This opinion will be unpublished and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

A04-914

 

State of Minnesota,
Respondent,

vs.

William Elmer Kelley,
Appellant.

 

Filed May 17, 2005

Affirmed

Peterson, Judge

 

Mille Lacs County District Court

File No. K403246

 

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

 

Jan Kolb, Mille Lacs County Attorney, Courthouse, 635 Second Street Southeast, Milaca, MN  56353 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

 

            In this appeal from a conviction of first-degree criminal sexual conduct, appellant argues that (1) the district court committed plain error by admitting Spreigl evidence when notice requirements were not met and no cautionary instruction was given to the jury; and (2) the evidence is insufficient to sustain the guilty verdict.  We affirm.

FACTS

            In June 2001, A.M.K. and her brother spent the weekend with their father, appellant William Elmer Kelley.[1]  A.M.K. slept on a bed in the living room, and her brother slept on a couch in the living room.  A.M.K. was approximately 15 years old at the time, and her brother was approximately 13 years old.[2]  A.M.K. testified that she was awakened during the night by appellant taking off her pants.  Appellant crawled on top of her and put “his private part” inside “[her] private part.”   Afterwards, A.M.K. went into the bathroom and stayed there for the rest of the night.  A.M.K. did not tell her mother about the incident until June 2002.  In February 2003, appellant was charged with three counts of first-degree criminal sexual conduct.

            A.M.K. also testified that appellant had done this many times before, beginning when she was six years old, and she never told anyone because appellant threatened to kill her if she said anything.  After A.M.K. testified, the state offered as a prior consistent statement a videotaped, out-of-court statement made by A.M.K.  Appellant objected, asserting that the videotape was unduly cumulative and prejudicial.  On the videotape, A.M.K. stated that something similar had happened to her cousin and that she and her brother always went to her father’s house together because her mother did not trust appellant “from what he did to my cousin.”  The second reference to A.M.K.’s cousin was deliberately muted so that the jury would not hear or understand what A.M.K. said.  Appellant’s attorney consented to playing the first reference to A.M.K.’s cousin to the jury because the reference did not identify appellant in any particular way.

A.M.K.’s teacher testified that A.M.K. is cognitively impaired and that due to a learning disability, she receives special-education instruction to aid her academic performance.  A.M.K.’s brother testified that he slept through the night in question and he did not remember anything unusual about the night.

            Appellant testified at trial that he never had sexual relations with his daughter.  Appellant testified that he suffers from severe osteoporosis and has extensive injuries to his back and neck from a work-related fall several years ago.  His condition has worsened over the years, and he walks with a cane and takes prescription medication to manage the pain from his injuries.

            The jury found appellant guilty of one count of first-degree criminal sexual conduct and acquitted him of two counts.  This appeal followed.

D E C I S I O N

            Appellant argues that A.M.K’s references to her cousin during the videotaped statement are Spreigl evidence[3] and that the district court committed plain error by admitting the references without the required notice and without providing a cautionary instruction to the jury.  Appellant objected to the admission of the entire taped statement at trial as unduly cumulative and prejudicial, but he did not specifically object to the references to A.M.K.’s cousin.

To prevail on appeal on a claim of wrongfully admitted evidence, an appellant must show error and that prejudice resulted from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  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).  When 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).  If the district court erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, the error is prejudicial.  Id.

 But when a defendant fails to object to the admission of evidence, appellate review is under the plain-error standard.  Minn. R. Crim. P. 31.02; State v. Asfeld, 662 N.W.2d 534, 540 (Minn. 2003).  “The plain error standard requires that the defendant show:  (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing State v. Griller, 583 N.W.2d 736,  740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997))).  “‘If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’”  Id. (quoting State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted)).

The supreme court has provided a five-prong test for evaluating when to admit Spreigl evidence: 

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

 

Asfeld, 662 N.W.2d at 542.  Also, when requested by the defendant, the district court must instruct the jury that the evidence is admitted for a limited purpose.  State v. Forsman, 260 N.W.2d 160, 169 (Minn. 1977).

Appellant claims that because these safeguards were not followed, the district court committed plain error by admitting the references to A.M.K.’s cousin.  But the record demonstrates that the state included the videotape on the witness-and-exhibit list that it provided to appellant before trial, and appellant’s counsel agreed to permit the jury to hear the first reference because it did not identify appellant as the perpetrator and to deliberately mute the second reference when the tape was played to the jury.  Under these circumstances, the first reference is not Spreigl evidence because it did not identify appellant.  See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (Minn. 1965) (holding that “where the state seeks to prove that an accused has been guilty of additional crimes and misconduct on other occasions, although such evidence is otherwise admissible under some exception to the general exclusionary rule, it shall not hereafter be received unless within a reasonable time before trial the state furnishes defendant in writing a statement of the offenses it intends to show he has committed”) (emphasis added)).  And because the second reference to A.M.K.’s cousin was muted and the jury did not hear it, there is no reasonable possibility that the verdict might have been more favorable to appellant without the evidence, and any error in admitting the evidence was not prejudicial.

            Appellant also argues that the evidence presented at trial was insufficient to support his conviction.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking 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 the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

            Appellant was convicted under section 609.342, subdivision 1(g), which provides that a person is guilty of first-degree criminal sexual conduct if he engages in sexual penetration with a victim who is under 16 years of age at the time and the actor has a significant relationship to the victim.  Minn. Stat. § 609.342, subd. 1(g) (2000).

Appellant argues that given his physical disabilities, A.M.K.’s claim that he got on top of her and sexually assaulted her is not credible, and because his conviction rests almost exclusively on A.M.K.’s testimony, the evidence is insufficient to support his conviction.  Appellant also argues that A.M.K.’s testimony changed with each telling and that due to her cognitive limitations, she was likely influenced by her mother’s comments and the social worker’s leading questions during the videotaped interview. 

The record reveals inconsistencies in A.M.K.’s testimony and that she was not able to remember certain facts—such as where she usually slept when she stayed at appellant’s one-room apartment, what year the incident occurred, whether appellant had his clothes on, who was at the apartment that night, whether appellant said anything during the incident, and what time it occurred.  But the jury heard all of the testimony at trial and was aware of any inconsistencies.  Weighing the credibility of witnesses is the province of the jury, and it is free to accept part and reject part of a witness’s testimony.  State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1997).  In determining whether evidence is sufficient to support a jury’s verdict, “inconsistencies in the state’s case do not require reversal if the testimony as a whole is consistent and credible.”  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996), review denied (Minn. Jan. 21, 1997).  The inconsistencies in A.M.K.’s testimony are relatively minor, and she never changed the substance of her story. Therefore, despite the inconsistencies and A.M.K.’s inability to remember some details, the evidence is sufficient to support the jury’s verdict.  See State v. Bolstad, 686 N.W.2d 531, 540 (Minn. 2004) (declining to depart from presumption favoring jury’s resolution of witness credibility where circumstances surrounding witness’s changed story were presented to jury).

Appellant also contends that A.M.K.’s brother’s testimony that he was sleeping in the same room when the incident occurred but did not hear or see anything does not support A.M.K.’s claims.  But appellant mischaracterizes the brother’s testimony.  The brother testified that he was not aware that anything occurred because he was sleeping.  Furthermore, a criminal-sexual-conduct conviction can rest on the victim’s uncorroborated testimony.  Minn. Stat. § 609.347, subd. 1 (2000).  And inconsistencies or conflicts between one state witness and another do not necessarily constitute false testimony or the basis for reversal.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

Affirmed.