St. Louis County District Court File No. 69DU-CR-10-554
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Nathaniel T. Stumme, Assistant County Attorney, Duluth, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Toussaint, Judge. [*]
A jury heard evidence that on many occasions over the course of one year, Steven Oppel touched his then girlfriend's nine-year-old daughter both over and under her clothing on her buttocks using his hand or penis. The jury found Oppel guilty of first- and second-degree criminal sexual conduct. Oppel appeals from his conviction, arguing that the district court improperly allowed the jury to see a videorecorded interview of the victim, improperly admitted Spriegl evidence about which the state had given him no notice, and improperly sentenced him on the convictions of both the first- and second-degree offenses. He also contends that the evidence was insufficient and that the prosecutor engaged in prejudicial misconduct. Oppel raises additional contentions in a supplemental brief. Because none of Oppel's arguments warrant relief, we affirm.
In November 2009, C.W. disclosed to a mandated reporter that Oppel, her mother's then-boyfriend, sexually touched her and physically abused her and her mother, B.O. After conferring with law enforcement, St. Louis County social workers promptly placed C.W. and her sister in foster care. One social worker described C.W. as "relieved."
The next day, C.W. was examined by a physician, who found no physical signs of abuse. She also met with Mary Ness, a child-protection case worker. Ness interviewed C.W. and captured the interview in a videorecording. C.W. said that she could not remember the first time that Oppel touched her, but she described at least one incident when Oppel touched her sexually with his finger. She answered Ness's question whether it was on the outside or inside, saying, "Inside." C.W. also said that Oppel asked her to touch and suck his "wiener." She claimed that Oppel pushed her into the family van and that he once threatened her with a hammer.
The state charged Oppel with one count of first-degree criminal sexual conduct (penetration or contact) (Minn. Stat. § 609.342, subd. 1(a) (2008)) and one count of second-degree criminal sexual conduct (Minn. Stat. § 609.343, subd. 1(h)(iii) (2008)). Oppel represented himself throughout the proceedings, but he accepted the assistance of court-appointed advisory counsel at trial.
C.W., twelve years old at the time of trial, testified that Oppel lived with her, her sister, and B.O. when she was nine years old. She told the jury that Oppel began touching her in a way that she did not like. She said that it happened while B.O. showered and that it occurred mostly in the basement. C.W. described the different ways Oppel touched her. She testified that at least five times and as often as every other day, Oppel put his hand down her pants and kissed her. She said that more than thirty times he touched his "wienie" against her buttocks over her clothes. She said that once, he put it in her pants while she lay on her back. She explained that he touched it to her butt with her pants off. She recalled that she had participated in an interview shortly after she reported the abuse, but she could not remember stating that she had been touched by Oppel on the inside. On cross-examination, Oppel challenged C.W. about an incident when she alleged that Oppel strangled B.O. and kicked C.W. in the leg.
The state offered Ness's videorecorded interview of C.W. into evidence and played it for the jury without objection from Oppel. And it offered the testimony of Ness, who testified that, in her experience, it is not uncommon for some children to disclose an event initially and later provide more details.
Oppel called B.O. to testify. She testified that the night before C.W. reported the sexual abuse, C.W. complained that she had a fever, which B.O. and Oppel disproved by taking her temperature. She said that C.W. became demonstrably upset when they told her that she would be going to school the following day. The next morning, C.W. continued to assert that she had a fever, and again B.O. came to a different conclusion after taking her temperature and determining that it was normal. According to B.O., C.W. "left in a rage." This was the morning of ...