State v. Kraushaar

470 N.W.2d 509, 1991 Minn. LEXIS 117, 1991 WL 84254
CourtSupreme Court of Minnesota
DecidedMay 24, 1991
DocketC4-89-1762
StatusPublished
Cited by35 cases

This text of 470 N.W.2d 509 (State v. Kraushaar) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kraushaar, 470 N.W.2d 509, 1991 Minn. LEXIS 117, 1991 WL 84254 (Mich. 1991).

Opinions

OPINION

YETKA, Justice.

David Kraushaar, Jr., respondent, was convicted of second-degree criminal sexual conduct after a jury trial in Ramsey County District Court. The court of appeals reversed the conviction, holding:

(1) that the state’s evidence was, as a matter of law, insufficient to sustain the determination that sexual contact occurred,
(2) that the trial court prejudicially erred in admitting certain testimony by an expert on children’s drawings who had examined two drawings made by the complainant, and
(3) that the trial court prejudicially erred (a) in letting the jury replay a videotape of an interview with’ the complainant which had been admitted in evidence and (b) in telling the jury, in response to a question about whether trial transcripts were available for review, that there were no transcripts available and that the jurors should rely on their memories.

State v. Kraushaar, 459 N.W.2d 346 (Minn.App.1990). Although the court of appeals stated that it was granting defendant a new trial, the necessary effect of its determination that the evidence was insufficient is to bar a retrial unless, of course, we reverse the court of appeals’ determination that the evidence was insufficient. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978) (double-jeopardy clause bars retrial when a defendant’s conviction is reversed because the evidence presented at trial was legally insufficient). Concluding that the court of appeals erred in its analysis of these issues, we reverse and reinstate the judgment of conviction.

I.

David Kraushaar met Sharon Schroeder, now Armstrong,1 on her 18th birthday in November 1982. Three months later, they began living together, but never married. Their daughter M. was born in January 1984.

In October 1984, Armstrong moved out, leaving M. with Kraushaar. Paternity and child custody proceedings were commenced. Armstrong and Kraushaar entered into a stipulation which gave joint legal custody to both parents and physical custody to Kraushaar. Armstrong retained the right to visit M. throughout the time M. lived with her father.

In May 1987, Kraushaar and M. moved into a mobile home with Kraushaar’s parents. Kraushaar and M. had separate beds but shared a bedroom. Late in 1986, Armstrong applied to family court for physical custody of M. Her motion was denied. In December 1986, Armstrong reported to Ramsey County Child Protection that M. had told her that Kraushaar had “French kissed” M. The county investigated the report but could not substantiate the charges. In August 1988, Armstrong again applied to the court for custody. The court denied her motion on August 30, 1988.

The charge, of which defendant was convicted, had its origin in a conversation Armstrong had with M. one weekend when M. was visiting her. Armstrong testified that M. was sitting on the couch watching television with her. M.’s legs were spread apart and M. had her hand on her lap in the genital area. Armstrong testified that M. asked her “to play with her butt.” M. indicated that this is “where she goes to the bathroom.” Armstrong asked M. who played with her butt, and M. said her “daddy” (Kraushaar) did. M. then went to her room. Later she came out and showed Armstrong two pictures of stick people she had drawn. Armstrong became concerned about the drawings later when her husband [511]*511and mother-in-law observed that they depicted genitalia. Armstrong notified Ramsey County Child Protection of possible sexual child abuse.

An intake screener received Armstrong’s telephone call and assigned Mary Earl, a social worker, to investigate. Earl interviewed Armstrong on the same day and then called the Ramsey County Sheriffs Department. Deputies removed M. from Kraushaar’s residence and placed her in a shelter. The Kennedys, the foster parents who supervise the shelter, were out of town when M. was placed there but returned the following morning. Mrs. Kennedy testified that, while eating breakfast, M. said, “Nobody is supposed to touch nobody here, are they?” M. then said, “Did you hear me?” and repeated her question. M. sat back and pointed to her vaginal area. Mrs. Kennedy agreed with M. and asked if anyone had ever touched her there. M. replied, “Yes, Daddy.” Asked with what, she replied, “His hand.” The Kennedys testified that, during her stay with them, M. was very sexually precocious for her age, that she would seek out boys and try to sit close to them, and that she did a lot of seductive or flirtatious hair-flinging and batting of her eyelashes. This was corroborated by Mary Earl, who saw her with men in other situations.

Earl took M. to be examined by Dr. Carolyn Levitt, a pediatrician. Dr. Levitt testified as to the protocol she had developed. Her examination is in two parts. One part involves talking with the child in a nonlead-ing way and using anatomical drawings (not dolls) of children and adults. The other part involves a physical examination consisting in part of light touching of the child’s genital area and the asking of certain nonleading questions. For 4 years, she has been using a nondistracting, self-operating video recorder to videotape the nonintrusive part of the examination.

The videotape of M.’s examination was admitted in evidence, played for the jury, and sent to the jury room along with the other exhibits that were admitted. Dr. Levitt testified that, when she showed M. the drawing of the girl, she asked M. to name the various parts. When they came to the genital area of the girl, M. said, “Well, that’s — my daddy touched me right there.” She later said “it hurted” and it “tickled” afterwards. She also said that it happened at night in her dad’s bed in the trailer where they lived with his parents. Dr. Levitt testified that her physical examination of the child, not recorded, revealed that everything was normal, but that with a report of mere touching, she would not have expected otherwise. She testified that when she touched M. on the clitoris, M. said her daddy had touched her there; that when she touched her in the anal area, M. denied anyone had touched her- there; and that when she touched her in the vaginal area, M. said she touched herself there. That was the extent of Dr. Levitt’s testimony on direct examination. However, on cross-examination, defense counsel elicited Dr. Levitt’s testimony that, in her opinion, the examination was “consistent” with the child having been abused. She testified further on cross-examination that she typically bases her diagnosis 90 percent on her interaction with the child during the interview and only 10 percent on the rest of the examination.

The trial court held a competency hearing and determined that M., then 5 years old, was competent to testify. M. testified that Kraushaar touched her “where he’s supposed to not touch me * * *. He touched me right on my butt.” She testified that he touched her with his hands in his bed and in her bed. She also identified the subjects of the two stick drawings as Kraushaar and as Armstrong’s husband.

Kraushaar and his parents testified on his behalf. He denied touching M. with sexual or aggressive intent, a required element of second-degree criminal sexual conduct. He stated that he touched M.

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Cite This Page — Counsel Stack

Bluebook (online)
470 N.W.2d 509, 1991 Minn. LEXIS 117, 1991 WL 84254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kraushaar-minn-1991.