*1 346 recovery 114, justice in these circumstances for Plan, Inc., 306 N.W.2d
Health by from the bank United. (Minn.1981)). estoppel is promissory
The doctrine of (1) promise has been applicable a when DECISION made; (2) have rea- promisor should by Ship- document drafted United induce sonably promise to expected requirements neces- pers does meet (3) promisee promisee; by action credit, nor sary to be an Article 5 letter of (4) act; requires justice does fact promises pay state the bank to does it promise. enforcement Shippers. United Associates, Ins. ITT McNeill Inc. v. & Life Affirmed. 181, (Minn.App Corp., 1, .1989), (Minn. Dec. pet. rev. denied 1989). if the even Shippers
United credit, it is still a letter of document is not bank, reasonably by the promise pay a upon United Shippers. relied United Shippers Mallery cites Robert Lumber Minnesota, Respondent, STATE Inc., Associates, 294 Pa. Corp. v. F. B. & 503, (1982) support Super. A.2d 579 KRAUSHAAR, Appellant. David Russell argument. Mattery Robert read: sent the seller letter which bank No. C4-89-1762. you This is inform bank] [the of Appeals Court of Minnesota. $50,000.00 of credit for established a line customer, $25,000.00 21, Aug. above sell- purchases is from reserved [the 18, Review Oct. Granted er]. at at Id. 440 A.2d 580. The Robert guar-
Mattery court found this letter was a antee, time, unlimited bank $25,000 pay purchases would reserve no such the customer. There is promise specific in this case. note signed one sentence president bank does not the level of reach estoppel. First, promissory it is not promise language is indi- pay. There
cating promise that a had been made guarantee Rather,
that a existed. the bank Second, merely imparting information. importantly, justice more does not quire alleged promise. of this enforcement Shippers United indicates not have it would anything sold Soukups without letter of guarantee credit or similar from Yet,
the bank. United this doc- drafted ument, using vague language. and weak
If United wanted this document credit, promise guar- letter of or a similar antee, it should have used those words.
Because contracts are strictly construed
against drafter, compelling there is no *2 Gen., Humphrey, III, H. Atty.
Hubert Foley, Ramsey County Atty., Thomas Ste- DeCoster, County Atty., ven C. Asst. St. Paul, Minnesota, respondent. for State of Stuart, Defender, John M. State Public Hammerling, Deputy Lawrence State Pub- Defender, Minneapolis, lic for David Rus- Kraushaar, appellant. sell HUSPENI, Considered and decided P.J., NORTON, and PARKER and JJ.
OPINION
NORTON, Judge.
Appellant challenges grounds on three conviction, trial, his after a of criminal sexual conduct in degree. Ap- the second pellant argues that the expert admission of testimony interpreting two Appellant error. that when jury, during deliberations, requested expert review a a medical child, interviewing the the trial court erred giving for its refusing own review of other testimony. Finally, appellant argues that the evidence was insufficient sustain his conviction. We reverse and remand for a new trial.
FACTS (“Kraush-
Appellant David Kraushaar aar”) Schroeder, lived with Sharon now Armstrong (“Armstrong”), during Sharon M.K., daughter, 1983 and 1984. Their 21, 1984, January born on but Kraushaar never married. In the fall leaving the next weeks M.K. was re- Within two 1984, Armstrong out moved Custody pater- temporary foster care to the Kraushaar. leased from M.K. with adjudica- through resolved nity Armstrong, issues were physical custody of her moth- that Kraushaar the result tion with custody was deferred de- er. Permanent physical custo- joint legal and sole ceived a upon the outcome of the criminal pendent dy of began, that trial March On the date case. *3 challenged previously 28, 1989, Armstrong complaint was amended M.K., custody of without Kraushaar occurred between charge that the abuse losing 1986, shortly after one In success. 1988, during January 1988 and October Armstrong alleged that challenge, such years four old. time M.K. was sexually physically or abus- Kraushaar was began, competency trial a Before the investigated claims ing These hearing held in chambers. The trial was unsubstantiated. Kraush- found to be M.K., aged then court determined custody, supervi- under court aar retained competent testify truthfully. was sion. in- testimony, the state addition to M.K.'s 30, 1988, Armstrong’s August last On Kennedy, and Mike the fos- troduced Julie gain custody of M.K. was attempt to parents; .Armstrong, the natural moth- ter later, Approximately six weeks fused. er; investigating deputy from sheriff Armstrong reported protection child au- M.K., Ramsey county who interviewed suspected sexual abuse thorities that she Earl, Kraushaar; Mary Armstrong and protection by Kraushaar. After child worker; Dr. Ramsey County protection involved, M.K. was removed from became Levitt; prepared the the social worker who placed temporary Kraushaar’s home and psychologist, Ann petition; and a CHIPS custody in the home of Julie foster Greenwald, gave testimony interpret- Kennedy. who Mike by M.K. and en- ing two Earl, Ramsey County pro- child Mary Her is the tered into evidence. worker, clarify tection visited M.K. appeal. subject of the second issue on father, Kraushaar, her whether it was Armstrong’s accused. husband who was testified on his own behalf “Daddy it M.K. informed parents, his with whom he and M.K. did (Kraushaar). solely upon the Dave” Based living. Among testifying had been others Earl, provided by information the Commu- family in his defense was the former court nity Department Human Services filed supervised custody after officer who had (CHIPS) protective child in need of services abuse, previous allegation who but petition. day petition after the by the sheriff. was never contacted physical ex- granted, Earl took M.K. for a argued through nor- Carolyn Levitt. Kraushaar has amination daughter prob- he daily mal care of his began, physical Before the examination area, ably genital any touched but M.K. This interview interviewed touching is nonsexual and therefore such videotape which was was recorded on intent, lacking in sexual or during played into entered required element of the crime. He main- requested by the trial. This tains that ‘coached’ M.K. be- creating replay, one of the issues gaining custody cause no other method of appeal. physical Dr. Levitt’s examina- recorded, M.K., objected tion of which was not re- had been successful. Kraushaar any physical type vealed indication psychologist’s analysis to admission of the sexual abuse. drawings. objected of M.K.’s He also allowing to conduct its own review 5, 1988, On Kraushaar was December videotaped interview of M.K. Dr. charged by complaint criminal sexual challenges Kraushaar also the suf- Levitt. degree. original conduct the second ficiency support of the evidence to his con- complaint charged that the abuse occurred September between 1986 and October 1988. viction. ever, the error is one of
ISSUES
where
“fundamen
“plain
tal
error affecting
law” or
substan
admitting
err in
the trial court
1. Did
rights,”
reviewing
may
tial
con
court
analysis
the draw-
psychologist’s
improperly preserved
sider an
Fen
claim.
ings?
ney,
(considering improp
jury to review filed videotapes Rean, 303, permitted of a to proper. 421 State v. N.W.2d and (Minn.1988). jury requests If a review child’s interview with 306 evidence, (which videotaped) jurors testimony be conducted shall may requested to have the courtroom to read to them the testi- also have entire^ re may reread and re-examine mony This of the child and Dr. Levitt. 26.03, quested Minn.R.Crim. P. materials. hardly court held that a defendant can chal- added). 19(2)1 (emphasis Further subd. lenge request of such “un- granting a more, need the trial court not submit unfairly highlights portion less it of the request specifically evidence may A evidence.” Id. at 237. court abuse ed, may jury evi it have the review other prejudice its discretion a defendant’s giving prom so as avoid undue dence ruling testimony may that no when requested. Minn.R. inence to evidence (citing Spaulding, v. 296 read. Id. State 26.03, 19(2)2. P. Crim. subd. Ross, 870, (Minn.1980)). In N.W.2d 878 successfully balanced the review deliberate, trial court it jury retired to
After unfairly highlight por- and thus did like sent out a note which stated “would Granting tion the evidence. broad film” “are trial tran- TV to review (It simply jury more request enabled the scripts jury available review?” Ross, guidance defining carefully evaluate the evidence. 451 sought additional intent,’ ‘sexual matter N.W.2d at view, The dissent minimizes the distinction whether, be- this court must determine by characterizing given tween this case and Ross the facts in the legit record and the damaging imate the Boss review as more because inferences can be drawn from facts, greater quantity jury it those reasonably involved “state’s” could con clude disagree guilty evidence. We that Kraushaar cross-examina- evidence, charged. Merrill, qualifies 99, State v. tion as state’s and note (Minn.1978). This court must error avoided Ross was the view the light evidence in the most highlighting portion unfair of a favorable to the state, assume that believed Id. evidence. state’s witnesses and assume that the jury entry The dissent of this contradictory disbelieved evidence. State videotape as dispositive an exhibit is Ulvinen, (Minn. 313 N.W.2d prominence” whether “undue test 1981). apply should under Ross and Minn.R.Crim. Five-year-old M.K. in response disagree. deposition, P. 26.03. We Like a question, to a your daddy “What did do to testimony. this contained Like a you?” tell, that “it’s hard to he deposition, touched me the documentation of this testi- supposed where he’s not to touch mony me.” was entered into evidence as an ex- She indicated that part it was of her Depositions tum- specifically excepted hibit. are my and then said “He right touched me from the exhibits which the trial court shall my butt.” “you go She said its where permit to take with it to the potty with it.” M.K. 26.03, testified that her 19(1). room. fa- Minn.R.Crim. P. subd. ther touched her with his hands while she deposition, jury Like a review of this video- was in his bed or was in tape her bed sometime testimony should have been conducted during nighttime or in morning. appropriate the courtroom with safe- cross-examination, On guards also testified giving prominence to avoid undue grandfather that her father grand- requested. Minn.R.Crim. may put mother 19(2). have medicine on her P. butt subd. when she rash. specifically The trial court indicated that Kennedy, Julie it did whom appropriate not think it would be *6 placed temporary custody, foster Then, allow the testi- testimony. to review her, fied that M.K. asked “Nobody sup- is conducting instead of review of the video- posed to nobody they?” touch here are tape courtroom, in the per- trial court pointing vaginal to her area. She mitted the to conduct its own review. testified that she any- asked M.K. whether ruling unfairly highlighted This portion one had ever touched her there and that recognized the evidence. The error and responded M.K. daddy that her had. Rean, Julie Spaulding, avoided and Ross was husband, and her Kennedy, Mike both char- committed here. The unfavorable evidence unusually acterized M.K. as affectionate highlighted without the toward males and flirtatious. On cross-ex- balance and fairness afforded broader amination, they both admitted that had not testimonial requires review. This error realized or considered that M.K. had been versal because there was a reasonable like- they interpreted raised her father when substantially lihood that it affected the ver- her affection toward males. Glidden, dict. State v. 455 N.W.2d (Minn.1990). mother, Armstrong, M.K.’s testified that laying M.K. watching on the couch III. legs spread television with her when she that the evidence play asked her mother to her with butt. prove was insufficient a reason She testified plays that when asked “who daughter able doubt that he touched his your “daddy with butt” M.K. answered intimately with sexual or intent. does.” silly She said that M.K. became and 609.343, (1988) See Minn.Stat. 1(g) subd. goofy, respond would not ques- § to further 11(b) (1988). and subd. On re- Armstrong tions and left the § room. testi- daddy had her her touched pictures denied that then drew two fied that M.K. that vaginal or areas. She said Exhib- anal into as entered which touch, M.K. vol- vaginal response analyzed by Greenwald. and there. touched herself con- she that she unteered Armstrong testified germ cul- that no Dr. Levitt also testified mother- her husband and cerned until after no there was taken because pictures to tures were seemed in-law indicated that any sort penile contact genitals. testi- indication male She graphically depict penetration. concerned fied that she then became family court social worker. their contacted played videotape interview was then that M.K. recommended That social worker experienced in these Dr. is in court. Levitt by Dr. Levitt. examined developed apparently examinations routine, inter- which she maintained when Deputy Gilbert Ramsey County Sheriff sug- tape viewing M.K. The demonstrates he M.K. Schroepfer that met with testified flexibility in interact- gestion and lack of Kennedy foster home for at the once an alleged ing the child. Dr. Levitt created establishing with who she purposes concept example designed to establish the He that he touched testified had her. “hurt” and introduced association she see- of M.K. remembered asked whether agreed M.K. telling “hurt” with “touch.” then Dr. Levitt that ing Dr. Levitt and her, daddy her touched daddy. He it hurt when been her she had touched “Yeah, she responded apparently he the first time testified that right me here and it hurt" while claim. touched he groin. He testified that
pointing her cross-examination, Dr. testified On daddy her it was and that she asked which being touched that she believes her responded, “Daddy Dave.” He asked remem- place cause a child to the same will was; she Armstrong knew if she who John having there She been touched before. ber mother replied John married to her responses indicating interpreted M.K.’s did that John never touched her or touched M.K.’s clitoris that Kraushaar had anything hurt her. vagina her or anus. Dr. Levitt but Earl, protection that she based conclusion 90% Mary a senior child testified history provided by M.K. Ramsey County Human Servic- on the worker es, receiving only physical examination. next after 10% evidence, abuse, report possible physical sexual she met examination revealed daddy on redirect Levitt testified to determine but inconsist- referring. transported a medical examination not M.K. was She also such objections, M.K. to Dr. Levitt and to visitation with ent with abuse. expert on Dr. Levitt is not an Mary Earl had also taken that because Kraushaar. chil- her. and untruthfulness of report from and met with the truthfulness *7 competent and is not to con- dren that she that Carolyn Dr. testified history M.K. was clude based on that normal, medical examination M.K. was abused, were overruled. hymen intact Greenwald, vaginal open- psycholo- Ann around the and anal licensed tissues gist interpretation M.K. whose draw- ings were normal. She testified that M.K.’s length above, ings her testi- potty said it hurt she went after was discussed at when daddy testimony her and medical fied next. that the touched Greenwald’s drawings depict genitals significance of this was the area and demonstrate may probably given great around the urethra have been abraded sexual abuse was weight by jury. irritated. or in his she exam- Kraushaar testified defense. Levitt also that as own M.K., history custody explained ined touch her and ask her He she would Armstrong waged against being whether she remembered touched visitation battles She him for M.K. that he responded there. said that Kraushaar testified daddy clitoris, Armstrong investigators her had touched but her told power everything employed by juvenile protection threatened to do system get custody determining of M.K. He indicated that in in whether child should be opinion allegations were concoct- his these removed from a home are irrelevant to the by Armstrong attempt gain in an ed proof burden of in a criminal trial. The custody had otherwise been denied. distinguish facts of this case it from those through caring Kraushaar testified that in which we have affirmed convictions de- her, changing daughter, cleaning his spite during Here, errors trial. the evi- her, carrying he assumed he had weak, dence was the errors many parts question touched the but that he they were not harmless. Kraushaar is en- intimately had never touched her with sex- new, fair, titled to a trial. intent. ual Armstrong had once made a suicide at- DECISION tempt responsible during for M.K. The trial court in admitting erred Green- scheduled visit and the social worker who testimony wald’s over Kraushaar’s counseled her afterward was the next to peated objections. Because she never met testify. Armstrong She stated that left child, objections to foundation believing she would be able to obtain should have been sustained. The trial custody later and that her bond would be court erred handling jury’s ques- when daughter. intact with her The counselor deliberations, during tions particularly in testified that later was sur- permitting self-directed review of the video- prised that M.K. did not remember taped testimony denying and in other testi- thought well as she she would. monial review. The evidence is insufficient The evidence in this case is all based support the conviction. statements, upon vague M.K.’s Reversed and remanded. by others that M.K. made those statements and her father's denial. Her statements HUSPENI, J., opinion. dissents with an specific enough are not detailed or to clear- ly implicate activity. recognize sexual We HUSPENI, Judge (dissenting) allegations whenever of child sexual I respectfully dissent and would affirm made, system abuse are is confronted appellant’s I majori- conviction. share the with a dilemma: on the one side ais child ty’s system observation that the is faced protected; who must be on the other side with a dilemma when sexual abuse of a accused, stands the process, entitled to due alleged. addition, child is I believe the unfairly who must not be convicted. We greater alleged dilemma is even when the must balance those considerations and view perpetrator charge in a of sexual abuse is a favorably the evidence to the verdict when parent natural in family torn we conduct the strife our review. relationship breakdown of the of a viewing When the evidence most favor- parents. However, child’s I compelled feel verdict, ably to the we hold that it is insuf- disagree majority’s analysis with the support conclusion, ficient to the issues and with its ultimate determina- doubt, reasonable that Kraushaar touched tion that a new is needed. daughter his intimately ag- with sexual or gressive intent. jury requested fur- point
ther instruction on this but received I. *8 Instead, little given assistance. it was For the sake of analysis, agree further I videotape in which the doctor introduced majority with the Ann Greenwald’s concept the of undoubtedly hurt. This pre- testimony, purporting interpret the cipitated jury’s the verdict. child, of the minor was errone- case, In another with ously However, substantial evi- received into evidence. I dence, we could affirm this conviction on permitting do not believe that such testimo- grounds harmless, the that the errors were ny magnitude was error of such as to re- prejudicial. However, not quire the standards a new trial. 13, 1990), (Minn. sexual Apr. similar challenge of Ann primary
Appellant’s
majority,
jury
the
cited
the
abuse case
qualification as
Greenwald concerned
testimony,
requested
of the victim’s
challenge
review
Although
expert.
an
testimony
the
examining
the
doctor’s
of this
unsuccessful,
cross-examination
full
the
of
videotape of the doctor’s interview
pages
in
of
demonstrated
witness was
granted and this
requests
All
victim.
transcript.
the
affirmed, stating:
court
II.
request
not
jury’s
did
Since the
broad
portion of
evi-
unfairly highlight a
the
entry of the vid-
Appellant stipulated to
dence,
request simply en-
granting the
rules,
the
eotape
exhibit. Under
as an
in
greater care
jury to take
abled the
go
jury. Minn.R.
to the
generally
exhibits
evaluating the evidence.
Thus,
26.03,
19(1).
appel-
P.
subd.
Crim.
Ross,
No
strongly argue in
abuse
stipulation does not
at
lant’s
despite the
tape
the
found in Ross
finding submission of
discretion was
favor of
state’s
fact
all reviewed evidence was
error.1
jury
the
to be
permitted to
jury was
evidence. Here the
question of whether
I submit that
the
quantity of
only a
fraction
prom-
“undue
received
certain evidence
I find
in
state’s evidence reviewed Ross.
only
merit
in those cases
inence” has
in this
of discretion
case.
abuse
challenged
not
evidence was
which the
as an
properly
jurors
exhib-
available
III.
in this matter
it. The record before us
I
the evidence
suffi-
Finally, believe
videotape
the
does
demonstrate that
finding
guilt.
jury
cient
sustain
anything
as
other than an
was received
jury presented with the evi-
While another
exhibit.
might
judged
case
have
credi-
dence in this
Further,
essentially
videotape
the
bility
differently and re-
of the witnesses
(that appellant
the same content
abused
guilty,
of not
in this
turned a verdict
we
M.K.)
testimony
as
of a number of
the
jury.
court
function
that other
cannot
as
witnesses, including Dr.
state
light
We must view the evidence
Therefore, I
the victim herself.
conclude most
to the state.
favorable
permitting
jury
view the
testimony by
wit-
Here there was
several
challenged videotape, the trial court at
incidents of sexual
nesses that
related
permitted
jury
to consider cumu-
worst
Further,
impor-
them.
the most
abuse to
lative evidence.
stand,
submit,
I
tant
to take the
witness
Also,
majority is correct
if the
herself,
who stated that she was
suggestion
“demonstrates
and a
appellant
abused and that
abuser.
flexibility [during
in-
lack
Levitt’s]
609.347,
(1988)
subd.
See Minn.Stat. §
teracting
child,”
feared
undue
(“In
criminal
con-
prosecution
sexual
[for
emphasize
emphasis
tape
on the
would
testimony
of the victim need
duct]
interview,
questionable
nature of the
corroborated”).
many
child
sexual
discrediting
potentially
both
interview
is
alleged
cases the
victim not com-
abuse
subsequent
and Dr. Levitt’s
petent
testify in
all
is
court and
Thus, the
based on that interview.
result
necessity presented by
others. Such
tape to
sending
would weak-
case
was not the
here.
saw
strengthen
rather
the state’s case.
en
than
credibility
judged
heard M.K. and
as
Ross,
all other
Finally,
credibility
spect that determination. OMDAHL, individually, and
William Omdahl, on behalf of William Minnesota, Respondent, State of HADLER; al.; Larry Rud, et William J. acting and the State Minnesota Nichols, through Jim Commissioner Agriculture, Appel- Department lants. C5-90-612.
No. Appeals of Minnesota. Court Aug.