Opinion
No. C6-98-1169.
Filed April 13, 1999.
Appeal from the District Court, Isanti County, File No. K495694.
Mike Hatch, Attorney General, Natalie E. Hudson, Kelly O'Neill Moller, Assistant Attorneys General, and Jeffrey Edblad, Isanti County Attorney, (for respondent).
Michael J. Michalski, (for appellant).
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant James Allan Riley challenges his conviction of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. We affirm in part and reverse in part.
FACTS
On July 7, 1995, the state filed a complaint against Riley, alleging two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, all involving Riley's son, J.J.R., who was born on February 2, 1985. Arden Fritz, a public defender, represented Riley until August 4, 1997, when the district court granted Riley's motion to discharge Fritz as his attorney.
A jury trial began on November 3, 1997, with William Kennedy acting as Riley's private counsel. But Kennedy had to be hospitalized because of heart problems, and the district court declared a mistrial on November 19, 1997.
Before the second jury trial began on February 9, 1998, the state added a second count of second-degree criminal sexual conduct. Two public defenders represented Riley throughout the proceedings. The jury found Riley guilty on all four counts, and he appeals.
DECISION I. Request for Continuance
Riley claims that the district court erred in denying his requests for a continuance for the start of his second trial, arguing the denial violated his rights to counsel, to a fair trial, and to due process. The decision whether to grant a continuance "is within the trial court's discretion, based on all facts and circumstances surrounding the request." State v. Worthy , 583 N.W.2d 270, 278 (Minn. 1998) (citation omitted). On review, this court "looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial." State v. Vance , 254 N.W.2d 353, 358-59 (Minn. 1977) (citation omitted); see also In re Welfare of L.B. , 404 N.W.2d 341, 344 (Minn.App. 1987) (requiring reversal where denial "deprives defendant's counsel of adequate trial preparation") (citation omitted).
Riley's court-appointed public defenders received the file and began preparation for the February 9, 1998, jury trial on the morning of February 5, 1998. They spent approximately 34 hours preparing for trial and represented Riley throughout the trial and at his sentencing hearing. Arden Fritz, Riley's former public defender, was available for consultation and served in a supervisory capacity. Fritz was familiar with the case, and the evidence was essentially unchanged from when he last had the file.
Furthermore, to the extent Riley claims that the denial affected his right to counsel, the supreme court has stated:
The right to counsel includes a fair opportunity to secure an attorney of choice, but an indigent defendant does not have the unbridled right to be represented by the attorney of his choice.
Worthy , 583 N.W.2d at 278 (citation omitted). Based on the surrounding facts and circumstances, the district court did not abuse its discretion in denying Riley's requests for another continuance.
II. Dismissal of Private Counsel
Riley also asserts that the district court erred in dismissing his private counsel involuntarily, following counsel's health problems that resulted in a mistrial and a delay in scheduling a new trial. But again, there are limits to an indigent defendant's right to representation by an attorney of choice. Id. ; see also State v. Gassler , 505 N.W.2d 62, 70 (Minn. 1993) (concluding that defendant must accept court-appointed attorney after his original counsel was unexpectedly hospitalized).
Following the mistrial in November 1997, the district court allowed a continuance until February 9, 1998. Kennedy, Riley's private counsel, had requested only a three-week continuance and assured the district court that he would resume his representation of Riley. But on January 23, 1998, Kennedy requested another continuance because of new health problems. The district court denied the request, dismissed Kennedy, and reappointed the public defender's office to the case. On these facts, the district court did not err in dismissing Riley's private counsel involuntarily.
III. Presence at Trial
Next, Riley claims that the district court erred in proceeding with the trial in his absence. The rules of criminal procedure provide that a "defendant shall be present * * * at every stage of the trial." Minn.R.Crim.P. 26.03, subd. 1(1). But where "a defendant voluntarily and without justification absents himself * * * after trial has commenced," the trial may continue, and the district court considers the right to be present waived. Id. , subd. 1(2).
On February 11, 1998, Riley failed to return from a recess. The district court found that he had absented himself voluntarily and, pursuant to the state's motion, allowed the trial to proceed. The court also issued a warrant for Riley's arrest. We review a decision to proceed with trial in absentia under an abuse-of-discretion standard. State v. Cassidy , 567 N.W.2d 707, 709 (Minn. 1997). Riley bears the burden of demonstrating that his absence was involuntary. Id. at 710.
Riley concedes that his absence was voluntary. Nevertheless, he argues that the district court "ha[d] an obligation to safeguard [his] right." Id. at 711. But Cassidy involved the defendant's failure to arrange transportation to the courthouse. Id. at 709. Riley walked out of the courthouse during a recess and was a fugitive for nearly a month. The record supports the finding that Riley's absence was voluntary, and the district court did not abuse its discretion in proceeding with the trial.
IV. Scheduling New Trial
Riley also asserts that the district court erred in scheduling a new trial too soon after the mistrial. Essentially, this issue is the same as Riley's claim that the district court erred in denying his requests for a continuance, which is a matter within the district court's discretion. Worthy , 583 N.W.2d at 278.
The district court declared a mistrial on November 19, 1997, following Kennedy's first health problems. Kennedy had requested only a three-week continuance and assured the court that he would resume his representation of Riley. The district court scheduled the new trial for February 9, 1998, more than 11 weeks after the mistrial. It was not until January 23, 1998, that Kennedy requested another continuance. The district court did not abuse its discretion in scheduling the new trial.
V. Constitutionality of Statute Providing Victims Right to Speedy Trial
In addition, Riley claims that, as applied to him, Minn. Stat. § 611A.033 (1998) (providing for victim's right to speedy trial) is unconstitutional. But "[c]onstitutional issues not presented to the district court will not be considered for the first time on appeal." State v. Modern Recycling, Inc. , 558 N.W.2d 770, 772 (Minn.App. 1997) (citation omitted); see also Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (stating that reviewing courts generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it") (citation omitted). Because nothing in the record indicates that the constitutionality of this statute was presented to the district court, we do not address the issue.
VI. Admission of Evidence
Next, Riley claims that the district court erred in admitting the videotaped interview of J.J.R. into evidence at trial. "Rulings on evidentiary matters generally rest within the sound discretion of the trial court." State v. Christopherson , 500 N.W.2d 794, 797 (Minn.App. 1993) (citation omitted); see also State v. Kelly , 435 N.W.2d 807, 813 (Minn. 1989) ("Appellate courts largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling.") (citations omitted).
Hearsay is generally inadmissible. Minn.R.Evid. 802. But an out-of-court statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness.
Minn.R.Evid. 801(d)(1). The district court ruled that the videotape was admissible pursuant to Minn.R.Evid. 801(d)(1)(B).
This court has previously upheld the admission of such evidence under similar circumstances. See Christopherson , 500 N.W.2d at 798 (allowing admission of videotaped interview pursuant to Minn.R.Evid. 801(d)(1)(B) in case involving sexual abuse of four-year-old child). Despite minor discrepancies, the videotaped interview was consistent with J.J.R.'s trial testimony and, therefore, helpful to the jury in evaluating the credibility of a 12-year-old child. See id. (noting that evidence was consistent with trial testimony and helpful to jury in evaluating witness's credibility).
Riley also objects to what he characterizes as the leading and coercive nature of the interview Isanti County Sheriff's Investigator Timothy Akers conducted with J.J.R., arguing that the interview is therefore unreliable. But in interpreting Minn.R.Evid. 801(d)(1)(B), the supreme court has declined the invitation
to read into the rule the requirement that before a prior out-of-court statement can be admitted, the statement must bear "significant indicia of reliability."
State v. Nunn , 561 N.W.2d 902, 909 (Minn. 1997). Thus, the district court did not abuse its discretion in admitting into evidence at trial the videotaped interview of J.J.R.
VII. Motion in Limine
Riley also argues that the district court erred in granting the state's motion in limine to exclude evidence of another possible perpetrator. The district court concluded that Riley had not met his burden of showing that the proposed evidence was relevant. See Minn.R.Evid. 402 ("Evidence which is not relevant is not admissible."). Generally, evidentiary rulings rest within the sound discretion of the district court, and we will not lightly overturn such rulings. Christopherson , 500 N.W.2d at 797; Kelly , 435 N.W.2d at 813.
As a matter of fundamental fairness, "every criminal defendant [is] * * * `afforded a meaningful opportunity to present a complete defense.'" State v. Richards , 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984)). But Riley has no right to present irrelevant evidence. See, e.g., State v. Svoboda , 331 N.W.2d 772, 775 (Minn. 1983) (stating that defendant must comply with basic rules regarding admissibility of evidence); State v. Widell , 530 N.W.2d 566, 570 (Minn.App. 1995) (stating that accused does not have unfettered right to offer inadmissible evidence), review denied (Minn. May 31, 1995).
Before a district court will admit evidence that another person committed the crime, the defendant must lay a proper foundation. State v. Hawkins , 260 N.W.2d 150, 159 (Minn. 1977). Evidence that tends to incriminate a third party is inadmissible "unless coupled with other evidence having an inherent tendency to connect such other person with the actual commission of the crime." Id. (citations omitted).
Riley claims that the district court should have admitted his proposed evidence that his stepson, a juvenile adjudicated delinquent because of criminal sexual conduct, abused J.J.R. He relies on a letter written by one of his stepson's counselors, describing the stepson's fear of mistreating J.J.R. if he returned home.
But the concern involved the stepson's past visits and the fact "that [J.J.R.] grate[ed] on him terribly, and he fear[ed] mistreating [J.J.R.] if he were to be around [him] for any extended period of time." Riley made no offer of proof that his stepson ever sexually abused J.J.R., and J.J.R. has remained consistent in identifying his father as the abuser. Because Riley did not meet his burden of demonstrating the relevance of his proposed evidence of an alternative perpetrator, the district court did not abuse its discretion in excluding the evidence from trial.
Riley also notes the general rule prohibiting the admission of prior juvenile adjudications into evidence but argues that the rule may not be applied to all cases, citing Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105 (1974). He therefore claims that such evidence regarding his stepson could have been admitted here. But the district court did not exclude the evidence on this basis, and we do not address the argument. See Thiele , 425 N.W.2d at 582 (stating that reviewing courts generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it") (citation omitted).
VIII. Motion for Acquittal
Additionally, Riley argues that the district court erred in denying his motion for acquittal at the close of the state's case-in-chief. This court reviews the denial of a motion for acquittal as it would review a claim of insufficient evidence. See Minn.R.Crim.P. 26.03, subd. 17(1) (providing district court shall order judgment of acquittal upon motion if evidence is insufficient to sustain conviction); State v. Anderson , 414 N.W.2d 747, 750-51 (Minn.App. 1987) (reviewing denial of motion for acquittal by deciding whether evidence was sufficient to sustain convictions).
Where there is a challenge to the sufficiency of the evidence, appellate review 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) (citation omitted); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty"). This court must view the evidence in the light most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved contradictory evidence. State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
The evidence is sufficient to support Riley's convictions of first- and second-degree criminal sexual conduct. Specifically, J.J.R.'s testimony that Riley sexually abused him on several occasions was sufficient to support the convictions. See State v. Blair , 402 N.W.2d 154, 158 (Minn.App. 1987) (concluding that victim's testimony sufficient to sustain convictions of criminal sexual conduct).
In any event, Riley alleges only that there were "numerous problems associated with" the case that would justify acquittal, citing Hawkins , 260 N.W.2d at 157 (concluding that "cumulative effect of numerous errors [in the trial] * * * denied defendant a fair trial"). But Riley has not established that there were any errors. And, in any event, the standard for granting a motion for acquittal is whether the evidence is sufficient to sustain a conviction, not whether there were errors at trial. Minn.R.Crim.P. 26.03, subd. 17(1). The district court did not err in denying Riley's motion for acquittal at the close of the state's case-in-chief.
IX. Pretrial Motion to Dismiss for Lack of Probable Cause
Riley argues that the district court erred in denying his pretrial motion to dismiss for lack of probable cause. When deciding such a motion, the district court asks whether the facts appearing in the record, if proved at trial, would preclude the granting of a motion for acquittal. State v. Diedrich , 410 N.W.2d 20, 22 (Minn.App. 1987).
But here, the facts were proved at trial, and the jury found Riley guilty of the charges alleged in the complaint. We have concluded that the evidence was sufficient to support Riley's convictions and, therefore, that the district court did not err in denying Riley's motion for acquittal. Thus, we need not address separately the issue of Riley's pretrial motion to dismiss because it is irrelevant. See State v. Holmberg , 527 N.W.2d 100, 103 (Minn.App. 1995) (stating that probable-cause argument is irrelevant following conviction), review denied (Minn. Mar. 21, 1995).
X. Exclusion of Evidence
Riley also argues that the district court erred in excluding evidence regarding a 1989 petition for an order for protection. Again, evidentiary rulings generally rest within the sound discretion of the district court, and we will not lightly overturn such rulings. Christopherson , 500 N.W.2d at 797; Kelly , 435 N.W.2d at 813.
The evidence at issue here involved a prior allegation by J.J.R. of sexual abuse by his father in 1989. Based on this allegation, J.J.R.'s mother filed a petition for an order of protection. On the recommendation of J.J.R.'s guardian ad litem, the petition was subsequently dismissed when J.J.R.'s therapist found no evidence of sexual abuse. J.J.R.'s mother concurred in the dismissal.
The state moved to exclude this evidence, arguing that it was inadmissible under Minn.R.Evid. 403 (excluding evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury"). After hearing arguments from both sides, the district court granted the state's motion to exclude, ruling that (1) the defense's failure to disclose the evidence constituted a discovery violation and (2) the prejudice from the confusing and misleading nature of the evidence "far" outweighed any probative value.
Although the petition was dismissed, there was never a finding that the allegations of sexual abuse were false. Also, J.J.R.'s mother testified that, after the initial report, J.J.R. refused to talk with anyone about the alleged abuse. Because evidence of these prior allegations and the dismissal of the petition could be confusing and misleading to a jury, the district court did not abuse its discretion in excluding this evidence.
Riley also argues that the state "opened the door" by first asking J.J.R.'s mother about prior allegations of sexual abuse. But Riley's trial counsel did not make this argument. Because the issue was never presented to or considered by the district court, we do not address it. See Thiele , 425 N.W.2d at 582.
The district court's ruling allowed inquiry into whether J.J.R. had made prior allegations of sexual abuse.
XI. Award of Restitution and Disbursements
Next, Riley claims that the district court erred in awarding restitution, claiming that the amount was arbitrary and capricious. The district court may sentence a defendant convicted of a felony "to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both." Minn. Stat. § 609.10, subd. 1(5) (1998); see also Minn. Stat. § 611A.04, subd. 1(a) (1998) (stating that victim has right to receive restitution if offender is found guilty). Because district courts are in the best position to weigh sentencing options, they have "wide discretion in ordering reasonable restitution." State v. O'Brien , 459 N.W.2d 131, 133 (Minn.App. 1990) (citation omitted).
The record contains evidence that the victim, J.J.R., suffered damages in the amount of $2,000 for counseling and $10,920 for special schooling. The district court, considering evidence of these amounts and Riley's ability to pay, awarded $2,000 in restitution. See Minn. Stat. § 611A.045, subd. 1 (1998) (requiring court to consider victim's economic loss along with income, resources, and obligations of defendant). Thus, the district court did not abuse its discretion.
Riley makes a similar claim with respect to the district court's award of disbursements to the state. The court awarded $3,000 to the state for travel expenses for J.J.R. and his family, pursuant to Minn. Stat. § 631.48 (1998) (providing that court may, upon conviction, order defendant to pay disbursements to prosecution). But the state may not recover for out-of-state travel expenses for witnesses. See State v. Lopez-Solis , 589 N.W.2d 290, 296 (Minn. 1999) (refusing to read such language into Minn. Stat. § 631.48). We therefore reverse the $3,000 award of disbursements.
XII. Motion for Mistrial
Finally, Riley argues that the district court erred in denying his motion for a mistrial based on the testimony of Investigator Akers. When reviewing denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Miller , 573 N.W.2d 661, 675 (Minn. 1998).
When Investigator Akers testified that J.J.R.'s actions during the interview signified to him that J.J.R. was telling the truth, Riley objected. The district court sustained Riley's objection and ordered that the statement be stricken. But it is unclear whether Riley actually moved for a mistrial. If he did not, the issue is not properly before this court. See Thiele , 425 N.W.2d at 582.
In any event, a motion for a mistrial "should not be granted unless there is a reasonable probability that the outcome of the trial would be different." State v. Spann , 574 N.W.2d 47, 53 (Minn. 1998) (citation omitted); see also State v. Long , 562 N.W.2d 292, 296 (Minn. 1997) (stating that district court in best position to determine necessity of mistrial). Because any possible prejudice was minimized by the district court's immediate curative action, the court did not abuse its discretion in denying Riley's motion for a mistrial.