Mille Lacs County District Court File No. 48-CR-11-158
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Janice S. Jude, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Hudson, Judge; and Bjorkman, Judge.
In these consolidated direct and postconviction appeals, appellant argues that: (1) the district court abused its discretion by admitting the victim's out-of-court statements to a child-protection investigator; (2) the district court abused its discretion by redacting the victim's out-of-court statements to omit mention of the victim's other abuser; (3) the district court abused its discretion by permitting the victim to testify while sitting at the prosecutor's table; (4) the district court committed plain error when it did not instruct the members of the jury that they had to reach unanimous agreement regarding the acts underlying appellant's convictions; (5) the evidence was not sufficient to sustain appellant's convictions; and (6) the district court abused its discretion when it denied his petition for postconviction relief. We affirm.
On January 24, 2011, respondent State of Minnesota charged appellant Kevin James LaDue with two counts of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, one count of third-degree controlled substance crime, one count of neglect or endangerment of a child, and one count of contributing to the delinquency of a minor. The complaint alleged that appellant's 14-year-old stepdaughter, D.M., reported that appellant had sexually abused her between January 1, 2009, and January 20, 2011. The complaint further alleged that appellant crushed and snorted Ambien pills with D.M.
The complaint arose from an interview that child protection investigator Jessy Vittum and a police investigator conducted with D.M. at a juvenile facility. The county assigned Vittum to meet with D.M. after someone reported to child protection that D.M. might have been abused. Vittum had very little information before meeting with D.M. and she did not know the name of any alleged perpetrator of abuse. At the beginning of the interview, Vittum asked D.M., "[W]hat are we here to talk about today [D.M.]?" D.M. replied, "I'm not sure." Vittum then asked, "Is there things that have been bothering you?" And D.M. replied, "Yes but it has been put on the back burner for a long time."
D.M. was reluctant to tell Vittum what was bothering her but, over the course of the interview, D.M. described being abused by two men. D.M. expressed concern about her younger sisters' safety and her fear that her mother would be hurt by her disclosure. D.M. was reluctant to talk with Vittum due to her concern that she would be sent to long-term placement and would not be able to go home.
Vittum asked D.M., "[D]o you want to talk about what he did without giving me a name? Do you want to tell me? . . . Like should I be worried that you could have gotten pregnant?" D.M. replied, "Yes." D.M. also stated that the abuse happened in her bedroom, the abuser was sometimes sober and sometimes took pills before the abuse, and the abuse occurred twice when her mother was home. D.M. reported that the abuser gave her Ambien before abusing her, and that he knew she was awake when the abuse occurred. At the end of the interview, D.M. asked, "Do I have to like exactly tell you who it is?" After Vittum said that she did, D.M. said, "It's my mom's husband." D.M. acknowledged that she had also been abused by another man, but refused to name him.
On the same day that Vittum interviewed D.M., Mille Lacs Tribal Police Investigator Russ Jude and other police officers went to appellant's home. D.M.'s mother, A.L., answered the door at the home. The officers entered the home and found appellant in a crawl space in the master bedroom. The officers transported appellant to the police department, where Investigator Jude conducted an interview. Appellant admitted that he crushed and snorted Ambien pills with A.L. and D.M., and that D.M. would sometimes rub his right leg and he would sometimes rub her neck. When asked if he had any sexual contact with D.M., appellant responded that this was a nightmare and that he did not know that D.M. hated him so much. Appellant was nervous and evasive during the interview.
Vittum interviewed D.M. a second time at the Mille Lacs County Sheriff's Office. D.M. told Vittum that the first incident occurred at her home when she was 13 years old. D.M. stated that she took pain pills and then fell asleep, but later woke up with a "strong feeling" that appellant had done something. D.M. told Vittum that the second time something occurred, her mother was in the hospital with pneumonia. D.M. stated that she was sleeping in her mother's room when appellant "touched [her] from the side and like pulled [her] towards him" and then touched her breasts over her clothes. D.M. stated that she was not impaired on that occasion.
D.M. stated that the next incident occurred after appellant gave her Ambien. After taking the pills, she walked out of the room and appellant followed her. D.M. stated that her mother was home at the time, but had taken Ambien and was sleeping. D.M. stated that she started watching television and then "blacked out and then next thing the blankets are over me and he was like huddled up beside—behind me. Like I was lying on my side . . . and he was like behind me and . . . at that moment I got like kind of freaked out so I like tried to go to sleep." D.M. stated that when she woke up she was not wearing her pants and underwear, but she was still wearing her shirt. She further stated that appellant's "private" was inside her buttocks. D.M. stated that she blacked out again, and when she woke up she was wearing her pants and underwear. D.M. stated that on other occasions she had difficulty remembering because appellant gave her Ambien, but that she could feel that something had happened to her when she woke up.
D.M. told Vittum that another incident occurred the previous year when she was at her mother's house and appellant gave her three or four Ambien pills. D.M. stated that she blacked out, but she remembered that appellant took off her shorts and his pants, laid down, pulled her on top of him, and then his "private" went inside her "girl private." D.M. stated that an incident occurred when she was sober at her grandmother's house. She stated that appellant came over when no one else was home and "kept pulling me towards him and like started touching me." Finally, she stated that an incident occurred while she was sober and was watching a movie with appellant at her mother's house. D.M. stated that appellant started to rub her legs and then "went higher and higher and higher and finally he came up to my private area" and "put his fingers in."
Prior to the jury trial, the state moved the district court to admit D.M.'s statements to Vittum as substantive evidence. At the motion hearing, appellant's counsel objected to the admission of D.M's statements. The district court concluded that D.M.'s statements were admissible and granted the state's motion.
The district court held a jury trial in June 2011, and Vittum testified as an expert in forensic interviewing and child abuse assessment. In addition to testifying about her two interviews with D.M., Vittum testified about child sexual abuse accommodation syndrome. Vittum described the characteristics of children who experience the syndrome, but she did not offer her opinion regarding whether D.M. suffered from it. Vittum testified that the syndrome consists of several different stages that some children who have been sexually abused go through, including secrecy, helplessness, entrapment, accommodation, unconvincing or delayed reporting, and retraction.
At trial, the prosecutor moved the district court to permit D.M. to testify from the prosecutor's table because D.M. did not want to testify in the witness box in front of appellant. Appellant's counsel objected. After hearing the parties' arguments, the district court ruled that D.M. would sit at the prosecutor's table after everything was removed from the table, and the attorneys would examine D.M. from a podium. D.M. testified that she remembered talking to Vittum, but she did not want to talk about what they discussed. The prosecutor asked D.M., "[A]re you denying ...