                          This opinion will be unpublished and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
                                     A14-0700

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Leland Ronald Nelson, II,
                                       Appellant.

                                   Filed July 27, 2015
                                        Affirmed
                                     Minge, Judge

                              Fillmore County District Court
                                  File No. 23-CR-12-874


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Brett A. Corson, Fillmore County Attorney, Lee Novotny, Assistant County Attorney,
Preston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and Minge,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

MINGE, Judge

       After a jury trial, appellant was convicted of six counts of criminal sexual conduct

for contacts he had with a six-year-old girl and her four-year-old brother, children of his

girlfriend. Appellant challenges his convictions, arguing that the video recordings of the

children’s out-of-court statements should not have been admitted into evidence and that

the court erred by allowing an investigating police officer to testify that he believed the

children. We affirm.

                                         FACTS

       Jeremy Larson contacted the Fillmore County Sheriff’s Office in late October

2012 because he suspected that his six-year-old daughter S.L. had been sexually abused.

Larson told law enforcement that he was sitting with S.L. on the couch when S.L. started

rubbing his penis over his pants. When Larson told S.L. that she was not supposed to

touch anybody there, S.L. started crying. Larson asked why she was crying, and S.L.

responded that “Leland” always let her rub his penis. “Leland” was appellant Leland

Nelson, the boyfriend of S.L.’s mother. S.L. told Larson that she had to rub Nelson’s

“pee-pee” to get snacks. Larson contacted police.

       A Fillmore County Social Services staff person interviewed S.L. The staffer asked

S.L., “Has anyone ever asked you to touch them in a spot that you did not want to touch

them?” S.L. responded, “They all -- Leland told me to touch his pee-pee always when I

get snacks.” S.L. also told the staffer that when she rubbed Nelson’s penis, pee came out

and Nelson let her drink it. S.L. said this occurred more than once while her mother was


                                            2
at work. She also shared that her four-year-old brother, C.L., “had to do the same thing”

and “rub the pee-pee part.” S.L. reported that Nelson told the children not to tell their

mother.

       A sheriff’s deputy interviewed C.L. During this interview the following exchange

occurred:

              [DEPUTY]: Okay. And when Leland watches you, do -- what
              do you do when Leland watches you? What are some of the
              things you do?
              [C.L.]: Rub him -- his pee-pee.
              [DEPUTY]: You rub his pee-pee?
              [C.L.]: And suck on his pee-pee.

C.L. further explained that Nelson’s penis went “out and in” his mouth. C.L. claimed

that this only occurred one time and that he saw it happen to his sister, too.

       Nelson was charged with ten counts of criminal sexual conduct in December 2012.

The day before Nelson’s jury trial began, the district court determined that S.L. was

competent to testify. The same day, the court initially determined that C.L. was not

competent to testify based upon an examination conducted by the judge. The state asked

the court to reconsider, and, after conducting a second examination the morning of the

trial, the district court concluded that C.L. was competent and allowed him to testify.

       The state requested permission before trial to show the jury video recordings of

the interviews with S.L. and C.L. The district court found that the statements in the

interviews bore sufficient indicia of reliability to be admissible under Minnesota Statutes

section 595.02, subdivision 3 (2012). But the court clarified that the recorded interviews

were only admissible “as long as the children testify,” pursuant to the statute.



                                              3
       The state, following the court’s directive, called C.L. to testify at trial. His

testimony was scattered. He initially testified that he did not have a sister but then

remembered that he did have a sister and so identified S.L. While a witness, C.L. got up

from his chair, moved around, and at one point walked to the prosecution’s table. He was

also distracted by the microphone at the witness chair. When the prosecutor asked him

who “Leland” was, C.L. testified that he was “a mean guy who is mean to mom.” The

prosecutor quickly ceased questioning C.L., and Nelson’s attorney did not cross-examine

him.

       When S.L. testified, she identified Nelson in the courtroom. The prosecutor asked

S.L. how she knew Nelson, and she responded, “Because he was there when this

happened.”    But when the prosecutor asked what happened, S.L. said, “Don’t you

remember from a long time ago?” S.L. testified that Nelson never babysat her. She said

that she remembered what she had told the social services staffer in the interview and that

she had told the truth. S.L. never repeated and was never asked what she told the staffer

or her father while on the stand. Nelson’s attorney did not cross-examine S.L.

       Larson, the children’s father, also testified at trial for the state. Nelson’s attorney

initially objected just to the admission of statements S.L. made to her father, arguing that

they were hearsay. The state responded that it planned to lay the foundation to admit the

girl’s statements as excited utterances. The district court reserved its ruling and told the

defense to object when the state actually asked Larson for S.L.’s statements. But

Nelson’s attorney never objected after the question was asked or after Larson testified to

S.L.’s statements. Larson testified that his daughter told him, “Leland lets me rub his


                                              4
pee-pee for snacks.” He also testified that she said Nelson occasionally “had her suck his

pee-pee.”

       Appellant Nelson did not testify at trial. But the state called the sheriff’s deputy to

testify about an interview he conducted with Nelson during the criminal investigation.

The deputy described a portion of that interview as follows:

              Q. Did you ever ask [Nelson] point blank, “Did it happen?”
              A. I did.
              Q. And did he answer?
              A. He did. He denied that it happened. At that point I
              became very direct with Mr. Nelson, and I told him that I did
              believe it happened. I told him that I believed the children
              were telling the truth and that he needed to talk about it,
              enable himself to get some help and help these children to
              deal with what happened.

Nelson’s attorney did not object to this line of questioning.

       The state dismissed four of the criminal-sexual-conduct counts during trial. The

jury found Nelson guilty of the remaining six counts. The district court sentenced Nelson

to concurrent prison sentences of 144 and 168 months for two of the convictions. Nelson

appeals.

                                      DECISION

                                              I.

       The first issue is whether the district court erred in admitting the recorded

interviews of S.L. and C.L. under Minnesota Statutes section 595.02, subdivision 3

(2012). Because Nelson specifically acknowledges that he did not object to the

admission of the recordings at trial, we review the admission of the statements under the

plain-error standard. To prevail, Nelson must show: (1) error, (2) that is plain, and


                                              5
(3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If

Nelson satisfies these three requirements, we will only reverse his conviction if necessary

“to ensure fairness and the integrity of the judicial proceedings.” Id.

       Minnesota Statutes section 595.02, subdivision 3, provides:

              An out-of-court statement made by a child under the age of
              ten years . . . alleging, explaining, denying, or describing any
              act of sexual contact or penetration performed with or on the
              child . . . not otherwise admissible by statute or rule of
              evidence, is admissible as substantive evidence if:

                     (a) the court or person authorized to receive evidence
              finds, in a hearing conducted outside of the presence of the
              jury, that the time, content, and circumstances of the
              statement and the reliability of the person to whom the
              statement is made provide sufficient indicia of reliability; and

                     (b) the child . . . either:

                             (i) testifies at the proceedings; or

                            (ii) is unavailable as a witness and there is
              corroborative evidence of the act; and

                      (c) the proponent of the statement notifies the adverse
              party . . . .

       Nelson first argues that the children’s statements in the recorded interviews were

not sufficiently accurate or reliable under subdivision 3(a).       Nelson focuses on the

reliability of the statement, not on the person to whom it is made. Next Nelson contends

that the children’s testimony at trial was so insufficient that they became unavailable and

that there was no corroborative evidence of the act as required by subdivision 3(b)(ii).

We address each of these arguments in turn.




                                                   6
       Reliability of Statements

       When determining whether a child’s out-of-court statements are sufficiently

reliable, section 595.02, subdivision 3(a), instructs district courts to consider the “time,

content, and circumstances of the statement and the reliability of the person to whom the

statement is made.” But courts should also consider “a number of additional factors,”

including “the knowledge of the declarant, the motives of the declarant and witnesses to

speak truthfully[,] . . . the proximity in time between the statement and the events

described[,] . . . whether the person talking with the child had a preconceived idea of

what the child would say[,] and the lack of leading or suggestive questions.” In re

Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999) (quotation omitted). Other

relevant factors also include “spontaneity, consistent repetition, mental state of the

declarant, use of terminology unexpected of a child of similar age, and lack of motive to

fabricate.” Id. But the factors listed are not exclusive: district courts “have considerable

leeway in their consideration of appropriate factors as long as the factors considered

relate to whether the child was particularly likely to be truthful.” Id. (quotation omitted).

The determination of whether the statements are reliable should be based on the totality

of the circumstances. State v. Edwards, 485 N.W.2d 911, 915 (Minn. 1992).

       The district court found that the persons to whom S.L. and C.L. made their

statements, the social services staffer and the deputy, were both reliable as they had been

trained in the Cornerhouse method. It found that the children’s responses were

spontaneous, did not appear to be coached, and were “of their own words.” The court

further noted that the statements were consistent and that the interviewers “refrained as


                                             7
best they could from leading questions.” These findings are supported by the record.

Based on the totality of the circumstances, the district court concluded that the children’s

out-of-court statements contained sufficient indicia of reliability.

         Nelson disputes this conclusion. He points out several factors that were not

present in this case, including that the interviews occurred a year after the alleged abuse

and that the interviewers anticipated hearing the abuse. But not every factor needs to be

satisfied for a child’s out-of-court statements to be admissible under section 595.02;

instead, the decision should be made based on the totality of the circumstances.

Edwards, 485 N.W.2d at 915. The district court here made its decision based on the

totality of the circumstances. We conclude that its decision does not constitute plain

error.

         Unavailability of Children to Testify

         Nelson argues that S.L.’s and C.L.’s conduct at trial made them unavailable

witnesses and that the state lacked corroborating evidence of the acts described in their

interviews. Even if the children’s conduct at trial made them effectively unavailable to

testify, their statements are nevertheless admissible if “there is corroborative evidence of

the act[s].” Minn. Stat. § 595.02, subd. 3(b)(ii).

         S.L.’s out-of-court statement is corroborated by her conduct with and statements

to Larson, her father, in October 2012. Larson testified that when S.L., unprompted and

completely unsolicited, started rubbing his penis she volunteered that she always had to

rub Nelson’s “pee-pee” to get snacks. S.L. told the social services staffer in the recorded

interview, “Leland told me to touch his pee-pee always when I get snacks.” Larson’s


                                                 8
testimony corroborates S.L.’s out-of-court statement, showing that S.L.’s “account of the

abuse has remained consistent over time.” L.E.P., 594 N.W.2d at 173.

       C.L.’s out-of-court statement is corroborated by S.L.’s statement in her interview

that C.L. “had to do the same thing” and “rub the pee-pee part.” C.L. told the deputy in

his recorded interview that he had rubbed and sucked on Nelson’s “pee-pee.” He also

said he saw his sister do the same thing. S.L.’s disclosures about the abuse of C.L.

corroborate his out-of-court statement as required under the statute.

       Because the district court correctly concluded that both children’s out-of-court

statements were sufficiently reliable and because there is corroborative evidence of both

statements, we conclude that the district court did not commit plain error by admitting the

recorded interviews under section 595.02, subdivision 3.

                                            II.

       The second issue raised in this appeal is whether the admission of Larson’s (the

father’s) testimony about the statements S.L. made to him in October 2012 was reversible

error. We recognize that prior to trial Nelson objected to the statements to Larson.

However, the district court judge reserved its ruling and instructed Nelson’s attorney to

renew his objection at the time the statements were introduced. The objection was not

renewed. Nelson agrees that on appeal the plain-error standard for review applies.

       The state explained at the time of the premature objection that it would offer the

statements under the excited-utterance exception to hearsay. The excited-utterance

exception allows into evidence statements “relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or condition.”


                                             9
Minn. R. Evid. 803(2). Nelson argues that the statements S.L. made to Larson about her

prior contacts with Nelson do not sufficiently relate to the startling event, which Nelson

asserts was the abusive contact itself. The state, on the other hand, asserts that the

startling event was her father’s (Larson’s) questioning of S.L., which caused her to blurt

out that Nelson had her touch him for snacks. When S.L. started to rub Larson’s groin,

Larson scolded her and asked her what she was doing, and she began to cry. Larson’s

surprised reaction and questioning created a startling event for S.L. that caused her to

disclose the conduct with Nelson to explain her actions. At the time she revealed this

activity with Nelson, she was under duress due to her father’s strong reaction.

       We conclude that in this context it was not plain error to find that the excited-

utterance exception to the hearsay rule applies. S.L. was under the stress of excitement

when she made the statements to Larson, which “eliminates the possibility of conscious

fabrication, and insures the trustworthiness of the statement.” State v. Daniels, 380

N.W.2d 777, 782 (Minn. 1986). In short, the admission of S.L.’s statements to Larson

did not constitute plain error.

                                            III.

       The third issue is the admission of the deputy’s testimony that he told Nelson

during an interview that he “believed the children were telling the truth.” Again, because

there was no objection to this testimony at trial, we review under the plain-error standard.

       We do not decide whether admission of this testimony was error that was plain

because, even if it was, we conclude it did not affect Nelson’s substantial rights. Under

the third requirement of the plain-error standard, Nelson must show that the erroneous


                                            10
admission of the statements “was prejudicial and affected the outcome of the case.”

Griller, 583 N.W.2d at 741. Here, the deputy’s statement was addressed to Nelson in the

context of jailhouse questioning in which the deputy was urging him to admit what he

allegedly had done. The deputy simply recounted the interview at trial. The prosecutor

did not repeat or refer to the deputy’s statement at any other point during the trial. The

statement was not used in closing argument. The jury was also able to hear the children’s

statements for themselves and assess their credibility independently. Nelson has the

burden of demonstrating that an error prejudiced him and affected the outcome of the

case. See State v. Carridine, 812 N.W.2d 130, 142–43 (Minn. 2012) (“[T]he defendant

bears the heavy burden of showing that any error was prejudicial.” (quotation omitted)).

He has not done so here, and we affirm his conviction.

                                           IV.

      In a pro se supplemental brief, Nelson contends that he received ineffective

assistance of counsel from his trial lawyer. But Nelson does not specify how his “defense

counsel’s performance was deficient” or how “the deficient performance prejudiced the

defense.” State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000). Because Nelson does

not support his claim with factual or legal arguments, we do not further consider his

ineffective-assistance claim. See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002)

(holding that a pro se claim without argument is deemed waived).

      Affirmed.




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