State of Minnesota, Respondent, vs. Lemuel Wade Holland, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1262

State of Minnesota,

Respondent,

vs.

Lemuel Wade Holland,

Appellant.

Filed April 28, 1998

Affirmed

Toussaint, Chief Judge

Pine County District Court

File No. K6-97-92

Hubert H. Humphrey III, Attorney General, Nancy Bode, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101(for respondent)

John Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Pine City, MN 55063 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Mulally, Judge.[1]

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Lemuel Wade Holland appeals from his convictions for third and fourth-degree criminal sexual conduct. Because there is sufficient evidence to sustain the convictions and the trial court did not abuse its discretion in admitting the testimony of two experts, we affirm.

D E C I S I O N

I.

In reviewing a claim of insufficiency of the evidence, this court is "limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged." State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). This court must view the evidence in the light most favorable to the verdict and assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). The jury is entitled to determine the weight and credibility of the testimony of individual witnesses. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Appellant was convicted of engaging in sexual contact and sexual penetration with a 23-year-old woman whom he knew or had reason to know was mentally impaired. See Minn. Stat. §§ 609.344, subd. 1(d) (third-degree criminal sexual conduct involves sexual penetration with mentally impaired person); 609.345, subd. 1(d) (fourth-degree criminal sexual conduct involves sexual contact with mentally impaired person); 609.341, subd. 6 ("mentally impaired" defined as lacking judgment to give reasoned consent because of inadequately developed or impaired intelligence). The following evidence supports these convictions (1) the victim testified that appellant touched her breast and then had sex with her in her apartment; (2) the victim testified that she was afraid, that she did not want appellant to touch her or have sex with her, and that she kept repeating that her mother would be home soon; (3) the victim's mother and sister testified that the victim cannot say no and has difficulty speaking at all when she is nervous or afraid; (4) one expert testified that the victim's IQ is 76 and that she has the social skills of a fifth or sixth grader; (5) both experts testified that the victim is very shy and introverted and that she is incapable of giving reasoned consent to sexual contact; (6) a number of witnesses described the victim as "childlike"; and (7) the jury observed the victim and her demeanor on the witness stand. Given this record, the jury could reasonably find appellant guilty of third and fourth-degree criminal sexual conduct.

II.

Expert testimony is admissible to assist the jury in determining a fact in issue. Minn. R. Evid. 702. The decision whether to admit expert testimony lies within the broad discretion of the trial court. State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).

In this case, the trial court allowed two experts to testify that the victim was incapable of giving reasoned consent because of her impaired intelligence. Both witnesses had extensive training and experience working with mentally impaired individuals, and both had prolonged contact with the victim while she was in school. Admission of their testimony was proper to assist the jury in determining a fact issue not necessarily within the understanding of an ordinary lay person. See State v. Hitch, 356 N.W.2d 820, 822 (Minn. App. 1984) (under prior version of criminal sexual conduct statute, expert testimony allowed regarding victim's borderline mental capabilities and opinion that victim "would have difficulty appraising the nature of her conduct," which was definition of "mental defect"). Moreover, appellant had the opportunity to challenge the opinions of these experts through cross-examination and, if he had desired, presentation of his own expert. See State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) ("as in other cases, the defendant is free to test the value of the experts testimony through cross-examination and, when appropriate, presentation of his own expert witnesses.") Thus, the trial court did not abuse its discretion in allowing the testimony of these experts.

Affirmed.

[1] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.