Opinion
No. A03-693.
Filed June 1, 2004.
Appeal from the District Court, Hennepin County, File No. 02065036.
Michael A. Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant was convicted of criminal sexual conduct against a five-year-old girl. He claims that the district court erred by precluding him from cross-examining a witness regarding the child's experience in a children's shelter. Because Peterson failed to make an offer of proof as required by Minn. R. Evid. 103(a)(2), he failed to preserve for review the issue he urges on appeal, and we therefore affirm.
FACTS
J.L. and her then five-year-old daughter, L.L., were guests for six days in the home of appellant Steven A. Peterson during August 2002. At night, J.L. and L.L. slept on a futon in Peterson's living room. Sometimes Peterson had sexual contact or penetration with J.L. while L.L. slept beside them.
One morning, L.L. told her mother that Peterson had "showed me his thingie." But L.L. denied that Peterson had touched her in any intimate area. Peterson also denied that he touched L.L. But Peterson told a friend that when J.L. was asleep, L.L. would come into his room and he would "fumble with her, play with her." He said he put his finger inside her pajamas and rubbed her between her legs. The friend reported Peterson's statements to the police.
During the investigation that followed, Anne Nuernberg, an employee of an interagency child-abuse evaluation center known as CornerHouse, interviewed L.L.L.L. said that Peterson had touched her in her "no no place" and "got all the way in," and that he "stuck his thing in my mouth" and he "peed" in her mouth.
There were various inconsistencies in the interview but none related to L.L.'s description of the acts of sexual abuse. L.L.'s medical examination was inconclusive and Peterson's pajamas tested negative for semen.
The state charged Peterson with first- and second-degree criminal sexual conduct and a jury found him guilty of both counts. On appeal, Peterson alleges as error the district court's refusal to allow him to cross-examine Ann Nuernberg about the possibility that L.L. heard about sexual abuse at a shelter prior to staying at Peterson's home.
DECISION
Generally, rulings on evidentiary issues fall within the sound discretion of the district court. State v. Andersen, 370 N.W.2d 653, 664 (Minn. App. 1985). This court will not reverse an evidentiary ruling absent a showing of a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
After Anne Nuernberg testified about her interview of L.L., defense counsel began his cross-examination as follows:
Q In response to Mr. Nolen's questions as to what information you were aware of prior to interviewing the child, you became aware that she was temporarily placed in St. Joseph's Home; is that correct?
A Yes.
Q What is St. Joseph's Home?
A It's an emergency shelter for children.
Q And children are placed there when there have been incidents in their lives which warrant emergency placement; is that correct?
A Yes.
Q You had a chance to look at reports or become aware of reports indicating that [L.L.] had previously been —
[COUNSEL FOR THE STATE]: Objection, Your Honor. Irrelevant.
[Discussion held at the bench]
THE COURT: Where is this going and how is it relevant?
[DEFENSE COUNSEL]: As to what knowledge she had, because it deals with the issue of her sophistication, her statement that she may have, the way she talked was adult like. I don't —
THE COURT: What is the offer? How long had she been at —
[COUNSEL FOR THE STATE]: He never made a motion for any record. I've never seen a motion.
THE COURT: Then I'm going to sustain the objection and let them move on.
Peterson contends that he wanted to establish an inference that L.L. learned about sexual abuse from other children while she was at St. Joseph's Home and that the district court abused its discretion and denied his right to present a meaningful defense by prohibiting his cross-examination about L.L.'s experience at St. Joseph's Home.
Under the rules of evidence, "[e]rror may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Minn. R. Evid. 103(a)(2).
Peterson made no offer of proof, and there is nothing from the context that makes apparent the substance of the evidence that allegedly would have been relevant to Peterson's defense or to any other issue in the trial. The Minnesota Supreme Court has made it clear that an appellate court cannot assume that undisclosed evidence is pertinent to the matter being tried:
A court cannot assume the materiality of evidence not included in the record nor in any way disclosed, and in the absence of any showing of the nature and substance of such evidence, this court cannot determine whether it was erroneously excluded or if [the appellant] was prejudiced by such exclusion.
State by Clark v. Wolkoff, 250 Minn. 504, 519-20, 85 N.W.2d 401, 412 (1957) (footnote omitted). See also State v. Anderson, 395 N.W.2d 83, 85 (Minn. App. 1986) (failure to make offer of proof under rule 103(a) waives for review issue of exclusion of an allegedly exculpatory videotape).
The only evidence on this record that Peterson produced respecting the issue on appeal is that L.L. had been in an emergency shelter for children. His attorney commented that the evidence was relevant to L.L.'s knowledge and sophistication but he offered no facts to show when L.L. was in the shelter, to whom she was exposed while there, whether she was exposed to talk about sexual abuse, or what "knowledge" she gained in the shelter. Furthermore, he offered nothing to suggest that Nuernberg had any firsthand knowledge about L.L.'s experiences at St. Joseph's Home. In his cross-examination, defense counsel referred to "reports" of some nature, but made no showing as to what the reports were or that they would be admissible in evidence. Peterson speculates that because L.L. was in an emergency shelter she might have gained sophistication about sexual matters there. We cannot assume that, and there was no offer of proof of facts that we could review to determine whether inferences about L.L.'s knowledge would be plausible and reasonable.
Because Peterson failed to make an offer of proof and thereby preserve for appellate review the issue of the propriety of excluding evidence of L.L.'s experience in the shelter, he waived that issue.