Nicollet County District Court File No. K0-01-428.
Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
The definition of "sexual penetration" in Minn. Stat. § 609.341, subd. 12(2) (2000), includes "any intrusion however slight into the genital or anal openings" of another even when accomplished through the complainant's clothing.
The opinion of the court was delivered by: Toussaint, Chief Judge
In this appeal from an order denying a post-conviction petition challenging appellant's convictions for first- and second-degree criminal sexual conduct, appellant argues that the statutory definition of sexual penetration does not include digital penetration of the victim's vagina through her clothing. Appellant also argues that the trial court committed plain error at trial in admitting an audiotape of appellant's statement to police, during which the officer allegedly vouched for the credibility of the victim's report. Because we conclude the term "sexual penetration" unambiguously includes penetration through clothing and the trial court did not err in admitting the audiotape, we affirm.
Thirty-eight-year-old appellant Brian Jay Auringer provided after-school care for Tammy and Paul Burandt's six-year-old twins and Tammy's 12-year-old daughter from a previous marriage, P.S. On May 16, 2001, Mrs. Burandt took P.S. to a clinic for a camp physical exam. Nurse Practitioner Nancy McLoone conducted the exam. P.S. told McLoone that she was having trouble sleeping because she "thinks a lot about things and worries," and Auringer was hurting her. McLoone also noted that P.S. seemed sad and was tearful when talking about Auringer and opined that P.S. exhibited common characteristics of an abused child.
Mrs. Burandt was present during the exam. When P.S. said Auringer had hurt her, Mrs. Burandt asked P.S. if she was telling the truth this time because P.S. had previously made similar allegations against her father and stepfather. P.S. tearfully told her mother it was true. P.S. told McLoone that Auringer had hurt her the previous day, May 15, and many other times. She also explained that she had not told anyone because Auringer said he would hang her if she did. McLoone reported the alleged abuse to social services.
Detective Curt Tuma was in charge of the investigation. He referred P.S. for a "Corner House" interview with Brenda Dittrich of Nicollet County Child Protection. Dittrich's May 18 interview with P.S. was videotaped and played to the jury. Using dolls, P.S. described Auringer inserting his fingers into her vagina. She also described incidents of him touching her privates on the couch, on the stairs, in the bathroom, and the bedroom, and him placing her hand on his penis in the bedroom.
Detective Tuma asked Auringer to talk to him about P.S.'s allegations. Auringer agreed to appear for an interview on May 24. The interview was audiotaped and played to the jury without objection. Auringer explained to the detective that the Burandts had told him to be careful because P.S. had previously made allegations against Mr. Burandt. Auringer told the detective he thought P.S. was "probably pulling the same stunt like she did . . . to Paul." The detective clarified that P.S. had not claimed that Auringer had "raped" her, but she had claimed that he had "done some things to her." The detective said he wanted Auringer to tell him the truth because P.S. "tells a pretty convincing story and I wanna be able to speak to your truthfulness at our County Attorney's Office." He told Auringer that he had to convince the county attorney that what P.S. alleged did not happen. After Auringer denied putting his hand between P.S.'s legs, the detective said: "that's what she's telling me and she's pretty convincing about it. Now . . . if you did it, I want to hear it now, cause . . . it's gonna go kinda tough for you if . . . you're lying to me." Tuma also asked Auringer why he thought P.S. would say these things, and Auringer explained that she might have been mad at him for taking some makeup away from her. Again, trying to elicit more information from Auringer , Tuma said "I gotta . . . talk to the County Attorney about something and with what we got here, Brian, you know what I'm sayin'? She tells a pretty good story. You followin' me?" Then, Tuma gave Auringer a chance to blame P.S., saying, "Did she kinda coerce you into something or-or convince you to do something here--touch her or whatever?" Again, Tuma clarified that he had to tell the County Attorney something and he'd rather say Auringer told him the truth than "you know, you have to believe what the kid said." When Auringer began admitting that some touching could have happened, Tuma again stated that the county attorney would decide who was telling the truth, so Auringer should tell him the truth. Auringer eventually admitted that P.S. touched his penis in the bedroom.
At trial, P.S. testified that Auringer had threatened to shoot or hang her if she reported the conduct. She also testified to Auringer touching her breasts over her clothing in the bathroom; unzipping his pants and placing her hand on his penis in a bedroom; touching and inserting his fingers into her vagina through her clothing in the bedroom; touching and inserting his fingers into her vagina while they were on the couch; and touching and rubbing her vagina and buttocks while she was on the stairs.
The jury found Auringer guilty on two counts of first-degree and two counts of second-degree criminal sexual conduct. He was convicted of and sentenced for two counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(a), 2 (2000). Auringer now challenges his ...