A04-276

State of Minnesota,

Respondent,

vs.

Omar Yanez,

Appellant.

Filed April 19, 2005

Affirmed

Willis, Judge

Kandiyohi County District Court

File No. K6-03-52

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

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

WILLIS, Judge

Appellant challenges his conviction of and sentence for four counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2002). Because we conclude that appellant’s confrontation rights were satisfied under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and because consecutive sentences imposed for multiple convictions and based on a judicial finding that the offenses are “crimes against persons” do not violate appellant’s Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004), we affirm.

FACTS

Appellant Omar Yanez was convicted for sexually abusing his girlfriend’s daughter, L.P. In January 2003, then nine-year-old L.P. told her grandmother and other family members that Yanez had touched her in her private area. L.P.’s grandmother reported this allegation to law enforcement in Kandiyohi County. L.P. was interviewed at the sheriff’s department by a county social worker and a deputy on January 13, 2003. During the videotaped interview, L.P. stated that Yanez had penetrated her vagina with his finger on many occasions. She also indicated that he had made her perform oral sex. Yanez was charged with 20 counts of first-degree criminal sexual conduct.

At trial, L.P. testified that (1) she told her aunt, her grandmother, and the social worker and deputy something about Yanez; (2) she did not remember what she had told them; (3) she told them the truth about what happened; and (4) she did not remember what Yanez did to her. Eventually, the state conceded that it had run out of options and that “[a]t this point it would appear that the child’s unavailable. She has no recollection. She doesn’t remember. She remembers that she told these people, that she had an interview and that she told the truth, and that’s it.” L.P. was subject to a short cross-examination that elicited no further details of the incident.

L.P.’s out-of-court statements to her grandmother and a friend and her videotaped statements to the social worker and deputy were admitted as substantive evidence. L.P.’s statements in the videotaped interview contained especially graphic descriptions of the abuse, and the videotape was played close to the beginning of the trial and again at the jury’s request during deliberations.

At trial, the district court dismissed 12 of the counts against Yanez. The jury found Yanez guilty of the remaining eight counts. On September 2, 2003, the district court adjudged Yanez guilty of and entered convictions on counts one through four, but not on counts five through eight. The first three counts were based on Minn. Stat. § 609.342, subd. 1(a) (2002), for digital penetration, and count four was based on the same statute but for oral penetration. Yanez was sentenced to concurrent 166-month sentences on counts one through three, and he was given a consecutive 144-month sentence on count four, for an aggregate sentence of 310 months. This appeal follows.

D E C I S I O N

Yanez argues that L.P. was unavailable for meaningful cross-examination and that admitting her out-of-court statements violated his constitutional right to confront an adverse witness under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

“[I]f a case is pending on direct review when a new rule of federal constitutional procedure is announced, a criminal defendant is entitled to benefit from that new rule.” O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004). Crawford was decided after Yanez filed this notice of appeal. Therefore, his case was pending on direct review, and he is entitled to benefit from the rule announced in Crawford.

In Crawford, the United States Supreme Courtheld that out-of-court testimonial statements are inadmissible unless the hearsay declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 68, 124 S. Ct.at 1374. But the Supreme Court clarified that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 59 n.9, 124 S. Ct. at 1369 n.9 (citation omitted); see also State v. Plantin, 682 N.W.2d 653, 660 & n.2 (Minn. App. 2004) (stating that Crawford did not apply to declarant’s out-of-court statement to police when declarant testified at trial), review denied (Minn. Sept. 29, 2004).

Appellant argues (1) that L.P. was unavailable to testify under Minn. R. Evid. 804(a)(3) because she testified to a lack of memory of the subject matter of her prior statement and (2) that Yanez’s right to confrontation was violated because L.P. was never subject to full and effective cross-examination.

This court has determined that “the Confrontation Clause guarantees only an opportunity for effective cross-examination” and that a witness’s lapses in memory do not deny a defendant his constitutional right to confrontation. Plantin, 682 N.W.2d at 659-60 (quotation omitted). Other jurisdictions as well have found that a witness’s inability to remember earlier statements or the events surrounding those statements does not implicate the Confrontation Clause. See, e.g., People v. Candelaria, 107 P.3d 1080, 1087 (Colo. Ct. App. 2004) (concluding that a witness’s inability to recall her earlier statements or the surrounding events does not alter the conclusion that the defendant’s confrontation rights were satisfied when the witness appeared at trial and was subject to cross-examination), cert. granted (Colo. Mar. 7, 2004); State v. Gorman, 854 A.2d 1164, 1177-78 (Me. 2004) (concluding that a witness is not constitutionally unavailable for purposes of the Confrontation Clause when the witness appears to testify and is impaired).

Here, L.P. appeared at trial and was cross-examined. We conclude that despite her memory lapses, L.P. was available and the admission of her out-of-court statements did not deny Yanez his right to confrontation. Therefore, we need not address whether L.P.’s statements to the witnesses were testimonial.

II.

Yanez next argues that his consecutive sentences violate his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004), because the district court in essence imposed an upward durational departure based on its own findings. Blakely makes clear that the greatest sentence that a judge can impose “is the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S. Ct. at 2537. A defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above that maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000); see also Blakely, 124 S. Ct. at 2543. But multiple sentences were not at issue in Blakely.

The Minnesota Supreme Court determined that Blakely applies to upward durational departures from the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam). This court has held that if a defendant’s case was pending on direct review when Blakely was decided, he is entitled to the benefit of Blakely even if he did not assert his Sixth Amendment rights at trial by objecting to his sentence on Apprendi grounds. State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).

Yanez argues that the district court would not have imposed consecutive sentences had it not made findings that his offenses were “more egregious than the typical offense.” But because Yanez’s convictions were for the sexual penetration of a child, the district court exercised its discretion to execute two consecutive prison terms pursuant to Minn. Sent. Guidelines II.F. Under the sentencing guidelines, a consecutive sentence is permissive for “[m]ultiple current felony convictions for crimes against persons.” Minn. Sent. Guidelines II.F.2. First-degree criminal sexual conduct involves “sexual penetration with another person,” and therefore, as a matter of law, it is a crime against a person. Minn. Stat. § 609.342, subd. 1 (2002). The comments to the guidelines state that consecutive sentencing is permissive in such circumstances “even when the offenses involve a single victim involving a single course of conduct.” Minn. Sent. Guidelines cmt. II.F.04.

This court recently held that Blakely does not apply to permissive consecutive sentences when the offenses are “crimes against persons.” State v. Senske, 692 N.W.2d 743, 748-49 (Minn. App. 2005). We observed that “[c]onsecutive sentencing involves separate punishments for discrete crimes.” Id. at 749. Neither Apprendi nor Blakely requires a jury to determinewhether imposition of multiple sentences is permissible, therefore a jury need not determine the relationship between multiple sentences. Id. Here, consecutive sentences were permissible under the guidelines because Yanez was sentenced for multiple current felony convictions for crimes against persons. Because Blakely does not apply to the permissive consecutive sentences here, the district court did not abuse its discretion by imposing consecutive sentences on Yanez.

Affirmed.