State v. Vick

632 N.W.2d 676, 2001 Minn. LEXIS 557, 2001 WL 988021
CourtSupreme Court of Minnesota
DecidedAugust 30, 2001
DocketC7-99-1949
StatusPublished
Cited by68 cases

This text of 632 N.W.2d 676 (State v. Vick) 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. Vick, 632 N.W.2d 676, 2001 Minn. LEXIS 557, 2001 WL 988021 (Mich. 2001).

Opinions

OPINION

LANCASTER, Justice.

In May 1999, respondent Edwin Olaf Vick was found guilty by a jury and convicted of second-degree criminal sexual conduct in violation of MinmStat. § 609.343, subd. 1(a) (2000). Vick petitioned for postconviction relief, alleging ineffective assistance of trial counsel and insufficient evidence to support the conviction. The posteonvietion court denied Vick’s petition. Vick subsequently appealed his conviction to the court of appeals, arguing that the trial court committed plain error when it admitted unnoticed and unproven Spreigl evidence. Vick also appealed the denial of his petition for post-conviction relief. The court of appeals reversed the conviction and ordered a new trial, agreeing with Vick that the trial court committed plain error by admitting the Spreigl evidence. State v. Vick, No. C7-99-1949, 2000 WL 890468, at *3 (Minn. App. July 3, 2000). The state appeals, arguing that the trial court’s failure to sua sponte strike the alleged Spreigl testimony or provide a cautionary instruction was not plain error. We conclude that the trial court did not commit plain error, reverse the court of appeals’ decision, and reinstate the jury verdict.

On December 27, 1997, C.G. and Dan Vick (Dan) went on vacation and left their two children, A.B. and J.V.,1 in the care of Dan’s father, Edwin Vick (Vick). The children stayed with Vick at his cabin in Cook County. C.G. and Dan collected the children on Wednesday, December 31, at Vick’s home in Silver Bay. Neither parent noticed anything unusual about seven-year-old A.B.’s behavior then. During this time, A.B. lived with C.G., Dan, and J.V. in the Duluth area.

A.B. spent the following weekend with Cheryl Swanson, A.B.’s daycare provider and “second mother.” A.B. joined Cheryl and her son Joshua for a weekend at Cheryl’s boyfriend’s farm near Floodwood. During the weekend, Joshua and A.B. approached Cheryl and Joshua told her that A.B. had something to say. According to Cheryl, A.B. put her head down and began wringing her hands, then asked Joshua to tell Cheryl. Joshua explained that A.B.’s grandpa had touched her “private parts.” Cheryl asked whether A.B. told her mother, and A.B. replied that she had not because she did not want her grandpa to get in trouble. Subsequently, Cheryl called C.G. and told her that she wanted to get together to talk. She did not elaborate, but the two planned a meeting for the Monday after Cheryl returned from the farm.

Cheryl brought A.B. home on Sunday, January 4, 1998. That night, C.G. asked A.B. if anything had happened over the weekend. At that point, A.B. took her mother into her parents’ bedroom and explained that Vick had touched her. A.B. [680]*680told her story reluctantly, telling her mother that she did not want Vick to get in trouble. C.G. asked Dan to come into the bedroom and told A.B. to tell Dan what she had told C.G. A.B. repeated it, and Dan began to cry.

That night, C.G. called a crisis center and explained what A.B. had said. A crisis center worker took the information and told C.G. to contact a social worker, which she did the next morning. C.G. then contacted the Duluth police and arranged for a police interview with A.B. at the First Witness house in Duluth. First Witness is a home in Duluth that provides a child-friendly atmosphere where police interview child sexual abuse victims. Specific interview techniques are employed by officers with the goal of obtaining an interview free of suggestion or outside influence.

During this time, Dan and C.G.’s relationship had been deteriorating. The two fought, and the children occasionally witnessed these fights. At trial, C.G. acknowledged that the fights affected the children. In January 1998, C.G. moved out of Dan’s house and took A.B. to live with her.

On January 20, 1998, Officer Scott Voigt conducted an interview with A.B. at First Witness. A.B. went to the First Witness house with her mother and Cheryl, but only Voigt and A.B. were present while the interview was conducted. Voigt and A.B. discussed the difference between good touches and bad touches, and when asked if she had ever received a bad touch, A.B. explained that her grandpa had touched her “butt.” A.B. said that Vick had touched her butt on two different occasions. The first occasion occurred at the Cook County cabin (“under-the-clothes touching”), and was the sole basis for the charge against Vick and his ultimate conviction. The second instance occurred at Vick’s “shop,” his place of work in Beaver Bay, Lake County (“over-the-clothes touching”). When describing the Cook County, under-the-clothes touching, A.B. explained that while she and her brother J.V. were sleeping on the bed, Vick — who was sleeping on the floor close to them— woke up and put his hand under her pajamas and rubbed her butt for a “couple of minutes.” A.B. said that she pretended to sleep while Vick touched her, and that the touching made her feel mad. Voigt asked A.B. whether Vick had touched her vagina at that time and, during the First Witness interview, A.B. said that he had not.

A.B. also described to Voigt a second instance when Vick touched her “butt.” A.B. explained that, while at Vick’s shop in Lake County, she was sitting down making a picture when Vick came up behind her, put his hand under her butt, and rubbed her for a couple of minutes. During this touching, A.B. stated that Vick touched her over her clothes, and she again denied being touched on her vagina.

Immediately after leaving the First Witness interview, A.B. told C.G. and Cheryl that she had forgotten to tell Voigt everything. At trial, the state asked C.G. what A.B. said:

Q. At some point on the way home [from the First Witness interview] or shortly thereafter, did [A.B.] tell you that she’d forgotten something?
A. We hadn’t even gotten to lunch yet. We were pretty much just pulling out of the office and we had asked [A.B.] how everything went. And she had told us that she had forgotten to tell them things. She had forgotten to tell them some stuff.
Q. Did she tell you what she had forgotten to tell them?
A. Yes.
[681]*681Q. What did she tell you that she said she had forgotten to tell in the interview?
A. She had told me that there was another incident at Ed’s work where she was sitting on his lap and he was helping her with the computer and he had put his hands down her panties.
Q. Did she tell you anything else that she’d forgotten?
A. No.

Vick’s attorney made no objection, but Vick now challenges the admission of this testimony on the grounds that it is unnoticed and unproven Spreigl evidence. In contrast, the state claims in its brief to this court that C.G.’s testimony was merely a “misstatement,” speculating that she wrongly described the Lake County, over-the-clothes touching. The record does not resolve this factual ambiguity. It is the sort of ambiguity that could have been clarified through questioning of the witness. In the absence of clarifying testimony, the attempts by respective counsel to resolve the ambiguity are futile.

C.G. contacted the police after A.B. explained that she had not told Voigt everything. A second follow-up interview was arranged with the Chief Deputy of the Cook County Sheriffs Department, Mark Falk.

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Cite This Page — Counsel Stack

Bluebook (online)
632 N.W.2d 676, 2001 Minn. LEXIS 557, 2001 WL 988021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vick-minn-2001.