P. v. Bouie

Filed 7/13/06 P. v. Bouie CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Bob S. Bowers, Jr., Judge. Affirmed.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Michael Bouie was convicted, following a jury trial, of four counts of lewd acts on a child under the age of 14 in violation of Penal Code^[1] section 288, subdivision (a). The trial court sentenced appellant to a total term of 12 years in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting evidence of his incarceration, refusing to give his special instructions, excluding certain evidence about the victim's past and that of the woman who encouraged her to report his offenses and in admitting certain late-disclosed evidence. Appellant also contends that the trial court erred in imposing consecutive sentences. We affirm the judgment of conviction

Facts

In 1993, appellant moved in with his girlfriend, Minnie D. Minnie's daughter R. was six years old at the time. Appellant cooked for the family, did household chores and helped R. with her homework. R. called appellant "Daddy."

In 1996, Minnie began working a night shift. She left for work after R. was in bed. Appellant stayed home with R.

At some point after Minnie started working nights, while R. was in the fourth grade, appellant came into R.'s room when she was sleeping and rubbed his "private parts" against her bottom. This occurred two or three times. On three or four other occasions, appellant had R. perform oral sex on him. During some of those incidents, appellant orally copulated R. The sexual assaults stopped about two or three weeks before appellant went to prison for robbery. R. did not tell her mother because she did not want to upset her, and because appellant told her not to tell.

Appellant began his imprisonment on May 13, 1998. Minnie and R. visited appellant in prison and spoke with him on the telephone. About a year before appellant's release date, appellant began to talk with Minnie about being paroled to her house. One of the concerns that he expressed to Minnie was that he had "fooled around" with R. He said that this fooling around was not sexual. Minnie then asked R. if anything had happened between R. and appellant. R. replied "No."

While he was still in prison, appellant became involved with a married prison nurse, Inez Rogers. He gave her a wedding band and they discussed living together after he got out of prison. Appellant told Inez about his former involvement with Minnie. He told Inez that R. had made advances on him and that he had kissed and fondled R. Inez gave appellant $7,000 for their future housing. Appellant gave $6,000 to Minnie. A few months before his release, appellant broke off his relationship with Inez. He told Inez that Minnie had threatened to call the police and tell them that he molested R. if he did not go back to Minnie. Appellant did not return Inez's money.

Inez made an anonymous call to the Department of Children and Family Services ("DCFS") and reported that appellant had molested R.

DCFS investigated two separate reports of child abuse of R. before appellant got out of prison. Minnie claimed that these investigations involved allegations of physical abuse against her alone.

On August 15, 2002, appellant was released from prison. He moved in with Minnie and R., and married Minnie.

A week after appellant moved in with Minnie, DCFS returned to investigate another report of abuse, this time against Minnie and appellant.

At some point thereafter, appellant drove R. to her boyfriend's house. During the drive, he told R. that she "owed" him. Two or three weeks later, appellant told R. that he had a fantasy involving an Asian schoolgirl, and that he wanted R. to dress up in an Asian outfit. This reminded R. of appellant's sexual assaults before he went to prison.

Soon thereafter, R. went to stay with her paternal aunt, Darlene. While there, R. wrote an email to Minnie telling her that appellant had made her perform oral sex when she was in the fourth grade. She also wrote about appellant's Asian schoolgirl fantasy. She asked to live with her Aunt Darlene until her mother divorced appellant. She also told Minnie that she did not want to be alone with appellant, and that she wanted Minnie to take her everywhere she went.

Minnie claimed that R. told lies. When R. came home, Minnie asked her about the email. R. did not want to talk about the email or go to the police. Minnie did not believe that anything had happened. Nevertheless, Minnie took R. everywhere with her.

A few weeks later, appellant and R. had an argument over her poor grades at school. R. told appellant that she did not want him to be her father and that she wanted him out of the house.

A few weeks later, appellant left. He continued to call Minnie and to see her.

About a week after Christmas, R. went to stay with her older cousin E. Kaufman. E. noticed that R. was crying a lot over very minor things. E. asked R. why she was crying. R. replied that appellant had abused her. E. called Minnie. Minnie told E. that appellant had told her that he had "messed around" with R.

About a week later, E. discovered that Minnie had not taken any action on R.'s behalf. E. called the police. R. told the police that she had been sexually molested three to four times a week for two years.

R. went to live with E. Minnie annulled her marriage to appellant.

In March 2004, Inez wrote a letter to appellant's parole officer seeking help in getting her money back. She mentioned that appellant told her that he had molested Minnie's daughter. At trial, Inez testified that appellant told her that he had kissed R., but never actually said that he molested her.

Also in March 2004, at the suggestion of police, Minnie made a pretextual telephone call to appellant. She told him that R. was crying about something appellant had done. Appellant denied having done anything to R.

By the time of trial, Minnie strongly supported appellant, did not want to testify, and was still in love with him.

Discussion

1. Appellant's incarceration

Appellant contends that the trial court erred in admitting evidence that he was in prison from 1998 to 2002 and that Inez was a nurse in the Department of Corrections because this evidence was more prejudicial than probative. He further contends that this error denied him his federal constitutional right to due process of law and a fair trial. We see no abuse of discretion by the trial court.

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

A trial court has broad discretion to weigh the probative value of evidence against its potential prejudicial impact. A court's decision that the probative value of the evidence outweighs its prejudicial impact will not be disturbed on appeal unless the court exercised its discretion in "'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Here, the court found that the evidence of appellant's incarceration was relevant to establish appellant's whereabouts from 1998-2002 and to give context to the other evidence at trial. We agree.

R. testified that appellant stopped molesting her in 1998. Appellant's imprisonment was certainly relevant to explain that cessation. To tell the jury, as appellant proposed, that he had moved to northern California in 1998, could have given the jury a falsely positive picture of appellant, as someone who realized the errors of his ways. Further, between 1998 and 2002, R. (and Minnie) maintained contact with appellant, visiting him, writing to him and speaking with him on the telephone. R. did not tell anyone about appellant's molestation. The fact that appellant was in prison from 1998 to 2002 was relevant to explain R.'s behavior during that time, and to evaluate her credibility. R. was safe from appellant while he was behind bars. She could maintain a platonic relationship with him. She could choose not to upset her mother by revealing the molestation. R. would not have been safe from appellant if he had merely been living in northern California during those four years.

The fact that Inez was a nurse in the Department of Corrections had some probative value as well, since it gave a context to the relationship between appellant and Inez.

The court also found that since appellant's imprisonment was for a non-sexual offense, the prejudice to him would be minimal and could be cured with a limiting instruction. Such a limiting instruction was given to the jury. We agree.

Contrary to appellant's contentions, evidence of a defendant's prior convictions can be admitted for a variety of reasons, ranging from impeachment to proof of motive. (See, e.g., Evid. Code §§ 788, 1102.) Potential prejudice from evidence of such convictions is routinely prevented or cured by the use of limiting instructions. (See, e.g. CALJIC Nos. 2.50, 12.48.5; People v. Price (1991) 1 Cal.4th 324, 431.) Like the trial court, we see nothing about appellant's prior conviction which would render a limiting instruction ineffective.

We see nothing about this properly admitted and limited evidence, considered alone or with other evidence, which rendered appellant's trial fundamentally unfair or denied him due process of law under the U.S. constitution.

2. Limiting instruction

Appellant contends that the trial court erred in refusing to give the jury paragraphs 3 and 4 of his proposed limiting instruction on his incarceration. He further contends that this error denied him his federal constitutional right to due process of law and a fair trial.

Evidence Code section 355 provides: "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."

"No particular form [of instruction] is required as long as the instructions are complete and correctly state the law." (People v. Tatman (1993) 20 Cal.App.4th 1, 10.) "'An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.' [Citations.]" (People v. Wright (1988) 45 Cal.3d 1126, 1135 [citations omitted].)

The correctness of jury instructions is to be determined from the entire charge of the court. (People v. Wilson (1992) 3 Cal.4th 926, 943.) A failure to instruct where there is a duty to do so can be cured by demonstrating that the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given, instructions. (People v. Stewart (1976) 16 Cal.3d 133, 141.)

Here, the trial court instructed the jury with the first part of appellant's proposed limiting instruction, as follows: "This evidence [of appellant's incarceration] was received solely for the purpose of establishing defendant's whereabouts during the period of time referenced in order to give context to the other evidence received in this trial, specifically evidence related to the time frame and chronological history of the defendant's contact and relationships with R. D., Inez Rogers and Minnie De Lacerna. [¶] 2. The offense for which the defendant was incarcerated was not a sexual offense."

The trial court also instructed the jury with CALJIC No. 2.09 which instructed the jury: "Certain evidence was admitted for a limited purpose. At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted."

The trial court refused to give paragraphs 3 and 4 of appellant's proposed instruction. Paragraph 3 read as follows: "You are not to speculate nor to consider or discuss whether or not the defendant was actually convicted for the offense for which he was incarcerated, nor what that offense might be."

Earlier in the proceedings, appellant's counsel asked the court to instruct the jury not to speculate as to whether or not appellant was convicted of a crime at all. The court felt that it would be confusing to instruct the jury that although appellant was in state prison for four years, the jury should not speculate as to whether he had been convicted of a crime. Appellant was essentially repeating this request by including paragraph three in this proposed jury instruction at the conclusion of the trial. We agree with the trial court that paragraph three would have been confusing.

Even to a layman, it would have to seem very odd for a defendant to be incarcerated for four years pending trial. Although appellant contends that the trial court had a duty to remedy any confusion rather than refuse the argument, he offers no suggestion as to how that might be done. We can see no way to make the idea of a four-year incarceration without a conviction anything but confusing and distracting to the jury. In addition, a victim such as R. might react differently to appellant's status in jail awaiting a trial which might result in his freedom than to his status as one convicted of a crime and sentenced to a definite term in prison.

Appellant contends that the last phrase in paragraph three telling the jury not to speculate about the nature of his offense should have been given because it is similar to language found in CALJIC No. 12.48.5.[2] The main danger to appellant from such speculation would be that the jury would speculate that the offense was a sexual one. The jury was expressly instructed that the offense was not a sexual offense. Thus we see no prejudice to appellant from the trial court's refusal to give this last part of paragraph three.

Paragraph 4, which the court also rejected, read as follows: "The evidence of the defendant's incarceration during the period described may not be considered by you to prove that defendant is a person of bad character or that he had a disposition to commit. It may only be used by you for the limited purpose described above."

Appellant contends that this paragraph should have been given because it was based on CALJIC No. 2.50.[3] While this instruction provides a useful additional reminder to the jury, it is essentially a duplicate of paragraph one of appellant's instruction, which set forth the purpose for which his incarceration was admitted, and CALJIC No. 2.09, which expressly told the jury not to consider evidence admitted for a limited purpose for any purpose other than the one specified by the court. Thus, even assuming that the trial court should have instructed the jury with appellant's proposed paragraph 4, we see no prejudice to appellant from this omission.

Appellant's claim of federal constitutional error is based on his claim that the instruction as given was not adequate to prevent the jury from using the incarceration evidence for an improper purpose. Since we have found that the instruction was adequate, we reject appellant's claim of federal constitutional error.

3. Exclusion of evidence

Appellant contends that the trial court erred in excluding evidence that R. had been raped in 1999, while appellant was in prison, precluding a hearing on whether R. had made a false claim of molestation against someone other than appellant, and in excluding evidence of a feud between Minnie and E. involving the alleged molestation of E. and her mother. He contends that these exclusions violated his federal constitutional right to due process of law and a fair trial, and to present a defense and cross-examine the witnesses against him. We see no error.

a. Rape

Appellant contends that the trial court erred in finding that section 782 applied to the evidence of R.'s rape, and that appellant's failure to comply with the procedures of section 782 barred admission of the evidence. We find that the trial court properly ruled that this evidence was not admissible because it was not relevant. Thus, we need not consider whether the trial court's other basis for excluding this evidence was proper.[4]

Appellant contended in the trial court that the rape was relevant because it had caused R. to become "frisky" and that for this reason he was concerned about returning to Minnie's home when paroled from prison. As the trial court pointed out, appellant did return to Minnie's home and his ambivalence about doing so was not relevant to any issue in this case.

Appellant also contends that the rape was also relevant because he made his statement to Minnie about "fooling around" in the context of R.'s becoming "frisky" as a result of rape, and so was admissible pursuant to section 356.

Section 356 provides that where part of a conversation is introduced by one party, the whole of the conversation may be inquired into by the adverse party. The remainder of the conversation must the relevant to the part of the conversation initially introduced into evidence. (People v. Arias (1996) 13 Cal.4th 92, 156.)

We see no relevance to the fact that appellant told Minnie that he "fooled around" with R. before he went to prison because he learned that R. had been raped and so had become "frisky" while he was in prison. Appellant's motivation for disclosure does not offer any illumination of the contents of his disclosure and does not cast any doubt on the truthfulness of that disclosure.

b. Prior false claim of molestation

During cross-examination, Minnie volunteered that R. used a doll to indicate that Santa Claus had "touched" her. Appellant contends that the trial court erred in denying his request to conduct a hearing to determine whether R. has made a false claim of molestation involving the Santa Claus.

False claims of molestation have been held admissible as relevant on the issue of the victim's credibility. (People v. Franklin (1994) 25 Cal.App.4th 328, 335.)

Here, there was nothing in Minnie's statement to indicate that R.'s claim was false, or that Minnie believed that the claim was false. Minnie's testimony does not even clearly indicate that R. claimed that the touching was sexual. R. may simply have been frightened by an innocent touch from a stranger with an unusual appearance.

Determining what, if anything, R. said, and whether any statement amounted to an accusation of molestation which was false would have required a time-consuming and distracting mini-trial. Appellant was speculating at best that R.'s comments involved a false claim of molestation. Section 352 provides that evidence may be excluded if the probative value of the evidence is substantially outweighed by the probability that its admission will necessitate an undue consumption of time. That was the case here.

c. Family molestation

Appellant contends that the trial court erred in excluding evidence that E. and Minnie were involved in a family dispute over whether Minnie's father had molested E.'s mother, and that E. herself had been molested.

In the trial, court appellant contended that Minnie was correct that no molestation had occurred and that E. had "a predisposition to concern herself with, or to contemplate the sexual molestation" and in accordance with this belief had suggested to R. that R. was emotionally upset because she had been molested.[5] As the trial court recognized in excluding this evidence pursuant to section 352, the issue of whether E. was imagining molestation would have required a mini-trial on the issue of whether molestation had actually occurred in E.'s family, and such a mini-trial would have been time-consuming and distracting. Further, there was undisputed evidence that R. made her initial claim of molestation, in an email to Minnie, well before she went to stay with E. There was no evidence that E. suggested molestation to R. while R. was staying with E. Thus, the probative value of E.'s beliefs about molestation was slight at best.

d. Federal claim

As we discuss, supra, evidence of R.'s rape and the subject matter of the family feud had little to no relevance to any issue in the trial. It was speculative at best that R. had made a false claim of molestation against a Santa Claus. The exclusion of such evidence does not violate any of a defendant's rights under the U.S. constitution.

4. Admission of late-disclosed evidence

Appellant contends that the trial court erred in admitting two pieces of evidence which were not disclosed by the prosecutor before trial, and in allowing the testimony of a witness who was not identified by the prosecution before trial. He claims that this error resulted in a violation of his federal constitutional rights.

Section 1054.1 provides that the prosecutor shall disclose specified information to the defendant, if it is in the possession of the prosecutor or if the prosecutor knows the information to be in the possession of the investigating agencies. (§ 1054.1.) This disclosure shall be made at least 30 days before trial, or if it becomes known to the prosecutor within 30 days of trial, the disclosure shall be made immediately. (§ 1054.7)

"'It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.' [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 386-387.)

a. DCFS report

After Minnie testified on cross-examination that DCFS had investigated only physical abuse of R., not sexual abuse, the prosecutor sought and obtained a copy of a DCFS report which was used in juvenile court. This report showed that Minnie did discuss claims of sexual abuse with DCFS caseworkers. The prosecutor used this report on redirect examination to impeach Minnie.

Appellant contends that the DCFS report was a statement of a witness within the meaning of section 1054.1, within the control of the prosecution within the meaning of section 1054.1, and should have been disclosed by the prosecution before trial. We will assume for the sake of argument that appellant is correct, and that the prosecution had a duty to obtain and turn over the DCFS report before trial. Appellant has not met his burden of showing incurable prejudice.

Appellant contends if he had received the DCFS report before trial, his trial counsel would have been better prepared to question Minnie, would have been able to interview the DCFS caseworkers who prepared the report, and could have allowed Minnie the opportunity to explain any inconsistencies between her trial testimony and statements in the DCFS report.

A continuance would have enabled counsel to interview the caseworkers and prepare questions for recross-examination to allow Minnie to explain the inconsistencies. Appellant's counsel did not seek such a continuance.[6] Thus, he cannot complain on these grounds on appeal.

Appellant offers no specifics of how he would have been better prepared to question Minnie, and so we are unable to evaluate this claim. It is appellant's burden to show prejudice.

b. Kaufman

On the first day of trial, the prosecutor announced that he planned to call E. Kaufman as a witness. It appears that she was misidentified in police reports as Leticia Kaufman and the prosecutor was not aware until the first day of trial that Leticia Kaufman and E. Kaufman were the same person. The trial court agreed that the prosecutor could call E. The prosecutor arranged for appellant's counsel's investigator to interview E. that same day.

In the middle of trial, it was learned that E. claimed that her mother had been molested by her own father and that E. herself was molested as a child. At around the same time, either Minnie or E. apparently told appellant's counsel that there was a feud between Minnie and E. about whether E.'s mother was actually molested.

Appellant contends that if he had learned in a timely manner that E. was a witness, he would have learned about the feud earlier and could have "adequately explored or used" this information to support a theory that E. suggested R.'s molestation claims. As we discuss, supra, appellant had an opportunity to argue for the admissibility of this evidence. While we strongly question whether more time would have resulted in a different outcome, a continuance would have given appellant's counsel the time he now claims he needed. He did not seek one, and so cannot prevail on appeal.

c. Pretext tape

During trial, on December 27, the prosecutor disclosed that he had an audiotape of the pretext telephone call between Minnie and appellant in which appellant denied molesting R.

Appellant contends that the disclosure of the pretext tape was so late that he was able to use the tape only as an "afterthought."

We do not agree. Minnie testified about the making of the phone call, and the tape of the call was played to the jury. Appellant made much use of the contents of the phone call in his closing argument. Further, the trial court instructed the jury that the prosecutor had improperly failed to disclose the tape. This certainly creates an inference that the prosecutor thought the tape was important, and may even have given appellant's denial extra weight in the minds of the jury.

d. Federal claims

Appellant contends that the late disclosure of the above two items of evidence and one witness violated his federal constitutional rights. We do not agree.

Brady exculpatory evidence is the only substantive discovery mandated by the United States Constitution. A criminal defendant does not have a general constitutional right to discovery. (Weatherford v. Bursey (1977) 429 U.S. 545, 559; Gray v. Netherland (1996) 518 U.S. 152, 168,; accord, People v. Gonzalez (1990) 51 Cal.3d 1179, 1258.) Under Brady, the due process clause of the U.S. Constitution requires a prosecutor to disclose to the defense any material exculpatory evidence. (Brady v. Maryland (1963) 373 U.S. 83, 87.) "[E]vidence is 'material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different. [Citations.]" (Wood v. Bartholomew (1995) 516 U.S. 1, 5-6.)

Only the pretext tape had any apparent exculpatory value. Minnie's statements to DCFS were inculpatory. E.'s testimony was inculpatory. The dispute between E. and Minnie had some marginal impeachment value, but this evidence was not known to the prosecutor before trial. The prosecutor and appellant's trial counsel appear to have learned of it at the same time during trial.

Further, all the evidence at issue, including the exculpatory evidence, was disclosed during trial. "Brady does not necessarily require that the prosecution turn over exculpatory material before trial. To escape the Brady sanction, disclosure 'must be made at a time when [the] disclosure would be of value to the accused.'" (United States v. Gordon (9th Cir. 1988) 844 F.2d 1397, 1403 [emphasis in original; quoting United States v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1462].) As we discuss above, the tape and the existence of the dispute were disclosed at a time when it still had value to appellant. There was no Brady violation and thus no violation of appellant's federal constitutional rights.

5. Sentence

Appellant contends that the imposition of consecutive sentences based on facts that were neither found by a jury nor admitted by him violates his federal constitutional right to trial by jury as set forth in Blakely v. Washington (2004) 542 U.S. 296.

Appellant's sentencing hearing was in 2005, well after Blakely was decided. Appellant did not raise this claim at the hearing and so has forfeited it. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.)

Appellant contends that if this claim is forfeited, he received ineffective assistance of counsel. The California Supreme Court has found that Blakely is not applicable to consecutive sentencing. (People v. Black (2005) 35 Cal.4th 1238.) Thus, there is no reasonable probability that appellant would have received a more favorable outcome if his counsel had objected. Appellant did not receive ineffective assistance of counsel.

6. Cumulative error

Appellant contends that even if the trial court's errors considered individually are not prejudicial, the cumulative effect of the errors is prejudicial. We have found no error in the trial court's ruling, and so reject this claim.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] All further statutory references are to that code unless otherwise indicated.

[2] That instruction is given when the parties stipulate that the defendant had been convicted of a felony, but do not specify the felony. The instruction states: "Do not speculate as to the nature of the prior conviction. That is a matter which is irrelevant and should not enter into your deliberations."

[3] CALJIC no. 2.50 provides in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant committed [a crime] [crimes] other than that for which [he] [she] is on trial. . . . [¶] [Except as you will otherwise be instructed,] [This] [this] evidence, if believed, [may not be considered by you to prove that defendant is a person of bad character or that [he][she] has a disposition to commit crimes."

[4] The trial court initially ruled that section 782 was applicable to this evidence, and that appellant's failure to comply with the procedures of that section barred him from introducing the evidence. At the same time, the court also found that the evidence was not relevant. The court later found that the procedures of section 782 did not bar appellant from introducing the evidence, but still found the evidence to be irrelevant.

[5] We note that appellant did not seek to present evidence that Minnie and E. were on opposite sides of a bitter family dispute without any reference to the subject matter of the dispute, or to argue that hard feelings from the feud caused E. to suggest molestation to R. and to falsely contradict Minnie's testimony in court.

[6] The trial court asked appellant's counsel if he wanted a continuance. Counsel asked for ten minutes to review the report. After reviewing the report, counsel did not seek a continuance for any purpose. He also did not make the motion for a mistrial which the court invited.