Opinion
No. C9-96-1629.
Filed June 3, 1997.
Appeal from the District Court, Carver County, File No. K7-95-1550.
Hubert H. Humphrey, III, Attorney General, Michael A. Fahey, Carver County Attorney, Tara E. Keehr, Assistant County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Patricia Rettler, Special Assistant State Public Defender, (for Appellant)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Daniel Joseph Chermak challenges his conviction for second- and fifth-degree criminal sexual conduct, arguing that the victim children's statements were inadmissible hearsay and that the prosecutor improperly inquired about appellant's post-arrest silence. Because the trial court did not abuse its discretion in its rulings on the contested evidence, we affirm. Because appellant improperly included in his appendix materials outside of the record, respondent's motion to strike is granted.
FACTS
In June 1995, M.N.S.'s mother returned home one evening to find appellant, her live-in boyfriend, in their bed sleeping with eight-year-old M.N.S. and her close friend, B.M.J. She woke the children, took them into M.N.S.'s bedroom, and cautioned them not to allow anyone to touch them improperly. Appellant denied any wrongdoing.
Appellant moved out of the home in July. One evening four months later, M.N.S. became very upset and began to cry uncontrollably. As her mother tried to console her, M.N.S. stated that appellant had touched her sexually. Before calling the police, M.N.S.'s mother asked B.M.J. if she had anything to say. B.M.J. also began to cry and said something had happened to her. The children's allegations were reported to the police.
The jury returned guilty verdicts of second- and fifth-degree criminal sexual conduct on the counts involving M.N.S. and verdicts of not guilty on the remaining counts. Appellant argues that he is entitled to a new trial because the children's statements to M.N.S.'s mother, the county social services worker, and the medical examiner were inadmissible hearsay. Appellant also argues that the prosecutor violated his constitutional right to remain silent by eliciting the arresting officer's testimony regarding appellant's post-arrest silence.
DECISION I.
The trial court found that the statements at issue satisfied the test for reliability under Minn. Stat. § 595.02, subd. 3 (1996) (out-of-court statements of children under 10 years old admissible as substantive evidence if found sufficiently reliable). We are satisfied that the trial court gave proper consideration to the statutory and common law, and that it did not abuse its discretion in admitting the evidence. See State v. Conklin , 444 N.W.2d 268, 276 (Minn. 1989) (identifying factors indicative of reliability).
The circumstances surrounding the children's initial statements to M.N.S.'s mother are not consistent with appellant's claim of fabrication. Although evidence showed that the mother had, from time to time, raised the issue and warned M.N.S. about improper touching, these comments are not linked to the children's statements either in time or context. Similarly, although the children were aware of a property dispute between the mother and appellant, that knowledge alone does not create a motive for the children to fabricate a sexual incident involving themselves. Appellant also argues that the children's statements during interviews with the social services worker and medical examiner must be excluded. Both interviewers followed an established protocol in separate interviews with each child. Again, the trial court properly considered the many factors to conclude that the statements were reliable. Therefore, there was no abuse of discretion in the court's threshold findings of admissibility. See id. at 281 (ruling on reliability of hearsay statements is within trial court's discretion).
II.
Appellant contends that the arresting officer's testimony regarding appellant's post-arrest silence is a ground for a mistrial. The officer's testimony, elicited on direct examination, was that appellant made no response when he was told he was being arrested and that appellant never asked why he was being arrested. The officer further testified, however, that in the same conversation, appellant denied the allegations and claimed M.N.S.'s mother had fabricated them.
At most, admission of the officer's testimony constituted harmless error. Cf. State v. Underwood , 281 N.W.2d 337, 342 (Minn. 1979) (if improper testimony is only error, reversal unnecessary). First, there is no evidence that the testimony related to post- Miranda conversation. See Fletcher v. Weir , 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (use of post-arrest but pre- Miranda silence to impeach defendant does not violate due process). Second, the officer testified not only to appellant's initial silence, but also to his denial of and defense to the allegations. See Underwood , 281 N.W.2d at 342 (potential prejudicial effect in admitting such testimony involves giving jury opportunity to speculate that silence indicated guilt) (quoting State v. Beck , 389 Minn. 287, 292, 183 N.W.2d 781, 784 (1971)). Third, appellant took the stand and described facts supporting his theory and defense, but was not cross-examined regarding his post-arrest silence. Cf. State v. Billups , 264 N.W.2d 137, 138 (Minn. 1978) (impeachment of defendant by cross-examination on post-arrest silence not harmless error). Fourth, no other claims of error contribute to the alleged prejudice. Fifth, the trial court's instruction on the presumption of innocence specifically excluded appellant's silence as a suggestion of guilt. Under these circumstances, any error was harmless.