Hubert H. Humphrey, III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)

Duane A. Kennedy, Durst Building, Suite 4, 724 Southwest First Avenue, Rochester, MN 55902 (for appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Willis, Judge.

A jury convicted appellant Ronald Evan Hoffman of third-degree criminal sexual conduct for acts committed against his adopted daughter, J.H., and two counts of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct for acts committed against his other adopted daughter, P.H. On appeal, Hoffman argues that: (1) the trial court erred in denying his motion to suppress a taped partial confession; (2) the trial court erred in its reasonable doubt instruction; (3) the trial court improperly alluded to Hoffman's failure to testify; (4) the trial court abused its discretion by prohibiting the use of an affidavit and certain cross-examination; (5) the trial court abused its discretion by allowing the jury to take into the jury room tape-recorded statements by J.H. and P.H.; and (6) the trial court erred in refusing to conduct an in camera review of confidential records. The state has moved to strike pages 40-42 of the appendix to Hoffman's appellate brief. We affirm and grant the motion to strike.

Braley called the car wash that Hoffman owned and asked Hoffman to come to the police station. After Hoffman arrived at the station, Braley brought Hoffman to his office and conducted a taped interview without giving a Miranda warning. The taped interview commenced at 11:05 a.m. Hoffman confirmed at the outset that he had come to the station voluntarily and that he understood he was not under arrest. Braley informed Hoffman of the allegations. Initially, Hoffman denied any sexual contact with either J.H. or P.H. Braley repeatedly stated that he did not believe Hoffman. Hoffman then admitted he may have had sex with P.H. one time, but he did not fully remember. The interview was completed at 11:55 a.m. After the recorder was turned off, Hoffman asked what would happen to him and Braley replied it would be the county attorney's decision. Hoffman asked several other questions and then indicated he had more to say. Braley turned the recorder back on. Hoffman indicated that he understood that he was still not under arrest and that he had come to the station voluntarily. Then Hoffman admitted he had sex with P.H. once. He also claimed that, while he did not have sex with J.H., he had touched her crotch and that J.H. had touched his penis. The supplemental interview ended at 12:06 p.m., and Hoffman left the police station.

The state charged Hoffman with multiple counts of criminal sexual conduct. At the omnibus hearing, Hoffman moved to suppress the taped partial confession because no Miranda warning had been given. Both Hoffman and Braley testified at the hearing. The district court denied the motion to suppress the taped partial confession.

The charges regarding J.H. and P.H. were tried jointly to a jury with Hoffman's consent. J.H. and P.H. testified regarding specific incidents of sexual contact with Hoffman. Officer Braley testified and introduced the taped interviews of J.H., P.H., and Hoffman. Hoffman did not testify in his own defense.

Hoffman raises three related issues regarding suppression of the taped partial confession. He contends the court erred by not suppressing the taped partial confession because the confession: (1) constituted custodial interrogation without Miranda warnings; (2) constituted an involuntary confession; and (3) violated the Scales recording requirement.

A Miranda warning is required when a police officer conducts a custodial interrogation of a suspect. State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966)). If the police did not make an arrest, then the court must examine the surrounding circumstances to determine whether the restraints on the suspect's freedom were comparable to formal arrest. Id. The test for whether a defendant is in custody is "whether a reasonable person in the detainee's situation would have understood that he was in custody." Id.

Both Braley and Hoffman testified at the omnibus hearing. Braley testified to several facts bearing on whether Hoffman was in custody, facts that the court adopted in its order denying the suppression motion: (1) Hoffman voluntarily drove to the police station; (2) Hoffman was not physically or mentally impaired; (3) Braley did not make unfounded threats, other than to say that any information he had elicited would be given to the county attorney's office; (4) Braley did not make any promises to entice Hoffman into confessing; (5) Hoffman was never physically restrained; (6) Hoffman twice agreed on tape that he was not under arrest; (7) although the office door was closed to decrease noise interference, Hoffman was not locked in the office; (8) Hoffman made no attempts to leave; and (9) Hoffman was not arrested following the interview.

At the hearing, Hoffman testified that he was in custody because: (1) he is a small man who had no experience with law enforcement; (2) Braley wore a gun on his belt during the interview; (3) the door to Braley's office was closed; (4) Braley repeatedly indicated he did not believe Hoffman; (5) Braley said that Hoffman had "to talk to me" and that Hoffman would be "free to go" to an appointment after the interview; and (6) Braley threatened and swore at Hoffman during breaks in the taping, although the district court did not accredit such testimony. See Minn. R. Civ. P. 52.01.

First, Hoffman argues that the interview at the police station was comparable to a formal arrest; therefore Braley's failure to give him Miranda warnings mandates the suppression of his confessions. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991); State v. Voigt, 486 N.W.2d 793, 795 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). In Rosse, police conducting a drug bust surrounded Rosse's car, placed Rosse's two companions in handcuffs, and searched Rosse at gunpoint. Rosse, 478 N.W.2d at 483. After searching Rosse's purse and the trunk of her car, an officer directed Rosse to a police car and informed her that she was free to go "once we figure out exactly what's going on." Id. The officer gave no Miranda warning, and Rosse made incriminatory statements. Id. The supreme court suppressed Rosse's statements, concluding that, based on all of the circumstances, Rosse was in custody. Id. at 486.

In Voigt, an officer stopped Voigt and placed him in the back of a police car. State v. Voigt, 486 N.W.2d at 794. Voigt, who was deaf, asked if he was going to jail, and the officer wrote on a piece of paper, "No -- I want a statement -- then you can go." Id. Voigt then made an incriminatory statement. Id. This court held that custody resulted due to confinement in the police car and because the officer actually conditioned Voigt's freedom on giving a statement. Id. at 795-96.

The trial court held that a reasonable person in Hoffman's position would not have believed he was in custody. We agree. Unlike in Rosse, Braley never drew his gun on Hoffman, Braley never searched Hoffman, Braley never restrained Hoffman, and Hoffman did not have handcuffed friends; rather, Hoffman twice admitted that he came to the interview voluntarily and that he knew he was not under arrest. Likewise, this case is distinguishable from Voigt. Although Braley twice indicated that Hoffman had to talk, the context of the statements demonstrates that Braley did not condition Hoffman's freedom on making a statement. Hoffman said he would talk to the victims to make things right in the family; Braley's reply that Hoffman had to talk to Braley first, when reviewed in this context, meant that things would not be made right in the family simply by Hoffman talking to the victims. Although Hoffman claims he had an appointment elsewhere during the interview and that Braley told him he was free to go to the appointment after the interview, this by itself does not mean that Hoffman was not free to leave immediately. The restraints on Hoffman's freedom were not comparable to a formal arrest; therefore, Miranda warnings were unnecessary. Hince, 540 N.W.2d at 823.

Second, Hoffman argues that his taped partial confession was involuntary. Whether a confession is voluntary depends on the "effect that the totality of the circumstances" had upon the defendant's will and "whether the defendant's will was overborne." State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). Although Braley employed an accusatory tone, the record does not demonstrate that he overpowered Hoffman's will. As indicated above, Hoffman was not in custody. The most damaging statements by Hoffman occurred during the supplemental interview and Hoffman voluntarily indicated he had something more to say after Braley had completed the interview. Braley's interrogation techniques were not "so coercive, so manipulative, [and] so overpowering" as to deprive Hoffman of the ability to make "an unconstrained and wholly autonomous decision to speak as he did." Id.

Finally, Hoffman argues the taped partial confession violated the Scales recording requirement. See State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (custodial interrogation must be recorded). This argument presupposes that Hoffman was "in custody." As demonstrated above, the record does not indicate that Hoffman was in custody.

2. Reasonable doubt instruction.

The jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.

State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

The district court, in instructing the jury, stated

Proof beyond a reasonable doubt is such proof as ordinary and prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt that is based on reason and common sense. It does not mean a fanciful or a capricious doubt, nor does it mean beyond all possibility or all reasonable doubt.

(Emphasis added). Such instruction is identical to CRIMJIG 3.03 except for the addition of "or all reasonable doubt." Hoffman's attorney (Kennedy) objected to this addition and moved for a mistrial. The trial court added the phrase "or all reasonable doubt" in response to Kennedy's closing argument which incorrectly informed jurors that the state had the burden of proving Hoffman guilty "beyond all reasonable doubt." The trial court offered to read the instruction again without the objected-to language. Kennedy declined such offer and reiterated that he wanted a mistrial.

The instruction, when viewed in its entirety, adequately explained the reasonable doubt instruction. See State v. Sap, 408 N.W.2d 638, 641 (Minn. App. 1987) (court's mention of "reasonable certainty" did not amount to reversible error because the instruction taken on the whole adequately explained the reasonable doubt instruction). In context, the instruction simply evidenced the court's response to Kennedy's misstatement of the law. Further, we are mindful that Kennedy declined the offer to have the instruction read again to the jury without the objected-to language.

3. Right not to testify.

Under Minnesota law, a defendant's failure to testify shall not be alluded to by the prosecuting attorney or by the court. Minn. Stat. § 611.11 (1994).

Hoffman elected not to testify. The court instructed the jury that

[d]efendant has no obligation to prove himself innocent. Defendant has the privilege not to testify in his own defense. This privilege is guaranteed by the federal and the state Constitutions. You should not draw any inference from the fact that the defendant has not testified.

The court, however, admitted the taped partial confession by Hoffman; thus the jury heard Hoffman's self-incriminatory statements. With respect to the taped confession, the court instructed the jury that "[i]n the case of the defendant, any statement which he may have made may be considered by you for all purposes." Kennedy objected to this last portion of the instruction and moved for a mistrial, claiming that the instruction constituted an allusion to Hoffman's failure to testify. The court denied the motion and offered to read a redacted instruction. Kennedy declined the offer.

It is unclear how the court's instruction that the jury could consider Hoffman's statement for any purposes can be construed as an allusion to Hoffman's right not to testify. In fact, the instruction correctly states the law under Minn. R. Evid. 801(d)(2), that a party's own statement offered against that party is admissible as an admission.

4. Use of an affidavit and cross-examination.

Hoffman argues that the trial court abused its discretion by neither admitting the affidavit of J.H.'s boyfriend, nor allowing him to cross-examine J.H.'s boyfriend regarding his affidavit. Rulings on evidentiary matters rest within the sound discretion of the district court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984).

Prior to trial, J.H. claimed she had a sexual relationship with her 25-year-old boyfriend, Cowden. Kennedy presented an affidavit signed by Cowden stating that J.H. fabricated the allegations of sexual contact with Cowden and that J.H. had a reputation for untruthfulness. Kennedy intended to use the affidavit to show that J.H. fabricated claims against Hoffman. The court denied Hoffman's motion to introduce the affidavit.

At trial, Kennedy again sought admission of this evidence and cross-examination regarding the affidavit's allegations. The court examined Cowden out of the presence of the jury. Cowden testified that he was in jail on another matter when Kennedy showed up with a prepared affidavit. Kennedy told Cowden that unless he signed the affidavit, Cowden would "go to prison" because having sex with J.H. was a "number one offense." Cowden then signed the affidavit without reading it in its entirety. Cowden stated that the threat of prison scared him; thus he signed the affidavit. He admitted to the court that he had sex with J.H. and that J.H. is not a liar. He further testified that he never represented to anyone that J.H. had a reputation for untruthfulness. The court ruled that

[b]ased on the testimony of Mr. Cowden, I will grant the motion to suppress as an unreliable and possibly coerced statement whose prejudicial effect would outweigh any probative value.

The trial court did not abuse discretion when it denied cross-examination of Cowden or J.H. regarding allegations contained in the affidavit, because the record indicates the affidavit was unreliable. Rape shield laws protect information regarding J.H.'s sexual history. Therefore, the suppression of the affidavit was appropriate. See Minn. Stat. § 609.347, subd. 3 (1994); Minn. R. Evid. 412 (evidence of a victim's prior sexual conduct is admissible only when the consent of the victim is a defense or where the prosecution's case includes evidence of semen, pregnancy, or disease).

5. Exhibits to jury room.

The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence * * * except depositions * * *.

Minn. R. Crim. P. 26.03, subd. 19(1). The district court has broad, but not unbridled, discretion under the rule. State v. Kraushaar, 470 N.W.2d 509, 514, 515 (Minn. 1991). A videotaped interview introduced into evidence is not a "deposition" within the meaning of Minn. Stat. § 26.03, subd. 19(1); therefore, a videotape may be taken into the jury room. Id. at 515.

Hoffman asks this court to adopt the dissent in Kraushaar, where Justice Simonett reasoned

with credibility of the two main actors critical, to permit the complaining witness to appear "live" in the jury room (by video), alone with the jurors, with no one present to at least remind the jurors of another side to the case, was prejudicial error.

Id. at 517 (Simonett, J., dissenting). While Justice Simonett's dissent is well-reasoned, we elect to follow the majority, which allows the jury to take videotape evidence into the jury room.

6. In camera review of records.

Hoffman contends that the trial court erred by denying his motion for an in camera review of two types of confidential records. First, Hoffman sought documents from Winona County regarding the conviction of the victims' biological father for sexually abusing the victims' older biological siblings. Hoffman sought such documents to show that the victims had prior knowledge or familiarity with sexual matters that would assist them in fabricating charges against Hoffman. Second, Hoffman sought documents from Olmsted County regarding P.H.'s allegations of physical abuse committed by her adoptive mother, Marsha Hoffman.

A defendant seeking an in camera review of confidential records must make a "plausible showing" that the information sought would be "both material and favorable to his defense." State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quoting Ritchie v. Pennsylvania, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 1002 n.15 (1987)).

With respect to the Winona County documents, Hoffman has made no plausible showing of materiality to the present case. The victims were between 15 and 17 years old at the time they were abused by Hoffman and therefore assumedly had sufficient knowledge of sexual matters beyond any supposed knowledge obtained through the incidents in Winona County when the victims were quite young. See State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986) (a court has discretion to admit evidence tending to establish a source of knowledge of or familiarity with sexual matters in circumstances where the jury would otherwise infer that the defendant was the source of the knowledge). Given the age of the victims, the jury would not likely infer that Hoffman would be the only possible source of sexual information. Thus, any evidence contained in the Winona County records would only confuse the issues.

Further, with respect to the Olmsted County documents, Hoffman has made no plausible showing of materiality to the present case. As the court reasoned, P.H.'s prior allegation of physical abuse committed by Marsha Hoffman is not material to the present case involving allegations of sexual abuse by Hoffman. Therefore, the trial court did not err by denying appellant's request for an in camera review of these records.

7. Motion to strike.

The record on appeal consists of the papers filed in the district court, the exhibits, and the transcript. Minn. R. Crim. P. 28.02, subd. 8. Pages 40-42 of appellant's appellate brief are not contained in the district court file, and therefore, the state's motion to strike those pages is granted.

Affirmed; motion to strike granted.