This opinion will be unpublished and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

A05-784

 

State of Minnesota,

Respondent,

 

vs.

 

Lardell Wesley,

Appellant.

 

Filed March 21, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 04024061

 

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Steven K. Marden, 2136 Ford Parkway, Suite 359, St. Paul, MN 55116 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges his convictions of criminal sexual conduct crimes, arguing that (1) the evidence is insufficient to support the convictions; (2) the court made numerous errors in its evidentiary rulings; (3) he is entitled to a new trial due to a witness testifying about excluded evidence; (4) his counsel was ineffective; and (5) the denial of his request for a downward sentencing departure was error.  Because we find no reversible error, we affirm. 

FACTS

Thirteen-year-old T.J. told her school social worker that her uncle, appellant Lardell Wesley, had sexually abused her.  The social worker notified the police, and an officer interviewed T.J. at her school.  According to the police officer, T.J. reported that she sometimes stayed overnight at Wesley’s home and that Wesley would slide his hands down her pajamas and touch her pubic and vaginal areas.

The police officer referred T.J. to the CornerHouse agency, which specializes in interviewing children who allegedly have been sexually abused.  T.J. related to a CornerHouse interviewer that, over a course of several years when she would visit her cousins and stay overnight at Wesley’s home, he would touch her back, stomach, thigh, buttocks, and vaginal area.  T. J. stated that the last incident before she reported the touching occurred toward the end of her sixth-grade school year.  She stated that she was sleeping in Wesley’s bedroom and, at about 3:00 a.m., she woke up and found that Wesley had his hand in her pajama bottoms.  She asked him what he was doing and said she was “going to tell.”  She indicated that Wesley begged her not to tell anyone, saying that if she did so he could go to jail.

The state then charged Wesley with criminal sexual conduct, and the matter was tried to a jury.  T.J. testified at the trial that Wesley touched her on her legs, back, chest, and bottom.  She explained that by “bottom” she meant her butt.  She stated that Wesley touched her bottom both on the outside of her clothing and underneath her clothes.  She testified that when he hugged her, he put his hands under her shirt and touched her back and her stomach.  She also stated that he touched her chest and that, even though she was not developed, she was wearing a bra.  And she indicated that he put his hand down the back of her pants and touched the top of her thigh.  As to the last incident of touching, T.J. testified that Wesley had his hand down her pajama bottoms and on the top, inner portion of her thigh.  She did not testify that Wesley touched her vagina or pubic area.

Through various pretrial and trial rulings, the district court disallowed evidence that T.J.’s brother had been accused of sexually abusing a cousin; admitted into evidence as prior consistent statements the testimony of the police officer who interviewed T.J. and the videotaped CornerHouse interview of T.J.; and allowed the videotape to be sent to the jury room as an exhibit.  The court also denied Wesley’s motion for a mistrial when a witness referred to a writing that the court had ruled inadmissible.

The jury found Wesley guilty of three counts of criminal sexual conduct.  Before sentencing, Wesley moved for a downward departure from the presumptive executed sentence of 48 months.  The court denied the motion and imposed the presumptive sentence.

Alleging insufficiency of the evidence to support his convictions, ineffective assistance of trial counsel, evidentiary and procedural errors, and an abuse of sentencing discretion, Wesley brings this appeal.

D E C I S I O N

1.         Sufficiency of the Evidence

            Wesley contends that the evidence is insufficient to support his convictions.  A challenge to the sufficiency of the evidence limits this court’s review 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 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).  The verdict will be affirmed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

            Wesley was convicted under Minn. Stat. § 609.343, subds. 1(a), (g), (h)(iii) (2004), which proscribe sexual contact when a victim is under 13 years of age and the actor is more than 36 months older, when the actor has a significant relationship with the victim, and when the sexual abuse involves multiple incidents.  Sexual contact for purposes of Minn. Stat. § 609.343 (2004) includes intentional touching with a sexual or aggressive intent of the complainant’s intimate parts, or the touching of the clothing covering the immediate area of the intimate parts.  Minn. Stat. § 609.341 subds. 11(a)(i),(iv), (b)(i),(iv) (2004). 

Wesley contends that there is no direct evidence of sexual contact but rather the state presented only “general statements by the accuser.”  He also argues that there was no evidence whatsoever of any sexual or aggressive intent, as required by the law that he is accused of violating.

Direct evidence is that which results from a witness’s firsthand perceptions.  10 Minnesota Practice, CRIMJIG 3.05 (1999).  T.J. testified at trial that Wesley touched her buttocks on the outside of and underneath her clothing; that he touched her chest; and that he touched the top, inner portion of her thigh.  These were acts that T.J. could see and feel.  Her testimony was direct evidence of Wesley’s physical contact with those areas of T.J.’s body.

For purposes of the charges against Wesley, “‘[i]ntimate parts’ includes the primary genital area, groin, inner thigh, buttocks, or breast of a human being.”  Minn. Stat. § 609.341, subd. 5 (2004).  Thus, there was direct evidence that Wesley touched T.J.’s intimate parts.  And a sex-crime victim’s testimony alone, without corroboration, may be sufficient to support a conviction.  See Minn. Stat. § 609.347, subd. 1 (2004) (stating that prosecutions under section 609.343 do not require corroboration of the victim’s testimony).

That Wesley’s touching was done with sexual intent rests on plausible inference.  Wesley touched T.J.’s intimate parts, sometimes putting his hand inside her clothing to do so.  He touched her intimate parts on several occasions over an extended period of time.  He even acknowledged the inappropriateness of his touching by stating that if T.J. told anyone what he did he could go to jail.  Taken as a whole, Wesley’s conduct supports, and perhaps even compels, the inference that his touching was done for a sexual purpose.  The repeated acts negate accidental touching, and it would have been unreasonable for the jury to infer from this evidence any proper purpose for the touching.  See State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993) (finding sufficient evidence of sexual intent when the defendant touched the accuser’s intimate parts and put his tongue in her mouth when he kissed her).

The evidence was sufficient to establish beyond a reasonable doubt that Wesley touched T.J.’s intimate parts with a sexual intent.

2.         Ineffective Assistance of Counsel

 

            Wesley argues that the cumulative effect of counsel’s numerous trial mistakes deprived him of effective assistance of counsel.  We disagree.  To show ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  Such probability is reasonable if it is sufficient to undermine confidence in the outcome.  Id. 

            Wesley makes many complaints about his trial lawyer, all of which relate to trial strategy.  For example, he complains that counsel introduced a marital termination agreement, rather than offering Wesley’s ex-wife as a witness; that counsel failed to call as witnesses T.J.’s brother and cousins, who were in the room when Wesley touched T.J. with his hand inside her pajama bottoms; and that counsel failed to question Wesley as to his own character evidence or question the character witnesses as to Wesley’s “excellent reputation in the community.”  Yet, these are all matters of trial strategy, which are not reviewable for competency.  See State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (concluding that the failure to cross-examine and impeach a witness, and the failure to object to evidence is a question of trial strategy); see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that decisions about what evidence to present to the jury, including the defenses to raise and the witnesses to call are matters of trial strategy and will not be reviewed later for competence). 

            Even if these alleged errors were reviewable, Wesley has not shown that his attorney’s actions were objectively unreasonable.  Counsel’s decision not to present testimony from Wesley’s ex-wife, who may be potentially hostile, is a reasonable decision.  Not calling T.J.’s brother and cousins as witnesses to the touching of T.J. is also reasonable, given that they were sleeping and did not see the incident.  Counsel’s decision to not ask Wesley about his own character evidence was also reasonable in order to protect Wesley from a potentially damaging cross-examination.  Furthermore, even if these strategies were ineffective, Wesley has not shown that the outcome of the case, given T.J.’s direct evidence, would have been different had his trial lawyer done what appellate counsel contends he should have done.  In its essence, the dispositive issue was that of the credibility of T.J. versus Wesley.  The jury chose to believe T.J., and none of the alleged errors of counsel thwarted Wesley’s ability to challenge and test T.J.’s credibility.

3.         Evidentiary Rulings

            a.         Investigation of T.J.’s Brother

            In 1999, a child-protection worker investigated an allegation that T.J.’s older brother had sexually abused his cousin.  As part of that investigation, the child-protection worker asked T.J. if her brother, who resided in the same household as T.J., had sexually abused her.  She answered that he had not.  There is no evidence in the record on appeal that T.J.’s brother had sexually abused her.

            Defense counsel sought to cross-examine T.J. about the allegation against her brother and about her interview by the child-protection worker.  Counsel’s purpose, according to the district court, was to pursue a defense not of an alternate perpetrator, but rather to show a source of sexual knowledge other than the defendant.  The court ruled that there could be no mention of the brother’s conduct because it was irrelevant; any probative value was outweighed by its potential for unfair prejudice; it would confuse the jury; and the rape shield law barred such evidence.

            On appeal, Wesley claims the ruling was erroneous because it deprived him of showing that T.J. was lying about him being the abuser, that there was an alternate perpetrator, and “that a transference had occurred between him, and the actual perpetrator of any sexual abuse.”  He argues that the fact that there was “a perpetrator of sexual abuse in the accuser’s household, her own brother, was exculpatory evidence which should have been presented to the jury.”

Although the only theory defense counsel presented to the district court as a basis for the admission of this evidence was that of an “alternate source of sexual knowledge,” the evidence was irrelevant to that theory and to the other theories raised for the first time on appeal.

Relevant evidence is that which has some tendency to make a fact of consequence more likely or less likely than it would be without that evidence.  Minn. R. Evid. 401.  Irrelevant evidence is inadmissible.  Minn. R. Evid. 402.

All of Wesley’s theories for the use of the evidence of T.J.’s brother’s sexual conduct with his cousin tend to raise so-called reverse-Spreigl issues.  Thus, when a criminal defendant seeks to show that a third person has done something from which it can be inferred that the third person rather than the defendant committed the crime at issue, evidence of the third person’s conduct is admissible.  State v. Gutierrez, 667 N.W.2d 426, 436 (Minn. 2003).  But before such evidence may be admitted, “the defendant must first lay a foundation consisting of additional evidence which has ‘an inherent tendency to connect such other person with the actual commission of the crime.’”  Id.(citations omitted).  Absent such linking evidence, the proffered evidence is not admissible.  Id.

Wesley has failed to show the existence of any evidence that links T.J.’s brother’s conduct to the crimes of which Wesley was convicted.  Rather, he has offered only speculation and conjecture, intimating that the cross-examination of T.J. possibly could produce the requisite link.  His argument that the mere fact that a sexual abuser resided in the same household as T.J. is exculpatory is unpersuasive as both a matter of logic and common sense. Thus, the evidence of T.J.’s brother’s conduct, on this record, was irrelevant, and the district court did not err in excluding it.

b.         Prior Statements

T.J. made two prior statements about Wesley’s sexual contact with her. The first was a statement to Officer Mattson, the police officer who interviewed T.J. at her school.  The second was the CornerHouse videotaped interview.  Both were received as nonhearsay prior consistent statements under Minn. R. Evid. 801(d)(1)(B).  Alternatively, they were received under the residual hearsay exception in Minn. R. Evid. 803(24).  Wesley contends that the statements were not admissible on either basis.

The three intimate areas that T.J. testified at trial as having been touched by Wesley were the chest, the buttocks, and the inner thigh.  In her statements to Officer Mattson and the CornerHouse interviewer, she alleged that Wesley also touched her pubic and vaginal areas.  These statements were not consistent with T.J.’s trial testimony and did not qualify for admission as prior consistent statements.  A prior statement is not admissible under rule 801(d)(1)(B) when it “contains assertions about events that have not been described by the witness in trial testimony . . . .”  Minn. R. Evid. 801(d)(1)(B) 1989 comm. cmt.  The court noted the inconsistency of the challenged assertions but found the statements overall to be consistent.  The court was correct as to overall consistency, but each particular assertion must be analyzed for consistency or else “a few consistent statements in a multi-statement interview may be used to bootstrap into evidence inconsistent statements that do not qualify under the rule.”  State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).

Nor were T.J.’s prior statements about vaginal and pubic-area touching admissible under rule 803(24).  Admissibility under that rule requires a showing that the statements had circumstantial guarantees equivalent to those of the recognized particular hearsay exceptions in rule 803(1)-(23).  No such showing was made.

Thus, T.J.’s prior statements were inadmissible hearsay.  Minn. R. Evid. 802 (unless an exception applies, hearsay is not admissible).  But even if the district court errs in an evidentiary ruling, the error is not reversible unless it substantially influenced the jury to convict.  State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990).  T.J. testified to multiple touchings of three intimate areas other than her vagina or pubic area.  The jury could have found any single instance of touching any of the other three areas as sufficient for a verdict of guilty.  Thus, even without the prior statements about vaginal and pubic-area touching, there was ample evidence for a conviction.  The court’s evidentiary ruling regarding the prior statements did not result in reversible error.

4.         Playing the Videotape

            Wesley contends that it was error to redact portions of the CornerHouse videotape before it was played for the jury and that it should have been played only once rather than a second time during the jury’s deliberations.

            After the court ruled that the videotape would be received in evidence, counsel and the court discussed the redaction of portions that constituted inadmissible hearsay.  Defense counsel requested certain redactions and the court agreed.  Wesley has waived any error by requesting redactions.  State v. Harris, 255 N.W.2d 831, 831 (Minn. 1977).  Furthermore, he has not provided a record that shows what the redacted items were and, thus, we cannot conduct a further review of that issue.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997)

            Once the videotape was received in evidence as an exhibit, the jury may, in the court’s discretion, review it.  Minn. R. Crim. P. 26.03, subd. 19(2); State v. Shuie, 326 N.W.2d 648, 653 (Minn. 1982).  Wesley has not shown that the court abused its discretion in allowing the jury to view the videotape a second time.

5.         Motion for Mistrial

            Between her interview by Officer Mattson and the CornerHouse interview, T.J. kept a journal at the request of a school behaviorist.  The court granted Wesley’s motion to exclude the journal.

            The behaviorist testified about her observations of T.J. prior to T.J.’s report about Wesley’s sexual abuse.  The witness then was asked what she did after hearing T.J.’s disclosure.  She answered: “I just talked with [T.J.] and tried to comfort her, and I actually asked her if she would like to write some of her thoughts.”  At that point, the court sustained defense counsel’s objection.

            Defense counsel then moved for a mistrial, arguing that the witness had improperly disclosed the existence of a writing that the court had ruled inadmissible.  A ruling on a motion for mistrial will not be reversed absent an abuse of discretion.  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997).  A mistrial shall not be granted unless there is a reasonable probability that the outcome would be different but for the error. State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998).

            It is clear that the witness’s answer did not reveal either the subject matter or the content of any writing.  And, arguably, the answer did not even disclose the existence of a writing, contrary to Wesley’s assertion that it did.  The court responded in a timely and appropriate manner to preclude the disclosure of inadmissible evidence, and the jury never heard any of the evidence of concern.  The court did not abuse its discretion in denying Wesley’s motion for a mistrial.

6.         Sentencing

Wesley argues that the district court abused its discretion when it denied his motion for a downward dispositional departure.  We disagree.

First, the district court properly applied the law by imposing the sentence for the most severe offense as the presumptive sentence.  Wesley was convicted of three counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subds. 1(a), (g), (h)(iii).  For defendants with a zero history score, violations of subdivisions 1(a), (g) have a presumptive sentence of 21 months incarceration, while violations of subdivision (h) have a presumptive sentence of 48 months incarceration.  Minn. Sent. Guidelines V.  When an offender is convicted of two or more felonies, the severity level is determined by the most severe offense of conviction.  Minn. Sent. Guidelines II.A.  Therefore, the 48 months of incarceration is the presumptive penalty. 

We next turn to the question of whether a downward departure was warranted.  A district court must order the presumptive sentence provided in the sentencing guidelines, unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (applying abuse-of-discretion standard in evaluating downward departure), review denied (Minn. Jan. 14, 1991).  Such a departure “is justified if the defendant’s conduct is significantly less serious than that typically involved in the commission of the offense.”  State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985).  See generally State v. Nelson, 329 N.W.2d 827 (Minn. 1983) (reversing downward durational departure because of absence of mitigating factors).  The guidelines provide a nonexclusive list of mitigating factors, none of which applies to Wesley’s case.  See Minn. Sent. Guidelines II.D.2. 

On appeal, Wesley argues that the district court required him to confess to his guilt in order to receive a downward departure.  Although the district court did note that Wesley continued to deny any inference of guilt, it also noted that Wesley’s conduct was typical in the case, and that Wesley refused to participate in treatment.  In reviewing the record, we cannot find any substantial and compelling mitigating factors justifying a departure.  We therefore affirm the sentence. 

            Affirmed.