four months older than the complainant, who sexually penetrates a thirteen- to sixteen-year-old complainant is guilty of third degree criminal sexual conduct. Minn. Stat. ' 609.344, subd. 1(b) (1994). The record contains evidence of each of these elements.

S.D. testified that Schlief was thirty-six and she was fourteen in October and December 1993 when Schlief vaginally penetrated her. She said Schlief knew her age and told her not to say anything because he could get in a lot of trouble. Although S.D.'s responses in the first videotaped interview were minimal, she testified that she did not want to talk about the incidents, that she liked Schlief and had discussed family problems with him, and that she did not immediately report the incidents because she was afraid Schlief would get in trouble. S.D.'s statements in the second interview were consistent with her trial testimony. S.D.'s consistent and detailed description provides sufficient evidence for the jury's decision. See Myers, 359 N.W.2d at 608 (holding that young victim's consistent and detailed explanation was legally sufficient evidence).


In ordering restitution the court provided that "[i]f the victim has counseling in the future," Schlief is "responsible for the cost thereof." Schlief contends that the court erroneously ordered him to pay for future counseling without a finding that counseling is necessary as a result of Schlief's actions.

Schlief raised no objections on restitution to the district court. Failing to object to restitution during sentencing constitutes a waiver. State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993). Schlief has waived his general objection to restitution for S.D.'s counseling. But if S.D. does seek counseling, Schlief may make a motion to amend the restitution order or seek a hearing to determine the true extent of S.D.'s counseling that is necessary as a result of Schlief's actions. See Minn. Stat. ' 611A.04, subd. 1 (b)(3) (1994 & 1995 Supp.) (district court may amend its order or first order restitution after sentencing).