This opinion will be unpublished and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

A06-1157

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Anthony Bridges,

Appellant.

 

Filed September 18, 2007

Affirmed

Randall, Judge

 

Rice County District Court

File No. K2-05-1964

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

G. Paul Beaumaster, Rice County Attorney, 218 Northwest Third Street, Faribault, MN  55021 (for respondent)

 

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

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction of two counts of first-degree criminal sexual conduct, appellant argues that (a) the district court abused its discretion and denied appellant’s right to present a defense by excluding as hearsay testimony that the state did not act on complaints of sexual abuse by someone other than appellant that it had received from Florida; (b) the district court abused its discretion in allowing the victims’ accounts to be recounted in cumulative fashion through numerous witnesses; (c) he was denied a fair trial when several jurors saw him handcuffed, shackled, and being led from the courthouse by deputies; and (d) the cumulative effect of the errors at trial denied him a fair trial.  We affirm.

FACTS

            Appellant Robert Bridges is the father of two girls, V.B., born May 1993, and K.B., born October 1996.  He is also the father of a son, N.B., born April 1995.  After appellant and his wife Stacy Kline were divorced in 1996, V.B., K.B., and N.B. lived in Dade County, Florida, with their mother and her then-boyfriend, Barry.  Approximately two or three years later, Kline left the children at appellant’s mother’s home and never returned.  Shortly thereafter, appellant gained custody of the children. 

            Appellant and his three children moved to Faribault in August 2005, where the family lived in a two-bedroom apartment.  Because appellant was a truck driver and was often away from home, appellant’s brother, Jeff, also lived at the apartment.  According to V.B., the three children shared a bedroom.  V.B. and K.B. slept on the bottom part of a bunk bed, and their brother slept on the top portion of the bed.

            In November 2005, law enforcement received a report from a school counselor at Faribault Middle School concerning allegations of criminal sexual conduct between appellant and V.B.  Officer Gliem initially spoke with V.B., who admitted that she had been sexually molested by appellant.  Shortly thereafter, V.B. and K.B. were interviewed by Detective Matt Knutson and a social worker.  During the interview, both V.B. and K.B. acknowledged the sexual abuse.  A medical examination conducted the next day also showed signs of sexual abuse.  Appellant was subsequently charged with six counts of first-degree criminal sexual conduct. 

            Appellant pleaded not guilty, and a jury trial was held on the matter.  At trial, V.B. testified that after they moved to Faribault, appellant had sexual intercourse with her “about 40 times.”  V.B. claimed that the sexual activity most often occurred at night when everyone was sleeping, and that the last incident occurred on October 29, 2005, at approximately 4:00 a.m.  According to V.B., the sexual contact hurt, but she was afraid to scream or cry because she was afraid of her father.  V.B. further testified that she did not tell anyone of the abuse earlier because appellant told her “[i]f you tell I will kill you.”    

            K.B. reluctantly testified at trial that appellant touched her “in a little spot,” a “private” spot in the middle of her body below her waist, and that it happened at night, more than once, while they were living in Faribault.  K.B. also testified that the sexual abuse occurred almost every time appellant came home from work and that it hurt.  K.B. claimed that she was afraid to tell anybody because appellant said that if she told anybody, he would kill her.  Although the girls’ brother N.B. testified that he never saw appellant touch K.B. or V.B. inappropriately, he did testify that he saw appellant go into the bottom bunk with the girls and “would feel the bed shaking.” 

            Dr. Sara Beckmann, the pediatrician who examined the girls, testified that she was told by V.B. that appellant was having sex with her since she was six-years-old, and with her sister since K.B. was seven.  Dr. Beckmann testified that both girls’ hymens had been broken and that there was trauma on the vaginal walls.  According to Dr. Beckmann, the girls’ conditions were “highly indicative of forceful vaginal penetration” that occurred many times.  Detective Knutson also testified at trial and reiterated that during his interviews with V.B. and K.B., he was told by the girls that they had been sexually molested by their father.

            Ruth Lang, the social worker who investigated the allegations, was called to testify on behalf of the defense.  Appellant attempted to elicit testimony from Lang regarding allegations made to social services when the children lived in Florida.  Specifically, appellant attempted to inquire about allegations that the children’s

mother lived with a sex-offender.  That the children, [N.B.] and [K.B.], had child sexual conduct, contact with each other.  That
[V.B.] was in the school bathroom twice naked with another child.  That there was physical abuse by mom. 

 

The district court excluded all of this information, finding that it was inadmissible hearsay.  On cross examination, Lang testified that during her interviews with V.B. and K.B., the girls told her that they had been sexually assaulted by appellant.

            The jury found appellant guilty of the charged offenses.  The district court sentenced appellant on two of those offenses to consecutive executed terms of 144 months.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion by excluding as hearsay testimony, Lang’s proffered testimony that the state did not act on complaints that it received from Florida that someone other than appellant had sexually abused the children.  Appellant argues that the testimony was not being offered for the truth of the matter asserted, but only to shed doubt on the state’s investigation.  Appellant contends that the district court’s ruling violated his constitutional right to present a complete defense, and that the error was unduly prejudicial.

            The Minnesota Supreme Court has stated: 

            Due process requires that every defendant be “‘afforded a meaningful opportunity to present a complete defense.’”  This means that the defendant has the right to present the defendant’s version of the facts through the testimony of witnesses.  The right to present a defense is not without limitations, however-in exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure “both fairness and reliability in the ascertainment of guilt and innocence.”

 

State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotations and citations omitted).

            Where a defendant complains that the exclusion of evidence was error, an offer of proof provides the evidentiary basis for a district court’s decision.  Santiago v. State, 644 N.W.2d 425, 442 (Minn. 2002).  An appellate court will not reverse such rulings absent a clear abuse of discretion.  State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997).  Under this standard, “[r]eversal is warranted only when the error substantially influences the jury’s decision.”  Id. at 907.  In other words, this court will reverse when there is a reasonable possibility that, had the erroneously excluded evidence been admitted, the verdict might have been more favorable to the defendant.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            Here, the record reflects that during the investigation of this case, Lang contacted Dade County, Florida, Social Services via telephone.  According to Lang, she was told by Dade County Social Services that while the children were living in Florida with their mother, there had been allegations that the children’s mother

lived with a sex-offender.  That the children [N.B.] and [K.B.], had child sexual contact with each other.  That [V.B.]
was in the school bathroom twice naked with another child.  That there was physical abuse by mom.

 

Lang testified that she was told by Dade County Social Services that these were “allegation[s] received,” by the county, but no actual report had been made because “there wasn’t enough for them to do, they did not determine anything along those lines.”  Although Lang wrote down this information, she never received any reports from Dade County. 

            The district court concluded that the proffered testimony was hearsay and excluded the testimony under Minn. R. Evid. 803(8).[1]  Appellant fails to establish that this ruling was erroneous.  At trial, appellant sought to elicit testimony from Lang regarding what she was told, over the telephone, about allegations concerning the children.  This constitutes hearsay.  See Minn. R. Evid. 801(c) (defining hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).  There were no official public records or reports composed in Dade County regarding the allegations, and the written notes Lang composed regarding her conversations with Dade County Social Services do not constitute an official report.  Accordingly, the public records and reports exception to the hearsay rule does not apply. 

            Appellant argues that the statements were not being offered “for the truth of the matter asserted” but, rather, to cast doubt on the thoroughness of the state’s investigation.  Appellant further argues that the exclusion of this testimony deprived him of his constitutional right to present a defense. 

            We disagree.  When presented with appellant’s argument, the district court stated:  “Who cares if it’s not for the truth of the matter asserted?  What relevance is there other than the truth?  How does a false report of prior sexual conduct make it less likely that [appellant] was involved?”  We agree with this reasoning.  In proffering Lang’s testimony, counsel for appellant stated:  “And it’s very difficult under the rape/shield law, we can’t ask the children, the girls, [VB] or [KB] about their sexual history.”  This statement indicates that appellant was attempting to offer this testimony to circumvent the rape/shield law.  If admitted, this testimony would discredit the children’s testimony and offer support for the theory that somebody other than appellant broke the girls’ hymens.  Although appellant is entitled to present a defense, appellant is not entitled to the admission of hearsay statements to support his defense.  See Richardson, 670 N.W.2d at 277 (stating that the right to present a defense is not without limitations.  In exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure both fairness and reliability in the ascertainment of guilt and innocence.).

II.

            Appellant asserts that the jury heard V.B.’s story through V.B., and through the hearsay testimony of K.B., N.B., Officer Knutson, Lang, Dr. Beckman, and the videotaped examination.  The jury also heard K.B.’s story through K.B., and then the hearsay testimony of V.B., N.B., Officer Knutson, Lang, Dr. Beckmann, and the videotaped examination.  Appellant contends that this testimony was unnecessarily cumulative and deprived him of a fair trial. 

            Minn. R. Evid. 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”  (Emphasis added.)  Rule 403 favors the admission of all relevant evidence unless its probative value is “substantially” outweighed by one of the listed dangers.  State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).  “Rulings on the admissibility of evidence, including whether evidence is improperly cumulative, are committed to the sound discretion of the district court.”  Id. at 479.

 

            Appellant concedes that he failed to object to the cumulative nature of this testimony at trial.  Failure to object to the admission of evidence generally waives the right to appeal on that basis, but this court has discretion to consider an error not objected to at trial if it is plain error affecting substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The reviewing court applies a three-prong test when making a plain-error determination:  “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  Id.  Each prong of the test must be met, or the claim fails.  Id.

            Here, much of the witness testimony provided by the state was redundant and simply reiterated the victims’ testimony that appellant sexually molested his daughters.  Nevertheless, much of the witness testimony was relevant to the state’s case and was probative to show consistency of the victims’ statements.  Appellant did not object to the number of witnesses who testified regarding the details of the victims’ statements, nor did appellant object on the record to the testimony of specific witnesses who may have presented cumulative testimony.  Without appellant’s objection, we are reluctant to override district court discretion.  See Ture v. State, 681 N.W.2d 9, 16 (Minn. 2004) (stating that without an objection to the claimed cumulative evidence presented, the supreme court was reluctant to second-guess the district court’s discretion in admitting the evidence).  We conclude that the district court did not abuse its discretion in allowing the victims’ account of the alleged sexual abuse to be recounted through the testimony of different witnesses.       

III.

            Appellant argues that he was denied a fair trial when several jurors saw him handcuffed, shackled, and being led from the courthouse by deputies. “The exposure of a jury to potentially prejudicial material creates a problem of constitutional magnitude, because it deprives a defendant of the right to an impartial jury . . . .”  State v. Varner, 643 N.W.2d 298, 304 (Minn. 2002) (quotation omitted).  Seeing a criminal defendant in restraints is inherently prejudicial and, therefore, a criminal defendant may only appear before the jury in restraints when justified by an essential state interest.  State v. Shoen (Shoen I), 578 N.W.2d 708, 713 (Minn. 1998).  The Minnesota Supreme Court has distinguished the use of restraints inside the courtroom from their use outside the courtroom.  See State v. Shoen (Shoen II), 598 N.W.2d 370, 378 (Minn. 1999).  In Shoen II, a juror admitted seeing the defendant in restraints in the hallway outside the courtroom.  Id.  The supreme court noted that this is distinct from seeing a defendant restrained in the courtroom because “the sight of a criminal defendant restrained during transport to or from the courtroom is likely to be seen for just what it is-standard law enforcement practice.”  Id. 

            At the beginning of trial, appellant objected to wearing a leg restraint in the courtroom, and the district court ordered the restraint removed.  After one of the lunch breaks, appellant’s counsel expressed appellant’s concern that “he felt he was observed by three jurors having a smoking break.  That they saw him shackled and brought into the squad car on his way back to the jail.”  Counsel for appellant then suggested a cautionary instruction, and the district court agreed to give the requested instruction.  Later, the following exchange between appellant and the district court occurred:

The Defendant:  I want to ask the Judge something.  It’s all about being fair. 

 

            Your Honor, during lunch break recess, are the jurors allowed to leave and be standing over there on the Third Street, over there by the vehicles?

 

The Court:  Yes.

 

The Defendant:  They’re allowed too?

 

            And also they’re allowed to see me get out of the car too, as well, coming in the building?

 

The Court:  I mean, it’s, if that happens it happens.

 

The Defendant:  Because it happened again.

 

The Court:  Okay.  I don’t have them locked up during the trial.

 

The Defendant:  Oh, okay, I thought they were supposed to stay inside.

 

The Court:  No, no.  They go out and have lunch on their own.

 

            Appellant argues that he is entitled to a new trial because the district court failed to take sufficient precautions to prevent the jurors from seeing him in shackles and handcuffs outside of the courtroom.  We disagree.  The record reflects that the district court ordered that any restraints be removed while appellant was in the courtroom.  The court also provided a cautionary instruction to the jury regarding the presumption of innocence and that the jury should make no inference of guilt simply because appellant had been arrested and charged.  The record is unclear whether any jurors actually saw appellant in restraints.  But even if they did observe appellant is this situation, the supreme court in Shoen II noted that “the sight of a criminal defendant restrained during transport to or from the courtroom is likely to be seen for just what it is-standard law enforcement practice.”  598 N.W.2d at 378.  We do not find reversible error on this issue.

IV.

            Appellant argues that even if each error, by itself, does not mandate reversal, the cumulative effect of the errors deprived him of a fair trial.  Under some circumstances, the cumulative effect of multiple harmless errors may deny a fair trial and, therefore, require reversal for a new trial.  State v. Litzau, 650 N.W.2d 177, 180 (Minn. 2002).  When determining whether reversal is appropriate, the reviewing court balances the egregiousness of the errors against the weight of proof against the defendant.  State v. Cermak, 350 N.W.2d 328, 334 (Minn. 1984).  A new trial is not warranted when “errors did not affect the jurors’ deliberations or their assumptions about appellant’s innocence or guilt.”  State v. Erickson, 610 N.W.2d 335, 341 (Minn. 2000).

            As discussed above, the district court properly excluded Lang’s proffered hearsay testimony.  The district court did not abuse its discretion in allowing the victims’ account of the alleged sexual abuse to be recounted through the testimony of multiple witnesses.  Appellant was not deprived of a fair trial if a few jurors observed him in shackles when he was transported to the county jail.  Even if we were to find the existence of errors, we cannot find the substantial prejudice needed to mandate another trial.  Both victims testified at trial that they were sexually abused by appellant.  Victim accounts of the sexual abuse were recounted through Officer Knutson’s and Dr. Beckmann’s testimony.  Dr. Beckmann testified that her physical examination of the girls showed clear signs of sexual trauma.  The victims’ brother testified that he saw appellant go into the bottom bunk with the girls and “would feel the bed shaking.”  Appellant has not made a case for a new trial. 

            Affirmed.