This opinion will be unpublished and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

A05-682

 

State of Minnesota,
Respondent,

vs.

Jeffrey Thomas Peterson,
Appellant.

 

Filed August 1, 2006

Affirmed

Wright, Judge

 

Chippewa County District Court

File No. K6-04-380

 

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN  56273 (for appellant)

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Dwayne Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN  56265 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Ross, Judge.

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court (1) violated the right to a public trial by sequestering witnesses, (2) violated the right to confrontation when it allowed a change in courtroom setup during the complainant’s testimony, and (3) allowed improper vouching and opinion testimony from an expert witness.  Appellant also contends that the evidence was insufficient to sustain the conviction and that the district court abused its discretion when it denied his request for a downward-dispositional departure without making detailed findings of fact.  We affirm.

FACTS

Appellant Jeffrey Peterson challenges his conviction of first-degree criminal sexual conduct involving his daughter, K.P.  In 2002, K.P. began performing poorly in school, was experimenting with smoking and alcohol, and was having conflicts with Peterson over her group of friends.  In the fall, Peterson found a note written by K.P. that expressed thoughts of suicide.  In November, Peterson arranged for K.P. to move to Wyoming and live with her aunt and uncle.  While K.P. lived with her aunt and uncle, her disciplinary problems disappeared and her grades improved. 

In early 2004, K.P.’s uncle was deployed to Kuwait and K.P.’s aunt, a police officer, was assigned to the night shift.  Because of these changes, plans were made for K.P. to return to Minnesota and live in Peterson’s home.  In spring 2004, shortly before she was scheduled to return to Peterson’s home, K.P. disclosed to her aunt that Peterson had sexually abused her in the past.  K.P. indicated that Peterson touched her breasts and vagina and sometimes made her perform oral sex.  K.P. was anxious, shaking, and red in the face when she discussed the abuse with her aunt. 

K.P.’s aunt contacted local authorities, who arranged for K.P. to be interviewed by a child advocate.  During the interview, K.P. repeated what she had told her aunt and also indicated that Peterson used a flavored gel at least once when he made her perform oral sex.  K.P. told the interviewer that Peterson had shown her Polaroid photographs of her mother (Peterson’s ex-wife) and step-sister, both naked.  According to K.P., Peterson told her that he would stop the abuse if she let him take pictures of her naked.  But she refused. 

Based on K.P.’s statements, police executed a search warrant at Peterson’s residence in Minnesota and seized a Polaroid camera and a container of Body Heat, a flavored gel.  In September 2004, Peterson was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b), (g) (2004).  Peterson waived his right to a jury trial.  After a bench trial, the district court found Peterson guilty of both counts and sentenced Peterson to 144 months’ imprisonment.  This appeal followed.

D E C I S I O N

Peterson first argues that (1) his Sixth Amendment rights to a public trial and confrontation of witnesses were violated, and (2) the district court erroneously admitted testimony from an expert witness.  But Peterson did not object to any of these alleged errors during trial.  We review unobjected-to error under the plain-error standard and may correct such error only if it implicates the fairness and integrity of the judicial proceedings.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The plain-error standard is met when the error is obvious and affects a defendant’s substantial rights by affecting the outcome of the case.  Griller, 583 N.W.2d at 740-41.

I.

            The Sixth Amendment to the United States Constitution guarantees a criminal defendant a “speedy and public trial,” during which the defendant has the right “to be confronted with the witnesses against him.”  Peterson argues that his Sixth Amendment rights were violated by the sequestration of witnesses prior to their testimony and by a change in the courtroom configuration during K.P.’s testimony.  Both arguments are without merit.

A.

Prior to trial, Peterson moved to sequester all witnesses in the case.  The district court granted the motion and ordered the exclusion of witnesses from the courtroom until they testified.  Peterson now contends that witnesses were selectively excluded, creating an apparent bias toward K.P.  There is no support for this contention in the record.  Moreover, it is unclear how any bias might have been created in light of the fact that the judge who issued the sequestration order presided over the bench trial.  It was within the district court’s discretion to sequester witnesses until they had completed their testimony.  Minn. R. Evid. 615, 1989 comm. cmt. (noting that the rule leaves exclusion of witnesses “to the discretion of the trial court”).  The sequestration ruling did not implicate Sixth Amendment guarantees. 

B.

The state called K.P. as a witness at trial.  Prior to K.P.’s testimony, the prosecutor noted that, because of the configuration of the small courtroom, Peterson was seated directly between K.P. and the prosecutor who would be conducting the direct examination.  The prosecutor asked to change the seating to allow him to effectively question K.P.  When the district court suggested that the parties switch counsel tables, Peterson did not object.  Peterson now argues that this seating change denied him the right to confront his accuser.

The Sixth Amendment right to confrontation may be violated, for example, when a witness testifies via video monitor, rather than being physically present in the courtroom when testifying, State v. Peterson, 530 N.W.2d 843, 847 (Minn. App. 1995), or when a screen is placed between a witness and the defendant, Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 2803 (1988).  But similar practices were not employed here.  K.P. testified in open court.  Peterson was present in the courtroom for her testimony.  There is no suggestion in the record that Peterson could not see or hear K.P.’s testimony or that K.P. was shielded from seeing Peterson.  Accordingly, Peterson’s Sixth Amendment right to confrontation was not violated.

II.

            During trial, the state introduced the testimony of Dr. Richard Ascano, a forensic psychologist.  Peterson argues that Dr. Ascano’s testimony included impermissible vouching and opinion evidence.  Expert testimony is admissible if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.”  Minn. R. Evid. 702; State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989).  The Minnesota Supreme Court has held that it is within the district court’s discretion to permit expert testimony describing typical characteristics and behaviors of sexually abused children.  State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984). 

Dr. Ascano testified about common behavior observed in children who are abused by a caretaker over an extended period of time, such as acting out, attempts to maintain the appearance of a happy relationship with the abuser, and feelings of guilt and shame.  Peterson argues that this testimony was impermissible vouching because the behavior Dr. Ascano described closely matched other evidence about K.P.’s behavior.  The Minnesota Supreme Court has rejected this argument, noting in Myers that “[m]uch expert testimony tends to show that another witness either is or is not telling the truth.  That fact, by itself, does not render the testimony inadmissible.”  Id. at 609.  Nor did Dr. Ascano offer impermissible opinion evidence.  Dr. Ascano never addressed K.P.’s behavior specifically.  Indeed, he testified that he had never met K.P., and he made it clear that he was speaking generally.  Therefore, the district court’s admission of Dr. Ascano’s testimony was not erroneous.

III.

            Peterson also maintains that the evidence presented at trial was insufficient to sustain his conviction.  When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record to determine whether the jury reasonably could find the defendant guilty of the offense based on the facts in the record and the legitimate inferences that can be drawn from those facts.  State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999).  In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id.  We 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, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

First-degree criminal sexual conduct is defined as intentional sexual penetration, including oral penetration, of a complainant between 13 and 16 years of age by a perpetrator in a position of authority over the complainant who is more than 48 months older than the complainant.  Minn. Stat. § 609.342, subd. 1(b) (2004).  The district court made findings of fact related to each element of the offense.  Our review of the record supports those findings.  K.P. was 14 years old at the time of the last episode of sexual abuse.  K.P. testified that her father began abusing her when she was in the fifth grade.  The abuse included Peterson forcing K.P. to perform oral sex.  K.P.’s testimony at trial was consistent with statements she made to her aunt and to the child advocate, as well as with evidence found in a search of Peterson’s home.  It is well established in Minnesota that a conviction can rest on the testimony of a single credible witness.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  Combined with evidence about K.P.’s behavioral problems while living with Peterson, the resolution of those problems when K.P. lived with her aunt and uncle, and the expert testimony of Dr. Ascano, there is ample evidence to sustain the guilty verdict.  Thus, Peterson is not entitled to relief based on his claim of insufficient evidence.

IV.

            Peterson also maintains that we should remand for resentencing because the district court failed to make adequate findings of fact when it denied his motion for a downward dispositional departure from the sentencing guidelines.  After a sentencing hearing in which members of Peterson’s family testified about the financial and emotional hardships that would result if Peterson were imprisoned, the district court imposed a sentence under Minn. Stat. § 609.342, subd. 1(b), criminal sexual conduct by a person in a position of authority over the complainant.  The district court denied Peterson’s motion for a downward-dispositional departure and imposed an executed sentence of 144 months’ imprisonment, the presumptive guidelines sentence.  In doing so, the district court stated that it “reluctantly found no legally acceptable reasons for departure.”

Peterson argues that he qualified for a downward-dispositional departure authorized by Minn. Stat. § 609.342, subd. 3(a) (2004).  Subdivision 3(a) provides that, when a person is convicted under Minn. Stat. § 609.342, subd. 1(g), the district court has the discretion to stay execution of the sentence if it finds that a stay would be in the best interests of the complainant or the family unit and if the offender is amenable to treatment.  But the district court adjudicated Peterson’s guilt and imposed sentence under subdivision 1(b), not under subdivision 1(g).  Accordingly, Peterson is not eligible for this type of departure.

Peterson nevertheless argues that the district court should have made detailed findings of fact to explain its denial of his departure request.  “When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances” justifying the departure.  Minn. Sent. Guidelines II.D (2005).  But “an explanation is not required when the court considers reasons for departure but elects to impose the presumptive sentence.”  State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).

Peterson argues that the different fact-finding requirements that apply to granting a departure versus denying a departure are constitutionally infirm under the United States Supreme Court’s recent jurisprudence in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).  We disagree.

In Blakely, the United States Supreme Court held that the greatest sentence a district court can impose is “the maximum sentence solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at ___, 124 S. Ct. at 2537 (emphasis omitted).  A defendant, therefore, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above the statutory presumptive guidelines sentence.  Id. at ___, 124 S. Ct. at 2536.  There is no authority to suggest that Blakely applies to downward departures, which decrease the sentence to less than the presumptive guidelines sentence.  Nor is there any authority suggesting that Booker applies to the Minnesota Sentencing Guidelines.  Booker applied the Blakely decision in the context of the federal sentencing guidelines.  Booker, 543 U.S. at ___, 125 S. Ct. at 749-50.  The Minnesota Supreme Court has rejected Booker’s application to the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 147 (Minn. 2005).  Absent a finding of substantial and compelling circumstances, the district court must impose the presumptive guidelines sentence.  Id. at 141; Minn. Sent. Guidelines II.D.

The crux of Peterson’s argument is that the lack of detailed findings here suggests that the district court did not seriously consider the defense motion for a downward-dispositional departure.  This argument is unavailing.  The district court is not required to provide an explanation when it imposes the presumptive guidelines sentence after considering a downward departure motion.  Van Ruler, 378 N.W.2d at 80.  We are mindful that our role in reviewing a district court’s denial of a motion for a downward-dispositional departure is limited.  Even when substantial and compelling circumstances are present, the decision to depart rests within the district court’s discretion.  Minn. Sent. Guidelines II.D (2005) (“When such circumstances are present the judge may depart . . . .” (Emphasis added.)).  The Minnesota Supreme Court has made clear that “it would be a rare case which would warrant reversal of the refusal to depart.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Accordingly, we will not “interfere with the sentencing court’s exercise of discretion, as long as the record shows the sentencing court carefully evaluated all the testimony and information presented before making a determination.”  Van Ruler, 378 N.W.2d at 81. 

The sentencing record here makes evident that the district court fulfilled its obligation to consider Peterson’s request for a dispositional departure.  The district court heard testimony from ten defense witnesses during a sentencing hearing that extended over two days.  See Minn. R. Crim. P. 27.03, subd. 1(F) (permitting sentencing record to be supplemented with testimony at the discretion of district court).[1]  The testimony addressed the severe consequences of Peterson’s incarceration for his family, including his daughter, K.P.  But the district court is barred from considering employment, living arrangements, or marital status when evaluating whether to grant a departure from the sentencing guidelines.  Minn. Sent. Guidelines II.D(1)(c), (d).  Moreover, clear reasons to deny a dispositional departure were presented in K.P.’s victim-impact statement and the presentence-investigation report, which noted Peterson’s continued failure to take responsibility for his actions and recommended an executed sentence.  Our review of the record establishes that the district court exercised sound discretion when it denied Peterson’s motion for a sentencing departure.

Affirmed.