Chisago County District Court

File No. K395552

Hubert H. Humphrey III, Attorney General, Todd Zettler, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

James T. Reuter, Chisago County Attorney, Government Center, 313 North Main Street, Center City, MN 55012 (for Respondent)

Philip G. Villaume, M. Michael Halverson II, Philip G. Villaume and Associates, 7900 International Drive, Suite 675, Bloomington, MN 55425 (for Appellant)

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

Appellant, convicted of third- and fourth-degree criminal sexual conduct, challenges the trial court's denial of his motion for postconviction relief on numerous grounds. We affirm.

After trial but prior to sentencing, appellant changed attorneys and moved for a new trial on various grounds. The trial court denied the motion and sentenced appellant to 18 months executed, a dispositional departure from the presumptive 18-month stayed sentence. Appellant's initial appeal was dismissed and remanded in order that he could file for postconviction relief. His motion for a new trial was denied orally on all grounds at the postconviction hearing. He now appeals that order, as well as the sentencing departure.

It is well to bear in mind that on appeal error is never presumed. It must be made to appear affirmatively before there can be reversal. Not only that, but the burden of showing error rests upon the one who relies upon it.

Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464-65 (1944). Appellant fails entirely to point to which elements of his crimes were not supported by the evidence. Further, our review of the record indicates that there was overwhelming evidence of his guilt, including the victim's testimony and several sexually explicit letters from appellant to the victim (indeed, many of the sexually explicit portions appear in a code used by appellant, apparently to avoid discovery). We affirm the postconviction court's denial of relief on this ground.

Upon the defense's motion for dismissal, the trial court ordered that defense counsel be immediately provided with all the documents for examination. Later that day, defense counsel was able to review them but did not make a subsequent motion for a mistrial and did not request a continuance. The postconviction court denied appellant's request for a new trial based on these circumstances.

Minn. R. Crim. P. 9.01, subd. 1(2) provides:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney * * *.

Minn. R. Crim. P. 9.01, subd. 7 provides:

The prosecuting attorney's obligations under this rule extend to material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney's office.

When considering allegations of a discovery violation, the trial court should consider

the reason disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying the prejudice by a continuance, and any other relevant factors.

State v. Ramos, 492 N.W.2d 557, 559 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). We will review a trial court's decision on a claimed discovery violation for abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).

The postconviction court did not abuse its discretion. Most importantly, appellant articulates no prejudice from the late disclosure other than vague assertions that his trial strategy might have been different. This is entirely unpersuasive, because his trial counsel reviewed the documents yet failed to make a motion for a mistrial or even request a continuance for further review.

Appellant attempts to bypass the lack of prejudice by claiming that it is not a necessary showing. His argument is based primarily on State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992), where the supreme court granted a new trial based on a discovery violation "in the exercise of [its] supervisory power over the trial court." This court, though, does not have such supervisory powers. State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Further, even if we did possess such authority, we find no demonstration of bad faith on the state's part that would support reliance on it in granting the extreme remedy of a new trial. The supreme court in Kaiser was faced with several instances of "clear" discovery violations and intended by its exercise of supervisory powers to emphasize the requirement of complete discovery. Kaiser, 486 N.W.2d at 387. Those considerations are not raised in the present case.

In order to obtain a new trial on the ground of ineffective assistance of counsel, an appellant must prove that his representation "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984); see also Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (applying Strickland).

We may reject appellant's ineffective assistance claim on the ground of failure to show prejudice without even discussing the reasonableness prong of the Strickland test. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Swenson v. State, 426 N.W.2d 237, 240 (Minn. App. 1988). Here, appellant has failed entirely to demonstrate any prejudice as a result of his counsel's alleged ineffectiveness.

Although appellant's trial counsel failed to make a post-trial motion for a new trial, his substituted counsel (who is his current counsel) did so prior to sentencing. Although the trial court denied the motion in part on the ground of untimeliness, the court also considered and denied it on the merits. Therefore, appellant was not prejudiced by his trial counsel's failure to make the motion.

Appellant was also not prejudiced by his counsel's failure to move for a mistrial or acquittal based on the discovery issue. The postconviction judge, who was also the trial judge, stated:

As of that time and even as of now in retrospect, I am not persuaded that there is anything about that material that would have provided [trial counsel] with a substantial new defense or new evidence * * *.

Plainly, the judge would not have granted a mistrial or acquittal because of the discovery issue.

Finally, appellant cannot attempt to show prejudice resulting from his trial counsel's alleged failure to pursue postconviction relief, as his new counsel has pursued that very relief here.

no relevant information regarding [the victim's] possible bias, motive, ability to perceive and remember events, truthfulness or motives to fabricate. Further, the records contain no information as to any prior claims of victimization by [the victim] or prior statements about the incidents alleged in the complaint herein. Further, the records contain no information about [the victim's] general character traits relevant to these proceedings.

The trial court therefore denied appellant's discovery motion. Appellant claims that this decision was error warranting a new trial.

In State v. Schmid, 487 N.W.2d 539, 543 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992), this court considered a claim that the trial court had erred by refusing to disclose confidential documents after in camera review and ultimately "defer[red] to the trial court's judgment that the records lacked sufficient relevance for disclosure." The state argues that Schmid provides authority for us to simply defer to that same judgment in this case, without even reviewing the confidential documents. We disagree. The normal practice is for this court independently to review the documents and determine their potential relevancy. See, e.g., State v. Goldenstein, 505 N.W.2d 332, 345 (Minn. App. 1993) (finding no abuse of discretion in trial court's denial of discovery after conducting independent review of confidential documents), review denied (Minn. Oct. 19, 1993); State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn. App. 1992) (affirming denial of discovery of in camera materials in part because appellant failed to ensure their inclusion in record on appeal), review denied (Minn. Mar. 19, 1992).

Review of the confidential documents included in the trial court file leads us to conclude that the trial court did not abuse its discretion. Most of the documents are school performance and evaluation records. A few are related to child protection efforts resulting from appellant's conduct. We agree with the trial court's summary of the documents, quoted above, and affirm its decision.

The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996). The general issue in deciding whether to depart is whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question. State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).

Abuse of a position of trust is a well-established ground for departure. See, e.g., State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) (dispositional and durational departure justified by defendant's abuse of position of trust as victim's church youth worker); State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996). Appellant here was not only a police officer in the community, but he fostered his relationship with the victim by taking her on "ride-alongs" in his squad car where much of the improper conduct occurred. Indeed, he met the victim through her mother, who had turned to him for help with an abusive relationship. Appellant plainly abused his position of trust and authority in committing the offenses.

Appellant argues that abuse of a position of trust or authority is a sufficiently common circumstance in the commission of crimes that it would have been included expressly in the guidelines were it a proper ground for departure. This argument ignores well-established case law on the issue. We hold that this factor alone supports the departure in this case, and we therefore do not address the other cited factors.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ The state argued this point by referring to evaluations of the victim as having a low IQ and thus a greater vulnerability.