State of Minnesota, Respondent, vs. Dennis George Johnson, Appellant. C0-97-1464, Court of Appeals Unpublished, July 28, 1998.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-97-1464

State of Minnesota,
Respondent,

vs.

Dennis George Johnson,
Appellant.

Filed July 28, 1998
Affirmed as modified
Shumaker, Judge

Ramsey County District Court
File No. K8-96-1956

John M. Stuart, Minnesota State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

A jury found appellant Dennis George Johnson guilty of criminal sexual conduct in the second degree, and the judge committed him to the custody of the commissioner of corrections for 72 months rather than the presumptive 48 months. He appeals his conviction and sentence. We affirm as modified.

FACTS

Appellant and Lori Baugart (Baugart) divorced in 1992. The two oldest children, twelve-year-old K.J. and eleven-year-old A.J., lived with appellant, and R.J., the youngest child, lived with Baugart. During a weekend visitation with her mother in April 1996, K.J. told her mother that she did not want to go back to appellant's house because she did not like him touching her. After an investigation, appellant was charged with criminal sexual conduct.

K.J. testified at trial that appellant began sexually touching her a couple of weeks after her tenth birthday in March 1995, and continued for over a year until she reported the conduct to her mother and grandmother. She testified that appellant touched her in his bedroom "every day" when A.J. was visiting their mother, and K.J. and appellant were alone. She stated that appellant would sometimes come into her bedroom at night and carry her into his own bedroom. Then he would lie on the bed with his leg draped over her. K.J. testified that appellant tickled her and touched the clothing over her "potty" and her "boobies," and that sometimes he stuck out his tongue when he kissed her. K.J. testified that appellant also improperly touched her while they were wrestling, or as she sat in the front seat of the car while appellant was driving. K.J. testified that appellant sometimes came into the bathroom and watched her as she showered.

At trial, appellant introduced evidence of his good character and his good conduct as a parent. During the trial, a videotape of K.J.'s interview and examination at Midwest Children's Resource Center was played. In the videotaped interview, K.J. reported that appellant had magazines of naked ladies, a video of a naked person in a bathtub, and a toy which performs a sexually explicit act. Earlier the trial court had ruled that evidence of pornographic material in appellant's house was inadmissible.

The prosecutor, in her closing arguments, remarked on appellant's so-called "dad-of-the-year" theme telling the jury "even assuming that the defendant is the father of the year, " he "isn't credible, he isn't believable. He has too much at stake and the most incentive to lie."

The jury began deliberations at 11:35 a.m. on April 24, 1997. On April 25, 1997, at 11:18 a.m. the court received a note from the jury indicating it was unable to reach a verdict. The court reread 3 Minnesota Practice, CRIMJIG 3.04 (1996), to the jury about their duty to discuss the case and come to a unanimous verdict, if possible. After deliberating for five and a half more hours, the jury found appellant guilty of second degree criminal sexual conduct. The trial court granted the state's motion for an upward durational departure based on the vulnerability of the victim, the length of abuse, and the victim's psychological injury. This appeal followed.

D E C I S I O N
I.

Appellant argues that the trial court erred where evidence of pornography, previously ruled inadmissible, was heard by the jury during the taped interview with the victim. The court denied the motion and issued a curative instruction.

The court later noted that, since appellant had put his character as a good parent into evidence, the evidence regarding the pornography was legitimate.

In addition, the trial court gave a curative instruction to the jury, telling them to disregard any evidence of pornography. State v. Bickham, 485 N.W.2d 923, 925 (Minn. 1992) (any potential prejudice is remedied by giving a curative instruction to the jury). Therefore, the trial court did not abuse its discretion in denying appellant's motion for a mistrial.

II.

Appellant argues that the prosecutor derided appellant's character and negatively referred to him as "father of the year" and to his "dad of the year" defense. In addition, appellant argues that the prosecutor improperly expressed her personal opinion to weaken appellant's defense.

Appellant's attorney did not object to the prosecutor's closing argument, but now contends, for the first time on appeal, that the prosecutor's remarks constituted misconduct. However, defense counsel's failure to object at trial or to preserve the issue in a post-trial motion, is deemed to be a waiver of the objection. Furthermore, it was proper for the prosecutor to comment on appellant's character defense and credibility, both material issues in the trial. State v. Marquetti, 322 N.W.2d 316, 318 (Minn. 1982).

III.

In appellant's motion for a new trial, he argued that the court impermissibly required the jury to return a verdict after the jury indicated that it was deadlocked. Appellant argues that, according to Minn. Stat. § 631.12 (1996), the trial court should have discharged the jury when there was no reasonable probability of agreement.

"Trial courts have considerable latitude in the selection of the language of the jury charge." State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (citations omitted). The question in this case is whether the trial court's instructions, taken as a whole, coerced the jury to reach a unanimous verdict. The record supports the conclusion that the trial court's instructions did not coerce the jury. See State v. Martin, 297 Minn. 359, 373, 211 N.W.2d, 765, 772 (1973) (potential for coercion minimized if charge is simply reread at a time when jury appears deadlocked). When the jury sent the judge a note indicating that it was deadlocked, the judge brought the jury into the courtroom and read CRIMJIG 3.04 (unanimous verdict - duty of jurors to discuss), which is the same instruction that it read when it charged the jury. See id. We find that it was not improper for the court to remind the jury of its function.

Next, appellant argues that the court coerced the guilty verdict when the court told the jury that "[I]t is the Court who decides when and if the jury is hung. It is not the jury." A trial court acts within its discretion by giving appropriate additional instructions when responding to a note from the jury. Minn. Crim. P. 26.03, subd. 19(3). It is also within the court's discretion to require the deadlocked jury to continue deliberations. State v. Jones, 556 N.W.2d 903, 911-912 (Minn. 1996). Here, the court acted in accordance with the rules of criminal procedure and Minnesota caselaw. Despite appellant's claims, the trial court did not err by requiring the jury to continue its deliberations.

IV.

The state filed a motion for an upward durational departure based on the vulnerability of the victim, length of abuse, and her psychological injury. The court sentenced appellant to 72 months, and ordered him to pay for therapy for both K.J. and A.J. (1)

The trial court may depart from the presumptive sentencing guidelines when the individual case involves substantial and compelling circumstances. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). "A durational departure is appropriate only when a defendant commits a crime in a manner that is significantly more or less serious than the typical commission of the crime." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983). On appeal, this court examines the record to determine whether the trial court's reasons justify departure from the presumptive sentence." Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

The record justifies an upward departure based on the negative impact of the abuse on K.J.'s family situation, see Kilcoyne v. State, 344 N.W.2d 394, 397-98 (Minn. 1984) (court considers effect of abuse on victim's family life when evaluating reasons for departure); the psychological injury to K.J., see State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (psychological injury is sufficient ground for departure) (review denied Minn. March 31, 1994); and the locus of the crime having breached the victim's "zone of privacy." State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984) (victim's home is no longer the "island of security" upon which victim has previously relied, * * * making offense particularly cruel).

The trial court committed no error as to any of the sentencing issues relating to K.J. and we affirm as to those issues. The trial court, however, erred in ordering appellant to pay for A.J.'s therapy costs. As a witness, A.J. is not entitled to restitution but only to compensation in the form of witness fees. Minn. Stat. § 357.22 (1996) (witness fees). We therefore vacate the trial court's order of restitution to A.J.

Affirmed as modified.

(1) A. J. was not a "victim" of appellant's sexual contact, but rather was allegedly present when some of the abuse occurred.