State of Minnesota, Respondent, vs. Daniel Lukewallace Reps, Appellant. A05-641, Court of Appeals Unpublished, June 13, 2006.

This opinion will be unpublished and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

A05-641

State of Minnesota,

Respondent,

vs.

Daniel Lukewallace Reps,

Appellant.

Filed June 13, 2006

Affirmed

Shumaker, Judge

Ramsey County District Court

No. K2-04-428

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

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

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

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion in admitting various hearsay statements; that the prosecutor committed prejudicial misconduct in her closing argument by appealing to the jury’s emotions; and that the court erred in sentencing him to an upward durational departure. Because we find no reversible error, we affirm.

FACTS

The issues presented on this appeal arise out of a sexual assault of six-year old R.P. by her father, appellant Daniel Lukewallace Reps. Reps and R.P.’s mother, M.P., dissolved their marriage, but Reps retained visitation rights. In 2003, after a weekend visit with Reps, R.P. told her mother that Reps had sexually touched her by putting his “peanut”—her term for male genitalia—in her “pee-pee”—her term for female genitalia. She also told M.P. that Reps asked her to watch “pee-pee and peanut movies” and to put lotion on his penis.

M.P. immediately took R.P. to the Children’s Hospital where pediatric nurse Leah Mickschl interviewed R.P. and conducted a medical examination. In the interview, which was videotaped, R.P. told Mickschl that Reps “put the thing, the penis in” her “pee-pee” and in her “butt.” She stated that she also put lotion on Reps’s “peanut” and that Reps “wanted [to] let [her] do it.” According to R.P., she “was touching his [penis] and [white] pee was coming out on [her] hand.” She told Mickschl that she and Reps “watch[ed] a movie like peanuts,” and in the movie people were “[p]utting peanuts in pee-pee.”

Forensic analysis found semen stains, which matched Reps’s DNA, in the crotch of R.P.’s underwear, and a single sperm cell, which was too small to test, on R.P.’s buttocks. The police recovered from Reps’s apartment a pornographic movie, some tissues stuck together with a yellowish-white substance, and a bottle of cocoa-butter lotion.

In a pretrial hearing, the court admitted the videotaped interview of R.P. with Mickschl and R.P.’s prior statements made to her mother under Minn. R. Evid. 801(d)(1)(B) as prior consistent statements. The court also allowed, under rule 803(4), the medical-diagnosis exception to the hearsay exclusion, nurse Mickschl’s testimony regarding what R.P. told her.

R.P. testified at trial that that she put lotion on Reps’s “peanut”; that his peanut went inside her “pee-pee”; that she saw “white stuff,” which was not lotion, come out of her father’s peanut; and that she watched television with “bad stuff” like “peanuts and stuff” on it. At first R.P. denied that Reps’s peanut went into her rectum, but she did concede that it did “go inside a little bit.” R.P. did not recall what she had told her mother about Reps, nor did she recall what she told a nurse at a hospital regarding the incident.

M.P. testified that R.P. told her that Reps “stuck his thing in her”; that she watched “peanut movies”; and that she put “lotion on his thing.” Mickschl next testified regarding the interview with R.P., and the court allowed the videotape of the interview to be played for the jury. Investigating officer Shannon Sills testified that M.P. told her that R.P. said Reps “put his pee-pee in her vagina” and that R.P. had indicated “that there had been something with putting lotion on daddy and that this all had happened before also.” Similarly, Officer Anita Muldoon testified that M.P. told her that R.P. said “her dad had put her—put his peanut in her pee-pee and that they had watched peanut movies.”

At the close of the evidence, the court submitted a special-verdict form to the jury and instructed the jury that if it found Reps guilty, it would have to answer “yes” or “no” as to whether there was “more than one form of sexual contact.” The court further instructed the jury that if it had a reasonable doubt as to this question, it must answer “no.” The jury convicted Reps of first-degree criminal sexual conduct and found by special verdict that more than one form of sexual contact had occurred. Based on the jury’s verdict, the court sentenced Reps to an upward durational departure from the presumptive sentence. This appeal followed.

D E C I S I O N

1. Hearsay Statements

Reps contends that the district court committed reversible error by improperly admitting hearsay testimony. He specifically complains about the following testimony: M.P.’s testimony about what R.P. stated to her; the nurse’s testimony about what R.P. stated to the nurse; and the officers’ testimony about what M.P. stated to them. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

We first note that among the foundational requirements in rule 801(d)(1)(B) is the condition that the statements will be “helpful to the trier of fact in evaluating the declarant’s credibility as a witness.” Although the court might in some cases make an express finding regarding this factor before allowing a rule 801(d)(1)(B) statement, it seems that the element is impliedly satisfied if the theory of the defense likely will raise an issue as to the declarant’s credibility, which can entail both questions of accuracy and truthfulness. Here, R.P.’s account was significantly at odds with Reps’s version of what happened. This conflict raised a credibility issue as to both R.P. and Reps. The district court acted within its discretion, at least as to the helpfulness component of rule 801(d)(1)(B), even though the court did not make specific findings.

Reps makes two preliminary arguments regarding R.P.’s prior statements overall. First, he contends that the statements do not satisfy the pre-1990 version of rule 801(d)(1)(B), which requires that there be a claim of recent fabrication or improper influence or motive. See Minn. R. Evid. 801 1989 comm. cmt. The current rule, however, does not contain this requirement. Rather, it is broader and contains only the criterion of helpfulness on the issue of credibility. There need not have been a suggestion of fabrication or improper influence or motive. The statements were offered to corroborate R.P.’s trial testimony. Even when there has been no impeachment, corroboration is allowed, within the discretion of the court.

Reps’s second argument is that R.P.’s prior statements were unreliable. But if the statements satisfy the rule 801(d)(1)(B) elements, they are admissible. Reliability then becomes a jury issue.

a. Prior Consistent Statements Under Rule 801(d)(1)(B)

Both M.P.’s testimony as to what R.P. told her and the videotape of R.P.’s interview with nurse Mickschl were admitted under rule 801(d)(1)(B).

With respect to statements made to M.P., the rule is satisfied if the out-of-court statements to M.P. were consistent with R.P.’s trial testimony. We find that the statements were consistent. At trial, R.P. testified that Reps engaged in essentially three sexual acts with R.P.: (1) he penetrated R.P.; (2) he made R.P. put lotion on his penis; and (3) he watched pornographic movies with R.P. M.P. testified that R.P. told her that Reps put his “thing in” her pee-pee; that she put lotion on Reps’s “peanut”; and that she watched “peanut movies” with Reps. R.P.’s out-of-court statements to her mother are consistent with her trial testimony and therefore were admissible.

The videotaped statements are also consistent with the R.P.’s testimony. In the videotape, R.P. states that Reps put his “peanut” in her vagina and buttocks; that she put lotion on Reps’s “peanut”; that she saw “white pee” coming from Reps’s penis; and that she watched a movie with “peanuts” in it. The court did not abuse its discretion in allowing these prior statements into evidence.

b. Medical-Diagnosis Exception

The court also allowed Mickschl to testify about specifics during her interview with R.P. under the medical-diagnosis-treatment exception to the hearsay rule. Minn. R. Evid. 803(4). Reps contends that this was error because the purpose of Mickschl’s interview was to obtain information for the police. Furthermore, Reps argues, even if some of R.P.’s statements are within the purview of rule 803(4), Mickschl’s identification of Reps as the perpetrator is not.

Although our holding above that Mickschl’s videotaped interview of R.P. was admissible under rule 801(d)(1)(B) settles this evidentiary issue, it is appropriate to note that we agree with Reps’s contention that rule 803(4) was not satisfied.

We have previously held that a medical examination motivated by suspected sexual abuse can serve a legitimate medical as well as an investigative purpose. State v. Bellotti, 383 N.W.2d 308, 312 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see also State v. Larson, 472 N.W.2d 120, 126 (Minn. 1991) (stating child-sexual-abuse victim’s identification of abuser falls within the hearsay exception under rule 803(4)). And, in child-sexual-abuse cases, a child-victim’s identification of the perpetrator as a member of the child’s family can have a legitimate treatment purpose because “the doctor has an obligation to insure the child is removed from the abusive environment.” United States v. Beaulieu, 194 F.3d 918, 921 (8th Cir. 1999).

It should first be noted that Reps lumps both Mickschl’s recitation of the interview and the videotape of the interview together. As stated above, the district court properly admitted the videotaped statement under rule 801(d)(1)(B). Thus, to the extent that Reps complains of statements made by R.P. to Mickschl in the videotape, Reps’s argument has no merit because rule 803(4) does not apply.

But the Minnesota Supreme Court has held that statements of a child to a medical provider are admissible under the medical-diagnosis exception “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). The rationale for this rule is that “[s]tatements made for the purpose of medical diagnosis or treatment ‘where the declarant knows that a false statement may cause misdiagnosis or mistreatment’ contain ‘special guarantees of credibility.’” Id. (quoting White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 743 (1992).

It is uncertain that R.P.’s statements to Mickschl contained the sufficient guarantees of trustworthiness required in Salazar. Although R.P. knew she was talking with a nurse, there is no evidence that R.P. understood the importance of telling the truth. Mickschl indicated to R.P. that the “very most important thing that we’re gonna do today is only talk about things that are true and things that really happened.” But Mickschl’s “guideline” for the interview, standing alone, does not show that this six-year-old child understood the concept of relating only “things that are true and things that really happened” or that she acceded to that guideline. Furthermore, there was nothing about Mickschl’s guideline that would induce or encourage the child’s realization that accuracy and truthfulness were imperative for proper medical diagnosis or treatment. Thus, the critical foundation for the applicability of rule 803(4) was lacking. Cf. Larson, 472 N.W.2d at 126 (finding victim’s statements reliable because victim had some “‘selfish’ treatment-related motive to speak the truth that anyone has when one goes to a doctor’s office sincerely inquiring about one or more symptoms”). Mickschl’s testimony as to R.P.’s statements to her were not admissible under rule 803(4).

c. Double Hearsay

Officers Sills and Muldoon testified that M.P. told them what R.P. told her about the sexual abuse. Because the officers’ testimony contained two out-of-court statements, it constituted double hearsay. Minn. R. Evid. 805 provides that “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception.” M.P.’s statements to the officers appear to have been offered for their truth, namely, that R.P. had been sexually abused by Reps. We are aware of no exception to the hearsay rule that would allow M.P.’s hearsay statements. Thus, M.P.’s statements containing R.P.’s statements were inadmissible hearsay-within-hearsay and should not have been admitted into evidence.

To the extent that it might be argued that the statements were offered for the nonhearsay purpose of showing why the officers focused their investigation on Reps, that evidence, even if relevant, would be a mere subterfuge for introducing otherwise inadmissible hearsay. See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (stating that a “police officer . . . may not . . . relate hearsay statements of others” ostensibly to show how an investigation was focused) (quotation omitted).

d. Cumulative Effect of Inadmissible Hearsay Testimony

Here, the testimony of the officers was erroneously admitted. But erroneous admission of evidence does not warrant reversal unless there is a reasonable doubt that the result would have been different had the evidence not been admitted. State v. Martin, 695 N.W.2d 578, 583 (Minn. 2005); State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (articulating the standard of harmless-error analysis to be a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence).

Even without the hearsay testimony of the officers, the jury had substantial evidence on which to base its conviction. R.P. identified Reps as the abuser and testified to the specific acts of abuse. Furthermore, the forensic evidence matched Reps’s DNA. Reps had several relatively inconsistent explanations of the event, which likely created for him substantial credibility issues. Reps told Officer Muldoon that R.P. was peeking in his bedroom door watching him masturbate and that she had seen the pornographic movie when she was peeking. But Muldoon presented photographs of the room that indicated a person would have to be inside the room in order to view the television from the doorway.

Muldoon also testified that Reps told her that when R.P. found him masturbating, R.P. pointed to her vaginal area and asked, “Daddy, can we?” and then grabbed his penis. Conversely, Reps testified that while R.P. had come in and “yanked on my penis, putting lotion on my penis,” R.P. only asked “what was that” as he escorted her out of the room. When asked how his DNA came to be on her underwear, Reps answered that he had grabbed some dirty laundry out of the hamper to wipe himself off. When asked how Reps could allow R.P. to wear the soiled underwear, Reps explained that she dresses herself and he normally does not check to see what she was wearing.

Given the weight of the evidence and the implausibility of Reps’s divergent versions, there is strong probability that the jury would have convicted Reps even without the erroneous hearsay.

2. Prosecutorial Misconduct

Reps contends that the prosecutor committed prejudicial misconduct by arguing beyond the facts of the case and making emotional statements to the jury. As an initial point, Reps did not object to the state’s closing, and, therefore, this court will reverse only if the comments were unduly prejudicial. See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (concluding that by failing to object or seek a curative instruction, and by failing to show undue prejudice, defendant waived his right to appellate review on this issue).

When reviewing alleged misconduct in closing argument, this court looks at the whole argument in context, not just selective phrases or remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Sexual-abuse cases inherently invoke emotional reactions, and “any attempt by the prosecutor to exacerbate this natural reaction by making ‘any emotive appeal’ to the jury ‘is likely to be highly prejudicial.’” State v. McNeil, 658 N.W.2d 228, 234 (Minn. App. 2003) (quotations omitted). Closing arguments should focus on the evidence and any reasonable inferences drawn from that evidence. State v. Yang, 627 N.W.2d 666, 679 (Minn. App. 2001), review denied (Minn. July 24, 2001).

Reps complains that the following statement attempted to inflame the passions of the jury:

The love of a child is a gift that should be loved in return, nurtured and protected. It should not be asked to watch porno movies. It should not be made to apply coco butter to a penis, and it is certainly not there to have sex with.

[R.P] should be watching Sponge Bob Square Pants. She should be thinking about recess and what she’s doing at school, and not be her father’s porn movie date. She shouldn’t be her father’s bed mate, and she shouldn’t be her father’s bedroom mate.

Citing State v. McNeil, Reps argues that these statements were prejudicial. In McNeil, the prosecutor made the following statement in closing:

[T.L.M.], this means that you’re not a virgin anymore. Her first sexual experience, not as an adult, not on her wedding night, not in college, not even in high school. As an eight year old, as a nine year old, as a ten year old. You can’t take away the burden that [T.L.M.] will carry with her the rest of her life. You can’t give her back her childhood. You can’t give her back her virginity. But you can give her justice.

658 N.W.2d at 234-35. This court stated that because the closing statement was “wholly unrelated to the elements of the offenses with which appellant was charged or the evidence at trial,” it was made to play on the sympathies of the jury. Id.at 235.

But the statements referring to the lotion, pornographic video, and sexual contact are all related to the facts and the elements of the crime charged. The prosecutor’s statements were reasonable inferences based on the evidence that Reps abused R.P. These statements were not improper comments intended to inflame the jury.

The remaining statements, while perhaps irrelevant to the case, likely did not inflame the jury. These were short statements reflecting the obvious societal norm that children should not be the subject of sexual acts. Furthermore, the prosecutor focused the remaining 18 pages of her closing statement on the evidence and the elements of the crime. Because the closing statement focused on the evidence presented at trial, we find that it was not unduly prejudicial.

3. Sentencing

The district court included the following special interrogatory on the verdict form: “Was there more than one form of sexual contact?” The court instructed the jury that it would have to answer that question only if it found Reps guilty and that, if the jury had a reasonable doubt as to whether more than one form of sexual contact occurred, it should answer “no” to the question.

The jury returned a verdict of guilty and answered “yes” to the special interrogatory. The district court treated the jury’s answer as a finding of an aggravating circumstance and departed from the presumptively executed sentence of 144 months to an executed sentence of 156 months. Reps argues that no Minnesota law authorized juries “to make sentencing decisions,” and, therefore, the court erred in submitting and relying on the special interrogatory.

Reps acknowledges that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), requires an opportunity for a jury trial on any factor, other than prior convictions, that a sentencing court would use to exceed the presumptive sentence. But, Reps argues, without a procedure authorizing a jury determination of an aggravating factor, any departure based on such a determination is unconstitutional. Questions of constitutional interpretation are issues of law that we review de novo. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004).

Although the Minnesota legislature has now provided a statutory procedure for jury determination of aggravating sentencing factors, there was no statutory procedure in place when Reps was sentenced. See 2005 Minn. Laws ch. 136, art. 16, §§ 3-6 (codified at Minn. Stat. § 244.10, subds. 4-7 (Supp. 2005)). Thus, if the departure in Reps’s case is to survive constitutional scrutiny, the authority for the use of a jury to decide an aggravating sentencing factor must lie in the inherent power of the court. We believe it does.

Implicit in Reps’s argument is the notion that the authority for a jury determination of an aggravating sentencing factor must be statutory. He argues that the recent legislation that provides a procedure for jury determinations of sentencing factors “create[s] a presumption that the legislature intended to change pre-existing law,” namely, to provide authority for jury involvement in sentencing when such authority did not previously exist.

Even though the Minnesota Sentencing Guidelines (MSG) are statutory, departures from the guidelines have always rested on judicial discretion and have not, except for some felonies, implicated statutes: “A sentence outside the applicable range on the grid is a departure from the sentencing guidelines and is not controlled by the guidelines, but rather, is an exercise of judicial discretion constrained by case law and appellate review.” Minn. Sent. Guidelines II.D. (emphasis added). Thus, the preexisting law was that the district court went outside the MSG when it departed, and the test of the propriety of the departurewas to be found in caselaw restraints. A significant caselaw restraint is found in Blakely, which requires the opportunity for a jury determination of an aggravating sentencing factor. And the Minnesota Supreme Court recognized the inherent authority of the judiciary to regulate procedures for applying Blakely, with the proviso that the judiciary has no authority to alter legislation. State v. Shattuck, 704 N.W.2d 131, 147-48 (Minn. 2005). By regulating a procedure for complying with Blakely here, the districtcourt did not infringe legislative authority but rather exercised its inherentauthority on an issue that the MSG expressly indicate to be controlled by judicial discretion rather than statutory guidelines.

Although Reps did not cite State v. Barker,705 N.W.2d 768 (Minn. 2005), for the proposition that a jury determination of an aggravating factor was improper, we note the case to distinguish it. Barker was convicted of a controlled-substance crime and, because the court found that he was in possession of a firearm, he was given a mandatory minimum sentence under Minn. Stat. § 609.11 (2004). Id.at 771. The supreme court held that the sentence violated Blakely because there had been no jury determination of the factor on which the mandatory minimum sentence—one that exceeded the presumptive sentence—was based. Id.at 773.

The first point of distinction is that in Barker there was no jury finding. This was a clear violation of the Blakely mandate. Here, the jury found the existence of the aggravating factor. There was clear compliance with Blakely.

In Barker, the state argued that if the supreme court found a Blakely violation, the court should remand for the impaneling of a jury to decide the factor that triggered the imposition of the mandatory minimum sentence. Id.at 775. Noting that in Shattuck the supreme court held that it did not have authority to engraft sentencing procedures “onto the Sentencing Guidelines,” the court rejected the state’s argument. Id.(quoting Shattuck, 704 N.W.2d at 147).

The second point of distinction is that the departure in Barker was based exclusively on a statutory provision that the supreme court found to be unconstitutional and that sentencing under section 609.11 was within the province of the legislature to determine. To return the Barker case for the impaneling of a jury when the legislature had not provided for a jury to make a section 609.11 finding would be to alter legislation, something that the courts are not authorized to do. Here, there is no contention that an unconstitutional statute provided the basis for the departure or even that the legislature has preempted sentencing authority for criminal-sexual-conduct crimes. Rather, it appears that the authority is located in that realm of sentencing not controlled by the guidelines or otherwise the exclusive province of the legislature. This is the realm of inherent judicial authority.

Not only was the district court’s departure a product of the exercise of inherent judicial authority, but also the court followed an established judicial procedure in exercising its authority: “In criminal cases, a special interrogatory may be used if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt.” State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997); accord State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992) (special interrogatories are allowed as long as the jury is instructed on reasonable doubt as to answers).

As noted above, and as emphasized by Reps, the legislature has enacted sentencing procedures in response to Blakely. But whereas Reps takes this fact as evincing the legislature’s intent to regulate the issue of sentencing departures, we suggestthe contrary. The sentencing-procedure statutes will expire on February 1, 2007. See 2005 Minn. Laws ch. 136, art. 16, §§ 3-6. It seems apparent that the legislature intended to provide some interim guidance in the immediate aftermath of Blakely but did not intend to claim exclusive sentencing authority. In response to the interim legislation, and in anticipation of the near-future expiration of the statutes, the Supreme Court Advisory Committee on Rules of Criminal Procedure has proposed amendments to the rules to comply with the Blakely mandate. One proposed amendment provides that when “an aggravated sentence is sought, the court shall submit the issue(s) to the jury by special interrogatory.” Supreme Court Advisory Committee on Rules of Criminal Procedure, Report with Proposed Amendments to the Rules of Criminal Procedure 29 (Mar. 2006).[1]Advisory Committee on Rules of Criminal Procedure, Amended Rule 26.03, subd. 18(b). Although the amended rule is yet to be adopted, the fact that the committee has proposed such a rule attests to a recognition that the matter of sentencing departures will remain within the inherent authority of the judiciary.

Affirmed.