C7-99-1174

State of Minnesota,

Respondent,

vs.

Jeffrey William DeMeules,

Appellant.

Filed April 25, 2000

Affirmed

Harten, Judge

Hennepin County District Court

File No. 98068015

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

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Foley, Judge.^*

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

HARTEN, Judge

Appellant challenges his conviction of third-degree criminal sexual conduct, arguing that the district court abused its discretion by admitting evidence of his age without adequate foundation. Because we see no clear abuse of discretion, we affirm.

FACTS

On July 9, 1998, the state charged appellant Jeffrey William DeMeules with third-degree criminal sexual conduct^[1] for having sexual intercourse with K.I.W., age 15. At trial, a police detective testified that he interviewed appellant twice. The prosecutor asked the detective, “Were you able to establish the age of this defendant?” The detective responded, “He was 20 years old, born March 7, 1978.” Appellant objected on the grounds of hearsay and lack of foundation. The district court overruled the objection. A jury found appellant guilty.^[2] Appellant challenges his conviction.

D E C I S I O N

A witness cannot testify without having personal knowledge of the subject of the testimony. Minn. R. Evid. 602. Appellate courts largely defer to the trial court’s evidentiary rulings which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Appellant argues that the district court abused its discretion by admitting the detective’s testimony regarding appellant’s age because it lacked adequate foundation.^[3]

The detective testified that he regularly “interview[s] victims, witnesses, suspects, put[s] the case information together, and submit[s] [criminal files] to [the] prosecutor involved.” He had assembled a photographic lineup using appellant’s criminal file, which contained several references to appellant’s age. The district court found that because the detective had prepared the photographic lineup there was sufficient foundation to support the detective’s testimony. In addition, appellant did not contest the accuracy of the detective’s testimony.^[4] Scott v. State, 390 N.W.2d 889, 893 (Minn. App. 1986) (where defense counsel made general foundation objection but did not question witnesses on foundation offered or submit any contradictory evidence, district court did not abuse its discretion by admitting evidence).

We conclude that there was sufficient foundation for the detective’s testimony about appellant’s age. Accordingly, the district court did not clearly abuse its discretion in admitting the testimony of appellant’s age.

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

^[1] Minn. Stat. § 609.344, subd. 1(b) (1998), provides that a person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree

if the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant.

^[2] The district court sentenced appellant to a five-year prison term, stayed execution, and imposed conditions of probation including 365 days in the workhouse, with a furlough after 180 days, and payment of $100 statutory costs.

^[3] Appellant asserts only lack of foundation on appeal; the hearsay part of his trial court objection has not been raised on appeal and is not before us.

^[4] It is unclear why appellant was not cross-examined as to his date of birth when he took the stand and testified personally.