Hennepin County District Court File No. 27-CR-11-5977
Lori Swanson, Attorney
General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney,
Elizabeth Johnston, Assistant County Attorney, Minneapolis, Minnesota (for
David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Ross, Judge; and Smith, Judge.
Appellant challenges his convictions and 360-month sentence after a jury found him guilty of six counts of first-degree criminal sexual conduct, one count of attempted first-degree criminal sexual conduct, and one count of second-degree criminal sexual conduct involving multiple minor victims. Appellant argues that: (1) the district court erred by permitting the prosecutor to ask a young victim leading questions about the incidents of abuse; (2) it was error to allow the jury to view videos of the victims' CornerHouse interviews; (3) the prosecutor committed prejudicial misconduct by appealing to the jurors' passions and prejudices by encouraging them to convict based on sympathy for the victims; (4) the district court judge did not have the legal authority to preside over his trial; (5) the record is insufficient to support one of the charges for which he was found guilty; and (6) the district court erroneously sentenced him for the lesser included offenses of second-degree criminal sexual conduct and attempted first-degree criminal sexual conduct when the charges arose from the same course of conduct as his conviction for first-degree criminal sexual conduct.
Because the district court did not err by permitting limited leading questions to a young victim-witness exhibiting hesitance in providing testimony or by permitting introduction of the victims' CornerHouse interviews, and because appellant is not entitled to relief based on any other aspect of the trial proceedings, we affirm all of the convictions, but reverse and remand for resentencing.
K.H. was 14 years old at the time of trial. She moved to Minneapolis in 2003, when she was six years old, along with her younger brother, N.H., and her older sister. In Minneapolis, K.H. and N.H. lived with their aunt and their cousins, including appellant, who was an adult. K.H. testified that appellant began molesting her sometime around her seventh birthday. When she first moved into her aunt's home, appellant would give her candy in the basement of the residence without asking for anything in return, but eventually appellant began asking for sex in exchange for the candy. The first instance of abuse occurred when she and appellant were walking to the store and he touched her buttocks while she was eating candy. When they got home, she went into the basement where appellant laid her on the floor in the laundry room, removed her pants, "put [her] legs over [her] head and then he put his private part [inside her]" for "[m]aybe five minutes or so."
Similar incidents of abuse continued through 2008. K.H. explained that appellant touched her chest over and under her clothes, touched her buttocks over her clothes with his hands, touched his "private part" to her private parts "on [her] bare skin, " and stated that his private part went inside her private part more than ten times. K.H. also saw appellant "feeling on [N.H.] when [N.H.] was laying down, like bending over" and not wearing boxers. K.H. did not disclose the abuse right away because she was scared and because she did not think her aunt would believe her. She planned on disclosing the abuse after moving out of the house "[b]ecause I wouldn't want to stay in the house because . . . people might look at me different in the house if I told on their family."
N.H., who was 13 years old at the time of trial, also testified that appellant touched him in ways he did not like, beginning when he was five or six years old and continuing until he was about nine or ten years old. He stated that appellant "usually put his hands on me and rubbed around me and everything, " but initially denied that appellant touched his chest, buttocks, or private parts. However, after being shown a picture of the front and back side of a male body, N.H. circled the penis, buttocks and back, and answered in the affirmative when asked if the parts he circled were where appellant touched him and the part of appellant's body that touched him. N.H. explained that he and K.H. had to let appellant touch them in order to receive candy and stated that appellant touched his buttocks with his private part and that appellant put his private part inside his buttocks on one or two occasions.
K.H. and her sister eventually left to live with a neighbor after her aunt "put [them] out of her house" for touching her camera. The neighbor first came to know K.H. and her siblings through their charter school. After the neighbor punished K.H. for a suspension from school in late 2010, K.H. wrote a letter to the neighbor in which she explained that she had been "doing badly in school" because she was thinking about appellant. She wrote that appellant "put his penis in me" when she was seven, and that he told her he would give her candy if she agreed not to tell anyone. She also wrote that she did not tell her aunt because she did not think she would believe her and that she felt bad about the sexual encounters. When the neighbor confronted her about the specifics of the abuse, K.H. disclosed more details about appellant's abuse towards her and N.H. After this conversation, the neighbor called child protection.
At the request of child protection and law enforcement, N.H. participated in a CornerHouse interview on November 3, 2010. During the interview, N.H. admitted that another cousin came to see him at school, and, after telling him that his sister had been sexually abused by appellant, asked if anyone had been touching him inappropriately. He acknowledged that in response to this, he denied that appellant had touched him or that he touched appellant's private parts. However, during the CornerHouse interview, he stated that appellant told him to take off his clothes on a couple of occasions in exchange for candy. While he initially stated that appellant did not want him to do anything once his clothes were off, N.H. later stated that on one occasion, appellant tried to touch his "stomach and stuff and down lower [over his clothes]." He explained that he tried to tell his aunt, but she would not listen.
The next day, K.H., in an interview at CornerHouse, stated that during the time that she and N.H. lived with her aunt, appellant was "trying to feel" on her and N.H., but she did not feel comfortable disclosing the acts until she moved in with the neighbor. In describing the abuse that occurred between 2004 and 2008, she stated that appellant touched her "everywhere, " including her chest, vagina, and buttocks. She stated that he touched her chest over and under her clothes while at the same time telling her that it would help the breasts grow, that appellant would lift her clothes off and put his hands in her pants and in her vagina, and that appellant "stuck his penis" in her vagina more than ten times over the course of four years, perhaps as often as once a day. K.H. also disclosed that appellant abused her brother, N.H., both in and out of her presence. She stated that she saw appellant tell her brother "to bend over and then he stuck his fingers in my brother's butt and then he put ice on . . . his penis and stuck it in my brother's butt, " that he used the ice so it would not hurt, and that appellant took N.H. to get candy while his penis was still in N.H.'s buttocks.
After these interviews, N.H. was removed from his aunt's home. After his interview, N.H. informed K.H. that he did not disclose everything. Upon receiving this information, the sergeant investigating the sexual abuse allegations met with N.H. at school and asked him to participate in another interview and to write something down if that made him feel more comfortable. The next day, when the sergeant picked up N.H. from a children's shelter to transport him to the second interview, N.H. gave him a note stating that appellant "tried to force me to kiss him and he tried to have sex with me. I was like no."
During his second CornerHouse interview on November 5, 2010, N.H. admitted that he was not ready to talk about certain things during the first interview. He referenced his written note, said that appellant asked him to kiss him and attempted to solicit sex, and also affirmed that he had wanted to speak with his sisters because they may have remembered things that he did not. He also stated that appellant touched his back and made his hand touch appellant's buttocks, and described an occasion on which appellant walked around the basement naked in the morning in a manner that made him think that appellant wanted him to look at him. He denied that appellant tried to rub against him but stated that appellant tried "to put his thing in my face" when soliciting sex. At trial, N.H. explained that he was better able to disclose the abuse at his second CornerHouse interview. He explained that the cameras at CornerHouse made him uncomfortable because he was afraid that his aunt, with whom he was still residing at the time of his first interview, would see the video and think he was gay.
A jury found appellant guilty of five counts of first-degree criminal sexual conduct relative to his sexual abuse of K.H. for each successive year from 2004 to 2008. Relative to his sexual abuse of N.H., the jury found appellant guilty of one count of first-degree criminal sexual conduct, one count of attempted first-degree criminal sexual conduct, and one count of second-degree criminal sexual conduct. Appellant was sentenced on each count, with each sentence to be served concurrently, for a 360-month prison sentence.
Appellant argues that the district court erred by permitting the prosecutor to ask N.H. a series of leading questions regarding sexual contact and penetration. "The trial court's decisions with respect to when leading questions will be permitted will not be reversed in the absence of a clear abuse of discretion." Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 679 n.7 (Minn. 1977).
During direct examination, after N.H. described how appellant eventually "started telling us to do things for the candy, ...