Appeal from a judgment of conviction for sodomy upon or with a child in violation of Minn. St. 609.293, subd. 4, and from denial of a motion for a new trial. Defendant, who was 21 at the time of trial, was sentenced to serve no more than 10 years’ imprisonment in the custody of the commissioner of corrections.
On appeal, defendant contends that the convictiоn should be reversed because:
(1) The trial judge permitted the testimony of an absent witness given at a preliminary hearing to be read to the jury;
(2) The trial judge refused defendant’s request for psychiatric examinations of the state’s witnesses;
(3) The trial judge denied defendant’s request that the defendant be given a psychiatric examination the results of which would bе presented to the jury;
(4) The receipt in evidence of obscene materials observed in defendant’s apartment at or about the time of the alleged of *386 fensе and references thereto during the course of the trial were improper and prejudicial;
(5) The instructions given by the trial judge were inadequate ;
(6) Defendant was improperly sentenced.
Subject to the reservations and qualifications stated in this opinion, the conviction is affirmed.
One of three boys who was present in the apartment of defendant on the day of the alleged offеnse, which occurred in March 1971, was about 13 years of age. At the preliminary hearing preceding the trial, this 13-year-old testified under oath that he observed the occurrenсe constituting the basis for the charge. He moved to Ohio and was not available when the case was tried before a jury in the district court. The attempts to secure his prеsence were superficial. Two other eye-witnesses, the victim and a third teenager, did testify in. the district court proceedings. The trial judge permitted the testimony of the absеnt witness given at the time of the preliminary hearing to be read into evidence, apparently on the theory that he had then been subject to cross-examination by the аttorney for the defendant and his testimony was no more than corroborative of that of the other teenagers. As we read it, the testimony of the absent witness was essentially corroborative, but in some respects different, from that of the other two boys.
With some misgivings, we have concluded that the use of the testimony given at the preliminary hearing was nоt so prejudicial under the unique circumstances of this case as to require a new trial. The Minnesota Constitution, art. 1, § 6, provides that in all criminal prosecutions the acсused shall enjoy the right to be confronted with the witnesses against him. Corresponding provisions of the Federal Constitution apply to criminal prosecutions in state courts. Bergеr v. California,
Defendant requested' the trial court to direct that the minor witnesses produced by the state be required to submit to a psychiatric examination to test their competence as witnesses. In our judgment, the ruling of the trial court was within its range of discretion. See, State v. Whelan,
At trial, defendant requested that the court provide for *388 a psychiatric examination of defendant, the object of which would have been to establish that he did not have homosexual tendencies.
The A. B. A. Standards for Criminal Justice, Standards Relating to Providing Defense Sеrvices (Approved Draft, 1968), § 1.5, proposes this: rule for indigent defense clients:
“The plan should provide for investigatory, expert and other services necessary to an аdequate defense. These should include * * * services * * * that are required for effective participation in every phase of the process * *
It is true that during the trial the state suggested that defendant’s behavior manifested a homosexual predisposition. Nevertheless, uninstructed as to what a psychiatric examination of this kind could or would demonstrate, we are not prepared to hold the refusal of the trial court, under the facts of this case, a cause for a new trial. See, Skavene v. State,
At trial, the jury was informed that defendant had photographs and a poster in his possession relating to homosexual behavior. Testimony was received indicating that the children involvеd in the episode consumed marijuana at defendant’s apartment on the day following the criminal incident. If receipt of this evidence was erroneous, it was compounded by the prosecutor’s examination and comments malde during final argument.
In our opinion, the evidence concerning perverse depictions in defendant’s aрartment was relevant, and the cross-examination and argument by the state were proper. The display in defendant’s apartment of pictures depicting aberrant bеhavior like that of which defendant was accused refutes the inference otherwise to be drawn that defendant did not commit acts which others would consider unnatural and repulsive. See, People v. Sampson,
We have exаmined other claims of improper cross-examination and improper argument by the attorney for the state and find them to be without substantial merit.
Defendant contends that thе instructions of the trial court were inadequate with respect to (a) evidence of other offenses, (b) evidence of defendant’s character, and (c) presumрtions and the burden of proof. The trial court, acting in response to the request of defendant’s counsel, instructed the jury that “[a]n allegation of the Defendant having committеd any other crime is no proof that the Defendant committed the crime charged in the Information.” The instruction given .with respect to character reads: “Evidence of good character has been introduced by the Defendant. It goes to the proposition of the Defendant’s guilt and bears upon the general question of guilty or not guilty, which shоuld be considered by you with all the other evidence in the case.” As to the presumption of innocence and the burden of proof, the trial court instructed that the state had the burden of proving all the material and essential elements of the crime charged beyond a reasonable doubt; that the defendant was “presumed innocent until the contrary is proved and in case of legal doubt, he is entitled to an acquittal.” And again, “The burden of proof in this case rests upon the- Prosecution from the beginning to the end of the trial, to establish beyond a reasonable doubt every essential element to the conviction of the Defendant.”
These instructions, and others given by the trial court, satisfy us that the jury was adequately informed that the defendant was entitled to a presumption of innocence and to proof beyond a reasonable doubt.
Defendant’s сlaim that the case should be remanded to the district court for proper sentencing procedures under Minn. St. *390 246.43 is rendered moot by the fact that defendant was discharged from confinement on February 9, 1972.
Affirmed.