Opinion
No. C9-98-2283.
Filed December 21, 1999.
Appeal from the District Court, Scott County, File No. 9801886.
Mike Hatch, Attorney General, and
Thomas Harbinson, Scott County Attorney, (for respondent)
Mark D. Nyvold, Special 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This opinion will be unpublished and may not be cited except as provided by Minn.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 (1998).
UNPUBLISHED OPINION
Appellant Robert Pannier appeals from a judgment of conviction for criminal sexual conduct in the first and third degrees. Pannier argues that the trial court erred in (1) admitting evidence of Pannier's flight from police; (2) admitting Ansell Corporation's distribution record under the business record exception to the hearsay rule; and (3) allowing his wife to testify. In his pro se supplemental brief Pannier further argues that (1) his right to effective assistance of counsel was violated; (2) the victim's testimony to the police, as well as all evidence resulting therefrom, should be suppressed because the police used coercive tactics in their questioning; and (3) there was insufficient evidence to convict him of criminal sexual conduct in the first degree. Because the trial court did not err in its evidentiary rulings and none of the issues in Pannier's pro se brief were raised at trial, we affirm.
DECISION
On appeal, the reviewing court will not reverse evidentiary rulings absent an abuse of discretion. Reinhardt v. Colton , 337 N.W.2d 88, 93 (Minn. 1983). An error in the exclusion of evidence is grounds for a new trial if the evidence might reasonably have changed the trial's outcome had it been admitted. Jenson v. Touche Ross Co., 335 N.W.2d 720, 725 (Minn. 1983).
I.
On January 23, 1998, Pannier had sexual intercourse with K.C., his fifteen-year-old biology student. On January 28, 1998, Pannier was arrested for this offense and on January 30, 1998, was released on bail. As a condition of his release, Pannier was prohibited from having contact with anyone under the age of eighteen. While on bail, Pannier violated this condition, and on February 11, 1998, a warrant was executed for his arrest. When the police went to arrest Pannier and identified themselves as the police, he jumped out of the window and fled. The police yelled, "Police! Stop!" but Pannier continued to run. Eventually, Pannier was apprehended. At trial, the state introduced evidence that Pannier fled when the police went to his home to arrest him for a bail violation. Despite Pannier's objection, the trial court decided that the evidence was admissible. Pannier now challenges this ruling. In Minnesota, however, evidence of flight is admissible because it "suggests consciousness of guilt." State v. Church, 577 N.W.2d 715, 719 (Minn. 1998 ); State v. Dominguez-Ramirez, 563 N.W.2d 245, 259 (Minn. 1997); State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988) (citations omitted).
Pannier argues that the court erred in allowing evidence that he fled from the police when they went to his home to arrest him for a bail violation. Pannier cites United States v. White, 488 F.2d 660, 662 (8th Cir. 1973) for the proposition that evidence of flight is relevant only if it occurs immediately after the crime or after the defendant has been charged. He further suggests that the validity of the evidence depends on the number of "evidentiary manifestations suggesting [that the] defendant's decision to flee was prompted by considerations related to the crime in question." United States v. Peltier, 585 F.2d 314, 323 (8th Cir. 1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422 (1979).
However, in Minnesota evidence of flight while on bail has been admitted into evidence. The Minnesota Supreme Court has held that "[f]light * * * when on bail is a circumstance to be considered — not as a presumption of guilt, but as something for the jury — as suggestive of a consciousness of guilt." State v. McTague, 190 Minn. 449, 453, 252 N.W. 446, 448 (Minn. 1934). In addition, the fact that Pannier might have had another reason for fleeing does not render the evidence inadmissible . State v. Hagen, 391 N.W.2d 888, 892 (Minn.App. 1986), review denied (Minn. Oct. 17, 1986). The evidence is admissible for the jury to weigh. Id. Moreover, in support of his argument, Pannier cites only Eighth Circuit decisions, which are not binding authority in a state prosecution.
Pannier further argues that the circumstances surrounding his flight were ambiguous. He claims that he did not know that the police were at the door and therefore, there is no indication that his flight was somehow related to his arrest for the criminal sexual conduct charges. His argument is supported only by Sarah Salomonsen's testimony. Salomonsen is Pannier's stepson's girlfriend and she was in the house when the police came to arrest him for the bail violation. She claims not to have seen a marked car when she looked out the window. However, Detectives Thomas Gibbs and Christopher Olson, both testified at trial that there was at least one marked police car in front of the house and that the police yelled "police!" when they arrived at Pannier's home.
Under Minnesota law and given the circumstances of this case, the trial court did not abuse its discretion in admitting flight evidence.
II.
At trial, the state questioned Lon McIlvain, a quality insurance regulatory affairs manager for Ansell Inc., the manufacturer of the condoms found in Pannier's home. Through McIlvain, the state introduced into evidence a document from Ansell establishing the date, when the box of condoms found in Pannier's house was shipped to Minnesota. Pannier objected and argued that the state failed to lay the proper foundation testimony under the business records exception to the hearsay rule. The trial court admitted the evidence.
A trial judge has broad discretion to admit or exclude evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Similarly, a determination of the sufficiency of the foundation for evidence is within the discretion of the trial court. McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn.App. 1992), review denied (Minn. Mar. 26, 1992).
Three requirements must be met in order to admit a document under the business records exception to the hearsay rule. Minn.R.Evid. 803(6) requires that: (1) the record be kept in the course of a regularly conducted business activity; (2) it be the regular practice of that business activity to make that memorandum, report, etc.; and (3) foundation be shown by the custodian of the records or another qualified witness. National Tea Co. Inc., v. Tyler Refrigeration Co. Inc., 339 N.W.2d 59, 61 (Minn. 1983).
Here, McIlvain testified that the distribution records for the condoms are kept in Ansell's regular course of business. He testified that it was an FDA requirement that these records be kept and therefore, Ansell made a practice of keeping these records. It is the final factor that Pannier argues has not been met. Pannier argues that McIlvain did not enter the data into the computer himself, and therefore, the evidence is not reliable. The Minnesota Supreme Court, in National Tea, held that it is not necessary that the person who prepared the reports testify as to their contents. Id. at 62. The court stated that the phrase "other qualified witness" should be interpreted broadly and the witness need only understand the system involved. Id. at 61.
Here, McIlvain testified that (1) he was familiar with the procedures Ansell utilized in the manufacturing and distribution of the condoms and described the procedures in detail, explaining how the records helped the company determine when a condom was manufactured, when it was distributed, and where it was distributed; (2) he had reviewed many of these documents in the course of his duties and that they reliably set forth the destination of the condoms; and (3) while there are many reasons why these documents are generated, they are always in the same form and are only printed when it is believed that a condom may be defective or there is other cause to investigate. McIlvain also described, in detail, how the document is generated from the time the condoms are manufactured, to when they are entered into the computer, and finally, to when they are distributed. Given the broad interpretation of the rule, this witness may properly be considered an "other qualified witness" familiar with the record-keeping system.
"The business records exception, as it arose at common law, is based on the belief that business records are generally accurate and therefore trustworthy evidence." A L Coating Specialties Corp. v. Meyers Printing Co., 374 N.W.2d 202, 204 (Minn.App. 1985) (citation omitted). There is no indication that this document lacks trustworthiness. The trial court did not err in admitting Ansell's distribution record under the business records exception to the hearsay rule.
III.
At trial, the state called Pannier's wife to testify as to the mole removed from Pannier's neck, the conversation she had with Pannier on the phone the day he fled from the police, and to whether she and Pannier used condoms. Despite Pannier's objection that her testimony was barred by the marital privilege, the trial court decided that the evidence was admissible. Pannier now challenges this ruling. A party may assert the martial privilege to bar his spouse from testifying against him. Minn. Stat. § 595.02, subd. 1(a) (1997). "[T]he privilege should be narrowly construed so as not to interfere with the process of determining the truth." Lundman v. McKown , 530 N.W.2d 807, 829 (Minn.App. 1985) (citation omitted) , review denied (Minn. May 31, 1995).
Pannier argues that the trial court erred in admitting his wife's testimony into evidence against a claim of marital privilege barred her testimony. The marital privilege states:
A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during their marriage or afterwards, without the consent of the other, be examined as to any communications made by one to the other during the marriage.
Minn. Stat. § 595.02, subd. 1(a) (1997). The state contends that Pannier's wife's testimony was proper because the marital privilege does not apply in proceedings involving sexual abuse of a child by a person in a position of authority over the child.
Indeed, an exception has been carved out of the marital privilege in cases of child abuse. The statute states:
No evidence relating to the neglect or abuse of a child * * * shall be excluded in any proceeding arising out of the alleged * * * physical or sexual abuse on the grounds of privilege set forth in section 595.02, subd. 1, paragraph (a), (d), or (g).
Minn. Stat. § 626.556, subd. 8 (1997) (emphasis added). In addition, this court has held that Minn. Stat. § 626.556, subd. 8 permits one spouse to testify against the other when the testimony concerns the alleged sexual abuse of children. State v. Willette, 421 N.W.2d 342, 346 (Minn.App. 1988), review denied (Minn. May 16, 1988). Sexual abuse is "* * * the subjection of a child * * * by a person in a position of authority * * * to any act which constitutes a violation of section 609.342 * * * 609.345." Minn. Stat. § 626.556, subd. 2(a) (1997) (emphasis added). The person in the position of authority
includes but is not limited to any person who is * * * acting in the place of a parent and * * * charged with any duty or responsibility for the health, welfare, or supervision of a child * * * no matter how brief, at the time of the act.
Minn. Stat. § 609.341, subd. 10 (1997) (emphasis added).
Whether the sexual abuse exception to the marital privilege applies in this case rests on whether appellant was "a person in a position of authority." Pannier was K.C.'s biology teacher. While children are in school, teachers are charged with their supervision. Teachers hold a position of authority over their students. See State v. French, 392 N.W.2d 596, 599 (Minn.App. 1986) (noting that the fact that the defendant was an elder in the church, as well as complainant's uncle and teacher, shows that he was in a position of authority over her). Therefore, Pannier was in a position of authority over K.C.
Pannier fails to address this issue in his brief. Instead, he focuses on the Willette case cited by respondent. Pannier argues that the Willette court stated that whether the exception applied depended in large part on whether the spouse was willing to testify. Pannier's interpretation of the case is misplaced. The court does not suggest that when the spouse does not want to testify, the marital privilege should apply. In fact, the Willette court does not address a situation such as the one before this court, where the spouse does not want to testify. As the exceptions to the marital privilege demonstrate, there are situations where the spouse will have to testify regardless of whether he/she wants to.
Pannier further argues that Willette did not decide whether the marital privilege could be overcome in a case involving sexual abuse of a child under the care of the defendant. Pannier is correct. This court in Willette decided that because the trial court had not been asked to apply the Child Abuse Reporting Act, the trial court would have to reconsider the marital privilege issue in light of this statute, thus acknowledging that given the right facts, the statute can create an exception to the marital privilege. 421 N.W.2d at 345-46. However, the trial court in this case already applied the Child Abuse Reporting Act to the marital privilege. Therefore, the trial court did not err in applying the statute.
IV.
In his pro se brief, Pannier argues that he was denied his Sixth Amendment right to the effective assistance of counsel. Pannier argues that ineffective assistance of counsel is evident because his trial attorney failed to question over one-hundred witnesses that he claimed could support his argument.
A trial court verdict will not be set aside on the basis of ineffective assistance of counsel unless the defendant proves that under the circumstances both (1) her counsel's behavior fell below an objective standard of reasonableness; and (2) a reasonable probability exists that absent counsel's unreasonable behavior the outcome would have been different. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)). "A petitioner claiming ineffective assistance of counsel has the burden of proving his claim." King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (citation omitted).
For an attorney's assistance to be ineffective, he must make "errors so serious that [he] was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" and "so serious as to deprive the defendant of a fair trial * * *." State v. Race, 383 N.W.2d 656, 663 (Minn. 1986) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). This court has stated that
[t]he test for evaluating competency of counsel is whether the attorney in the case exercised the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances.
State v. Hood, 405 N.W.2d 459, 462 (Minn.App. 1987), review denied (Minn. Jun. 9, 1987) (citing State v. White, 349 N.W.2d 603, 604 (Minn.App. 1987)). A strong presumption exists that counsel's performance falls within the wide range of reasonableness. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997) (citing Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995)). A defense counsel's performance will not be considered ineffective if "it rests on a reasonable tactical or strategic basis." State v. Schweppe, 306 Minn. 395, 405, 237 N.W.2d 609, 616 (1975) (finding defense counsel strategy plausible although unsuccessful).
Pannier claims that his trial counsel told him that counsel's investigator was working on other cases and did not have time to question one hundred witnesses. Pannier also claims that he asked his trial counsel on more than ten occasions to speak to three witnesses who could support his claim that he was just trying to help K.C. It appears that these contentions relate to trial strategy and have nothing to do with his trial attorney's performance. "Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel." State v Jones, 392 N.W.2d 224, 236 (Minn. 1986). Therefore, these claims do not demonstrate that Pannier had ineffective assistance of counsel.
Pannier further claims that after the prosecution rested its case, his trial attorney asked him "so do you have anyone that you want to present as a witness?" In spite of this question, his trial attorney introduced several witnesses on his behalf. Which witnesses he eventually chose to call was a question of strategy, which is reserved to the attorney. The question, by itself, did not make his attorney incompetent. Pannier also claims that his trial counsel met with him approximately five times throughout the seven months leading up to the trial, including two court appearances. There are no set guidelines for how many times a defense attorney is expected to meet with his client in order for him to be "effective." Pannier has failed to show how these incidents fall below an objective standard of reasonableness or affected the outcome of his case.
V.
Pannier argues in his pro se supplemental brief that K.C.'s statement to the police and all evidence obtained as a result of that statement should be ruled inadmissible because the police used coercive tactics while questioning her. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). The record shows that in the omnibus hearing Pannier asked the state to provide a copy of the police stations' policy for interviewing minors, but did not move to suppress K.C.'s statement to the police. Later, when K.C's testimony was introduced at trial, Pannier did not object. Because Pannier failed to raise this claim at trial, he has waived his right to raise it on appeal.
VI.
Pannier asks this court to reverse his conviction based on insufficient evidence. When there is a challenge to the sufficiency of the evidence, our review on appeal is limited to analyzing 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). A reviewing court must assume "the jury believed that state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). If, after scrutinizing the record, this court has serious doubts about an individual's guilt, the conviction must be reversed. State v. Housley, 322 N.W.2d 746, 751 (Minn. 1984).
Pannier claims that the evidence presented at trial fails to prove that he is not guilty of criminal sexual conduct in the first-degree. Minn. Stat. § 609/342, subd. 1(b) (1997) states:
A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if * * * the complainant is at least 13 years of age but less that 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant * * *. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.
Pannier argues that in order to be guilty of criminal sexual conduct in the first-degree he had to use his position of authority as a teacher to get K.C. to submit to having sex with him. Pannier's interpretation of the statute is incorrect. Being a person in a position of authority is a requirement for falling within the statute. There is no indication from the language of the statute nor from caselaw that the position of authority must then be used to force the minor to have sex.
Pannier also indicates that because K.C. freely sought the relationship and was not forced into having sex, he cannot be guilty under this statute. However, the statute clearly states that consent of the minor is not a defense. The law presumes that because of her age K.C. could not consent, so whether she wanted to have sex with Pannier is irrelevant.
Finally, Pannier also suggests that it should be necessary that the victim look upon him as an authority figure. He notes that there was evidence that K.C. saw him more as a friend. Pannier, once again, has incorrectly interpreted the statute under which he was charged. The statute does not create a subjective standard for determining who is a person in a position of authority. Moreover, it does not appear to contemplate what the minor perceived. This is evident given the fact that the minor's consent does not absolve the defendant from guilt. Therefore, Pannier's arguments are without merit.
Instead, it is clear that there was sufficient evidence for the jury to find Pannier guilty of criminal sexual conduct in the first-degree. K.C. was fifteen years old when Pannier had sex with her, while he was thirty years old. Pannier was her biology teacher, which indicates, as previously discussed, that he was in a position of authority over her. There was also ample evidence to suggest that he had sex with her. Her diary entries suggest that what he and K.C. had was more than a teacher-student relationship. The diary also indicated a plan to meet and have sexual intercourse. While K.C. was wired, Pannier admitted that the condom worked and indicated that they were "screwed" now that she had told her friend that she had sex with him. Moreover, K.C. admitted to having sex with Pannier. There was sufficient evidence to support the jury's guilty verdict.