State v. Casady

392 N.W.2d 629, 1986 Minn. App. LEXIS 4691
Court of Appeals of Minnesota·Decided August 26, 1986·No. C6-86-372·Published·Cited by 12 cases

Opinions

OPINION

HUSPENI, Judge.

A jury found appellant, Larry Casady, guilty of three counts of criminal sexual conduct in the first degree. The trial court sentenced Casady to a term of 116 months on one count. This was double the presumptive sentence. On appeal, Casady argues that: (1) there is insufficient evidence to sustain his conviction; (2) the trial court abused its discretion when it admitted Spreigl evidence; (3) the trial court abused its discretion by refusing to admit into evidence sexually explicit magazines; (4) the prosecutor’s misconduct during closing argument constituted reversible error; and (5) the trial court’s upward durational departure in sentencing was not justified. We affirm.

FACTS

This case arose from allegations by J.C. that her father, Larry Casady, had been engaging in sexual acts with her for the past seven or eight years. She stated that for many years Casady had a drug and alcohol problem which made him violent. Because of this violent behavior she was afraid of him and afraid to tell anyone about the abuse.

Finally in August 1985, J.C. told a neighbor about the abuse. At the encouragement of the neighbor J.C. also told her mother about the abuse. As a result of this disclosure, J.C. was sent to live with her aunt, Margaret Brynteson.

At trial, Brynteson testified that about thirteen years ago when she was thirteen years old Casady came into her bedroom and offered to give her all the change in his pocket if she would have oral sex with him. She refused and Casady never approached her again. Brynteson never told anyone about this incident until she talked to a social worker who was involved in J.C.’s [631] case. Unfortunately, the social worker failed to promptly disclose this information to the prosecuting attorney. One day before trial was to begin, the prosecuting attorney discovered Brynteson’s evidence and notified defense counsel that he would seek to introduce it at trial as “Spreigl”1 evidence. The trial court held no hearing or interview out of the jury’s presence to determine whether Brynteson’s proposed testimony would constitute clear and convincing evidence of Casady’s involvement with her.

J.C. testified that two other family members had witnessed the sexual abuse against her. One witness was her 11 year-old brother L.C. J.C. said that L.C. had walked into the bedroom when Casady was having sex with her. She said L.C. just turned and walked out when he saw them. Casady told her to go warn L.C. not to tell anyone and she did as he instructed.

At trial L.C. testified that when he walked in the bedroom J.C. was sitting on the floor covered in a quilt while Casady was on the bed undressed. L.C. said he was angry at J.C. and blamed her for the family breaking up. His testimony at trial differed from the statement he gave to investigators and L.C. said he had lied in his earlier statement. In that earlier statement he stated he saw J.C. and Casady on the bed undressed and “making out.”

L.C. also testified that he had looked at dirty magazines which were kept in the house. He testified that J.C. looked at the magazines a lot. J.C. acknowledged the magazines were in the house but denied ever looking at any of them.

J.C.’s 15 year-old cousin J.L. also testified at trial stating that one day Casady called him into the house and told him to look in the bedroom. When J.L. looked in he saw J.C. naked to the waist and crouched over on the bed.

Dr. Carolyn Levitt examined J.C. and testified that her emotional and physiological responses were consistent with having been sexually abused.

Casady testified and denied all the allegations of abuse. He stated that everyone was involved in a frame-up. He admitted, however, that he was a recovered alcoholic and drug abuser and that J.C. has seen him exhibiting violent behavior.

ISSUES

1. Is there sufficient evidence to support the jury’s verdict?

2. Did the trial court abuse its discretion when it excluded evidence of sexually explicit magazines?

3. Did the trial court abuse its discretion by admitting Spreigl evidence?

4. Did the prosecutor’s statements in his closing argument constitute reversible error?

5. Did the trial court abuse its discretion by making an upward durational departure in sentencing?

ANALYSIS

I.

Casady claims that the evidence is not sufficient to support the jury’s verdict. We disagree. Jury verdicts are presumed to be correct. Only where there is no reasonable evidence to sustain the verdict will this court reverse. State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 631-32 (1965). When reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the State and assumes the jury believed the State’s witnesses and disbelieved any contradictory evidence. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Under this standard there was ample evidence from J.C., Dr. Levitt and other witnesses to support the jury’s verdict.

II.

Casady claims the trial court abused its discretion when it excluded evidence of sexually explicit magazines kept in his home. The record, however, contains no [632] attempt by defense counsel to offer such evidence, no ruling by the trial court, and no offer of proof. Under the circumstances Casady’s claim of error cannot be reviewed for the first time on appeal. See State v. Blackball, 375 N.W.2d 71, 73 (Minn.Ct.App.1985), pet. for rev. denied, (Minn.Dec. 19, 1985).

III.

The trial court admitted Spreigl evidence that approximately thirteen years earlier Casady had approached Margaret Brynte-son and offered her money to engage in sexual acts. Casady contends the trial court abused its discretion by admitting this evidence. We agree.

The decision to admit evidence of other bad acts rests largely within the discretion of the trial court. State v. Campbell, 367 N.W.2d 454, 460 (Minn.1985). To be admissible the evidence should be relevant and material to the State’s case, the probative value of the evidence should outweigh the potential for unfair prejudice, and the defendant’s participation in the offense should be clear and convincing. State v. Filippi, 335 N.W.2d 739, 743 (Minn.1983). In addition Minn.R.Crim.P. 7.02 requires that for certain offenses the State must give advance notice to the defense of its intent to use the evidence.

Rule 7.02 provides in part:

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State v. Casady, 392 N.W.2d 629, 1986 Minn. App. LEXIS 4691 (Mich. Ct. App. 1986).

392 N.W.2d 629 (State v. Casady) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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