This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-17

 

State of Minnesota,

Respondent,

 

vs.

 

Jack Vance Gibbs,

Appellant.

 

Filed April 24, 2007

Affirmed

Shumaker, Judge

 

Olmsted County District Court

File No. K2-03-3958

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street S.E., Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, 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 Jack Gibbs challenges his conviction of first-degree criminal sexual conduct with a child under 13, arguing that T.V.’s uncorroborated testimony that Gibbs sexually abused her was insufficient to support his conviction.  Gibbs also argues that the district court abused its discretion by declining to conduct in camera review of statements T.V. made to victim services.  Gibbs further maintains that the court abused its discretion by admitting T.V.’s videotaped statement to police and by allowing the jury to hear about 13 unadmitted photographs of T.V. posing that were found on Gibbs’s computer.  Because we conclude that the evidence is sufficient to sustain the conviction, the district court did not abuse its discretion in discovery or evidentiary rulings, and any error in allowing the jury to hear descriptions of the unadmitted photographs was harmless, we affirm.  

FACTS

 

            The state charged appellant Jack Gibbs under Minn. Stat. §  609.342, subd. 1(a) (2002), with first-degree criminal sexual conduct involving a person under 13 years of age when the actor is more than 36 months older than the complainant. 

            In June 2003, eight-year-old T.V. reported that Gibbs, her mother’s boyfriend at the time, had sexually abused her one early morning at her mother’s house on 14th Street in Rochester.  Police were called, and an officer conducted a videotaped interview using the CornerHouse[1] method of interviewing.  During the interview, T.V. stated that when she woke up from sleeping on the basement couch, Gibbs was sitting by her and rubbed her back.   She stated that his hand went down to her private parts, that he “pretty much made [her]” take off her pants, and that he asked her to remove her underwear but she would not.  She stated that appellant then touched her private parts with his tongue and lifted up the side of her underwear, and that the incident went on for about a half hour.  She described the clothing appellant was wearing and the basement room, including a description of eagle wallpaper.   She stated that she did not remember the time of year the abuse occurred, but that “it might have been spring.”   

            Gibbs was charged with first-degree criminal sexual conduct and waived his right to a speedy trial.  At Gibbs’s jury trial in August 2005, T.V. testified that the incident occurred after she and Gibbs had gone biking in the rain to a nearby cemetery.  She testified that they got wet and got thorns in their hair, that Gibbs picked the thorns out of her hair, and that she went to sleep on the basement couch.  She testified that when she woke up, Gibbs was rubbing her back, that “he started getting lower and lower and lower” and that he finally touched her private parts.  She testified that Gibbs got under the blankets, “put his tongue on [her] private parts,” moved her underwear to the side, and “kept asking [her] if that felt good.”  She testified that Gibbs then got up and said “I f--ked up.”  He told her that she could tell if she wanted, but that he would have to leave and her mother “might do something bad.”  T.V. did not immediately report the abuse because she “didn’t want [her] mom to get hurt.”  She testified that she could not remember whether it was warm or cold outside at the time of the incident, but that it “probably wasn’t in the winter time” because of the bike riding. 

            T.V.’s mother testified that she lived in the house on 14th Street in Rochester with her daughters for about eight years.  She was purchasing the house on a contract for deed but could not afford the payments and lost the house in February 2003; she moved to Kasson in March 2003.   She testified that Gibbs lived at the Rochester house for about a month, from February to March 2003, and lived with her in Kasson until May 2003.

            The state also presented testimony from T.V.’s treating psychologist that T.V. reported that Gibbs touched her on the inside of one of her thighs and “placed his lips on her vagina.”   The defense called no witnesses.  

            Before trial, the district court denied a defense motion that the court review in camera any documents about the case possessed by the Dodge-Fillmore-Olmsted Community Corrections Victim Services Department.  At a hearing, the director of victim services testified that the organization takes only general notes and makes recommendations, but does not take statements from victims.  The defense was provided with psychological records of T.V.’s treatment at Zumbro Valley Mental Health Center, as well as files from CHIPS proceedings filed in Olmsted and Dodge Counties. 

            The defense also moved to exclude the videotape of T.V.’s statement to police, arguing that the videotaped statement was hearsay, that the defense did not receive proper notice, and that the statement was unfairly prejudicial to the defense.  The district court denied the motion and admitted the videotape as a prior consistent statement. 

            During trial, T.V.’s mother testified that she found several photos of T.V. on Gibbs’s computer after he moved out and that she turned the computer over to the Kasson police department.  The defense objected to the introduction of photographs taken from the computer, arguing that they lacked foundation and their probative value was outweighed by their prejudicial impact.  The district court ultimately admitted a total of nine photographs identified by the mother but declined to admit 13 others on the ground that they lacked foundation because the forensic officer who had obtained them from the computer was unavailable to testify.  Before the district court made its ruling, the prosecution asked the mother in the jury’s presence to identify a number of the unadmitted photographs, including pictures of appellant with T.V. and pictures of T.V.’s underwear.  The jury found appellant guilty, and this appeal follows.

 

D E C I S I O N

 

I

 

In a challenge to the sufficiency of the evidence, an appellate court’s role is limited to “ascertaining whether the jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  The court carefully reviews the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the fact-finder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Because the jury is in the best position to evaluate the credibility of witnesses, an appellate court should assume that the jury believed the witnesses’ testimony that supported the verdict and disbelieved any contradicting evidence.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (“Deciding the credibility of witnesses is generally the exclusive province of the jury.”) 

Gibbs argues that the evidence is insufficient to sustain his conviction because T.V.’s testimony on the abuse was not credible and the state did not sufficiently corroborate her version of events.  Minn. Stat. § 609.347, subd. 1 (2006), provides that a sexual-assault complainant’s testimony need not be corroborated; see also State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969) (stating that  “[i]t is well-settled that a conviction can rest on the uncorroborated testimony of a single credible witness”).   

Uncorroborated testimony may be insufficient to convict a defendant if there are “additional reasons to question the victim’s credibility.”  State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004) (citations omitted).  But absent such reasons, appellate courts have been reluctant to reverse convictions based on the lack of corroboration of a victim’s testimony because “the task of weighing credibility [is] for the jury, not this court.”  State v. Reichenberger, 289 Minn. 75, 79, 182 N.W.2d 692, 695 (1970); see also Foreman, 680 N.W.2d at 539 (affirming conviction of assault in domestic-abuse case based on victim’s uncorroborated testimony when no reasons existed to question victim’s credibility and her testimony at trial was uncontradicted).

Gibbs argues that additional reasons to question T.V.’s testimony existed because her version of events was inconsistent.  She testified that the abuse occurred after she rode bicycles in the rain with Gibbs from the 14th Street house, even though the record reflects that Gibbs only lived at that house for a few weeks in February and March 2003.  But a rational jury could have determined T.V.’s testimony on the bike riding to be credible, based on the reasonable possibility that it may rain in March in Minnesota.  Further, although T.V. also testified that she did not remember the exact time of year the abuse occurred, her testimony on the details of the abuse was consistent with her videotaped statement to police and her statement to her treating psychologist.  We defer to the jury’s determination of credibility and conclude that the evidence sufficiently supports Gibbs’s conviction.   

 

II

           

            The district court has broad discretion in ruling on discovery and the admission of evidence.  State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998).  Nonetheless, the district court must recognize that when relevant evidence “is material to guilt or innocence, . . . denying access to the defendant unconstitutionally impairs the defense.”  Id. at 697.

            Gibbs argues that the district court impaired his right to present a complete defense by failing to conduct in camera review of T.V.’s victim-services records.  Although Minn. Stat. § 595.02, subd. 1(k) (2006), prohibits unauthorized disclosure of privileged information given to sexual-assault counselors, a defendant may request that the district court screen the confidential material in camera to determine whether it is necessary to the defense.  State v. Hummel, 483 N.W.2d 68, 71-72 (Minn. 1992).  A defendant seeking in camera review of a confidential file must establish “a basis for his claim that it contains material evidence” by making a “plausible showing” that the material requested would be “both material and favorable to his defense.”  Id. at 72 (quotations and citations omitted); see also State v. Paradee, 403 N.W.2d 640 (Minn. 1987) (upholding in camera review of county-human-services and welfare-department records in child-sexual-abuse case). 

            The defense requested discovery of T.V.’s victim services records on the ground that they might contain an inconsistent statement by T.V. that would be helpful for impeachment purposes, such as information that another person may have abused her.  But the director of Dodge-Fillmore-Olmsted Community Corrections Victim Services Program testified that victim-services advocates take only general notes on the relationship between the victim and the person who is alleged to have committed the abuse; they do not take statements from the victim.  On this record, the district court properly exercised its discretion by determining that no victim statements existed in victim-services records and by declining in camera review of those records. 

III

 

Admission of videotaped interview

                       

            Gibbs challenges the district court’s admission of T.V.’s videotaped interview with police, taken using the CornerHouse protocol for interviewing children, on the grounds that it was cumulative and unduly prejudicial to the defense.  See Minn. R. Evid. 403 (stating that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . or by considerations of . . . needless presentation of cumulative evidence”).   

            The defense initially moved to exclude any out-of-court statements by T.V. on the grounds of hearsay and lack of notice to the defense.  The defense also moved specifically to exclude T.V.’s videotaped interview with police, arguing that the videotape was cumulative and “so unduly suggestive that . . . it creates unfair prejudice.”  The district court admitted T.V.’s videotaped interview as a prior consistent statement.  See Minn.R. Evid. 801(d) (providing exception to hearsay rule for a statement that is “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness”).  When the court admitted the videotape, the defense stated, “No objection your honor.” 

            The state argues that appellant, by failing to renew his objection on the ground of prejudice, improperly failed to preserve the objection, so that the plain-error standard of review applies.  See State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (providing that party who has failed to raise objection must show “(1) error; (2) that was plain; and (3) that affected substantial rights”).  Gibbs maintains that, even though the defense did not renew its hearsay objection to the videotape, the defense could challenge the admission of the videotape on the previously stated objection that it was prejudicial and cumulative, so that the standard of review for harmless error is harmless beyond a reasonable doubt.  See State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (articulating standard that harmless beyond a reasonable doubt means that the verdict was surely unattributable to the error). 

            The Minnesota Supreme Court has cautioned defense counsel to be “vigilant in preserving their objections for appellate review.”  State v. Ray, 659 N.W.2d 736, 746 n.3 (Minn. 2003) (supporting proposition that appellant may waive objection by failing to object in timely and consistent manner).  The record shows that the defense unequivocally stated that it did not object to the introduction of the videotape at the time that the tape was admitted.  But even if we were to conclude that Gibbs’s attorney properly preserved his  objection to the videotaped interview, the defense has failed to show that the district court abused its discretion by admitting it as evidence.  The interview was conducted in a dispassionate manner, without the use of leading questions.  It also had significant probative value because it was conducted within a few months after the incident occurred, and trial did not take place until two years later.  Finally, the record shows that the defense extensively cross-examined T.V. using the interview, attempting to discredit her statements to police with her current recollection of events.    

 

Allowing jury to hear information about excluded photographs

 

            Gibbs argues that the district court abused its discretion by allowing the jury to hear information about the content of certain photographs that were recovered from his computer but were not admitted into evidence.  The district court allowed into evidence only nine of the photographs offered by the state, sustaining a defense objection to 13 additional photographs on the ground of insufficient foundation.  The defense also objected to the admission of the photographs on the ground that their probative value was outweighed by their prejudicial impact.  T.V.’s mother testified that the excluded photographs included pictures of Gibbs with T.V. and pictures of pairs of T.V.’s underwear in a laundry room. 

            The defense could properly have objected to the descriptions of the photographs on the basis of the “best evidence rule.”  Minn. R. Evid. 1002 (stating that “[t]o prove the content of a . . . photograph, the original [photograph] is required . . .”).  Because the defense failed to make this objection at trial, we consider it waived.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally decline to consider argument not raised below). 

            Even if we were to consider Gibbs’s objection as properly raised, only two or three of the descriptions of photographs indicated content that could be deemed prejudicial to the defense.  And any prejudice was minimized because the district court cautioned the jury that if certain evidence is not allowed, “[y]ou should not speculate about what the evidence would have been if [the court] had allowed it.”  Thus, any error in allowing the jury to hear the descriptions was harmless, and we affirm. 

            Affirmed.