Hennepin County District Court File No. 27-CR-11-13838.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent).
Faison T. Sessoms, Minneapolis, Minnesota (for appellant).
Considered and decided by Kirk, Presiding Judge; Kalitowski, Judge; and Chutich, Judge.
Appellant challenges his conviction of second-degree criminal sexual conduct, asserting that (1) the evidence was insufficient, (2) the district court abused its discretion by admitting the complainant's out-of-court statements, and (3) the district court abused its discretion by admitting evidence that child pornography was found on his computer. Because we conclude that the evidence was sufficient, that the district court did not abuse its discretion by admitting the out-of-court statements, and that any error in admitting evidence of child pornography was harmless, we affirm.
Appellant Aaron Joseph Maher was charged with aiding and abetting first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2008), and aiding and abetting second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2008), from June 1, 2010, through July 31, 2010. The charges involve Maher's roommate Brad Solvie's son B.S., who accused Solvie and Maher of sexually abusing him at Solvie's home.
Solvie and his ex-wife C.R.S. separated in 2007 when B.S. was about 15 months old. Solvie and C.R.S. had difficulty establishing a visitation schedule. C.R.S. was concerned because B.S. experienced night terrors and regressive behavior after returning from visits with his father. After a visit with Solvie in July 2007, C.R.S. observed a laceration on B.S.'s penis, but the medical examination was inconclusive because B.S. was too young to say what happened.
Maher and Solvie had previously worked together, and Maher moved into Solvie's home in May 2010 as a temporary arrangement. B.S. first disclosed that Solvie had sexually abused him on July 23, 2010, before a scheduled weekend visit with Solvie. B.S. cried and said he did not want to go. When C.R.S. asked why, B.S. responded, "My dad hurts me." C.R.S.'s father, who had been facilitating visitation transfers, was present during this conversation and heard B.S. say that his dad hurts his "peep, " a word B.S. uses for penis. When asked what he meant, B.S. responded that he and his dad would touch "peeps, " his dad would pull on his "peep, " and it hurt. Despite this report, the visit continued as scheduled, and C.R.S. contacted the police the next day.
B.S. was interviewed at CornerHouse on July 27, 2010. Solvie was arrested later the same day based in part on that interview, which is not a part of the appeal record. The record indicates that Solvie called Maher from jail and asked him to run a program called "eraser" or "erase" on Solvie's computer. Instead of running the program, Maher removed the hard drive from Solvie's computer.
The police executed a search warrant at the residence and police seized several computers, including one belonging to Maher located in his basement bedroom, and the note on which Maher had written the instructions about using the "erase" program. When Maher went to the police station to pick up his computer, he was arrested for aiding an offender. Maher was eventually charged with aiding and abetting first- and second-degree criminal sexual conduct based on B.S.'s subsequent statements that Maher also participated in the sexual conduct.
B.S. was six years old at the time of trial. He testified that his dad and Maher hurt him by sticking their "peeps" and fingers in his butt. B.S. also testified that they stuck a "medium sized" blue "thermometer" in his butt and it did not feel very good. B.S. could not remember if he was three or four years old at the time, and he testified that it happened more than one time, but Maher did not participate every time. Solvie and Maher took turns taking pictures, put the pictures on their computer, and B.S. saw the pictures on the basement computer when he snuck downstairs. B.S. explained that he did not tell anyone right away because Solvie told him he would hurt his mom if he did. During cross-examination, B.S. ...