Opinion
No. C3-00-403.
Filed January 9, 2001.
Appeal from the District Court, Wright County, File No. K09957.
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, and Thomas N. Kelly, Wright County Attorney, (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, (for appellant)
Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction of one count of criminal sexual conduct in the second degree and requests a new trial. Appellant contends there was insufficient evidence to support a guilty verdict. He also argues that his due process right to a unanimous jury verdict was violated because the trial court did not provide a specific unanimity instruction to the jury. Because appellant failed to object to the jury instructions at trial and because we find sufficient evidence in the record to support the jury verdict, we affirm.
FACTS
In 1989, Laura Shaker, her seven-year old daughter, S.H., and her four-year old son, K.S., moved into appellant Dale Wayne Johnson's house. Appellant and Shaker were romantically involved.
In approximately 1992, S.H. told K.S. that appellant had sexually assaulted her. Sometime in either 1996 or 1997, S.H. told her cousin that appellant had sexually assaulted her. S.H. also told her cousin that she had told her mother about the sexual assault, but that her mother had not done anything or confronted appellant.
In the summer of 1998, S.H. and K.S. moved into their uncle's home after S.H. and appellant had an argument over S.H.'s behavior. On September 1, 1998, S.H. and her cousin approached Heidi Kepley, a school social worker, to report the sexual abuse. Kepley reported the allegations to Wright County Human Services. On September 16, 1998, Kathleen Hoglund, a child protection social worker for Wright County, and Wright County detective Gary Holm interviewed S.H. She reported five incidents of sexual abuse that occurred over a period of three or four years beginning when S.H. was nine or ten years old. S.H. could not remember specifically when the incidents occurred or if there were any more incidents.
On January 6, 1999, appellant was charged with one count of criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1(a) (1998), and one count of criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1(g) (1998). At trial, S.H. testified that appellant had touched her "four or five times" when she was between the ages of 10 and 12, but she only described four incidents. S.H.'s testimony regarding where she had been touched was slightly different than her statement to county officials, and she could not remember details from the fourth incident. Both K.S. and S.H. testified that they had informed Shaker about the sexual assaults, but that Shaker failed to do anything. Shaker denied that S.H. had reported any of the sexual assaults to her. But she admitted during cross-examination that she had an alcohol problem and experienced blackouts around the same time S.H. claimed to have been assaulted.
The jury found appellant guilty of one count of criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1(a). The trial court sentenced appellant to 21 months, stayed the execution of the prison term, and placed appellant on probation for an indeterminate period not to exceed 25 years. This appeal follows.
DECISION I.
This court reviews the evidence in the record "in the light most favorable to the jury's verdict and assume[s] that the jury believed the state's witnesses and disbelieved contrary evidence." Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (citation omitted). A reviewing court must recognize that the jury is in the best position to evaluate the credibility of witnesses. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999). Any inconsistency in the evidence must be resolved in favor of the verdict. State v. Voorhees, 596 N.W.2d 241, 252 (Minn. 1999) (citation omitted).
Appellant was convicted of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1998). This statute provides:
Subd. 1. Crime defined.
A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if * * *:
(a) 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. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced[.]
Appellant argues that the jury could not have properly found him guilty because the state's only evidence of the crime was S.H.'s testimony. Appellant argues that her testimony is unreliable because it was inconsistent with her statements to police and school officials.
But minor inconsistencies in the state's case do not require reversal if the testimony taken as a whole is consistent and credible. Marshall v. State, 395 N.W.2d 362, 365 (Minn.App. 1986) (finding a victim's uncorroborated testimony sufficient to support a conviction when the testimony "while not particularly detailed, was positive and relatively consistent"), review denied (Minn. Dec. 17, 1986); see also State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980); State v. Higgins, 422 N.W.2d 277, 281 (Minn.App. 1988). And the jury, not this court, has the exclusive function of determining the credibility of witnesses. State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994); State v. Larson, 520 N.W.2d 456, 462 (Minn.App. 1994), review denied (Minn. Oct. 14, 1994).
Here, the jury ultimately found S.H. credible and believed her version of events. We do not believe the minor inconsistencies between S.H.'s testimony and her statements to the county officials are enough to overturn the jury's reasonable conclusion. Children are often unable to recall specific details or fully understand the criminality of their abuser's conduct. State v. Garden, 404 N.W.2d 912, 915 (Minn.App. 1987) (relying on State v. Myers, 359 N.W.2d 604 (Minn. 1984)), review denied (Minn. June 25, 1987). Nearly six years have passed since the time the first incident occurred. Given her age and the traumatic effects of child sexual abuse, it is understandable that S.H. cannot recall the incidents with the specificity demanded by appellant. See Myers, 359 N.W.2d at 610 ("Because of the child's confusion, shame, guilt, and fear, disclosure of the abuse is often long delayed."); see also W.J.L. v. Bugge, 573 N.W.2d 677, 680 n. 5 (Minn. 1998) (listing resources on problems in eliciting testimony from child abuse victims).
Moreover, what S.H. confided to her brother and her cousin is generally consistent with both her statements to county officials and her trial testimony. The fact that she maintained generally the same story over time supports its reliability.
II.
Failure to object to jury instructions at trial generally results in a forfeiture of the right to appeal on that error. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But we may consider the issue on appeal if we find plain error affecting substantial rights. Id.; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn.R.Crim.P. 31.02.
Verdicts in criminal cases must be unanimous. Minn.R.Crim.P. 26.01, subd. 1(5). Appellant alleges that his right to a unanimous jury verdict was violated because the state produced evidence of multiple incidents of sexual contact, but the jury was not instructed it must reach a unanimous guilty verdict on any one incident.
We decline to address the issue on appeal because it is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting a reviewing court generally does not consider matters not argued and considered in district court). The trial court discussed the jury instructions with counsel for both parties at the close of evidence. The judge followed the standard instructions in informing the jury on the requisite elements of proof needed to convict appellant, as well as the requirement that any verdict must be unanimous. See 10 Minnesota Practice, CRIMJIG 3.04, 12.04-12.07 (1999). Both counsel declined the court's invitation to put additional information on the record after jury instructions were given. Of even greater import, appellant neither contested the jury instructions given at trial nor challenged the adequacy of the jury instructions in his motion for a new trial. He raises the issue of a "specific unanimity" instruction for the first time in this appeal. On this record, we find no plain error by the district court that would warrant a review by this court of the jury instructions.