This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-293

 

State of Minnesota,
Respondent,

vs.

Robert Cyril Begordis,
Appellant.

 

Filed June 15, 2004

Affirmed; motion granted

Wright, Judge

 

Dakota County District Court

File No. K6-01-2049

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

James Backstrom, Dakota County Attorney, Debra Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion in failing to make a record of what had been received and reviewed in camera.  Appellant requests that this court conduct an independent review of the documents received in camera to decide whether the district court abused its discretion in determining which documents were discoverable.  Appellant also argues that the district court abused its discretion in permitting the prosecutor to impeach appellant with the nature of his military discharge and in excluding witness testimony that appellant had suggested counseling for the victim.  Finally, appellant argues that the evidence is insufficient to support his conviction.  We affirm.

FACTS

 

Sara Payne and appellant Robert Begordis were involved in a relationship from March 1996 through July 2000.  In 1997, Begordis moved into a home in Inver Grove Heights with Payne, along with her then nine-year-old daughter, B.P., and eight-year-old son, M.P.  In January 2000, B.P. reported to Payne that Begordis was “sexually harassing” her.  Specifically, B.P. disclosed that Begordis had performed oral sex on her when Payne was away from the home or sleeping.  Payne confronted Begordis, who denied B.P.’s accusations.  Payne did not report B.P.’s disclosure to law-enforcement authorities.  Over the months following the disclosure, when Payne asked B.P. whether “anything was going on,” B.P. told Payne that the sexual abuse had stopped. 

            In July 2000, B.P. told her friend, D.J., that she was being sexually abused by Begordis.  D.J. repeated this information to her own therapist who reported B.P.’s allegations to Dakota County social services.  Jody Lancaster, a social worker, interviewed B.P. while an Inver Grove Heights police officer watched the interview on a closed-circuit television.  During the interview, B.P. reported that Begordis “touches me in the wrong spots.”  B.P. clarified that she meant that Begordis touched her vagina and her breasts.  B.P. also reported that Begordis touched her with his hand and that “sometimes he tries to lick me.”  When asked if Begordis made B.P. touch him, B.P. reported that she touched his testicles and performed oral sex on him once or twice.  Lancaster then interviewed Payne, who recounted B.P.’s earlier disclosure.  But Payne also stated that she did not see any indication that Begordis had acted inappropriately toward B.P.  Finally, Lancaster interviewed Begordis, who denied the allegations. 

            Begordis was charged with second-degree criminal sexual conduct, a violation of Minn. Stat. § 609.343, subd. 1(a) (2000).  The state later amended the complaint to include two additional charges of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (h)(iii) (2000).  Begordis moved for production of confidential documents regarding B.P.’s mental and physical health and an in camera review by the district court.  Following an in camera review, the district court released those documents that it determined to be potentially relevant and exculpatory. 

            Before the trial, Begordis moved to admit evidence that B.P. made prior false accusations of sexual abuse and that she was taking medication for a mental disorder that affected her ability to testify truthfully.  Outside the presence of the jury, the district court heard testimony from B.P.’s former therapist, her brother, a boy in her class, and a child-protection investigator.  The district court subsequently denied Begordis’s motion, concluding that the evidence was more prejudicial than probative.  The district court also limited any inquiry regarding B.P.’s medication to the name of the medication.

B.P. testified at trial that Begordis touched her breasts and her vagina with his hand and performed oral sex on her several times when her mother was either away from the home or sleeping.  B.P. also testified that she touched Begordis’s penis and performed oral sex on him once or twice.  Payne testified that B.P. disclosed the sexual abuse in January 2000; Begordis threatened that, if he went to jail because of B.P.’s accusations, he did not know “what would happen” to Payne and B.P. upon his release; and Begordis did not want B.P. to receive counseling because he did not want anyone interfering in their lives. 

            Begordis’s friend, Scott Schroeder, testified that Begordis enjoyed a good reputation in the community for veracity, honesty, and moral character.  To rebut Payne’s testimony regarding Begordis’s disapproval of sending B.P. to counseling, the defense attempted to elicit testimony that Begordis had requested that Payne send B.P. to counseling.  But the district court sustained the state’s objection to this testimony. 

To rebut Schroeder’s reputation testimony, the state questioned Begordis as to the status of Begordis’s discharge from the military.  Over his counsel’s objection, Begordis testified that he was given an “early out” called a “BCD discharge.” 

            Begordis was convicted of all charges and sentenced to an 86-month prison term on one count of first-degree criminal sexual conduct.  This appeal followed. 

D E C I S I O N

I.

A district court has broad discretion in ruling on discovery and evidentiary matters.  State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998).  When determining whether a discovery motion should be granted in a criminal case, the district court must be mindful of the defendant’s constitutional right to “be afforded a meaningful opportunity to present a complete defense.”  Id. at 697 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).  The district court, through its training and experience, is well-suited for the task of determining matters of relevancy and is capable of determining what information in the records sought, if any, might assist in the defense.  State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).  Disclosure following an in camera review strikes a balance between the interest of the privilege holder in maintaining confidentiality and the interest of the defendant in obtaining all relevant evidence that might assist in his defense.  State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  A district court’s determination that certain records are not helpful to the defense is “subject ultimately to judicial review.”  Paradee, 403 N.W.2d at 642.  On appeal, we conduct an independent review of the documents to determine whether the district court abused its discretion.  See State v. Goldenstein, 505 N.W.2d 332, 345 (Minn. App. 1993) (finding no abuse of discretion in district court’s denial of discovery after conducting independent review of confidential documents), review denied (Minn. Oct. 19, 1993).  Absent an abuse of discretion, the district court’s discovery ruling will not be disturbed.  See id.

The district court reviewed in camera confidential documents relating to B.P. and released those documents that were discoverable.  The district court preserved the documents for appellate review and advised the parties that the prosecution had complied with the document production order.  But the district court declined to identify for the parties the specific documents it reviewed or fully disclose the sources of the documents.[1]  Begordis argues that the district court abused its discretion in declining to order the production of B.P.’s mental health records and in failing to make a record of the documents that were reviewed in camera.

While in certain circumstances it may be appropriate for the district court to disclose to the parties the specific documents reviewed in camera and their sources, in some cases the need to maintain the victim’s privacy may preclude such transparency.  Paradee, 403 N.W.2d at 642; see also State v. Johnson, 659 N.W.2d 819, 822 (Minn. App. 2003) (providing that child’s privacy interest must be considered in granting or denying discovery motions), review denied (Minn. July 15, 2003).  From our careful examination of all the documents produced and reviewed in camera, we conclude that the district court properly balanced the victim’s privacy interest with the defendant’s interest in obtaining all information relevant to the defense.  Accordingly, the district court did not abuse its discretion in declining to identify for the parties the specific documents that were reviewed in camera.

II.

We next consider whether the scope of the district court’s disclosure was proper.  In doing so, we review a district court’s decision to release nonpublic data under the abuse-of-discretion standard. See State by Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 685 (Minn. App. 2000), review denied (Minn. Apr. 25, 2000). 

Begordis requests that this court conduct an in camera review of the documents to determine whether the district court properly disclosed all exculpatory information.  Specifically, Begordis seeks review to determine whether there were any documents produced but not disclosed that contain (1) specific instances of untruthfulness to support the defense theory that lying was an ingrained characteristic of B.P.; (2) records showing that B.P. harbored feelings of vindictiveness; (3) records indicating a psychiatric or mental condition warranting a prescription of Geodon; (4) records containing results or outcomes of mandatory-reporter investigations; (5) records indicating that B.P. recanted her allegations against Begordis at any time; (6) records indicating that B.P. falsely accused others of sexual misbehavior or sexual assault; and (7) certain Dakota County medical-examination records.  Begordis also asserts that the district court may not have received portions of the records requested in its order.[2] 

The prosecutor must disclose evidence “that tends to negate or reduce the guilt of the accused as to the offense charged” in accordance with the due process demands expounded in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963).  See Minn. R. Crim. P. 9.01, subd. 1(6).  While Brady facilitates the fair exchange of evidence between the prosecution and the defense, it does not obligate the prosecution to perform investigative work for the defense.  Under Brady and Minn. R. Crim. P. 9.01, there is no affirmative duty on the part of the prosecutor to turn over records that the prosecutor does not possess.  State v. Jackson, 346 N.W.2d 634, 636-38 (Minn. 1984) (finding that a prosecutor does not have to take affirmative steps to acquire the prior records of witnesses when those records are not already on hand). 

The district court ordered the prosecution to produce all psychological, psychiatric, medical, school, social work, and guardian ad litem reports that were obtainable in North Dakota and Minnesota.  From the in camera review, the district court determined that some portions of documents were discoverable and provided redacted documents to the defense.  Our review of the in camera materials establishes that the district court received materials from each jurisdiction listed in the production order. 

From our review of the in camera materials, we also conclude that there are no undisclosed materials that meet the enumerated criteria set forth by Begordis or that are otherwise discoverable under Brady or Minn. R. Crim. P. 9.01.  While there are records indicating the basis for B.P.’s prescription of Geodon, the diagnosis has no bearing on B.P.’s competency or credibility as a witness.  The district court properly determined that there is no evidence, including prescribed medications or diagnoses, that B.P. had a mental, psychiatric, or any other medical condition affecting her competency, her ability to recall and testify, or her credibility.  We, therefore, conclude that the district court exercised its sound discretion in ordering the disclosure of documents, striking the proper balance in maintaining B.P.’s privacy while ensuring that Begordis had the evidence to which he was entitled. 

III.

Begordis next challenges two of the district court’s evidentiary rulings at trial.  A defendant has the burden of establishing both an abuse of discretion and prejudice resulting from the ruling.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).  If there is any reasonable doubt that erroneously admitted evidence contributed to the verdict, then a new trial is warranted.  State v. Naylor,474 N.W.2d 314, 318 (Minn. 1991). 

Begordis first argues that the district court abused its discretion in admitting evidence of his military-discharge status.  Begordis called Schroeder to testify that Begordis enjoyed a reputation for good moral character.  During his testimony, Begordis also made several references to his service in the military, including the statement that the military taught him to be “clean and orderly.”  During cross-examination, in response to a question about the status of his military discharge, Begordis responded that he “got an early out,” which was called a “BCD discharge.” 

Because a specific instance of misconduct is not admissible to rebut a defendant’s evidence of good character unless it is probative of untruthfulness, we agree that it was error to admit this evidence.  See Minn. R. Evid. 608(6); State v. Gress, 250 Minn. 337, 345, 84 N.W.2d 616, 622 (1957).  But Begordis has provided no persuasive evidence that this brief, abbreviated reference to a bad-conduct discharge was prejudicial to him.

Begordis has failed to meet his burden of proving that he was prejudiced by the erroneously admitted evidence.  See Steinbuch, 514 N.W.2d at 799.  Thus, we conclude that the district court’s error was harmless. 

Begordis next contends that the district court abused its discretion in excluding Schroeder’s testimony that Begordis suggested that B.P. receive counseling.  Begordis proffered this testimony to rebut evidence that Begordis objected to the counseling.  Begordis maintains that this testimony was admissible under Minn. R. Evid. 801(d)(1)(B) as a prior consistent statement.

A prior consistent statement is admissible if two conditions have been met.  First, the declarant must testify at the trial and be subjected to cross-examination concerning the statement.  And second, the statement must be consistent with the declarant’s prior testimony.  Slater v. Baker, 301 N.W.2d 315, 319 (Minn. 1981).  Because Schroeder’s testimony preceded that of Begordis, who is the declarant of the statement, the district court properly excluded the proffered statement.

IV.

Finally, Begordis contends that the state failed to prove that he committed multiple acts of penetration to support his conviction of first-degree criminal sexual conduct.  Our review of a claim of insufficient evidence is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume the jury believed the testimony that supports the conviction and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We 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, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A person who engages in sexual penetration or sexual contact with a person under 13 years of age is guilty of first-degree criminal sexual conduct if “the actor is more than 36 months older than the complainant.”  Minn. Stat. § 609.342, subd. 1(a) (2000).  A person who engages in sexual penetration or contact with a person under 13 years of age is guilty of first-degree criminal sexual conduct if “the actor has a significant relationship to the complainant; and . . . the sexual abuse involved multiple acts committed over an extended period of time.”  Minn. Stat. § 609.342, subd. 1(h)(iii) (2000).  “Sexual contact” includes “the intentional touching of the complainant’s bare genitals . . . by the actor’s bare genitals . . . with sexual or aggressive intent . . . .”  Minn. Stat. § 609.341, subd. 11(c) (2000).  “Sexual penetration” includes “cunnilingus, fellatio or . . . any intrusion however slight into the genital or anal openings . . . of the complainant’s body by any part of the actor’s body.”  Id., subd. 12(1), (2)(i) (2000).  “Significant relationship” includes “a situation in which the actor is . . . an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.”  Id., subd. 15(3) (2000).

Our review of the record establishes that there is ample evidence to support the convictions of first-degree and second-degree criminal sexual conduct.  Begordis resided in B.P.’s household and had a significant relationship with B.P.  Begordis took an active role in disciplining B.P., and B.P. called Begordis “dad” at times.  B.P. testified that Begordis sexually abused her beginning when she was 9 until she was 12.  The record also establishes that Begordis engaged in multiple acts of oral sex with B.P. during this period.  Thus, when viewed in the light most favorable to the verdict, there is an abundance of evidence from which the jury could reasonably conclude that Begordis committed first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a), (h)(iii).

            Affirmed; motion granted.