This opinion will be unpublished and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

A06-1065

 

State of Minnesota,
Respondent,

vs.

Gregory L. Scurry,
Appellant.

 

Filed July 3, 2007

Affirmed

Stoneburner, Judge

 

Waseca County District Court

File No. K905377

 

Lori Swanson, Attorney General, Kelly O’Neill Moller, Binh T. Tuong, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Paul Dressler, Waseca County Attorney, 307 North State Street, Waseca, MN 56093 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Benjamin J. Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion in denying his motion to allow cross-examination of the 14-year-old victim about a prior sexual assault allegation to show an alternative source of knowledge of sexual matters.  Appellant also argues that the district court erred in denying his request for a mistrial after a witness blurted out prejudicial character evidence, having the victim’s testimony read to the jury after the jury requested a transcript of her testimony, and telling appellant that he is required to register as a predatory offender for life.  We affirm the conviction and conclude that the district court’s error in announcing the predatory-offender requirement is harmless because the registration requirement is not part of a sentence and is enforced by the Department of Corrections, not the district court, which is precluded by statute from modifying the requirement at sentencing.

FACTS

 

            The state charged appellant Gregory Scurry with two counts of first-degree criminal sexual conduct for an incident involving 14-year-old J.G., the daughter of Scurry’s girlfriend.  Before trial, Scurry moved to compel discovery of evidence of a prior allegation of sexual abuse made by J.G. against her brother.  The district court reviewed the evidence sought by Scurry in camera and denied the motion.  The district court also denied Scurry’s motion to cross-examine J.G. at trial about the prior incident.  Scurry’s first trial ended in a mistrial after the jury was unable to reach unanimous verdicts. 

            At Scurry’s second trial, J.G. testified that Scurry digitally penetrated her vagina while she, Scurry, her mother, and her sister were sleeping in the living room of her mother’s cousin’s home in Waseca, where they were visiting over the weekend of July 4, 2005.  J.G.’s mother testified that before going to bed, she became concerned that Scurry was upset with her about something, but he would not tell her what it was.  She testified that he stated, “you’ll see,” or “I’m going to get you,” or “I’ll get you back.”

            J.G. testified that during the night, she woke up to find Scurry touching her thigh.  She testified that she moved away and went back to sleep but she woke again to find Scurry’s hand on her leg again, moving up towards her vagina.  She testified that Scurry digitally penetrated her with up to three fingers moving in and out of her vagina and that it hurt.  She did not cry out because she was frightened and feared that Scurry might do something to her mother or sister.  After the assault, she went to the bathroom and checked to see if she was bleeding.  She wiped herself with a tissue and went to her mother’s cousin’s room and told her mother’s cousin about the assault.  J.G. did not have a physical examination.  Scurry testified at trial and denied the abuse. 

            During cross-examination of J.G.’s mother’s cousin, defense counsel asked the witness a series of leading questions about Scurry’s conduct during the evening of the assault.  In response to the question, “[h]e wasn’t . . . throwing things around?” she replied, “No.  He did say he liked masturbating in other people’s houses.”  The district court ordered the answer stricken and instructed the jury to disregard it, but denied Scurry’s motion for a mistrial. 

            During deliberations, the jury requested a transcript of J.G.’s testimony.  The district court denied the request for a transcript, but had a transcript of J.G.’s testimony read to the jury in open court.

            Scurry was found guilty of both counts.  The court sentenced Scurry to 144 months in prison, five years of conditional release, and gave him notice of a lifetime predatory-offender registration requirement.  This appeal followed. 

D E C I S I O N

 

I.          Evidence of prior allegation of sexual assault

 

            The district court has broad discretion in evidentiary rulings, and this court will not reverse absent an abuse of that discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  “On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  Id.

            Scurry argues that the district court abused its discretion by excluding evidence of J.G.’s allegation of sexual abuse by her brother, which occurred seven years before trial, when the complainant was about nine and her brother was thirteen.  The defense wanted to introduce this evidence to show that J.G. had knowledge of sexual matters apart from any alleged acts by Scurry. 

            Under the rape-shield statute, Minn. Stat. § 609.347 (Supp. 2005), evidence of a victim’s prior sexual conduct is admissible only when the victim’s consent is a defense or when the prosecution’s case includes evidence of semen, pregnancy, or disease, and the proffered evidence would rule out the defendant as the source of the semen, pregnancy, or disease.  Minn. Stat. § 609.347, subd. 3; see also Minn. R. Evid. 412.  This court has held that “the term ‘sexual conduct’ as used in Minn. Stat. § 609.347 includes ‘allegations of sexual abuse.’”  State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  Under Kobow, J.G.’s allegation of earlier sexual abuse qualifies as sexual conduct for purposes of applying the rape-shield statute, and neither statutory exception applies.  

            Scurry acknowledges that, before trial, defense counsel conceded that J.G.’s allegations do not fall within an exception to the rape-shield statute, but he argues that Kobow was wrongly decided.  He maintains that the term “sexual conduct” refers to personal behavior, and J.G.’s allegation of being a prior sexual assault victim does not involve her own behavior, but rather an accusation about another’s behavior.  Scurry also argues that, even if the statutory language does not refer solely to the complainant’s conduct, excluding the evidence he sought to admit in this case does not fit the purpose of the rape-shield law, which, under case law, is to “emphasize the general irrelevance of the victim’s sexual history,” particularly the history of consensual sexual conduct, rather than removing relevant evidence from the jury’s consideration.  See State v. Crims, 540 N.W.2d 860, 867 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).  Scurry asserts that the statute was not designed to apply in a situation such as this, when the evidence was not character evidence, but rather evidence that the victim had a source of knowledge about nonconsensual digital penetration that could be used to fabricate current allegations of sexual abuse. 

            This court will generally not consider matters not argued and considered in the district court.  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995).  Additionally, we decline to reconsider the issue decided in Kobow because “the doctrine of stare decisis directs that we adhere to former decisions in order that there might be stability in the law.”  State v. DeShay, 645 N.W.2d 185, 189 (Minn. App. 2002) (quotation omitted), aff’d, 669 N.W.2d 878 (Minn. 2003).  We conclude that the district court properly excluded this evidence under the rape-shield law and applicable law.

            Scurry next argues that even if the evidence is excludable under the rape-shield statute, the district court should have allowed the evidence to vindicate his right to present a complete defense.  See State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (stating that “[i]n certain cases, the due process clause, the right to confront accusers, or the right to present evidence will require [the] admission of evidence otherwise excluded by the rape shield law”).  Scurry maintains that he was denied the right to cross-examine J.G. on the allegations arising from the previous incident, which occurred in the same apartment complex and contained similar facts (i.e., the suspect touching the complainant’s leg) as the current incident.  But, as the district court stated, “this isn’t an extremely young child where it can be argued that but for such an experience they wouldn’t know what was going on.”  See Jackson v. State, 447 N.W.2d 430, 432, 435 (Minn. App. 1989) (upholding the exclusion of evidence of a 14-year-old victim’s possible prior sexual abuse when a jury would not likely infer that the victim’s knowledge about sexual matters could only have come from the alleged incidents with the defendant). 

            Further, even if the prior allegation were relevant and not barred by the rape-shield law, the district court is required to weigh the probative value of the evidence against the potential it has for causing unfair prejudice.  State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).  There is no evidence that J.G. fabricated the previous allegations of sexual assault.  Cf. State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982) (stating that potential for unfair prejudice did not outweigh the probative value of evidence of a prior false allegation of rape).  On this record, the district court did not abuse its discretion by determining that “any probative value is overridden by prejudice and also revictimization of the witness” and by excluding the evidence.

II.        Denial of motion for mistrial

            Scurry challengesthe district court’s denial of his motion for a mistrial based on one witness’s non-responsive, prejudicial statement during cross examination.  Appellate courts review the district court’s denial of a motion for a mistrial for abuse of discretion.  State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006).  The district court remains in the best position to determine whether an outburst creates prejudice sufficient to deny the defendant a fair trial so that a mistrial should be granted.  Id. “‘A mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different’ if the event that prompted the motion had not occurred.”  Id.  (quoting State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998)).

            The record reflects that during cross-examination of mother’s cousin, defense counsel questioned her about Scurry’s behavior on the evening of the assault:

Q:        Was he belligerent?  Do you know what belligerent means?

A:        No, I don’t.

Q:        Was he angry towards people?

A:        No.  He was angry when we were going to bed.

Q:        Well, was he cussing at people?

A:        He wasn’t cussing.

Q:        Was he swearing?

A:        Well, that’s cussing.

Q:        Okay.  He wasn’t swearing, was he?

A:        No.

Q:        He wasn’t trying to hit anybody, was he?

A:        No.

Q:        Or throwing things around?

A:        No.  He did say he liked masturbating in other people’s houses. 

            Scurry first argues that the district court used the wrong standard to determine whether to grant a mistrial.  Immediately after the outburst, the district court ordered the response stricken and granted a curative instruction, but deferred a final ruling on the defense’s motion for a mistrial, requesting further research from counsel during a noon recess.  Defense counsel then cited law from this court’s unpublished case, State v. Dunlap, No. C8-01-1721, 2002 WL 31012117, at *2 (Minn. App. Sept. 4, 2002), which in turn cited an Eighth Circuit case, Phea v. Benson, 95 F.3d 660, 661 (8th Cir. 1996).  Phea states the standard for a mistrial based on an outburst, when there was no sua sponte curative instruction, as “whether there has been a due process violation,” namely, whether the witness’s statement “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”  Phea, 95 F. 3d at 661 (citations and quotation omitted).  The district court then denied the motion for a mistrial, stating that “I don’t believe it rises to a due process [violation].” 

            Even if the district court did not articulate the standard as it is set out in Minnesota caselaw, the correct standard was briefed and argued to the district court.  Scurry argued that the statement had a probability of affecting the outcome of the case; the prosecutor argued that the statement was outside of the state’s control, and any effect on the jury was cured by the district court’s instruction.  On this record, we cannot conclude that the district court abused its discretion by denying a mistrial based on a passing, irrelevant prejudicial comment, particularly when the district court immediately directed the jury to disregard the comment.

III.       Response to jury’s request for a transcript of the victim’s testimony

 

            During deliberations, the jury requested to have a transcript of J.G’s trial testimony.  In response, the district court had a transcript of J.G.’s testimony read to the jury in open court.  Scurry argues that the district court properly refused the jury’s request for a transcript but prejudicially erred by changing the jury’s request for a transcript to a “reenactment of J.G.’s testimony.”  Scurry asserts that the district court’s response overemphasized the victim’s testimony and that the district court should have at least asked the jury whether it wanted to hear Scurry’s testimony as well. 

            During deliberations, if the jury requests a review of evidence to which it does not already have access, Minn. R. Crim. P. 26.03, subd. 19(2)(1) grants the district court authority to comply with the jury’s request.  If the court chooses to comply, the court has broad discretion in controlling the jury’s review of the evidence in order to minimize prejudice.

 

State v. Wembley, 728 N.W.2d 243, 245 n.1 (Minn. 2007) (citing State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn. 1991)).  The district court also may, at its discretion, have the jury review other evidence on the same factual issue to avoid giving undue prominence as to the requested evidence.  Minn. R. Crim. P. 26.03, subd. 19(2)(2).  The district court has broad discretion under this rule.  State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983).  We conclude that the district court did not abuse its discretion in this case. 

IV.       Notice of registration requirement

 

            Minn. Stat. § 243.166, subd. 2 (Supp. 2005), sets out predatory-offender registration requirements for certain offenders and requires the district court to give notice of the registration requirement at sentencing as well as notice that “if the person fails to comply with the registration requirements, information about the offender may be made available to the public through electronic, computerized, or other accessible means.”  “The court may not modify the person’s duty to register in the pronounced sentence or disposition order.”  Id.  If the district court fails to give the required notice at sentencing, “the assigned corrections agent shall notify the person of the requirements of this section.”  Id.

            Scurry argues, and the state concedes, that the district court erred in telling Scurry that he is subject to a lifetime registration requirement.  The parties agree that Scurry’s registration requirement under the statute is for a period of ten years.  See Minn. Stat. § 243.166, subds. 1b(a)(iii), 6(a) (Supp. 2005).  But both parties erroneously characterize the error as a sentencing error.  We have repeatedly held that the registration requirement is not part of sentencing.  See Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002).  The district court’s error in giving notice was harmless and does not require any corrective action by this court.  It is the duty of the Department of Corrections to impose the appropriate registration requirement, which cannot be modified by the district court.

            Affirmed.