This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1338
State of Minnesota, Respondent,
vs.
Wilfred Carl Hudson, Appellant.
Filed July 20, 2015 Affirmed Hudson, Judge
Clay County District Court File No. 14-CR-12-3371
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney, Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Chutich,
Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellant challenges his convictions of three counts of first-degree criminal sexual
conduct. He argues that Minn. Stat. § 595.02, subd. 4 (2012), which permits child victims of sexual assault to testify outside of the defendant’s presence, is unconstitutional
because it violates his constitutional right to confront witnesses against him. He also
contends that the district court committed plain error by permitting the state to introduce
evidence vouching for another witness’s credibility, that the district court erred in finding
that his three offenses did not arise out of the same behavioral incident, and that the
district court abused its discretion by denying his petition for postconviction relief. We
affirm.
FACTS
Appellant Wilfred Carl Hudson and S.F. are married and share parenting
responsibilities for appellant’s daughter, B.W. Approximately one year after they were
married, S.F. and appellant separated; B.W. began to live with S.F. during the week and
with appellant on weekends. B.W. also stayed with appellant after school if S.F. had to
work late.
In September 2012, a few months after appellant and S.F. separated, B.W. told
S.F. that appellant “hurts [her] down there” and pointed to her vagina. S.F. testified that
B.W. later told her that appellant had put his mouth on her vagina. S.F. reported B.W.’s
allegations to law enforcement officers, who subsequently conducted a forensic interview
and sexual assault examination of B.W. She told the interviewing detective that appellant
had engaged in oral, vaginal, and anal intercourse with her on separate occasions. She
indicated that the abuse occurred in appellant’s bedroom, her bedroom, and the living
room of appellant’s apartment. B.W. was eight years old at that time.
2 Appellant was arrested and charged with eight counts of first-degree criminal
sexual conduct.1 Prior to trial, the state moved, pursuant to Minn. Stat. § 595.02, subd. 4,
for an order permitting B.W. to testify outside of appellant’s presence and via one-way,
closed-circuit television. The district court granted the order, finding that B.W. would be
traumatized if she was required to testify in appellant’s presence. Appellant, the district
court, and the jury observed B.W.’s testimony from a separate room, and B.W. was
informed that appellant was watching her testimony. Appellant’s counsel was in the
room with B.W. and was allowed to cross-examine her. B.W. testified that appellant
engaged in vaginal intercourse with her in her bedroom and anal intercourse with her in
his bedroom. She also stated that appellant “licked” the “inside” of her vagina on
multiple occasions. She said that appellant told her that if she told her mother, he “would
break [S.F.] into pieces of bones.”
Appellant testified that he never abused B.W. He stated that S.F. coached B.W. to
falsify allegations against him and that B.W. imitated “whatever [S.F.] [did].” He
indicated that S.F. had previously threatened to report false child abuse allegations to law
enforcement. The jury found appellant guilty of the first three counts of criminal sexual
conduct and not guilty of the remaining four counts. The district court imposed
concurrent, respective prison sentences of 172, 201, and 360 months for the three
offenses.
Appellant filed a notice of appeal, but subsequently stayed that appeal to file a
petition for postconviction relief. In his petition for postconviction relief, he alleged that
1 Count eight was dismissed before trial.
3 he had located a witness, S.B., who could offer new testimony regarding S.F.’s bias. At
the subsequent evidentiary hearing, S.B. testified that he had been in a relationship with
S.F. while she was married to appellant, and that S.F. asked him and several other people
to kill appellant so that she could obtain an insurance settlement that she believed that
appellant was entitled to receive. He also stated that S.F. believed that obtaining custody
of B.W. would assist her in obtaining the insurance settlement. The district court found
that S.B.’s testimony was not credible and denied the petition for postconviction relief.
We dissolved the stay of appeal and ordered briefing on all postconviction issues. This
appeal follows.
DECISION
I
Appellant argues that the district court erred by permitting B.W. to testify outside
of his presence via one-way, closed-circuit television.2 A child witness who is a victim in
a criminal sexual conduct case may testify outside the presence of the defendant if the
child is less than 12 years old and the district court finds that the defendant’s presence
“would psychologically traumatize the witness so as to render the witness unavailable to
testify.” Minn. Stat. § 595.02, subd. 4(c). The district court may permit a child to testify
via closed-circuit television only after making an “individualized finding of necessity”
2 At the outset, the state argues that appellant forfeited this argument because he did not raise it to the district court and because he did not provide notice to the attorney general of his constitutional challenge. But appellant argued to the district court that, although Minnesota law permitted testimony in a room outside the presence of the defendant, the state and federal confrontation clauses guaranteed him the right to confront witnesses. And separate notice is not required to the attorney general where, as here, the state is a party to the litigation. Minn. R. Civ. App. P. 144. Appellant’s argument is not forfeited.
4 and having found “by specific evidence that the particular witness is or would be
psychologically traumatized and that traumatization is substantially caused by the
presence of the defendant.” State v. Conklin, 444 N.W.2d 268, 272, 274 (Minn. 1989).
Here, the district court made detailed findings regarding the evidence that supported its
conclusion that B.S. would be psychologically traumatized if forced to testify in
appellant’s presence.
Appellant contends, however, that because Minn. Stat. § 595.02, subd. 4, permits
witnesses to testify outside of the defendant’s presence, it violates the Sixth
Amendment’s guarantee that a criminal defendant has the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. We review de novo whether a statute is
unconstitutional. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). We presume that
Minnesota statutes are constitutional and we exercise our authority to declare a statute
unconstitutional with “extreme caution and only when absolutely necessary.” In re
Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).
The United States Supreme Court has previously considered whether the
Confrontation Clause prohibits a child witness in a sexual abuse case from testifying
outside the presence of the defendant by one-way, closed-circuit television. Maryland v.
Craig, 497 U.S. 836, 851–52, 110 S. Ct. 3157, 3166–67 (1990). The Court explained that
though the Confrontation Clause reflected a preference for face-to-face confrontation at
trial, that preference “must occasionally give way to considerations of public policy and
the necessities of the case.” Id. at 849, 110 S. Ct. at 3165 (quotation omitted).
Accordingly, the Court determined that face-to-face confrontation was not
5 constitutionally mandated if (1) the denial of face-to-face confrontation was necessary to
further an important public policy and (2) the reliability of the testimony was assured by
other means. Id. at 850, 110 S. Ct. at 3166. Because the state had a substantial and
important interest in the physical and psychological well-being of child-sexual-abuse
victims, and because testimony via closed-circuit television ensured the reliability of the
child’s testimony by permitting cross examination, testimony under oath, and an
opportunity for the judge, defendant, and jury to assess the child’s demeanor, the Court
concluded that face-to-face confrontation was not required if the district court made a
case-specific finding that such confrontation would cause a child witness trauma from
testifying. Id. at 851–53, 110 S. Ct. at 3166–67.
Appellant concedes that Minn. Stat. § 595.02, subd. 4, is constitutional under
Craig, but argues that Craig has since been overruled by the Supreme Court’s decision in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). In Crawford, the Court
rejected the use of “open-ended balancing tests” to determine whether the admission of
out-of-court testimonial statements violated a defendant’s confrontation rights, instead
concluding that such evidence was admissible only when the witness was unavailable and
the defendant had a prior opportunity for cross-examination. Id. at 67–68, 124 S. Ct. at
1373–74. The Court explained that the Confrontation Clause was a procedural guarantee
that required the reliability of evidence “be assessed in a particular manner: by testing in
the crucible of cross-examination.” Id. at 61, 124 S. Ct. at 1370. Appellant asserts that
Crawford’s rejection of open-ended balancing tests to determine the admissibility of
6 evidence under the Confrontation Clause renders the analysis established by Craig
invalid and Minn. Stat. § 595.02, subd. 4, unconstitutional.
We disagree. The Supreme Court did not expressly state in Crawford that it
intended to overrule Craig. Indeed, the majority opinion does not cite to Craig once, and
the concurring opinion cites to it only for the proposition that cross-examination is a
necessary tool “used to flesh out the truth.” Crawford, 541 U.S. at 74, 124 S. Ct. at 1377
(Rehnquist, C.J., concurring). Rather, the Court explains that it is expressly rejecting the
rationale of its previous decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980).
See id. at 63–64, 124 S. Ct. at 1371 (majority opinion). When the Supreme Court
expressly overrules one case in a decision, we do not assume that it implicitly intended to
overrule a separate decision as well. Carmell v. Texas, 529 U.S. 513, 538, 120 S. Ct.
1620, 1636 (2000); see also United States v. Pack, 65 M.J. 381, 383 (C.A.A.F. 2007)
(stating that “overruling by implication is disfavored”). We also recognize that several
state and federal courts have concluded that Craig remains good law following Crawford
and that the Supreme Court has denied a petition for a writ of certiorari in at least one of
those cases. See Pack, 65 M.J. at 385 (collecting cases), cert denied, 552 U.S. 1313, 128
S. Ct. 1914 (2008). Under these circumstances, we cannot conclude that the Supreme
Court intended for Crawford to overrule Craig.
Our conclusion is also reinforced by the fact that Crawford and Craig apply to
separate and distinct confrontation issues. Crawford sets forth the standard for
determining whether the admission of an out-of-court statement implicates a defendant’s
right to confront the declarant of that statement. 541 U.S. at 68, 124 S. Ct. at 1374. In
7 contrast, Craig governs the method by which in-court testimony may be presented:
specifically, under what circumstances the Sixth Amendment’s preference for face-to-
face confrontation is outweighed by state interests. 497 U.S. at 860, 110 S. Ct. at 3171.
Those distinctions are significant. When a precedent of the Supreme Court “has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions,” we are to “follow the case which directly controls, leaving to [the Supreme]
Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989).
Because Crawford and Craig address different aspects of a defendant’s confrontation
rights, and because Craig directly controls the issue before us, we conclude that Craig
continues to apply when determining whether an exception to the Confrontation Clause’s
preference for face-to-face confrontation is constitutionally valid.
Finally, we conclude that Craig remains valid following Crawford because it is
consistent with Crawford’s mandate that the reliability of testimonial evidence be
evaluated by “the crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S. Ct. at
1370. Under Craig, the Court concluded that in-court testimony was reliable only when
the “combined effect of [the] elements of confrontation” was met, which could include
physical presence, an oath, cross-examination, or observation of demeanor by the trier of
fact. Craig, 497 U.S. at 846, 110 S. Ct. at 3163. Like Crawford, Craig holds that cross-
examination is the primary means of confrontation guaranteed by the Sixth Amendment.
See Pack, 65 M.J. at 384 (explaining that the focus of Craig on the “combined effect of
the[] elements of confrontation . . . was retained in Crawford”) (quotation omitted). For
8 those reasons, we conclude that Craig remains good law, that Minn. Stat. § 595.02,
subd. 4, is constitutional, and that the district court did not err by permitting B.W. to
testify outside of appellant’s presence.
II
Appellant also argues that the district court erred by permitting the state to
introduce testimony and out-of-court statements from an investigating detective who
vouched for the credibility of B.W. Prosecutors may not elicit vouching testimony from
trial witnesses. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). Improper
vouching testimony is testimony that another witness is telling the truth or that one
believes one witness over another. State v. Ferguson, 581 N.W.2d 824, 835 (Minn.
1998). “Bolstering a witness’s credibility exceeds the proper bounds of aiding the jury to
reach conclusions about matters not within its experience. Witness credibility
determinations are strictly the domain of the jury.” State v. Blanche, 696 N.W.2d 351,
374 (Minn. 2005).
Because appellant did not object to the admission of the detective’s statements and
testimony at trial, we consider only whether the admission of that evidence constituted
plain error. Plain error exists if there is an error, the error is plain, and the error affects
substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). An error is plain
if it is clear or obvious, meaning that it contravenes a rule, case law, or standard of
conduct, or disregards a well-established and longstanding legal principle. State v.
Brown, 792 N.W.2d 815, 823 (Minn. 2011). An error affects a defendant’s substantial
rights if there is a reasonable likelihood that the error substantially affected the jury’s
9 verdict. Id. at 824. If those three elements are met, we determine whether reversal is
necessary to protect the fairness and integrity of the judicial proceedings. Ramey, 721
N.W.2d at 302.
Appellant first challenges several statements that the detective made during his
testimony regarding his interview with B.W. Appellant argues that admission of that
testimony was plainly erroneous because the detective indicated that he was assessing
B.W. for reliability, credibility, and believability. But a review of the record indicates
that, in each of those instances, the detective did not express an opinion that B.W. was
telling the truth or that B.W. was more credible than another witness. Instead, the
detective simply explained the process by which he interviewed B.W. and the methods
that he used to corroborate B.W.’s statements. Because the detective did not offer an
opinion regarding B.W.’s credibility, the admission of those statements was not plain
error.
Appellant also argues that the following three statements, which the detective
made after the jury watched the video of his interview with B.W., constitute
impermissible vouching testimony: “[B.W.] was able to understand the difference
between truth and lie”; “[B.W.] would correct me or she would say she doesn’t know or
doesn’t remember or – very, very credible”; and “[B.W.’s] mother corroborated all of the
information, yeah, about what the child had said, which adds, yeah, [to] the reliability of
the child.” Of those three challenged statements, the second and third relate to the
detective’s personal assessment of B.W.’s credibility and thus could be viewed as
impermissible vouching testimony. But we need not decide whether the admission of
10 those statements constituted plain error because, even if it did, the error did not affect
appellant’s substantial rights. See State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006)
(“If any prong of the [plain-error] test is not met, the claim fails.”).
Here, appellant and B.W. both testified at trial, providing the jury an opportunity
to weigh each person’s credibility. See State v. Wembley, 712 N.W.2d 783, 792 (Minn.
App. 2006) (holding that expert’s testimony violated vouching prohibition but was not
unfairly prejudicial because the jury was able to independently judge child witness’s
credibility), aff’d, 728 N.W.2d 243 (Minn. 2007). In addition, the two troublesome
statements are only a small portion of the record. And the state did not rely on either
statement at closing argument, but instead argued that the jury’s assessment of B.W.’s
credibility should be based on their “observations of [B.W.’s] ability to relay . . .
information to you.” Cf. Van Buren v. State, 556 N.W.2d at 551 (holding that vouching
testimony deprived defendant of fair trial because prosecutor used it in closing argument
to bolster complainant’s credibility and the evidence of guilt was “close,” hinging
entirely on credibility of witnesses). Moreover, appellant challenged B.W.’s credibility
in closing argument and the jury found appellant not guilty of four of the seven charges,
suggesting that it was not swayed by any impermissible vouching testimony. Thus, the
alleged errors did not affect appellant’s substantial rights.
Finally, appellant contends that the detective made several statements vouching
for B.W.’s credibility during his post-arrest interview of appellant, a tape of which the
jury observed at trial. But plain error cannot be established in the absence of binding
precedent. State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008). And case law does not
11 expressly prohibit the admission of vouching statements that an officer made to a
defendant during a police interrogation. Instead, the Minnesota Supreme Court has
explained that the admission of statements made by an officer during a police
interrogation are necessary to provide context to the defendant’s statements and that
juries will understand that those statements are made to “get as much information from
[the defendant] as possible.” State v. Lindsey, 632 N.W.2d 652, 662–63 (Minn. 2001);
State v. Ferguson, 581 N.W.2d at 835–36. Here, because the jury was informed that the
video depicted the detective’s interview of appellant, the jury had the necessary
information to understand that the detective’s statements were made as an investigative
technique and were not necessarily indicative of his personal opinion. As a result, the
district court’s failure to sua sponte exclude those statements did not constitute plain
III
Appellant also argues that the district court erred by finding that the three offenses
for which he was convicted did not arise out of the same behavioral incident. A person
who commits multiple offenses against the same victim during a single behavioral
incident may be punished for only one of the offenses. Minn. Stat. § 609.035, subd. 1
(2012). The state bears the burden to establish by a preponderance of the evidence that
the conduct underlying the offenses did not occur as part of a single behavioral incident.
State v. Williams, 608 N.W.2d 837, 841–42 (Minn. 2000). A district court’s
determination that a defendant’s offenses did not arise out of a single behavioral incident
12 is a factual finding, which we review for clear error. State v. Suhon, 742 N.W.2d 16, 24
(Minn. App. 2007), review denied (Minn. Feb. 18, 2008).
To determine whether a series of offenses constitutes a single behavioral incident,
we consider whether the offenses share unity of time and place and “whether the segment
of conduct involved was motivated by an effort to obtain a single criminal objective.”
State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001). A defendant who
engages in multiple forms of sexual penetration during the same behavioral incident may
be convicted of only one offense for that conduct. State v. Dudrey, 330 N.W.2d 719,
721–22 (Minn. 1983). But multiple acts against the same victim do not constitute a
single behavioral incident when those acts are separated by time and place, even if the
motivation for each act is the same. Suhon, 742 N.W.2d at 24.
Here, the jury found appellant guilty of three counts of first-degree criminal sexual
conduct. Count one alleged an incident of oral intercourse; count two alleged an incident
of anal intercourse; and count three alleged an incident of vaginal intercourse. At
sentencing, the district court found that the acts underlying the three counts for which
appellant was convicted arose out of different behavioral incidents because those acts
occurred in different rooms and on different days.
The district court’s findings are not clearly erroneous. B.W. testified that
appellant engaged in several different forms of sexual penetration, that the abuse
happened at different times, and that it occurred in different rooms of appellant’s
apartment. See Suhon, 742 N.W.2d at 24 (upholding multiple sentences when abuse
occurred in same residence, but “happened in many different rooms and at different
13 times”). B.W. also informed the detective about specific incidents of abuse, including the
first time the abuse began and an incident that occurred on a day that she was supposed to
be attending a friend’s birthday party. She also told the detective that the abuse occurred
in appellant’s bedroom, her bedroom, and the living room. Taken together, the evidence
is sufficient to support the district court’s finding that appellant’s offenses arose out of
separate behavioral incidents. See State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979)
(affirming sentence for two counts of criminal sexual conduct for two contacts five hours
apart). As a result, the sentence imposed was not erroneous.
IV
Finally, appellant argues that the district court erred by denying his petition for
postconviction relief following an evidentiary hearing. A person convicted of a crime
who claims his conviction was obtained in violation of his constitutional rights “may
commence a proceeding to secure relief.” Minn. Stat. § 590.01, subd. 1 (2012). We
review a denial of a petition for postconviction relief for an abuse of discretion. Riley v.
State, 819 N.W.2d 162, 167 (Minn. 2012). In considering a postconviction court’s
decision to deny relief, we review issues of law de novo and issues of fact for clear error.
Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007); Riley, 819 N.W.2d at 167.
Appellant argues that S.B.’s testimony constitutes newly discovered evidence that
entitles him to a new trial. A new trial may be granted based upon newly discovered
evidence when a defendant proves:
(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before
14 trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). Appellant asserts that S.B.’s
testimony warrants a new trial because it calls into question S.F.’s credibility.
The district court denied the petition because it found that the newly discovered
evidence did not satisfy the materiality prong of the Rainer test. To meet the materiality
prong, the defendant must demonstrate that the newly discovered evidence is credible.
Tscheu v. State, 829 N.W.2d 400, 403 (Minn. 2013). Here, the district court found that
S.B.’s testimony was not credible because it was not corroborated by any other evidence,
it was internally inconsistent, and because S.B. had reason to lie given his friendship with
appellant. Because we give broad deference to the district court’s credibility findings,
appellant must meet a “high threshold” to show that those findings were clearly
erroneous. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015) (quotation omitted). We
do not disturb the district court’s findings of fact if reasonable evidence supports those
findings. Id. at 685.
Here, the record reasonably supports the district court’s credibility findings. No
corroborating evidence suggests that appellant was about to receive an insurance
settlement, that S.F. believed that appellant was entitled to receive such a settlement, or
that S.F. intended to obtain custody of B.W. for the purpose of claiming insurance
proceeds. Likewise, no evidence in the record corroborates S.B.’s claim that S.F. asked
multiple people to kill appellant. S.F. also testified that S.B. became friends with
appellant after she moved out of appellant’s apartment, and the district court did not
15 clearly err by finding that his friendship with appellant could cause S.B. to lie. We
therefore conclude that the district court did not abuse its discretion in denying
appellant’s petition for postconviction relief.
Affirmed.