This opinion will be unpublished and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

A05-567

 

State of Minnesota,
Respondent,

vs.

Terry Shelton Day,
Appellant.

 

Filed May 30, 2006

Affirmed

Collins, Judge*

 

Hennepin County District Court

File No. 04032705

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3230 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Collins, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

COLLINS, Judge

 

In this appeal from a conviction of fourth-degree criminal sexual conduct, appellant contends that (1) the district court abused its discretion by ruling, without considering the Jones factors, that his prior conviction of first-degree criminal sexual conduct could be admitted as impeachment evidence if he chose to testify; (2) the Jones factors do not support admission of the prior conviction for impeachment; and (3) the thirteen-year-old victim’s pretrial statements and her testimony describing appellant’s offending conduct were too inconsistent to support the conviction.  Because the district court never ruled on the admissibility of appellant’s prior conviction for impeachment purposes and the evidence supports the current conviction, we affirm.

FACTS

            Appellant Terry Shelton Day, age 30, was charged with fourth-degree criminal sexual conduct based on evidence that he intentionally touched the buttocks of thirteen-year-old L. H. as she was walking to her school bus stop.

            The essential facts, presented through the testimony of L.H., are not complicated. In May 2004, Day approached on his bicycle and rode alongside L.H. as she was walking home from school.  After Day asked some personal questions including her age, and asked if he could talk to her, L.H. told Day that she was 13 and said that she could not talk to him because she had a boyfriend.  L.H. recalled seeing Day in the neighborhood, but the two were not acquainted.  When L.H. told Day that she had to leave, Day asked her for a hug.  L.H. hugged Day, and he kissed her on the cheek.  Day, still on his bike, asked for another hug.  L.H. complied and then went on her way alone.  She did not mention this incident to anyone. 

            The next morning, as she was walking to her school-bus stop, L.H. again encountered Day.  Day stood beside L.H., put his arm around her, kissed her on the cheek, and “slid his hand down on [her] butt and touched [her].”  L.H. went on to testify that she was frightened and hurried off to her bus stop about a block away, she was crying and still scared when she got there, and when her friends there asked what had happened, she told them.

At school, L.H. talked to some of her teachers, and at mid-morning she was still visibly upset when she initially discussed the incident with the school’s liaison police officer.  L.H. was then taken home where she described the incident to her mother.

            Before resting the state’s case, the prosecutor renewed her pretrial request for leave to introduce Day’s prior conviction of first-degree criminal sexual conduct as Spreigl evidence of the essential element of Day’s intent.  The district court denied the request.  The prosecutor then noted her intent to offer the prior conviction as impeachment evidence if Day chose to testify.  The judge expressed an inclination to allow it but reserved formal ruling pending the weekend recess.  When the trial resumed, after presenting one witness, Day rested without testifying and without further discussion or a formal ruling as to the admissibility of impeachment evidence.   

            The jury found Day guilty as charged.  The district court entered a judgment of conviction and sentenced Day to serve the mandatory term of imprisonment, 36 months.  This direct appeal from the judgment of conviction followed.   

D E C I S I O N

I.

            Day first argues that the district court abused its discretion by failing to consider the Jones factors and by determining to admit Day’s prior conviction of first-degree criminal sexual conduct as impeachment evidence in the event he testified.  See State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).  Day contends that he was prejudiced by the court’s “impeachment ruling” because in light of it he opted not to testify.  The state responds that, because there was no ruling by the district court as to admissibility of the prior conviction for impeachment purposes, the issue is not properly before this court.  The state alternatively asserts that Day’s claim fails because the evidence would have been admissible for impeachment had he testified.

A.         Lack of a Ruling 

            The state correctly points out that the record contains no ruling on the admissibility of Day’s prior conviction for impeachment purposes; the record shows only that the trial judge took the issue under advisement, noting that she was “inclined” to allow the evidence:

                        [THE COURT:]          I will review the law.  I am inclined, as I sit here, and remembering my past reading of Jones and other similar cases, that I would allow him to be impeached on –because of the issue of credibility.

 

                        [DAY’S COUNSEL:]            Regardless of limitation of [the scope of Day’s testimony on] direct; is that right?

 

                        [THE COURT:]          Right.

 

                        [DAY’S COUNSEL:]            Okay.

                        [THE COURT:]          But I will—before I make my formal ruling I will read the—the cases.         

 

(Emphasis added.)  Thereafter, no ruling was ever sought or made.  Accordingly, the impeachment issue is not properly before this court.  See Babcock v. Sanborn, 3 Minn. 141, 3 Gil. 86, 89 (1859) (stating what has become the time-honored principle that a reviewing court “will...not entertain questions which have not received the actual decision of the tribunal from which they come”), overruled in part on other grounds by Whipple v. Mahler, 215 Minn. 578, 581, 10 N.W.2d 771, 773–74 (Minn. 1943).

To preserve this issue for appeal, it was incumbent on Day, before waiving his right to testify, to demand a ruling or object to the court’s failure to rule, or to raise the issue before the district court on a motion for a new trial.  See Gourd v. Morrison County, 118 Minn. 294, 299, 136 N.W. 874, 875 (1912) (stating that “to warrant [appellate review], the ruling of the trial court, or its refusal to rule, on objections to the admissibility of evidence, either must be [challenged] at the trial, or the point must be assigned as error on a motion for a new trial; such objections are not presentable for the first time by assigning error thereon [on appeal]”); Stitt v. Rat Portage Lumber Co., 98 Minn. 52, 55, 107 N.W. 824, 825 (1906) (stating that defendant “whose objection is in effect taken under advisement” has the burden of requesting a ruling of the court and “if he fails so to do he cannot on appeal avail himself of error by the trial court”).  Having failed to demand a ruling or object to the lack of a ruling, or to raise the impeachment issue on a new-trial motion, Day is not entitled to have the issue considered for the first time before this court.  See State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (stating that “[a]bsent clear and specific objections raised before the district court, we will generally not consider issues of the admissibility of evidence for the first time on appeal”).  

Moreover, when the record was made of Day’s personal decision not to testify, no suggestion was made by Day or his trial counsel that the decision was at all influenced by concern about impeachment.

Because there is no record of a ruling by the district court or of an objection to the court’s failure to rule, and he made no motion for a new trial raising the issue before the district court, Day waived any right to have the impeachment issue considered on appeal.

B.         Admissibility of Impeachment Evidence

            Having concluded that the issue of admissibility of impeachment evidence is not properly before us, it would not be necessary to broach its merits.  Nevertheless, we choose to note that it is evident from the record that had Day testified, evidence of his prior conviction would have been admissible for impeachment purposes.  The prosecutor alluded to the Jones factors and referenced other supporting authority when she noted her intent to offer the evidence, as did the trial judge when she expressed her inclination to admit the evidence and said, “[B]efore I make my formal ruling I will read the – the cases.”  We are satisfied after reviewing the entire record that it would have been reasonable for the district court to conclude that the probative value of the evidence outweighed its prejudicial effect and that all five of the Jones factors were met.

            Evidence of prior convictions punishable by more than one year’s imprisonment is admissible if the court determines that the probative value of the evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a).  In determining whether impeachment evidence is admissible, courts must consider (1) the impeachment value of the prior crime, (2) the date of conviction and the defendant’s subsequent history, (3) the similarity of the past and charged crimes, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.  Jones, 271 N.W.2d at 538. 

            1.         Impeachment Value

            Day’s prior conviction of first-degree criminal sexual conduct had significant probative value because “impeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.”  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations and citations omitted).  Day’s assertion that the evidence lacks impeachment value is inconsistent with well-settled precedent.  See, e.g., State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (stating that “[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value”); State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (stating that “[a] crime need not be one of dishonesty . . . to have probative value in allowing the jury to assess a witness’s credibility”), review denied (Minn. Dec. 11, 2001).  The first Jones factor thus favors admission.

2.         Date of Conviction

            Admission of a conviction for the purpose of attacking the credibility of a witness is generally precluded if more than ten years have elapsed since the date of the conviction.  Minn. R. Evid. 609(b).  In his brief, Day concedes that the passage of time has not rendered his prior conviction inadmissible. 

3.         Similarity Between the Prior Conviction and the Charged Crime

            Day argues that the similarity factor weighs against admissibility because the prior conviction was for another criminal-sexual-conduct offense. We disagree.  While Day’s prior conviction was for a criminal-sexual-conduct offense, the facts of that crime differ sufficiently from the current incident to minimize the likelihood of unfair prejudice resulting from admission of the prior conviction.  See State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (concluding that third Jones factor was satisfied, even though prior conviction and current offense were both for criminal sexual conduct, where facts underlying offenses were sufficiently different to minimize any prejudicial effect of admission of prior conviction).  Unlike here, in the prior case the victim was an adult and a total stranger; Day acted with an accomplice; he had a weapon; and he threatened his victim with the use of force.  The fact that the earlier crime is of the same nature as the crime charged here does not, by itself, preclude admission of the prior conviction for impeachment purposes.  See, e.g., State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (allowing use of prior conviction of first-degree criminal sexual conduct when offense charged was first-degree criminal sexual conduct); State v. Reinke, 343 N.W.2d 660, 662 (Minn. 1984) (allowing use of prior conviction of fourth-degree criminal sexual conduct when offense charged was first-degree criminal sexual conduct).  Accordingly, the third Jones factor does not weigh against admitting the prior conviction.

            4.         Importance of Day’s Testimony

          In the event Day would elect to testify, his trial counsel proposed to limit his direct examination "simply to ask [Day] if he ever touched [L.H.] on the day in question or any other day."  Presumably, Day would have denied L.H.’s allegations.  That testimony would have been important to his case.  To the extent the prospect of introduction of his prior conviction discouraged him from testifying, this fourth factor favors exclusion of that evidence.

         5.      Centrality of Credibility

          Had Day testified, his credibility would have been central to the case, i.e., the jury would have had to decide whether to believe Day or L.H.  The need for the impeachment evidence was therefore legitimate, and the fifth Jones factor is thus satisfied.  See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (stating that “the general view is that if the defendant’s credibility is the central issue in the case—that is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other person—then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater").  

            Thus, contrary to Day’s claim, on balance the Jones factors support admission of evidence of Day’s prior conviction for impeachment purposes had he elected to testify.

II.

            Day contends that the evidence is insufficient to support his conviction.  Specifically, he argues that the jury should have rejected L.H.’s testimony because it was not believable.  We do not agree.

            In considering an insufficiency-of-evidence claim, this court reviews the record to determine whether the evidence, viewed in the light most favorable to the verdict, was sufficient to sustain the verdict.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (stating that standard of review on insufficiency-of-evidence claim in criminal case is limited to determination of whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that defendant was guilty of the offense charged).  In so doing, the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986). 

            To obtain a conviction of fourth-degree criminal sexual conduct, the state must prove beyond a reasonable doubt that the defendant, acting with sexual intent, touched the complainant’s “intimate parts.”  Minn. Stat. §§ 609.345, subd. 1(b); 609.341, subd. 11(b) (2004).  The term “intimate parts” includes the genital area, groin, inner thigh, buttocks, and breasts.  Minn. Stat. § 609.341, subd. 5 (2004). 

            L.H. provided a detailed description of the incident.  In essence, she testified that as she was walking to her bus stop, Day got beside her, put his arm around her, kissed her on the cheek, and slid his hand down and touched her buttocks.  L.H. stated that she was scared and rapidly left the scene, that she was still scared and crying when she reached her school-bus stop, and that her friends asked her what was wrong, and she told them.  At school the same day, she told the school liaison officer about the incident.  She also told her mother that day. 

            Day argues that the jury should not have believed L.H.’s testimony.  But, because the jury is in the best position to observe and evaluate witnesses, credibility determinations are the exclusive province of the jury.  See State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  It is thus not a role of an appellate court to assess the credibility of a witness.  See State v. Starkey, 516 N.W.2d 918, 922 (Minn. 1994). 

Day next argues that L.H.’s testimony is not credible because it was contradicted by one of her thirteen-year-old friends, the only purported eyewitness to the incident.  This friend testified that Day did not touch L.H. in any way.  But on cross-examination the friend admitted that he was not on the same street and was far from L.H. at the time he saw her.  And although he testified that L.H. was not crying when she arrived at the bus stop, he admitted that he told a police officer after the incident that L.H. was crying when she arrived there.  The jury had the prerogative of rejecting conflicting testimony.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984) (stating that “[t]he resolution of conflicting testimony is the exclusive function of the jury because it has the opportunity to observe the demeanor of witnesses and weigh their credibility”).

Day contends that the jury should not have credited L.H.’s testimony because it was uncorroborated.  Specifically, Day argues that because there was no physical evidence and L.H.’s friends did not see Day “in the area around the bus stop,” L.H.’s testimony was uncorroborated.           

Corroboration of a victim’s testimony is not necessary to support a conviction under section 609.345.  Minn. Stat. § 609.347, subd. 1 (2004).  But “[t]he absence of corroboration in an individual case . . . may well call for a holding that there is insufficient evidence upon which a jury could find the defendant guilty beyond a reasonable doubt.”  State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (quoting Note, The Rape Corroboration Requirement, 81 Yale L.J. 1365, 1391 (1972)).  Here, L.H.’s testimony was buttressed by the testimony of her mother, her friends, and the school liaison officer.  Her mother testified that L.H. said that Day stood waiting for her near the corner, “kissed her on the cheek, [and] rubbed her on her butt.”  L.H.’s mother also testified that when she and a friend confronted Day about the incident, he said that he was sorry and would not “touch her again.”   

L.H.’s school friends collectively confirmed that sometime in May, L.H. was upset and crying when she arrived at the bus stop, and although they did not see any adults in the area, L.H. told them that something had happened.

Finally, the school liaison officer testified that when he saw L.H. at 10 a.m. she appeared “visibly upset and nervous,” and she reported that while walking to the bus that morning she “had a problem with an adult male” who “walked up to her and embraced her and kissed her.”

In sum, L.H.’s testimony was corroborated (1) by her prior consistent statements to the liaison officer and to her mother, see State v. Lau, 409 N.W.2d 275, 277 (Minn. App. 1987) (stating that prior consistent statement constitutes corroborative evidence); State v. Folley, 378 N.W.2d 21, 25 (Minn. App. 1985) (stating that consistent description of incident is corroborative factor); (2) by her friends’ testimony describing her emotional state when she reached the bus stop, see State v. Kruse, 302 N.W.2d 29, 30 (Minn. 1981) (stating that testimony about victim’s emotional state corroborated victim’s testimony that assault had taken place); State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (same), review denied (Minn. Mar. 16, 1990); and (3) by her prompt reporting of the incident to the school liaison officer and to her mother, see State v. Gardner, 328 N.W.2d 159, 160 (Minn. 1983) (noting that prompt reporting constitutes corroborative evidence); State v. Wrightington, 323 N.W.2d 793, 794 (Minn. 1982) (same).

Day next argues that there were inconsistencies in the testimony of the state’s witnesses and that L.H.’s own testimony regarding the touching was inconsistent.  But “inconsistencies in the state’s case will not require a reversal of the jury verdict.”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The determination of the credibility and the weight to be given to the evidence lies with the jury.  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).  The jury’s role is to assess inconsistencies and determine what weight to give them.  State v. Steinke, 292 N.W.2d 243, 244 (Minn. 1980).

            Finally, Day asserts that the jury should have rejected the state’s theory of the case because “[t]he defense’s trial theory was far more plausible.”  Specifically, he argues that the jury should have credited his trial counsel’s assertion in closing argument to the effect that “the likely scenario was that [L.H.] was nervous about [Day] talking to her two days in a row and that she claimed that [Day] touched her buttocks because absent that contact, [Day] had not committed a prosecutable offense.”  But a jury “has no obligation to believe a defendant’s story.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).  Moreover, as the state correctly points out, the argument “ascribes to L.H. more knowledge regarding the criminal law, more concern about the propriety of talking to an adult male, and more sophistication and cunning than is likely to be possessed by a 13-year-old girl.”  Day’s theory is unsupported by the record and amounts to mere conjecture.

            Affirmed.