This opinion will be unpublished and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

A04-1055

 

 

State of Minnesota,

Respondent,

 

vs.

 

David U. Alfaro,

Appellant.

 

 

Filed July 19, 2005

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K8-03-1623

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            This appeal requires that we address the admissibility of testimony by medical personnel of a victim’s statements implicating appellant.  Because we conclude, contrary to appellant’s assertion, that the statements do not constitute hearsay, we affirm.  We find no merit in appellant’s additional arguments that the district court erred in instructing the jury on reasonable doubt and that the evidence was insufficient to support the conviction.

FACTS

            Appellant David Alfaro was convicted by a jury of the malicious punishment of a child, in violation of Minn. Stat. § 609.377, subds. 1, 5 (2002).  On February 11, 2003, appellant brought his son, eight-year-old D.A.C., to school and showed the school’s principal the injuries that the boy had received the day before:  D.A.C.’s right front tooth was broken in half, his lip was swollen, and he had a bruise on his chin.  Appellant told the principal that his son said that he had been injured while playing basketball during gym class. 

            After appellant left and D.A.C. went to his classroom, the principal spoke with the physical education teacher and the school nurse.  The school nurse did not remember D.A.C. coming to her with an injury the day before, nor did she have a record of him visiting the nurse’s office that day.  The physical education teacher said that no injuries occurred during gym class on February 10.

After the principal spoke with the school nurse and the physical education teacher, she and the school nurse spoke to D.A.C. in the nurse’s office.  The nurse met with D.A.C. alone and asked him if the marks were on his face when he got home from school the day before; he said, “No.”  She asked D.A.C. how he got hurt, and he said that his dad hit him. 

            D.A.C. was brought to Children’s Hospital, where he was seen in the emergency room and at the hospital’s Midwest Children’s Resource Center, which specializes in diagnosing and treating sexual and physical abuse of children.  A nurse specializing in assessing child abuse examined D.A.C.  When she asked him why he was at the hospital, he pointed to the injuries on his face.  She then asked him how it happened, and he said he was hit, indicating that it was with a closed fist.  When the nurse asked D.A.C. who hit him, he said his “dad.” 

At trial, both nurses testified about D.A.C.’s statements that his dad hit him.  Appellant testified that D.A.C. told him that he fell while playing basketball.  He denied hitting his son and breaking his tooth on February 10, 2003.  D.A.C. also testified at trial.  He remembered his mouth getting hurt, and he remembered the broken tooth, swollen lip, and bruised chin.  He also remembered seeing the school nurse, talking to her about his mouth, and telling her what happened to his mouth, but he would not respond to questions about what he told her.  D.A.C. did not remember seeing or talking to the hospital nurse, and he would not say what he told the people at the hospital about what happened to his mouth.  He also denied that his dad hit him. 

D E C I S I O N

1.  Out-of-Court Statements

            Appellant asserted to the district court and repeats on appeal that the nurses’ testimony regarding D.A.C.’s statements do not come within the medical-diagnosis exception to hearsay under Minn. R. Evid. 803(4).  Citing Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999), and United States v. Sumner, 204 F.3d 1182 (8th Cir. 2000), appellant bases his argument on the proposition that statements made by child-abuse victims to medical personnel may only come within the medical-diagnosis exception if the medical professional explains the purpose of the interview and if the victim manifests an understanding that truthful information is needed for medical diagnosis purposes.  This proof that the victim understands the need for truthful information or that the information is for a medical diagnosis shows the trustworthiness of the out-of-court statement, which is to say a lack of motivation to fabricate.  See Sumner, 204 F.3d at 1185 (noting that a child’s understanding of the role of the medical health professional in trying to help or heal the child “triggers the motivation to be truthful”). 

            The Minnesota Supreme Court has referred to Eighth Circuit authority for the proposition that a child-abuse victim’s statements identifying the perpetrator are admissible “only if the evidence suggests that the child knew she was speaking to medical personnel and that it was important she tell the truth.”  State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (citing Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1992)).[1]  But the Salazar court did not fully decide that issue because it had not been properly challenged in the district court.  Id. at 778. 

Respondent contends that according to rule 803(4), the sure knowledge of the victim that he was dealing with medical authorities was sufficient to establish his knowledge that his truthfulness was necessary for his correct diagnosis and treatment. 

Although we have weighed the arguments of the parties, we find more compelling another basis for a decision affirming the district court.  Appellate courts have a responsibility “to decide cases in accordance with law, and that responsibility is not to be diluted” by an oversight of counsel.  State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).  We may properly decide an issue not raised on appeal when our reasoning is neither novel nor questionable.  State v. Glidden, 455 N.W.2d 744, 746 (Minn. 1990) (citing Hannuksela, 452 N.W.2d at 673 n.7).  Having examined the parties’ supplemental briefs addressing Minn. R. Evid. 801(d)(1)(C), we decide the case on this basis, without further examining the medical-diagnosis exception to the hearsay rule found at Minn. R. Evid. 803(4).

Because D.A.C. testified and was subject to cross-examination, his statements concerning the identity of the person who hit him do not constitute hearsay under the governing evidence rule.

A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification.

 

Minn. R. Evid. 801(d)(1)(C).  “The rationale for the rule stems from the belief that if the original identification procedures were conducted fairly, the prior identification would tend to be more probative than an identification at trial.”  Minn. R. Evid. 801(d)(1) 1989 cmt.  The comments indicate that the district court must be satisfied of the trustworthiness of the identification before allowing it to be introduced as substantive evidence.  Id.

            Addressing D.A.C.’s statements to the nurses in this case, the district court specifically stated that, “there was no motive on the part of [D.A.C.] to fabricate any such testimony.”  Contrary to appellant’s assertions, the court’s application of the medical-diagnosis exception to the hearsay rule required attention to reliability not significantly different from that required for Minn. R. Evid. 801(d)(1)(C).  

            In addition to the absence of a motive to fabricate, the reliability in rule 801(d)(1)(C) may also refer to the witness’s opportunity to see or know who he is identifying.  Compare State v. Henderson, 620 N.W.2d 688, 698-99 (Minn. 2001) (noting that the district court did not err by excluding a witness’s identification statement when the district court found the statements unreliable because the declarant was unable to “[get] a good look” at the defendant); with Sparks v. United States, 755 A.2d 394, 400 (D.C. 2000) (noting that victim’s identification was reliable because of the victim’s lifelong relationship with the defendant).  Here, undisputed evidence established what is impliedly assumed in the district court’s determination, that D.A.C. knew appellant and knew who had hit him.  Because he had the opportunity to see and know who he was identifying and because the district court further found that he had no reason to fabricate his statements to the nurses, the reliability requirement of rule 801(d)(1)(C) is met.

            In State v. Hogetvedt, 623 N.W.2d 909, 913-14 (Minn. App. 2001), review denied (Minn. May 29, 2001), this court determined that a victim’s videotaped statement made to a police officer the morning after she was assaulted and identifying the person who attacked her was not hearsay under rule 801(d)(1)(C).[2]  Hogetvedt establishes that the rule, in its reference to “identification of a person made after perceiving the person,” extends not only to initially clarifying a person’s identity but also to a person’s later recollection of the perpetrator.  See id.; Minn. R. Evid. 801(d)(1)(C).  Also, there is no merit in appellant’s suggestions that the rule should be confined to statements that corroborate the declarant’s trial testimony or to identifications occurring in a line-up or other police procedure aimed at identifying a wrongdoer.  State v. Robinson, ___ N.W.2d ___, No. A04-840, slip op. at 8-10 (Minn. App. July 19, 2005) (finding support in state and federal holdings for application of rule 801(d)(1)(C) to statements recanted at trial and holding that the rule is not strictly limited to police identification procedures).  We conclude that the district court should be affirmed on the basis of Minn. R. Evid. 801(d)(1)(C).  

2.  Other Issues

            Instruction on Proof Beyond a Reasonable Doubt

Appellant argues that the district court’s instructions to the jury defining “proof beyond a reasonable doubt” diluted respondent’s burden of proof and constituted reversible error.  He argues that the district court overemphasized what does not constitute reasonable doubt.  Although the district court’s instructions included each of the elements listed in the CRIMJIG instructions, appellant argues that the district court erred in structuring these elements and adding other sentences.

Minnesota district courts have “broad discretion and considerable latitude” in choosing the language of the jury instructions.  State v. Smith, 674 N.W.2d 398, 400 (Minn. 2004).  On appeal, we are to analyze reasonable doubt jury instructions by asking if the jury was “reasonably likely to apply the instruction in an unconstitutional manner.”  Id.  Modifications or departures from the CRIMJIG instructions in criminal cases “must be done with considerable care so as not to impair fundamental principles of law.”  Id. at 403.  A district court’s jury instructions that dilute and obscure the state’s burden of proving all facts beyond a reasonable doubt violate the defendant’s due process rights, warranting a new trial.  State v. Tibbetts, 281 N.W.2d 499, 500 (Minn. 1979).

The CRIMJIG definition of proof beyond a reasonable doubt provides:

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs.  A reasonable doubt is a doubt based upon reason and common sense.  It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.

 

10 Minnesota Practice, CRIMJIG 3.03 (1999).

The district court’s instruction was as follows:

Proof beyond a reasonable doubt does not mean proof beyond all possibility of doubt.  A reasonable doubt is a doubt based on reason and common sense.  It is not a frivolous doubt or one based on impulse or whim.  Proof beyond a reasonable doubt is a type of proof upon which ordinarily cautious and reasonable men and women would act in their most important matters and affairs.  The requirement of proof beyond a reasonable doubt does not, however, mean that the State of Minnesota must prove defendant’s guilt to a mathematical or absolute certainty.

 

            The district court’s instructions are accurate descriptions and elaborations of the reasonable doubt instruction in CRIMJIG 3.03.  The instruction does not obscure the meaning of reasonable doubt under Smith or Tibbetts, and the jury was not reasonably likely to apply the instruction in an unconstitutional manner.  We conclude that accuracy of the instruction is not damaged by the court’s slight reordering of the concepts stated in CRIMJIG 3.03 or by the addition of a sentence to reiterate the distinction of proof beyond any possible doubt.

            Sufficiency of the Evidence

            Appellant finally argues that the evidence was insufficient to support the jury’s verdict that he was guilty of felony malicious punishment of a child.  When reviewing the sufficiency of the evidence, this court must determine “whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004) (quotation omitted).  The jury’s verdict will not be disturbed “if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a] defendant was proven guilty of the offense charged.”  Id. at 476-77 (alteration in original) (quotation omitted).  The evidence is considered in the light most favorable to the verdict, id. at 477, and the reviewing court must assume that 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d580, 584 (Minn. 1980). 

            A parent commits felony malicious punishment of a child when that parent, “by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances . . . . [that] results in substantial bodily harm.”  Minn. Stat. § 609.377, subds. 1, 5 (2002).  Substantial bodily harm means “bodily injury which involves a temporary but substantial disfigurement . . . or which causes a fracture of any bodily member.”  Minn. Stat. § 609.02, subd. 7a (2002).

Appellant argues that he was convicted solely on the out-of-court statements made by his son to the school nurse and to the hospital nurse.  Without those statements, we agree that the evidence would be insufficient to support a guilty verdict; apart from these statements, nothing directly points to appellant as the cause of his son’s injuries.  But appellant also argues that even with the admission of these statements, there is a problem with the sufficiency of the evidence.  Appellant asserts that “there was absolutely no evidence to support the proposition that [he] had abused his son.” 

To the contrary, the conclusion that appellant caused the injuries to D.A.C. is corroborated by the evidence that the injury did not occur during D.A.C.’s gym class and by the fact that there is no evidence or explanation offered to explain why the child would lie to the nurses.  Appellant emphasizes the strength of his family’s denial of his wrongdoing, but weighing the credibility of a witness’s testimony is left to the jury.

            D.A.C.’s statements were admissible as non-hearsay statements of prior identification.  These statements, along with other evidence, are sufficient to support the jury’s verdict that appellant was guilty of the malicious punishment of D.A.C. 

Affirmed.