Opinion
No. C9-98-1361.
Filed March 16, 1999.
Appeal from the District Court, Benton County, File No. K7-97-334.
John E. Mack, Ralph Daby, Mack Daby, PLLP, (for appellant)
Michael A. Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, (for respondent)
Michael S. Jesse, Benton County Attorney, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
A district court jury found appellant Carol Clara Boone guilty of criminal sexual conduct in the first degree, Minn. Stat. § 609.342, subd. 1(g) (1992) (significant relationship and complainant under 16), but acquitted her of criminal sexual conduct in the first degree, Minn. Stat. § 609.342, subd. 1(h)(iii) (1992) (multiple acts). The district court sentenced her to 86 months' imprisonment, the presumptive sentence for a level eight offense and a criminal history of zero.
Appellant challenges her conviction and sentence on five grounds: (1) evidence corroborating the victim's testimony was erroneously admitted; (2) expert testimony was erroneously admitted; (3) the evidence was insufficient to convict; (4) a stay of execution was not considered at sentencing; and (5) the conviction resulted from ineffective assistance of counsel. Because we conclude that appellant's claims have no merit, we affirm.
FACTS
Appellant, Carol Boone, is the mother of B.B., the victim, now age 19, H.B., age 14, and J.B., age 10. Six-year-old E.B. is a stepbrother to the other siblings. Appellant was married to Jeffrey Boone, but the couple separated in 1993 and divorced in 1994, after which time the children lived with their father.
On January 29, 1997, while living at Mille Lacs Academy, B.B. disclosed that appellant had sexually abused him. B.B. was living at the academy because he had sexually assaulted his brothers, J.B. and E.B. He had previously resided at a group home for sexually assaulting his sister, H.B.
B.B. made his disclosures at a family therapy session in the presence of his father and a counselor. B.B. testified that he had flashbacks about taking baths with appellant when he was age five during which she would touch his penis. He remembered taking more baths with appellant thereafter. B.B. testified that appellant fondled him and forced him to penetrate her. B.B. also testified that his father did not tell him to make accusations or try to influence him and that he had no ulterior motives; he had made no previous disclosure because he was frightened and did not remember clearly.
B.B. made notes on two occasions. The notes (exhibits 2 and 3) were admitted over defense counsel's objection. The district court admitted both statements as prior consistent statements under Minn.R.Evid. 801(d)(1)(B).
B.B testified that after living with his father, he and his siblings moved to a St. Cloud women's shelter and then to an apartment in Sartell. B.B. generally slept in appellant's bedroom. All of the children would sometimes sleep in appellant's room.
B.B.'s sister, H.B., age 13 at the time, and brother, J.B., age 9 at the time, corroborated B.B.'s story. H.B. testified that B.B. slept with appellant in the same bed, and at one point she saw appellant naked and moving up and down on top of B.B. J.B. testified that once he went into the bedroom and saw his brother's pants on the floor. He could not see appellant and B.B., but heard "growling noises." J.B. also described an incident when he went into the bathroom and appellant and B.B. were naked and in the bathtub together. B.B. testified that no one told him to invent the stories.
Jeffrey Boone, B.B.'s father, testified that shortly before his separation from appellant he found appellant wearing only her bra and panties in bed with B.B. and that as part of the marriage dissolution, the district court ordered appellant not to sleep in the same bed as B.B.
A family therapist testified that, among other things, B.B. told her that when he was five, appellant fondled his penis, that oral sex occurred between them 100 times in the bathroom from 1984 to 1985, that at age 14, appellant touched his penis while he was in the shower, and that appellant had sexual intercourse with B.B. about 50 times from March 1993 to January 1994.
Appellant testified that B.B. slept in her bed as did the other children, usually after falling asleep watching movies, and that most of the time she wore clothes in bed. At one point in his life, B.B. regressed and began wetting. He became sore and appellant had to put medication on his genitals. She also testified that at no time did she touch her son with sexual intent or engage in oral sex or intercourse with him.
The final witness was a psychologist called by the state over defense counsel's objection. She testified to identifiable behavioral characteristics commonly exhibited by sexually abused children. On cross-examination, she admitted that she testified in two dozen cases in the past two years but only once for the defense. She admitted that there is no formal diagnosis for sexual abuse and offered no opinion on whether B.B. was actually abused.
DECISION 1. Hearsay
Appellant argues that all prior witnesses' statements consistent with B.B.'s testimony were hearsay under Minn.R.Evid. 801(c) and improperly admitted. The district court admitted the statements after determining that they were not hearsay under Minn.R.Evid. 801(d)(1)(B) on the grounds that a
statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination * * * and the statement is * * * consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness * * *.
Evidentiary matters rest within the discretion of the district court. Caldwell v. State , 347 N.W.2d 824, 826 (Minn.App. 1984). An appellant claiming error must show both error and prejudice — we may only reverse when "the error substantially influences the jury to convict." State v. Loebach , 310 N.W.2d 58, 64 (Minn. 1981).
Appellant argues that B.B.'s written statements (exhibits 2 and 3) were improperly admitted because they were inconsistent with trial testimony. Appellant argues that B.B.'s previous written statement, "My [mother] fondled my penis in the bathtub," was inconsistent with B.B.'s answering, "My mom would touch my penis," when questioned whether anything happened while he was taking a bath with appellant. We disagree. The statements are not inconsistent.
Appellant asserts that exhibits 2 and 3 are contradictory and inconsistent. In exhibit 2, B.B. wrote that "Age 14: * * * I would sleep in her bed she would lay right behind me. This happened about 340 times." In exhibit 3 he wrote, "She would lay right behind me. This took place around 50 times March 1993 till Jan 1994." Considering that the exhibits cover different time frames, are imprecise, and share the purpose of establishing that appellant slept with her son, the exhibits are not necessarily contradictory and inconsistent. The district court did not abuse its discretion by finding the exhibits consistent and admitting them.
Appellant next argues that the exhibits failed to meet the "credibility need" test because they were admitted before witness credibility was placed at issue. Appellant cites no law for this claim. The credibility of B.B. and his siblings was challenged during opening arguments and on cross-examination. This argument has no merit.
Finally, appellant argues that testimonial evidence should not have been admitted because it was cumulative. We disagree. Minn.R.Evid. 403 allows the court to exclude evidence if its probative value is substantially outweighed by the danger of "needless presentation of cumulative evidence." The district court did not abuse its discretion by admitting this consistent testimony into evidence; the credibility of B.B. and his siblings was an important issue and the amount of credibility evidence admitted was neither cumulative nor excessive.
2. Expert Testimony
Appellant argues that the district court erred in allowing a psychologist to testify concerning sexual abuse victims. To be admissible, expert testimony must be helpful to the jury. Minn.R.Evid. 702. The danger of unfair prejudice must not substantially outweigh its probative value. State v. Danielski , 350 N.W.2d 395, 396 (Minn.App. 1984). The district court has "broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle , 301 N.W.2d 545, 547 (Minn. 1980). A conviction may be reversed only where the district court abused its discretion and the error substantially influenced the jury to convict. State v. Oslund , 469 N.W.2d 489, 495-96 (Minn.App. 1991), review denied (Minn. July 24, 1991).
Appellant cites Danielski to support her claim. In that case, we affirmed the district court's rejection of expert testimony concerning typical symptoms of intrafamilial sexual abuse. 350 N.W.2d at 396. We reasoned that the jury need not hear evidence of typical symptoms to decide whether the 17-year-old victim was truthful. Id. The state argues that Danielski can be distinguished from the instant case, and even if not, it has been superseded by State v. Grecinger , 569 N.W.2d 189, 197 (Minn. 1997) (expert testimony concerning battered woman syndrome admissible).
We need not decide this admissibility issue. Assuming without deciding that it was error to admit the expert's testimony, we conclude that any error was harmless and did not substantially influence the jury to convict. See Oslund , 469 N.W.2d at 495. The expert testimony covered 16 pages of a 265 page transcript. The expert did not claim to have examined B.B. and gave no opinion on the veracity of his testimony. Moreover, the expert was subject to cross-examination. A vigorous cross-examination can show that an expert's inadmissible testimony was harmless error. Id. at 489; State v. Ross , 451 N.W.2d 231, 236 (Minn.App. 1990) (error harmless where, among other things, expert-doctor testifying about sexual abuse was thoroughly cross-examined), review denied (Minn. Apr. 13, 1990). We conclude that the expert's testimony did not substantially affect the jury and its admission, even if erroneous, was harmless. See State v. Soukup , 376 N.W.2d 498, 503 (Minn.App. 1985) (inadmissible expert testimony held to be harmless error where no contact between expert and victim, expert only testified generally about abused children, no direct opinion or diagnosis offered, and testimony only small part of evidence), review denied (Minn. Dec. 30, 1985). We reject appellant's argument.
3. Sufficiency of the Evidence
Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). We must further assume that "the jury believed the state's witnesses and disbelieved evidence to the contrary." State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
B.B. testified that he was "forced" to have sex with appellant; appellant responds that this is impossible and therefore the testimony is "incredible." But "force" could simply have been in the form of subtle persuasion given appellant's position of authority over B.B. Because evidence must be viewed in a light most favorable to the conviction, we reject appellant's argument.
Appellant also argues that because B.B.'s testimony and that of corroborating witnesses lacked specificity, no reasonable jury could have believed the evidence. Appellant cites State v. Mathiasen , 267 Minn. 393, 127 N.W.2d 534 (1964) for the proposition that specificity is required. But Mathiasen is distinguishable because it deals with accomplice testimony. Id. at 393-94, 127 N.W.2d at 535-36. Appellant also argues that this case fails the test in State v. Jannetta , 355 N.W.2d 189, 194 (Minn.App. 1984), review denied (Minn. Jan. 14, 1985), which concluded that a complaint must inform the defendant with reasonable specificity of the crime charged. Jannetta does not support appellant's argument; it declared that "absolute specificity is not necessary in a complaint alleging the sexual abuse of children." Id. ; see also State v. Williams , 363 N.W.2d 911, 914 (Minn.App. 1985) (in a complaint for interfamilial sexual abuse "[s]pecific dates need not be alleged, charged or proved, since a particular time is not a material element of the offense"), review denied (Minn. May 1, 1985). While B.B. was not specific about the dates, his testimony of the events was corroborated by his brother and sister. We assume that the jury believed B.B. and conclude that the evidence, viewed in a light most favorable to the verdict, was sufficient for the jury to convict.
Finally, appellant appears to argue that the jury entertained a reasonable doubt because it rejected the charge of criminal sexual conduct in the first degree, which included section 609.342, subd. 1(h)(iii) (1992) (multiple acts), but found appellant guilty on the other charge, section 609.342, subd. 1(g) (1992). Appellant cites no caselaw for this assertion. Even if the verdicts are logically inconsistent, they will be sustained on appeal so long as there is sufficient evidence to sustain the guilty verdict. Nelson v. State , 407 N.W.2d 729, 731 (Minn.App. 1987), review denied (Minn. Aug. 12, 1987). Appellant's claim has no merit.
4. Stay of Sentence
Appellant argues that she was eligible for sentencing consideration under Minn. Stat. § 609.342, subd. 3 (1996), and that failure to grant such consideration was error because the law strongly favors section 609.342 stays. Section 609.342, subd. 3, specifically empowers trial courts to stay imposition or execution of sentence in certain circumstances. The cases appellant cites do not support her argument. State v. Dokken , 487 N.W.2d 914, 918 (Minn.App. 1992) (court of appeals reluctantly affirmed district court's stay due to abuse of discretion standard despite agreeing that the case was "troublesome"), review denied (Minn. Sept. 30, 1992); State v. Hamacher , 511 N.W.2d 458, 461 (Minn.App. 1994) (holding that is was not abuse of discretion to refuse stay without stating support either way for granting or refusing stays). Nor do these cases support an argument that the district court abused its discretion by not departing downward from the presumptive sentence.
Only in a "rare" case will a reviewing court reverse a trial court's imposition of the presumptive sentence. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). The decision to depart from sentencing guidelines rests within the district court's discretion, and we will not reverse absent a clear abuse of that discretion. State v. Givens , 544 N.W.2d 774, 776 (Minn. 1996). We ordinarily "will not interfere with a sentence that falls within the presumptive sentence range * * * even if there are grounds that would justify departure." State v. Abeyta , 336 N.W.2d 264, 265 (Minn. 1983). Here there are grounds that might justify a downward departure, but there also are grounds that would justify no departure — appellant has not accepted responsibility for her actions and has shown no remorse. We conclude that the district court did not abuse its sentencing discretion.
5. Ineffective Assistance of Counsel
Appellant argues that she had ineffective assistance of counsel. To show this,
[t]he defendant must affirmatively prove that his counsel's 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." "A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987) (citation omitted).
Appellant argues that her counsel failed to object to the introduction of evidence under Minn.R.Evid. 801(d)(1)(B) and to leading questions. But the "decision to object is largely a matter of strategy." Weaver v. State , 408 N.W.2d 200, 202 (Minn.App. 1987), review denied (Minn. Aug 12, 1987). Furthermore, beyond stating what she opines are her counsel's mistakes, appellant has not demonstrated the requisite reasonable probability that those mistakes, if any, would have changed the outcome of the trial.
Appellant argues that cross-examination of the witnesses was "feeble." But defense counsel did cross-examine witnesses about their credibility, and recollection. While appellant urges that this was inadequate, we generally will not review an attorney's trial tactics. State v. Rainer , 502 N.W.2d 784, 788 (Minn. 1993). Furthermore, in the absence of other evidence, tactical decisions involving cross-examination do not result in ineffectiveness of counsel. See State v. Best , 370 N.W.2d 691, 695-96 (Minn.App. 1985) (attorney not ineffective for failing to more closely cross-examine sexual abuse victim); Lukens v. State , 400 N.W.2d 794, 798 (Minn.App. 1987) (where attorney limited cross-examination of sexual abuse victim not ineffective assistance of counsel). Once again, appellant only provides a list of perceived errors; she does not show that the trial result would have been different but for these errors. Appellant's ineffective assistance of counsel argument has no merit.
Affirmed.