Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Michael C. Davis, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

Appellant Darrell Roth challenges his first-degree criminal sexual conduct convictions, arguing that: 1) the evidence at trial was insufficient to support the jury's verdict; 2) the district court committed reversible error by limiting the cross-examination of Tricia Abbott; 3) the district court abused its discretion by imposing consecutive sentences for crimes against multiple victims; 4) the jury's temporary deadlock entitles him to relief; and 5) the prosecutor committed misconduct during final argument. We affirm.

At trial, J.B. described how Roth put his "peepee" in her mouth and "went potty." She identified a penis from a diagram as the "peepee" and said it tasted icky. J.B. also described, complete with circular gestures, how Roth made her touch his penis with her hand. The five-year-old did not know how many times it happened.

K.B., who was four years old at the time of trial, also testified how Roth stuck his "peepee" in her mouth and "peed." K.B. also added that she saw Roth do the same thing to J.B.

On August 6, 1996, the girls were at the home of a neighbor, Renya Moore, while their mother went to the store. J.B. told Moore that "my Daddy made me drink his peepee." Without prompting, K.B. also told Moore that Roth made her do the same thing. Both girls showed Moore with gestures, cupping their hands to form a circle and moving them to and away from their mouth. When Abbott returned, the girls showed and told her what Roth was doing to them. After talking with K.B. and J.B., Abbott called the police. Officer Jeffrey Lewis responded to the call. Officer Lewis separated J.B. and K.B., asking them individually what had occurred. Each of their accounts of the abuse was the same.

On August 12, 1996, Julie Pape, R.N., from Midwest Children's Resource Center, conducted sexual assault evaluations on J.B. and K.B. The girls were seen separately and each interview was videotaped. During the interview, J.B. told Pape that Roth asked her to hold his peepee and help him go potty. He would then go potty with his peepee inside her mouth. She said that it tasted icky and, when asked what it looked like, she pointed to her nose.

At the beginning of K.B.'s interview, she said Roth moved out of their home because he put his "peepee" in mine and J.B.'s mouth. K.B. said this happened several times. K.B. added that Roth peed in her mouth and she did not like it.

Roth denied putting his penis in the girls' mouths and he also denied any other form of sexual contact. He claimed that he lost his sex drive during this time period due to medications he was taking. Roth testified that he got along fine with the girls, but that his relationship with Abbott was often shaky. He claimed that Abbott was upset with him and the justice system because she was denied a request for an order for protection from Roth and she stated that she would get revenge. Abbott was asked about this statement and she denied ever making it.

A jury convicted Roth of two counts of first-degree criminal sexual conduct, sentencing him for an executed term of eighty-six months on each count. This appeal followed.

Roth was convicted of two counts of first-degree criminal sexual conduct in violation of Minnesota statute. See Minn. Stat. § 609.342, subd. 1 (a) (1996). That statute prohibits sexual penetration when:

the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Minn. Stat. § 609.342, subd. 1 (a).

K.B. provided positive and unequivocal testimony describing the charged acts of sexual penetration. There was no dispute regarding age: K.B. was three years old, and J.B. was five years old at the time of the offense, and Roth (born April 2, 1968) was more than 36 months older. The evidence fulfilled all essential elements of the crime, including the statutory definition of sexual penetration. See Minn. Stat. § 609.341, subd. 12 (1996).

The direct and positive testimony of K.B. is, by itself, sufficient to sustain the guilty verdict. There is no requirement that the testimony of a sexual assault victim be corroborated. See Minn. Stat. § 609.347, subd. 1 (1996); State v. Gamez, 494 N.W.2d 84, 86 (Minn. App. 1992), review denied (Minn. Oct. 13, 1993). Furthermore, even if such evidence was required, a number of corroborating factors are present here.

Roth's contentions about the sufficiency of the evidence are essentially twofold. First, he argues that K.B., based on her demeanor and certain answers, should not be considered believable. The credibility of a witness, however, lies within the exclusive province of the jury. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The jury saw and heard K.B. tell her story. Based on the jury verdict, it is clear that the jury found her to be credible.

Second, Roth argues that the state failed to prove venue in Ramsey County. Minnesota law addresses that argument by stating:

A criminal action arising out of an incident of alleged child abuse may be prosecuted either in the county where the alleged abuse occurred or the county where the child is found.

Minn. Stat. § 627.15 (1996).

This statute allows prosecution in the "county where the child is found," which is often equated to the county of residence. State v. Larson, 520 N.W.2d 456, 460 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994). The record clearly shows that K.B. resided in Ramsey County. The record evidence, therefore, is clearly sufficient to support Roth's convictions. Reviewing the evidence in the light most favorable to the state, the jury reasonably concluded that Roth was proven beyond a reasonable doubt to be guilty of two counts of first-degree criminal sexual conduct.

The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to confront and cross-examine witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110 (1974). Generally speaking, however, the Confrontation Clause guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985) (emphasis in original).

In criminal cases, the Confrontation Clause contemplates a cross-examination in which the defendant has the opportunity to reveal "a prototypical form of bias" on the part of the witness. State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995). Such cross-examination, however, is subject to the district court's right to reasonably limit questioning. State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).

When a defendant's attempted cross-examination aimed at showing bias has been restricted, the issue to be determined is whether the jury has sufficient other information to make a "discriminating appraisal" of the witness's bias or motive to fabricate. Lanz-Terry, 535 N.W.2d at 641 (quoting United States v. Hinton, 683 F.2d 195, 200 (7th Cir. 1982), affirmed, 465 U.S. 482, 104 S. Ct. 1172 (1984)). Beyond that threshold, the extent to which extraneous issues are permitted lies largely within the discretion of the district court. Id. The district court may exclude evidence of extraneous issues based on concerns such as harassment, decision-making on an improper basis, confusion of issues, or cross-examination that is repetitive or only marginally relevant. Id.

Here, the jury had more than ample information to make a "discriminating appraisal" of Abbott's alleged bias without reference to the unsuccessful OFP application. The jury heard about Abbott's and Roth's stormy relationship so the animosity and hostility between them was readily apparent. The jury heard about the alleged threat for revenge made by Abbott approximately three weeks before the abuse was eventually reported.

The district court did not commit reversible error by limiting the cross-examination of Abbott. Roth's purpose for the excluded subject matter, which was to show a history of the relationship and a motive to fabricate, was fulfilled by the evidence allowed, which included his personal testimony.

Here, in an attempt to show exaggeration of criminality, Roth relies primarily on evidentiary arguments that were rejected by the jury. Factors relating to guilt or innocence that were not accepted by the jury, however, do not constitute grounds for sentencing deviation. See State v. McKissic, 415 N.W.2d 341, 345-46 (Minn. App. 1987) (challenges to failure to depart on sentencing based on claim of self-defense which jury rejected have failed). Roth's lack of a criminal record, likewise, does not justify mitigation because that factor, in the form of a criminal history score, has already been considered in determining the appropriate presumptive sentence. State v. Gaines, 408 N.W.2d 914, 918-19 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

The record evidence clearly shows that Roth's conduct was not unfairly exaggerated by the use of consecutive sentences. A jury found that Roth sexually abused two young (ages 5 and 3 at the time of the offense) girls who called him "Daddy." He put his penis into their mouths and ejaculated on numerous occasions. Given these circumstances, Roth's statement that he did not cause either child undue embarrassment or humiliation is simply incomprehensible.

Considering the gravity of the offense and the young age of the victims, Roth's conduct clearly warrants consecutive sentences. The district court did not abuse its discretion by imposing consecutive sentences.

Here, there is nothing to indicate that the deliberations, which were one day or less, were excessive. The instruction was balanced and was neither intended nor likely to coerce a verdict. Contrary to Roth's pro se argument, there was no duty for the district court to reread the entire set of instructions. The district court did not abuse its discretion by requiring the jury to continue deliberating or by giving the instructions in response to the impasse.

Roth, in his pro se argument, has taken passages out of context and ignored the vast majority of the summation which was a legitimate analysis of the evidence as applied to the essential elements of the crime, witness credibility, and anticipation of defense arguments.

Roth's counsel did not raise a single objection during the prosecutor's closing argument. Generally, the right to raise an issue concerning the prosecutor's closing argument is waived if the defendant fails to object or seek cautionary instructions. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). When there has been a failure to object, relief will only be available for plain error that affects substantial rights so as to deprive the defendant of a fair trial. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). There was no prosecutorial misconduct committed during final argument that warrants relief.

Affirmed.