State v. Moore

• Decision Date: 20 December 1988
• Docket Number: No. C8-88-345,C8-88-345
• Citation: 433 N.W.2d 895
• Parties: STATE of Minnesota, Respondent, v. Raymond Edward MOORE, Appellant.
• Court: Minnesota Court of Appeals

Page 895

433 N.W.2d 895

STATE of Minnesota, Respondent, v. Raymond Edward MOORE, Appellant.

No. C8-88-345.

Court of Appeals of Minnesota.

Dec. 20, 1988.

Syllabus by the Court

1. Imprecise references to date of alleged offense did not allow improper conviction of appellant based on conduct occurring before his eighteenth birthday.

2. Where witness statements admissible under Minn.R.Evid. 803(24) were improperly admitted under Minn.Stat. Sec. 595.02 subd. 3, trial court error in admitting the statements under the statute rather than the rule was harmless.

3. Where appellant was aware approximately seven months before trial of origin and content of statements of disputed admissibility, the fact that notice was not given under proper exception to hearsay rule was not reversible error.

4. Trial court did not err in denying appellant's motion for an adverse psychological examination.

5. Evidence was sufficient to sustain appellant's conviction.

Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, Raymond F. Schmitz, Olmsted Co. Atty., Rochester, for respondent.

C. Paul Jones, State Public Defender, Michael F. Cromett, Asst. State Public Defender, St. Paul, for appellant.

Considered and decided by WOZNIAK, C.J., and HUSPENI and SCHUMACHER, JJ., without oral argument.

OPINION

HUSPENI, Judge.

Appellant, Raymond Edward Moore, was convicted by an Olmsted County jury of first degree criminal sexual conduct under Minn.Stat. Sec. 609.342, subd. 1(a) for actions allegedly occurring May 8, 1986. On appeal, he maintains the following trial court errors necessitate vacation of his conviction: allowing the prosecution to request conviction based on conduct occurring before his eighteenth birthday; admitting out-of-court statements made by the complainant's brother, under Minn.Stat. Sec. 595.02, subd. 3; denying his motion for a psychological evaluation of the complainant and the complainant's brother; and allowing his conviction to be based on insufficient evidence. We affirm.

FACTS

On various occasions in late April and early May 1986, appellant was retained as a babysitter by Ms. J. for her two minor sons, A.J., age 7, and B.J., age 9.

There was testimony that while babysitting appellant would put on plastic finger tips belonging to B.J. and grab the boys by their genitals and buttocks. There was also testimony that appellant would put his finger between the legs of the children's stuffed animals and tell the children "suck it." Appellant also allegedly tried to stuff the animals down the boys' underwear. Ms. J. was not aware of any of these actions.

On May 8, 1986, appellant's 18th birthday, Ms. J. again asked him to babysit the boys. When appellant arrived at the J.'s residence, Ms. J. asked appellant to get A.J. from his friend's house.

After finding A.J., appellant chased A.J. around a parked car several times to catch him to get him to come home. There was conflicting testimony regarding whether, after appellant caught A.J., he grabbed A.J.'s genitals. Upon arriving home, A.J. was quite angry but, because Ms. J. was in a hurry to leave, she did not inquire why.

Both children allege that sometime after sending them to bed that evening, appellant entered their room, lowered his pants and told A.J. to suck his penis. Both children claim that after A.J. sucked on appellant's penis, appellant sucked on A.J.'s penis. However, on cross-examination, B.J. indicated that he did not remember whether appellant sucked A.J.'s penis.

When B.J. threatened to tell his mother what happened, appellant told him "Your mom won't believe you. You're just a kid and I'm bigger than you and I'm eighteen." Appellant then told B.J. that he would show B.J. his posters of women in swimsuits. The two also discussed a promised purchase by appellant from B.J. of some STAR WARS cards.

When Ms. J. arrived home, she spoke casually with appellant on the front steps about various subjects including the fact that it was his birthday. During this chat, the children were present and did not act peculiarly.

On Saturday, May 10, 1986, during a birthday party for B.J., he told his mother "When Raymond was baby sitting the other night he sucked on A.J.'s penis." Later that day, B.J. told his mother what happened in greater detail and she called the police.

Two days later, each child was separately interviewed by child protection unit officers out of the presence of their mother. Tapes of these interviews were played at trial.

Based on the interviews, appellant was requested to speak to an officer in a taped conversation. In a tape of that conversation, which was also played at trial, appellant either did not respond to or denied the boys' accusations.

B.J. and A.J. saw professional counselor Sandra Garry twice in July and once in October 1986. Out-of-court statements of B.J. and A.J. to Ms. J., to a child protection officer and to counselor Garry were declared admissible under Minn.Stat. Sec. 595.02, subd. 3. Upon conviction of first degree criminal sexual conduct after a jury trial, appellant was sentenced to the presumptive term of 43 months.

ISSUES

1. Should appellant's conviction be vacated because it could have been improperly based on events occurring before his eighteenth birthday?

2. Did the trial court improperly admit statements made by the complainant's brother regarding appellant's conduct?

3. Did the trial court err in denying appellant's motion for a psychological evaluation of the minor children B.J. and A.J.?

4. Is the evidence sufficient to sustain appellant's conviction?

ANALYSIS

I.

The date of appellant's alleged abusive conduct was May 8, 1986, his eighteenth birthday. He challenges the trial court's jurisdiction over him by maintaining the complaint was improperly drafted to read that his conduct occurred "during May, 1986" instead of alleging a specific date. He argues that this language, plus imprecise references by both the prosecution and the court to the date of his alleged conduct, combined with testimony that he sexually abused the children before May 8th, allowed the jury to improperly convict him of a felony based on conduct occurring before his eighteenth birthday. Citing State v. Anderson, 394 N.W.2d 813 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Dec. 12, 1986), appellant argues that this requires vacation of his conviction. We disagree.

Anderson is distinguishable from the present case. There, a fourteen-year-old defendant had been referred for trial as an adult in connection with an intrafamilial sex abuse crime requiring multiple penetrations over an extended period of time. At trial, testimony referred to penetrations occurring both before and after the defendant reached age 14. Upon appeal we stated:

[I]t is impossible to determine whether the jury in reaching its decision may have considered acts allegedly occurring before [appellant's fourteenth birthday]. As a result, we cannot determine that conviction for this multiple-act crime was based only on acts occurring after appellant became fourteen years of age. The conviction must therefore be reversed and the matter remanded for a new trial with evidence limited to the time after appellant reached the age of fourteen.

Anderson, 394 N.W.2d at 816 (emphasis added).

Here, appellant was convicted of first degree criminal sexual conduct under a statute which required only a single penetration. See Minn.Stat. Sec. 609.342 (1985). There was no testimony in this case regarding penetration on any date other than May 8, 1986. The testimony of abuse occurring before appellant's 18th birthday refers only to grabbing the boys with the plastic fingertips. The jury could not have relied on such testimony in finding appellant guilty. See State v. Shamp, 427 N.W.2d 228, 231 (Minn.1988).

References by the trial court and prosecutor to events occurring in "May" or "May, 1986" were not objected to by appellant and, additionally, were harmless because they were outweighed by more frequent references identifying the exact date of appellant's alleged conduct as "May 8" or "May 8, 1986." See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). Further, when instructing the jury, the court explicitly required:

the [defendant's alleged conduct] has to have taken place in Olmsted County and it has to have taken place on May 8th, 1986.

(Emphasis added.) A similar instruction was given in submitting the alternate charge of second degree criminal sexual conduct to the jury.

II.

Minn.Stat. Sec. 595.02, subd. 3 reads in pertinent part:

An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child * * * not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

* * *

* * *

(c) the proponent of the statement notifies the adverse party of the proponent's intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Under Rule 803(24):

[a] statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name, address, and present whereabouts of the declarant.

The trial court permitted B.J. to testify regarding his out-of-court statements to his mother, the officer and Garry by ruling them admissible under Minn.Stat. Sec. 595.02, subd. 3. On appeal appellant argues, and the state concedes, that this ruling was improper because the statute only pertains to the testimony of victims, not witnesses. See Minn.Stat....