C1-99-845

State of Minnesota,
Respondent,

vs.

Willard Howard Wollin,
Appellant.

Filed March 7, 2000

Affirmed

Davies, Judge

Scott County District Court

File No. 9804144

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and

Thomas J. Harbinson, Scott County Attorney, Jennifer K. Tichey, Ronald Hocevar, Assistant County Attorneys, Scott County Government Center, 200 Fourth Ave. W., Shakopee, MN55379 (for respondent)

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Ave. S., Suite 2355, Minneapolis, MN 55402 (for appellant)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant was convicted of fourth-degree criminal sexual conduct, fifth-degree assault, and attempted first-degree criminal sexual conduct. The victim was L.W., appellant’s former daughter-in-law. Appellant alleges that the trial court: (1) abused its discretion by excluding evidence that the victim, being predisposed against him, had fabricated the charges; (2) abused its discretion in allowing the police officer to vouch for the victim’s credibility; (3) abused its discretion in failing to give a jury instruction on the intoxication defense; (4) erred in determining that the evidence was sufficient to support his conviction; and (5) abused its discretion in concluding that amenability to treatment is a prerequisite to a dispositional departure. Because we find that the district court did not err or abuse its discretion, we affirm.

FACTS

Appellant Willard Howard Wollin drove to New Prague to meet his son at a bar. During the course of the evening, appellant consumed a dozen or more mixed drinks. At about 1:30 a.m., after the bar closed, appellant and his son crossed the street from the bar to L.W.’s house to ask L.W. to let appellant spend the night on her couch. L.W. agreed and appellant’s son left.

From this point on, appellant’s and L.W.’s accounts differ. L.W.’s account is: appellant began asking about her evening and followed her as she walked into her bedroom; after she entered the bedroom, he grabbed her by the arm and pushed her down on the bed; he grabbed at her chest and crotch and ripped her pajamas; she told him that he was hurting her, but he responded that he “wasn’t leaving until he got what he came for, or he got what he wanted.”

L.W. testified further: she began yelling for her seven-year-old son because she feared appellant was going to rape her if not deterred; appellant hit her across the face and told her to shut up; he proceeded to push her face down into a pillow and told her that if she did not stop screaming she would die, would never get up, and that her kids would not have a mother; she continued to scream for help; he twisted her arm and threatened to break it if she did not keep quiet; appellant eventually loosened his grip after L.W. agreed to stop fighting, and she was able to break free and call 911.

Appellant’s significantly different account is: appellant sat on the couch after his son left and L.W. went into her bedroom; a minute or two later, when he heard her “sobbing in her bed,” he went into her bedroom and tried to comfort her, asking her what was wrong and putting his arm around her; he then claims that she left the bedroom and he fell asleep. Appellant denied that he touched, hit, threatened, or intended to harm her.

Police Sergeant Mark Vosejpka arrived after L.W.’s 911 call and observed that L.W. was “emotional, crying, and that her nightgown or pajama gown that she was wearing had been torn.” Sergeant Vosejpka entered her bedroom and discovered appellant asleep on the bed. The officer woke appellant and arrested him.

Police Officer Darrell Honza arrived at L.W.’s residence around 3:10 a.m. to record a taped statement from her. During this interview, Officer Honza observed bruising and scratching around L.W.’s right eye. She indicated that these marks were from being slapped by appellant several times.

After discovering a tape malfunction in the first interview, Officer Honza recorded a second statement from L.W. two days later. Officer Honza testified that both taped statements contained the same information.

The jury convicted appellant on all three counts. The trial court denied appellant’s motion for a new trial, for substitute counsel, and for a dispositional departure in sentencing. The trial court sentenced appellant to 43 months.

D E C I S I O N

Appellant argues that the trial court abused its discretion when it excluded evidence that supported his theory that L.W. fabricated her allegations. Appellant argued that the rejected evidence would show acrimony over his son’s divorce from L.W. and that this caused her to fabricate the accusations. Before the trial began, the trial court told appellant he could only introduce this evidence if he offered something additional by way of foundation to suggest that she had a motive to fabricate. During the trial, appellant did not introduce such evidence. Appellant’s omission bars his claim that he was denied his right to present a defense because, as a consequence of this failure, the trial court never made a final ruling that the evidence would be excluded, nor was it asked at trial to make a final ruling. See State v. Spaeth, 552 N.W.2d 187, 196-97 (Minn. 1996) (failing to raise issue at trial waives right to raise issue on appeal).

II.

Appellant argues that the district court abused its discretion when it allowed a police officer to testify about his opinion regarding the truth of the statements L.W. made during the two interviews. Evidentiary rulings are in the discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

The police officer contrasted L.W.’s demeanor during the first and second interview. His testimony was based on his observations of L.W. during the two interviews and was not offered as expert opinion connected to any specialized knowledge on which he judged the truth of her story. Opinion testimony by a witness not testifying as an expert is admissible provided it is

(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Minn. R. Evid. 701. The officer’s testimony about L.W.’s demeanor was not “vouching” testimony and satisfies the requirement for admissibility set forth in rule 701(a). See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (citing rule 701 as support for admitting police officer’s testimony that he suspected someone threw something out of a car; officer’s testimony was offered as nonexpert opinion drawn from his observations, not his opinion as expert).

III.

Appellant also contends that the trial court abused its discretion by failing to instruct the jury on the defense of intoxication. Jury instructions lie within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The trial court must, however, give an intoxication instruction if the crime charged has a specific intent element and “if intoxication is offered by the defendant as an explanation for his actions.” State v. Lindahl, 309 N.W.2d 763, 766 (Minn. 1981).

The defendant has the burden of establishing by a preponderance of the evidence that he or she was too intoxicated to form the intent necessary to commit the crime charged. State v. Flores, 418 N.W.2d 150, 156 (Minn. 1988). In this case, the record indicates that appellant did not offer intoxication as an explanation for his actions; instead he offered a denial. And the record contains his own detailed account of the night’s events, showing that he was not too intoxicated to form the requisite intent. See State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989) (no error in refusing self-defense instruction when self-defense inconsistent with defendant’s testimony). We conclude the trial court did not err when it declined to instruct the jury on voluntary intoxication; the evidence does not support giving the instruction. See State v. Lopez, 587 N.W.2d 26, 28 (Minn. 1998) (requiring defendant to offer intoxication as explanation for his actions before intoxication defense comes into play).

IV.

Appellant challenges the sufficiency of the evidence supporting his conviction.

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume “the jury believed the state’s witnesses and disbelieved evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A conviction can rest on the testimony of a single credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Minnesota law specifically provides that corroboration of the victim’s testimony is not required in criminal sexual conduct cases. Minn. Stat. § 609.347, subd. 1 (1998).

Appellant’s argument on appeal is that L.W.’s testimony was not credible. But because this court must assume the jury believed L.W.’s testimony, we find there was sufficient evidence to convict appellant. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (determining weight and credibility of witnesses’ testimony is for jury, not reviewing court).

Finally, appellant argues that the trial court abused its discretion in not granting a downward dispositional departure. The decision to depart from the sentencing guidelines rests within the trial court’s discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a rare case will we reverse a trial court’s imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

A defendant’s amenability to probation and treatment is a relevant factor in determining whether a dispositional departure is warranted. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). Although the trial court found that several mitigating factors were present, it denied a dispositional departure because it found that, based on his lack of cooperation and remorse, appellant was unamenable to treatment. The evidence supports the trial court’s conclusion that appellant was unamenable to probation and the court’s imposition of the presumptive sentence. See State v. Champion, 413 N.W.2d 161, 164 (Minn. App. 1987) (affirming denial of downward departure in part because trial court doubted defendant’s sincerity in seeking treatment); State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (sentencing courts have discretion to deny downward departure even when mitigating circumstances are clearly present).

Affirmed.