State v. Vick, C7-99-1949.
| Decision Date | 30 August 2001 |
| Docket Number | No. C7-99-1949.,C7-99-1949. |
| Citation | 632 N.W.2d 676 |
| Parties | STATE of Minnesota, Petitioner, Appellant, v. Edwin Olaf VICK, Respondent. |
| Court | Minnesota Supreme Court |
Mike Hatch, Atty. Gen., Thomas R. Ragatz, Asst. Atty. Gen., St. Paul, William J. Hennessy, Cook County Atty., Grand Marais, for appellant.
Steven E. Wolter, Douglas A. Kelley, P.A., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
In May 1999, respondent Edwin Olaf Vick was found guilty by a jury and convicted of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a) (2000). Vick petitioned for postconviction relief, alleging ineffective assistance of trial counsel and insufficient evidence to support the conviction. The postconviction court denied Vick's petition. Vick subsequently appealed his conviction to the court of appeals, arguing that the trial court committed plain error when it admitted unnoticed and unproven Spreigl evidence. Vick also appealed the denial of his petition for postconviction relief. The court of appeals reversed the conviction and ordered a new trial, agreeing with Vick that the trial court committed plain error by admitting the Spreigl evidence. State v. Vick, No. C7-99-1949, 2000 WL 890468, at *3 (Minn.App. July 3, 2000). The state appeals, arguing that the trial court's failure to sua sponte strike the alleged Spreigl testimony or provide a cautionary instruction was not plain error. We conclude that the trial court did not commit plain error, reverse the court of appeals' decision, and reinstate the jury verdict.
On December 27, 1997, C.G. and Dan Vick (Dan) went on vacation and left their two children, A.B. and J.V.,1 in the care of Dan's father, Edwin Vick (Vick). The children stayed with Vick at his cabin in Cook County. C.G. and Dan collected the children on Wednesday, December 31, at Vick's home in Silver Bay. Neither parent noticed anything unusual about seven-year-old A.B.'s behavior then. During this time, A.B. lived with C.G., Dan, and J.V. in the Duluth area.
A.B. spent the following weekend with Cheryl Swanson, A.B.'s daycare provider and "second mother." A.B. joined Cheryl and her son Joshua for a weekend at Cheryl's boyfriend's farm near Floodwood. During the weekend, Joshua and A.B. approached Cheryl and Joshua told her that A.B. had something to say. According to Cheryl, A.B. put her head down and began wringing her hands, then asked Joshua to tell Cheryl. Joshua explained that A.B.'s grandpa had touched her "private parts." Cheryl asked whether A.B. told her mother, and A.B. replied that she had not because she did not want her grandpa to get in trouble. Subsequently, Cheryl called C.G. and told her that she wanted to get together to talk. She did not elaborate, but the two planned a meeting for the Monday after Cheryl returned from the farm.
Cheryl brought A.B. home on Sunday, January 4, 1998. That night, C.G. asked A.B. if anything had happened over the weekend. At that point, A.B. took her mother into her parents' bedroom and explained that Vick had touched her. A.B. told her story reluctantly, telling her mother that she did not want Vick to get in trouble. C.G. asked Dan to come into the bedroom and told A.B. to tell Dan what she had told C.G. A.B. repeated it, and Dan began to cry.
That night, C.G. called a crisis center and explained what A.B. had said. A crisis center worker took the information and told C.G. to contact a social worker, which she did the next morning. C.G. then contacted the Duluth police and arranged for a police interview with A.B. at the First Witness house in Duluth. First Witness is a home in Duluth that provides a child-friendly atmosphere where police interview child sexual abuse victims. Specific interview techniques are employed by officers with the goal of obtaining an interview free of suggestion or outside influence.
During this time, Dan and C.G.'s relationship had been deteriorating. The two fought, and the children occasionally witnessed these fights. At trial, C.G. acknowledged that the fights affected the children. In January 1998, C.G. moved out of Dan's house and took A.B. to live with her.
On January 20, 1998, Officer Scott Voigt conducted an interview with A.B. at First Witness. A.B. went to the First Witness house with her mother and Cheryl, but only Voigt and A.B. were present while the interview was conducted. Voigt and A.B. discussed the difference between good touches and bad touches, and when asked if she had ever received a bad touch, A.B. explained that her grandpa had touched her "butt." A.B. said that Vick had touched her butt on two different occasions. The first occasion occurred at the Cook County cabin ("under-the-clothes touching"), and was the sole basis for the charge against Vick and his ultimate conviction. The second instance occurred at Vick's "shop," his place of work in Beaver Bay, Lake County ("over-the-clothes touching"). When describing the Cook County, under-the-clothes touching, A.B. explained that while she and her brother J.V. were sleeping on the bed, Vick—who was sleeping on the floor close to them—woke up and put his hand under her pajamas and rubbed her butt for a "couple of minutes." A.B. said that she pretended to sleep while Vick touched her, and that the touching made her feel mad. Voigt asked A.B. whether Vick had touched her vagina at that time and, during the First Witness interview, A.B. said that he had not.
A.B. also described to Voigt a second instance when Vick touched her "butt." A.B. explained that, while at Vick's shop in Lake County, she was sitting down making a picture when Vick came up behind her, put his hand under her butt, and rubbed her for a couple of minutes. During this touching, A.B. stated that Vick touched her over her clothes, and she again denied being touched on her vagina.
Immediately after leaving the First Witness interview, A.B. told C.G. and Cheryl that she had forgotten to tell Voigt everything. At trial, the state asked C.G. what A.B. said:
Vick's attorney made no objection, but Vick now challenges the admission of this testimony on the grounds that it is unnoticed and unproven Spreigl evidence. In contrast, the state claims in its brief to this court that C.G.'s testimony was merely a "misstatement," speculating that she wrongly described the Lake County, over-the-clothes touching. The record does not resolve this factual ambiguity. It is the sort of ambiguity that could have been clarified through questioning of the witness. In the absence of clarifying testimony, the attempts by respective counsel to resolve the ambiguity are futile.
C.G. contacted the police after A.B. explained that she had not told Voigt everything. A second follow-up interview was arranged with the Chief Deputy of the Cook County Sheriff's Department, Mark Falk. On March 3, 1998, Falk went to C.G.'s house to interview all the witnesses involved in the case and he was told that A.B. had information to add. This time A.B.'s mother was in the room during the interview. Falk asked A.B. what she left out of the first interview, and Falk testified that before she responded, C.G. said "you've got to tell him." A.B. then explained that on the occasions when Vick had touched her, he did touch her vagina and that it happened "two to four times." When cross-examining Falk, Vick's attorney clarified that A.B. told Falk that only the Cook County incident occurred under her clothes.2
As part of the investigation, Officer Voigt asked C.G. if he could set up and tape-record a phone conversation between A.B. and Vick. C.G. declined, fearing the effect on A.B., but indicated that she herself would call Vick. C.G. called, the conversation was recorded, and the tape was ultimately played for the jury. During the call, C.G. told Vick about A.B.'s claim that Vick touched her. Vick responded: Vick denied touching A.B. while she slept. While talking with Vick, C.G. also mentioned that A.B. talked of another time when Vick touched her, this time at his shop: "She loves you and so do I and I just wanted to call and talk to you and find out, you know * * * because she mentioned to me that when she was at the shop and she was playing on the computer that you'd put your hand down her panties." (Emphasis added.) Vick did not object to the admission of this tape.
Vick was charged with second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a).3 The charge was based exclusively on the December in-bed touching alleged to have occurred in Cook County. Prior to trial, Vick received a Spreigl notice informing him of the state's intention to use evidence of the over-the-clothes touching that occurred at his Lake County shop.4
At trial, A.B. testified that she could not remember the touching events, but testified that she had told the truth in the taped interview at First Witness. Before playing the tape for the jury, the judge explained:
Ladies and Gentlemen, at this time we're going to watch * * * a video tape that [Office Voigt]...
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