may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Glen E. Norwood,
State of Minnesota,
Filed October 27, 1998
Ramsey County District Court
File No. K2-96-000303
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Blvd. W., Ste. 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Foley, Judge.
On postconviction appeal, Norwood challenges (1) the sufficiency of the evidence to support the conviction, (2) the trial court's evidentiary rulings, (3) the denial of his motion for acquittal, and (4) the imposition of a double durational sentencing departure. We affirm.
Glen Earl Norwood was a gym teacher in an after-school program. On January 9, 1996, he arranged to take one of his students, eleven-year-old A.B., to his fitness center to shoot baskets. After the program ended for the day, he first took A.B to her home to request permission from A.B.'s mother. Instead of going to the fitness center, however, he took A.B. to a motel. When he was unable to register at the first motel, he went to a second motel where he penetrated her vagina digitally, then forced her to submit to vaginal intercourse. He threatened to hurt her or her family if she told anyone. A week later, she told her friend. The following week she told the director of the after-school program of the assault. The director, A.B.'s mother, and her mother's fiancée drove her to various motels until she recognized the correct one. They called the police from the motel. When the police arrived, A.B. told the officer what Norwood had done to her and showed him the room where it occurred. A receipt for the room indicated that it had been registered to Norwood on the night when the events happened.
At the time of his arrest, Norwood was 31. At trial, he testified that A.B.'s testimony was false. After a nine-day trial, the jury convicted him of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a)(1996). Doubling the presumptive sentence, the trial court imposed a sentence of 172 months in prison.
1. Sufficiency of the Evidence
On appeal, this court makes a painstaking review of the evidence to determine whether it is sufficient to permit the court to reach the conclusion that it did. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). The reviewing court will not disturb the verdict, if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the defendant was proven guilty of the offense charged. Id. The reviewing court assumes the evidence supporting the conviction was believed and the contrary evidence disbelieved. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
Minn. Stat. § 609.342, subd. 1(a) provides:
A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.
Norwood challenges the sufficiency of the medical evidence to sustain penetration. A complainant's testimony in a criminal sexual conduct case, however, does not require corroboration. See Minn. Stat. § 609.347, subd. 1 (1996). Corroboration of a child's allegations is required "only if the evidence otherwise adduced is insufficient to sustain conviction." State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984). When the complainant's testimony is positive and consistent, the absence of physical evidence is not controlling. Id. Our review of the evidence shows it is legally sufficient to support the verdict. Norwood's expert did not examine A.B. and he failed to conclude she had not been penetrated. The state's expert witness, who extensively examined her, testified that his findings were consistent with A.B.'s report of sexual assault. A.B. also made consistent statements to her friend, the police, and in her trial testimony. She was able to show the police where the assault took place and describe the room's interior, although Norwood testified she had remained in the car while he was in the motel. The jury deliberated more than nine hours, clearly indicating that they carefully considered the evidence because of the seriousness of the crime charged. We must assume they believed the state's evidence and disbelieved any evidence to the contrary.
2. Evidentiary Rulings
Evidentiary rulings will not be reversed absent a clear abuse of the trial court's discretion. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). A defendant claiming erroneous admission of evidence has the burden of showing both error and resulting prejudice. Id. Reversal is warranted if reasonable doubt exists that the result would have been different had the evidence not been admitted. Id.
A.B. reported the assault to the after-school program director, who prepared a report of the sexual abuse as statutorily mandated. The report was admitted into evidence. At trial, the director testified that parts of it were false; therefore, it was error to receive it. The error, however, was harmless. The director acknowledged that those parts of the report containing A.B.'s allegations were correct. Moreover, A.B.'s testimony did not vary from those allegations.
The trial court did not abuse its discretion by excluding testimony from Norwood's girlfriends. Any reference to his endowment was brief and not pursued. Further, credible evidence established he also placed his finger in A.B.'s vagina. The slightest intrusion satisfies the element of penetration, Minn. Stat. § 609.341, subd. 12 (1996), which can be digital. See State v. Johnson 327 N.W.2d 580, 584 (Minn. 1982). That act alone sustains the conviction.
The defense expert testified that he expected to find evidence of trauma to A.B.'s genitalia. The trial court admitted the rebuttal testimony of a previously undisclosed expert to explain why the absence of this evidence lacked significance. Defense counsel did not request a continuance to review this expert's testimony. The ruling was, therefore, not an abuse of discretion.
The trial court admitted Spreigl evidence. Evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965). In determining admissibility of Spriegl evidence, the trial court must find (1) that it is clear and convincing that the defendant participated in the other offense, (2) that it is relevant and material to the state's case, and (3) that its probative value is not outweighed by its potential for unfair prejudice. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). When the truth of the facts sought to be admitted is "highly probable," the evidence is clear and convincing. Weber v. Anderson, 269 N.W.2d 892, 895 (1978). The greater the similarity of a crime with the crime charged in terms of time, place, or modus operandi, the greater the relevance. State v. Matteson, 287 N.W.2d 408, 411 (Minn. 1979). Although absolute similarity has not been required, DeWald, 464 N.W.2d at 503, we are mindful of State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998), in which the supreme court found it constituted reversible error to admit other crime evidence which was not even the same generic type as the crime charged.
Norwood contends that the admission of the Spreigl witnesses was error. We disagree. The state gave adequate notice that it intended to offer the evidence to show a common scheme or plan. The girls' interviews, on which the trial court based the decision to admit, were specific about the acts they alleged Norwood committed; they knew him personally; and they knew Norwood had committed the improper conduct. These factors make their claims and his participation in them "highly probable."
Unlike the other crime evidence in Shannon, the evidence of Norwood's prior acts involving other young girls is very similar to his actions involving A.B. The prior improper acts occurred at school, less than four months prior to the crime charged. They began with a ruse: under the pretext of playing quarterback, Norwood placed his hands between the legs of his young female students, who played center for him, so he could touch their genitals. The crime charged here also began at school with a ruse: under the pretext of taking A.B. to shoot baskets at his fitness center, he detoured to the motel where he digitally penetrated her vagina and had intercourse with her. Furthermore, Norwood testified that A.B. fabricated the story. Therefore, it was permissible to admit this evidence on the issue of fabrication to show a common scheme of opportunistic sexual exploitation of young girls in the context of teacher and students. Cf. State. v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (evidence abuser had touched breasts and buttocks of other family members highly relevant to show ongoing pattern of opportunistic fondling of young girls within family context and tended to disprove defense victim fabricated or imagined occurrence of sexual contact). Additionally, the trial court gave limiting instructions both before each witness's testimony and as part of final instructions, thus lessening the danger of unfair prejudice. See State v. Slowinski, 450 N.W.2d 107, 114-15 (Minn. 1990) (stating cautionary instructions lessen danger of unfair prejudice).
3. Motion for Acquittal
Sanctions for violations of discovery are within the discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Photographs of A.B.'s hymen were discovered late in trial. Norwood moved for acquittal based on the state's alleged noncompliance with Minn. R. Crim. P. 9. The court denied the motion. Our review of the record establishes that the prosecutor had been unaware the photographs existed until the defense expert testified. Norwood did not make an offer of proof nor show the state acted in bad faith in failing to comply with the rule. Accordingly, the trial court's denial of his motion did not constitute an abuse of discretion.
Departure from the presumptive sentence is in the trial court's discretion and will not be reversed absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). The trial court must record its reasons for departure on the record. State v. Pieri, 461 N.W.2d 398, 400 (Minn. App. 1990) (citing Minn. Sent. Guidelines II.D). The sentencing court must make a "qualitative assessment" of all the facts to determine if the defendant's conduct is sufficiently different in degree from other first-degree criminal sexual conduct cases to justify the durational departure. State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982).
The sentencing hearing transcript shows that the trial court noted several reasons for departure in the written record. First, the court found that Norwood had abused his position of trust and authority over A.B. in committing the offense. Second, Norwood committed two types of sexual penetration, both digital and penile. Third, he calculated his assault, going to a second motel when he was not able to register at the first one. He had the opportunity to withdraw from his criminal intent but declined to do so. Fourth, he threatened to hurt her or her family if she told anyone. All are aggravating factors supporting departure. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (multiple forms of penetration combined with threats); State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984) (abuse of position of trust and authority); State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (planning commission of crime); State v.Bates, 507 N.W.2d 847, 854 (Minn. App. 1993) (abuse of position of trust as teacher to gain access to eight-year-old victim), review denied (Minn. Dec. 27, 1993).
Norwood contends that he was acting as a friend, not in his position of trust as a teacher. We disagree. Norwood had access to A.B. merely because he was her teacher. By personally seeking permission to take A.B. with him, he evidenced his intentional reliance on her mother's trust as a family friend.
Norwood also claims that digital and penile penetration of her vagina constitute only one form of penetration. Other multiple penetration cases, however, distinguish between penetration of the vagina with a stick and with a finger. See Johnson, 327 N.W.2d at 584. Based on a "qualitative assessment" of the record, we conclude that the trial court appropriately justified the upward sentencing departure.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.