State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0932

State of Minnesota,
Respondent,

vs.

Fidel Leon Castro,
Appellant.

Filed June 17, 2019
Affirmed in part, reversed in part, and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-16-29232

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Fidel Castro’s 17- year-old stepdaughter awoke in pain as Castro forced his penis
into her anus. The district court convicted him of third- and fourth-degree criminal sexual
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conduct after a jury found him guilty. Castro appeals from his convictions, arguing that the
district court erroneously admitted the victim’s CornerHouse interview at his trial, failed
to review privileged therapeutic records that would allegedly have impeached a prosecution
witness’s testimony, and improperly convicted him of a lesser-included offense. We affirm
Castro’s third- degree criminal sexual conduct conviction because the victim’s
CornerHouse interview was admissible as a prior consistent statement and the district court
did not abuse its discretion by failing to review records that the therapist’s records
custodian said did not exist. But we reverse Castro’s fourth-degree criminal sexual conduct
conviction because it is a lesser-included offense, and we remand for a corrected judgment.
FACTS
Fidel Castro’s son, 8-year-old J.C.M., told his school therapist that he saw his father
masturbate in front of him and his half-sister, 17-year-old E.L.M., and that he saw a picture
Castro had taken of E.L.M.’s partially naked buttocks while she slept. The school therapist
relayed this report to the Brooklyn Park Police Department. Police spoke with E.L.M.,
Castro’s stepdaughter. E.L.M. told police that, in addition to what J.C.M. reported, she
had been awakened in pain one night to find that Castro had forced his penis into her anus.
The state charged Castro with third- and fourth-degree criminal sexual conduct
against a 17- year-old with whom he shared a significant relationship. A CornerHouse
interviewer spoke with E.L.M. about her report. E.L.M. told the interviewer that Castro
put his penis in her anus while she was clothed.
Before trial, Castro moved the district court to review in camera confidential records
of J.C.M.’s school therapy sessions and other school-behavior records to determine if they
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contained any evidence relevant to his defense. Castro asserted that the records would
reveal that J.C.M. had made other allegations of sexual misconduct and had a history of
inappropriate behavior at school. The district court denied the motion, explaining that it
would order disclosure only if Castro made a plausible showing that J.C.M. had previously
made a false allegation of abuse.
Castro amended the motion to compel disclosure, alleging that J.C.M. had made but
recanted sexual abuse allegations against a classmate and against Castro. The district court
found good cause to order J.C.M.’s therapist to produce copies of any notes “in which
[J.C.M.] discusses sexual assault or inappropriate touching.” The district court received no
documents but instead a note from Mike Turpin, general counsel for the custodian of
J.C.M.’s school records, who stated that he had reviewed the therapist’s notes and found
none referring to sexual abuse or inappropriate touching.
Castro filed another motion for in camera review, arguing that the district court, not
the custodian, should have reviewed the therapy records. The court rejected the argument,
finding that there was nothing for the court to review in light of the statement from the
therapist’s counsel that no qualifying documents existed. The morning before trial,
however, Castro’s attorney informed the district court that Turpin had discovered at least
one reference to inappropriate touching in J.C.M.’s record s. The attorney said that his
investigator had sent Turpin an e- mail telling him to “send that information and anything
else he finds as he reviews the file” to the district court. The district court announced that
it would review the documents when Turpin provided them. The record does not indicate
what, if any, records were provided to and reviewed by the district court.
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At trial, E.L.M.’s testimony was similar to her CornerHouse interview in saying that
Castro put his penis into her anus and that she was clothed at the time. Castro moved the
district court to exclude the recording of the CornerHouse interview from trial, asserting
that it was inconsistent with E.L.M.’s testimony. The district court admitted the recording.
The jury found Castro guilty of third- and fourth-degree criminal sexual conduct,
and it found that Castro knew that E.L.M. was cognitively delayed. The district court
convicted Castro of both offenses. It sentenced him to prison for 48 months on the
third-degree count and 27 months on the fourth-degree count. The district court stayed
execution of the sentence except to order Castro to serve 365 days in jail on each count and
be subject to lifetime registration as a predatory offender.
Castro appeals.
D E C I S I O N
Castro appeals from his third- and fourth-degree criminal sexual conduct
convictions, raising three issues. He argues first that the district court improperly admitted
a recording of the CornerHouse interview under the prior-consistent -statement exception
to the hearsay rule. He argues second that the district court improperly refused to review
J.C.M.’s confidential therapy records. He argues third that the district court wrongly
convicted him of fourth-degree criminal sexual conduct because it is a lesser-included
offense of the third-degree conviction. Only the last argument identifies an error.
I
Castro argues that the district court should not have admitted E.L.M.’s CornerHouse
interview. We review a district court’s decision to admit evidence for a clear abuse of
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discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). The district court admitted
E.L.M.’s CornerHouse interview under the prior-consistent-statement exception to the
hearsay rule. A statement is not hearsay when the declarant is subject to cross-examination
and the statement is consistent with her trial testimony and helpful to the jury in evaluating
her credibility. Minn. R. Evid. 801(d)(1)(b). The issue here is whether the alleged hearsay
statement and trial testimony are “consistent.”
Castro argues that E.L.M.’s CornerHouse interview was not sufficiently consistent
with her trial testimony for admission under the rule. Trial testimony need not be verbatim
with a prior statement to be admissibly consistent. State v. Bakken , 604 N.W.2d 106, 109
(Minn. App. 2000), rev iew denied (Minn. Feb. 24, 2000). Minor discrepancies do not
disqualify the evidence, while inconsistencies that “directly affect the elements of the
criminal charge” do. Id. at 109–10. E.L.M.’s CornerHouse interview and trial testimony
alike depicted an event during which Castro anally penetrated her. The details of neither
account were precise. At trial, she said that Castro put his penis “in” her anus, but because
she was sleeping, she was unsure if it was underneath or on top of her clothes. She said, “I
think it was on my clothes and on my skin,” and she was unsure if it happened “inside or
outside” of her anus because she was wearing shorts. But she was certain that Castro’s
penis hurt her and woke her up. In her CornerHouse interview, E.L.M. said that Castro “put
something in [her].” But she also said that Castro put his penis “on” her butt and that,
because she was wearing clothes during the incident, she thinks Castro’s penis contacted
her clothing. As she later said at trial, E.L.M. told the interviewer that Castro’s penis hurt
her.
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E.L.M.’s equivocal statements about the penetration might have given the jurors
reason to question the nature of Castro’s contact. That the statements were equivocal,
however, does not make them inconsistent. They were tentative in the same way,
consistently describing the detail of the penetration equivocally. This distinguishes this
case from our decision in Bakken , on which Castro principally relies. In Bakken , we held
that a victim’s trial testimony was inconsistent with his prior statement because the prior
statement described the criminal conduct in a manner that was substantially more serious
than his trial testimony. 604 N.W.2d at 110. The victim testified at Bakken’s trial that
Bakken touched his anus with his penis and put his penis in the victim’s mouth. Id. at 108.
In the victim’s prior statement, he described a much more violent attack. He had claimed
that Bakken had also ripped his clothes, threatened to kill him with a knife, and cut him on
the arm . Id. We reasoned that the prior statement was inconsistent because of the
substantially different details, which, if accepted as true, would elevate the offense from
third- to first-degree criminal sexual conduct. Id. at 110. Unlike the Bakken disparity,
E.L.M.’s accusations about Castro’s conduct are substantively the same in both accounts.
Castro also contends that E.L.M.’s CornerHouse statement was inconsistent with
her testimony regarding the time of the incident and the terms she used to refer to Castro’s
penis. At trial, she did not say when the incident occurred and she referred to Castro’s penis
as a “private,” while in her interview she had said the incident occurred around the time of
a wedding and she referred to Castro’s “pipi rin.” The timing omission in one account is
not an inconsistency about what happened, and it does not render the statements
inconsistent with each other. The difference in anatomical terminology is not an
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inconsistency because the context leaves no room to question that E.L.M. was, in both
accounts, referring to Castro’s penis. The district court did not abuse its discretion by
admitting E.L.M.’s CornerHouse interview as a prior consistent statement.
II
Castro argues next that the district court improperly refused to consider J.C.M.’s
confidential therapy records in camera. We review the district court’s use of records
protected by a statutory privilege for an abuse of discretion. State v. Hokanson, 821 N.W.2d
340, 349 (Minn. 2012). The privilege applicable here generally prohibits a therapist from
disclosing any information obtained in the professional assessment or treatment of a client
without the client’s consent. Minn. Stat. § 595.02, subd. 1(g) (2018). Castro argues that the
district court should have viewed J.C.M.’s therapy and behavioral records in camera to
determine if they contained information that might help his defense. The argument fails.
Balancing the witness patient’s privilege to keep private his therapy records against
a criminal defendant’s right to present a defense, “the district court may screen the
confidential records in camera.” Hokanson, 821 N.W.2d at 349. If the district court
discovers information helpful to the defense, the district court must disclose it to the
defendant. See id. But the district court is not required to examine documents in every case
because the “in camera review is not a right.” Id. Before the district court undertakes the
review, “the defendant must first establish a plausible showing that the information sought
would be both material and favorable to his defense.” Id. (quotation omitted).
Castro initially failed to make this requisite showing. He made two requests for the
district court to review J.C.M.’s confidential records. The initial request sought review of
8
records describing J.C.M.’s history of inappropriate behavior. This sort of noncriminal
bad-behavior evidence is generally inadmissible to impeach a witness’s testimony.
See Minn. R. Evid. 608.
Castro’s amended request sought evidence that J.C.M. had made prior sex-abuse
allegations but then recanted, and it therefore described potentially admissible evidence.
The district court ordered the production of any confidential record “in which [J.C.M.]
discusses sexual assault or inappropriate touching,” for the court’s in camera review. We
are not persuaded by Castro’s argument that this process inappropriately delegated the
court’s duty. He cites no authority suggesting, let alone requiring, that the district court
must collect a patient witness’s entire therapeutic record and sift each document for a
statement relevant to the defense before the therapist previews the documents based on the
court’s categorizing directive. See State v. Evans, 756 N.W.2d 854, 871–73 (Minn. 2008)
(affirming district court’s decision to r eview only a portion of a medical record based on
the date of the record). We see no merit to Castro’s delegation argument, because the
district court’s order for production never delegated to the therapist’s records custodian the
task of reviewing the documents to determine their legal relevancy. The district court
instead merely described the content of the documents it wanted the custodian to present
so that the court could conduct the relevancy review from among the full body of only
potentially relevant documents.
In the context of the amended request, Castro announced that the therapist’s records
custodian had apparently missed one or more documents meeting the district court’s
description. But the custodian’s mistake is not an error attributable to the substance or
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procedure of the district court’s directive, and it caused no harm . The district court judge
emphasized its disappointment with the custodian’s oversight, announcing, “I guess it’s
something I will take up with him when he appears because it was a court order. It was his
business . . . to make sure it’s correct.” And the court said that it would review all the
identified potentially relevant documents after the oversight was cured, promising, “I’ll see
what it is when it gets here.”
Castro has not identified any action or omission by the district court that constitutes
an abuse of discretion.
III
Castro persuasively argues that the district court erred by entering judgment of
conviction for fourth-degree criminal sexual conduct because the conviction rests on the
same conduct as his third-degree conviction. The state reasonably concedes the point. The
district court may not enter a conviction for both a crime and a lesser degree of the same
crime occurring in a single behavioral incident. Minn. Stat. § 609.04, subd. 1(1) (2018).
Whether multiple convictions rest on a single behavioral incident is a question of law that
we review de novo. State v. Chavarria-Cruz, 839 N.W.2d 515, 522–23 (Minn. 2013). The
single act of sexual penetration is the only incident described in the probable-cause
statement of the criminal com plaint charging both counts. Third-degree criminal sexual
conduct includes “penetration” under specified circumstances, while fourth-degree
criminal sexual conduct includes “contact” under specified circumstances. Compare Minn.
Stat. § 609.344, subd. 1 (2014) with § 609.345, subd. 1 (2014). When the act of penetrating
that establishes a third -degree charge is the same act of “contact” that establishes the
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fourth-degree charge, the fourth-degree conduct constitutes a lesser-included offense of the
third-degree charge. We therefore reverse Castro’s conviction of the lesser-included,
fourth-degree offense, and we remand for the district court to vacate the judgment and
sentence. And because the district court’s finding that Castro is subject to lifetime
registration as a predatory offender apparently rests on his having been convicted of both
counts, see Minn. Stat. § 243.166, subd. 6(d)(1) (2018), on remand the district court should
also address that finding in light of our decision.
Affirmed in part, reversed in part, and remanded.