This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-663

 

State of Minnesota,
Respondent,

vs.

Vernon Lee Pugh,
Appellant.

 

Filed May 3, 2005

Affirmed in part, and reversed in part, and remanded

Stoneburner, Judge

 

Olmsted County District Court

File No. KX021736

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Vernon Pugh challenges his conviction of two counts of criminal sexual conduct in the first degree, arguing that cumulative evidentiary errors deprived him of a fair trial.  Appellant also challenges his upward-departure sentence as invalid under Taylor v. State, 670 N.W.2d 584 (Minn. 2003), and Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because the district court did not abuse its discretion in evidentiary rulings, we affirm the convictions, but because the district court based the upward sentencing departure on factors found by the court rather than the jury, and because some of the factors on which the departure was based were elements of the offense, we vacate the sentence and remand for resentencing consistent with Taylor and Blakely.

D E C I S I O N

 

I.          Evidentiary rulings

 

            a.         Expert witness’s opinion that M.B. was sexually abused

 

            Appellant asserts that the district court abused its discretion by admitting Spreigl[1]evidence and by allowing the state’s expert to express his opinion that appellant’s 12-year-old stepdaughter, M.B., had been sexually abused.  He argues that the cumulative effect of these erroneous evidentiary rulings deprived him of a fair trial.

“The admission of expert testimony is within the broad discretion accorded a district court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the district court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citation omitted).  This court will defer to the fact-finder’s determination of weight and credibility of expert witnesses.  State v. Triplett, 435 N.W.2d 38, 44 (Minn. 1989).

The state’s expert witness, Dr. William Friedrich of the Mayo Clinic Department of Psychiatry and Psychology, did not interview M.B. personally, but he reviewed the videotape of M.B.’s detailed “Cornerhouse-type” interview by a social-services worker and an Olmsted County deputy sheriff.  Based on that interview, Dr. Friedrich opined that M.B. had been sexually abused.  Dr. Friedrich testified that he has interviewed “possibly thousands” of sexually abused children and has learned a number of features that make a disclosure valid, including when a child describes details and all of the senses of the incident, makes a progression from “small to larger” sexual contacts, is consistent, and is able to correct an interviewer’s misstatements of the facts.  M.B.’s interview, which was shown to the jury, contained all of these features.

Appellant asserts that Dr. Friedrich’s testimony went to the ultimate issue, amounted to “vouching” for M.B., and was highly prejudicial.  The state argues that because appellant only objected to questioning Dr. Friedrich on the basis of foundation at trial, appellant has waived any other objection on appeal.  Generally, a party waives his right to challenge an evidentiary ruling if he did not object to the ruling at trial.  State v. Wellman, 341 N.W.2d 561, 564 (Minn. 1983).  Appellant has not addressed this argument on appeal and has not asked this court to consider his claim under a plain-error analysis.  Because during a bench conference on appellant’s foundation objection there was a discussion by the district court about whether the testimony went to the “ultimate issue,” we will address appellant’s argument on appeal.

“Vouching” occurs when a witness testifies that another witness is telling the truth or that the witness believes one witness over the other.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998).  A witness cannot vouch for or against the credibility of another witness.  See State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995); see also State v. Maurer, 491 N.W.2d 661, 662 (Minn. 1992) (“Generally, it is objectionable for the state on direct to elicit any opinion evidence as to the truthful character of a complainant in a [criminal sexual conduct] prosecution”).  In State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988) and State v. Hollander, 590 N.W.2d 341, 349 (Minn. App. 1999), Minnesota courts held that an expert may express an opinion that a child was abused, but may not express an opinion about who committed the abuse.  Arguing that Dana and Hollander were wrongly decided, appellant essentially asks this court to overrule those cases and subsequent unpublished cases that have relied on those cases.  Because Dana is a Minnesota Supreme Court opinion, appellant must address his request to overrule that case to the supreme court.  We decline to overrule Hollander and conclude that the admission of Dr. Friedrich’s testimony was not a clear abuse of discretion by the district court judge.

Appellant appears to also be claiming on appeal that the prosecutor vouched for Dr. Friedrich’s testimony in closing argument by referring to Dr. Friedrich’s curriculum vitae and his many accomplishments.  But appellant failed to object to the prosecutor’s closing argument, and failing to object or seek a cautionary instruction to a prosecutor’s statement ordinarily waives the right to have the issue considered on appeal.  State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  We therefore decline to address this newly asserted claim.

b.         Spreigl evidence

            Prior to trial, the state moved to admit as modus-operandi evidence of appellant’s 1987 conviction of fourth-degree criminal sexual conduct against an adult and the victim’s testimony about appellant’s threat to penetrate her anally if she did not comply because appellant also threatened M.B. with anal penetration if she did not comply.  The district court allowed admission of the conviction and the threat, but excluded testimony from the adult victim that appellant tortured her with a telephone cord during the 1987 assault.

The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  In considering the evidence, it must be relevant, its probative value should outweigh the potential for unfair prejudice, and the defendant’s participation in the prior offense should be clear and convincing.  State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983).  The defendant bears the burden of showing error and resulting prejudice, but “[w]hen it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

Generally, evidence of a person’s character or of other crimes or wrongful acts is not admissible “in order to show action in conformity therewith,” but may be admissible in order to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake; the evidence must be clear and convincing.  Minn. R. Evid. 404(b).  See also, Spreigl, 139 N.W.2d at 169.  Procedural requirements for Spreigl evidence include (1) the district court must determine whether proper notice was given; (2) the state must clearly indicate for what purpose the evidence will be offered; (3) the evidence must be clear and convincing that the defendant participated in the Spreigl evidence; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value cannot be outweighed by the potential for unfair prejudice.[2]  State v. Asfeld,662 N.W.2d 534, 542 (Minn. 2003). 

Appellant argued to the district court and on appeal that because the 1987 incident involved an adult acquaintance, rather than a child for whom appellant was a caretaker or had a position of authority as in the incident involving M.B., the 1987 incident was not sufficiently relevant or material to be admissible.  Appellant argued that the 1987 incident and M.B.’s allegations were not related in time, place, or modus operandi, and the prejudice from admission of the Spreigl evidence therefore outweighed any probative value. 

“In determining the relevance and materiality of the Spreigl evidence, the district court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.”  Kennedy, 585 N.W.2d at 390 (quotation omitted).  The supreme court has “never held that there must be a close temporal relationship between the charged offense and the other crime.”  State v. Wermerskirchen, 497 N.W.2d 235, 242 n. 3 (Minn. 1993).  “‘Older’ offenses sometimes are relevant, sometimes not.  Relevance must be determined by the district court with review limited to whether the district court abused its discretion.”  Id.  In this case, the use of a threat of anal penetration to control both victims is sufficiently unique to go to modus operandi.  See Wermerskirchen, 497 N.W.2d at 240 (“a single previous act, even upon another woman, may, with other circumstances, give strong indication of a design (not a disposition) to rape. . .”) (quoting 2 J. Wigmore, Wigmore on Evidence § 304 (Chadbourn Rev. 1979)).  See also, Kennedy, 585 N.W.2d at 391 (finding nearly identical advances and attempted penetration by defendant show modus operandi and could be used to rebut contention that victim fabricated testimony).

Appellant argued that there was no need for the evidence because M.B. was an older child when she gave her initial interview, was capable of testifying, and, at the time the evidence was admitted, appellant had not yet testified that no sexual conduct occurred, making the probative value of the evidence slight in light of the strength of the state’s case.  But, as respondent points out, there was no physical evidence.  M.B.’s mother had burned M.B.’s diary in which M.B. had written about the abuse.  Several witnesses testified about M.B.’s possible motivations to lie.  M.B.’s mother testified that M.B. hated appellant and resented being disciplined by him.  There was testimony that M.B. may have fabricated the story after watching some television shows.  Appellant’s mother testified that M.B. lied often.  M.B.’s brother testified that he never noticed anything going on even though he shared a room with M.B.  The district court did not abuse its discretion by concluding that the probative value of the evidence outweighed its prejudicial value.

The district court restricted the Spreigl evidence to the fact of the conviction and the nature of the threat and gave the required cautionary and limiting instructions when the evidence was admitted and during final instructions.  We conclude that the district court did not abuse its discretion by admitting the Spreigl evidence. 

Because we have rejected appellant’s arguments that the court’s evidentiary rulings were erroneous, there is no merit in appellant’s arguments that the cumulative effect of the errors compels reversal, and we affirm the convictions.

II.        Sentencing

Appellant’s presumptive sentence under the guidelines was 144 months, but the court sentenced appellant to 180 months, citing aggravating factors of multiple types of penetration, multiple incidents of abuse, violation of M.B.’s zone of privacy, particular cruelty based on threats, and long-term psychological damage.  Appellant asserts that some of these factors, because they are elements of the offense charged, cannot be used to aggravate a sentence under Taylor v. State, 670 N.W.2d 584 (Minn. 2003).  And appellant argues that because the jury did not determine any of the facts supporting the aggravating factors, the upward departure violates his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004). 

The state argues that appellant has waived the right to assert Blakely, Blakely does not apply to Minnesota’s sentencing guidelines, and this court’s previous decisions applying Blakely were wrongly decided.  The state acknowledges that if Blakely does apply here, the case should be remanded for resentencing.

Appellant has not waived his right to assert Blakely.  “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”  Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987).  The supreme court has held that “if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  This case was on appeal when Blakely was released, and the state fully briefed the Blakely issue.  And Blakely applies to the Minnesota sentencing guidelines.  See State v. Conger, 687 N.W.2d 639 (Minn. App. 2004) (involving guilty plea), review granted (Minn. Dec. 22, 2004); State v. Saue, 688 N.W.2d 337 (Minn. App. 2004) (involving jury verdict), review granted (Minn. Jan. 20, 2004).  Recently, the supreme court released an order opinion acknowledging that Blakely applies to the Minnesota sentencing guidelines, and review of Conger, Saue,and otheropinions involving Blakely depend on the supreme court’s full opinion in that case, which has not yet been released.  State v. Shattuck, 689 N.W.2d 785 (Minn. 2004).  Under the state of the law at this time, we conclude that appellant’s sentence violated Blakely.

Under Taylor v. State, a district court may not base an upward departure on factors that the legislature has incorporated in defining the charged offense.  670 N.W.2d at 589.  In Taylor, the court prohibited consideration of multiple incidents of abuse and exploitation of trust as aggravating factors in sentencing for first-degree criminal sexual conduct involving genital-to-genital contact with a child under age 13, concluding that these factors were already taken into account by the legislature’s determination of the seriousness of the offense.  Id.at 588-89.  Because the district court based the upward departure in this case in part on multiple penetrations and multiple acts that are already considered part of the offense under § 609.342, subd. 1(h)(iii), resentencing in this case must also comply with Taylor.  We therefore reverse the sentence imposed on appellant and remand for sentencing in accord with Blakelyand Taylor.

Affirmed in part, reversed in part, and remanded.