State v. Wilbur

445 N.W.2d 582, 1989 Minn. App. LEXIS 1016, 1989 WL 106171
CourtCourt of Appeals of Minnesota
DecidedSeptember 19, 1989
DocketC2-88-2589
StatusPublished

This text of 445 N.W.2d 582 (State v. Wilbur) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Wilbur, 445 N.W.2d 582, 1989 Minn. App. LEXIS 1016, 1989 WL 106171 (Mich. Ct. App. 1989).

Opinion

OPINION

RANDALL, Judge.

Appellant Brian Lee Wilbur was convicted of second degree criminal sexual conduct arising from the assault of five-year-old A.L.P. Wilbur appeals from the conviction and sentence on three grounds: (1) prosecutorial misconduct, (2) sufficiency of the evidence, and (3) improper sentencing. We affirm.

FACTS

On May 2, 1988, five-year-old A.L.P. was in the care of a babysitter who lived across the hall from A.L.P.’s family’s apartment in New Hope. The babysitter was also caring for A.L.P.’s sister and another child. A.L.P. did not come in for lunch at noon and the other children could not find her. A short time later, A.L.P. returned, crying, and told the babysitter that she had been at “Brian’s” and he would not let her leave.

Two days later A.L.P. told her father’s girlfriend that “Brian” had pulled down her shorts and underwear. A.L.P.’s grandmother was then notified and she called the police. During an interview the same afternoon with Detective Ronald Bird and Officer Debra Downing, A.L.P. repeated that “Brian” had pulled down her shorts and underwear, and added that he “touched her with himself.” Using two dolls, A.L.P. indicated that there had been contact in the genital area. During the next few days, A.L.P. gave consistent information to several witnesses concerning the identity of “Brian” and the facts surrounding the assault.

On May 11, 1988, A.L.P. was examined by Dr. Carolyn Levitt, a pediatrician and child abuse specialist at Children’s Hospital in St. Paul. A.L.P. told Dr. Levitt that “Brian” hurt her in her genital area with “his weiner.”

Using the identification information provided by A.L.P. and A.L.P.’s identification of “Brian’s” picture in a photo line-up, Detective Bird went to appellant Brian Wilbur’s apartment on May 18, 1988. Bird observed clothing and other items that A.L.P. had described and placed Wilbur under arrest. At the police station Bird gave appellant the Miranda warnings and informed him that A.L.P. said that appellant had touched her “with himself.” Bird testified when appellant was allowed to make a phone call, he told the person he called that “the police had told him that he touched [A.L.P.’s] vagina with his penis, or words to that effect.”

At trial, A.L.P. recognized appellant as “Brian” and stated that he had pulled down her shorts and underwear. She would not answer further questions, responding “I forgot,” “I don’t know.” She said that she had told the “lady doctor” the truth and she (Dr. Levitt) could tell what happened. The videotape of Dr. Levitt’s interview and examination with A.L.P. was played for the jury. Dr. Levitt testified that, in her opinion, A.L.P. had been sexually abused.

ISSUES

1. Was the prosecutor’s final argument so improper as to require reversal?

2. Is the evidence sufficient to sustain appellant’s conviction?

3. Did the trial court err by sentencing appellant?

DECISION

I.

Prosecutorial Misconduct

Whether a final argument is improper is normally a matter within the discretion of the trial court. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984). The trial court’s determination will not be reversed unless, in light of the whole record, the prosecutorial misconduct is so serious and prejudicial that the defendant’s right to a fair trial has been denied. State v. Wilford, 408 N.W.2d 577, 580 (Minn.1987).

It is improper to “personally [endorse] the credibility of the state’s witnesses or [to inject] personal opinion * * State v. Parker, 353 N.W.2d 122, 128 (Minn. *584 1984). However, the allegedly improper statements must “reach the threshold of impropriety” to warrant reversal of a conviction. Id.

Appellant claims the prosecutor improperly offered his personal opinion of the credibility of the complaining witness, A.L.P. The statements complained of consist primarily of comments such as “this five-year-old girl wouldn’t lie, couldn’t lie, didn’t lie,” “this is not a girl who is embellishing,” “this is a girl who is innocent and naive and * * * [i]t would never occur to her not to tell it like it happened,” and “she’s so innocent. So truthful * *

We find the statements impermissible personal suggestions of credibility, but the trial court property instructed the jury to disregard statements made by the attorneys about the evidence, and to rely on their own recollection.

Although objectionable, we find, after reviewing the entire closing argument and the trial court’s jury instructions as a whole, that the isolated statements likely did not play a “substantial part” in appellant’s conviction and are harmless error. See State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (Minn.1974).

II.

Sufficiency of the Evidence

In examining a claim of sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict and the reviewing court must assume the jury disbelieved any contradictory testimony. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Weighing the credibility of a witness’s testimony is a function of the jury. State v. Daniels, 380 N.W.2d 777, 781 (Minn.1986).

The testimony of the victim in a sexual assault case generally need not be corroborated. Minn.Stat. § 609.347, subd. 1 (1988). In a given case, however, the absence of corroborating evidence may require a holding that the evidence is legally insufficient to sustain the conviction. State v. Hesse, 281 N.W.2d 491, 492 (Minn.1979). We find that this is not such a case.

Here, the victim gave consistent accounts of the identity of her abuser and the facts of the assault to several witnesses. She also testified at trial. Such consistency is a “significant factor in reviewing the sufficiency of the evidence.” Wedan v. State, 409 N.W.2d 266, 268 (Minn.Ct.App.1987), pet. for rev. denied (Minn. Sept. 23, 1987) (citation omitted).

Although appellant presented testimony of three alibi witnesses, their testimony was arguably inconsistent and in one case conflicted with a prior statement. Viewing the evidence in the light most favorable to the verdict and assuming the jury disbelieved any contradictory testimony, the evidence is sufficient to sustain the conviction.

III.

Sentencing

On February 9, 1988, appellant pleaded guilty to a charge of fourth degree criminal sexual conduct in Ramsey County.

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Related

State v. Caron
218 N.W.2d 197 (Supreme Court of Minnesota, 1974)
State v. Parker
353 N.W.2d 122 (Supreme Court of Minnesota, 1984)
State v. Ture
353 N.W.2d 502 (Supreme Court of Minnesota, 1984)
Wedan v. State
409 N.W.2d 266 (Court of Appeals of Minnesota, 1987)
State v. Daniels
380 N.W.2d 777 (Supreme Court of Minnesota, 1986)
State v. Hesse
281 N.W.2d 491 (Supreme Court of Minnesota, 1979)
State v. Wilford
408 N.W.2d 577 (Supreme Court of Minnesota, 1987)
State v. Plan
316 N.W.2d 727 (Supreme Court of Minnesota, 1982)

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Bluebook (online)
445 N.W.2d 582, 1989 Minn. App. LEXIS 1016, 1989 WL 106171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilbur-minnctapp-1989.