State of Minnesota, Respondent, vs. John William Henderson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-780

 

State of Minnesota,

Respondent,

 

vs.

 

John William Henderson,

Appellant.

 

Filed May 6, 2003

Affirmed

Kalitowski, Judge

Dissenting, Hudson, Judge

 

Hennepin County District Court

File No. 99095438

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant John William Henderson argues that (1) the district court erred by refusing to admit direct or cross-examination testimony concerning the fact that the victim had claimed she had also been sexually abused by another man; (2) the district court abused its discretion by not allowing expert testimony that would have critiqued the interviewing techniques used on the child victim; (3) the district court abused its discretion in deciding that questions concerning appellant's drug use and financial condition were relevant; (4) respondent committed multiple discovery violations during the trial that warrant a new trial; and (5) the jury instructions deprived appellant of his right to a unanimous verdict.  We affirm.

D E C I S I O N

 

I.

            Prior accusations of sexual misconduct are relevant to the victim's credibility only if there has been a determination that the prior accusations were fabricated.  State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  Before admitting evidence of prior false accusations, the district court must determine that a reasonable probability of falsehood exists.  Id.  If the falsity of the prior allegations is clear, the allegations may be admitted to impeach the accuser's other testimony.  Id.

The district court found that appellant did not show to a reasonable probability that the allegation made by V.P. that another man had also sexually abused her was false.  Appellant argues that this decision was erroneous because the evidence showed that the other man could not have sexually abused V.P. within the time frame alleged by V.P.  We disagree. 

As the district court noted, V.P. was unclear about when the incident occurred.  V.P. first told authorities about the sexual abuse involving her aunt's boyfriend in September 2001.  And at that time, V.P. stated that she thought it happened about a year ago, either in the spring or summer of 2000.  V.P.'s aunt lived with her boyfriend in the spring and summer of 2000, at least until August of 2000 when he temporarily moved out.  Therefore, the time frame established by V.P. coincided with when her aunt and her boyfriend lived together.  Moreover, there was a family gathering at the aunt's home around Easter of 2000, and no one remembers if V.P. was present at that gathering.  Thus, it is possible that the alleged act of sexual abuse occurred at that gathering.

In addition, the district court stated that there appeared to be no bad blood between the aunt's boyfriend and V.P. and there was no evidence of any other motive that would have given V.P. a reason to lie.  And while the court noted that the boyfriend appeared to be telling the truth in denying the incident, the court also stated that V.P.'s testimony in regard to the alleged sexual abuse was convincing. 

As the trier of fact, it is up to the district court to assess matters of credibility.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Therefore, given the uncertainty and confusion surrounding the accusation, we cannot say the district court erred by refusing to admit direct or cross-examination testimony concerning V.P.'s prior accusation of sexual misconduct by her aunt's boyfriend because appellant did not establish to a reasonable probability that the prior accusation of sexual misconduct was false. 

II.

            District courts have broad discretion in deciding whether testimony of qualified experts should be received, and this determination will be reversed only for a clear abuse of that discretion.  State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).

            Admissibility of expert testimony is governed by Minn. R. Evid. 702, which states that

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

 

The basic requirement of rule 702 is that of helpfulness.  Helterbridle, 301 N.W.2d at 547.  If the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury's ability to reach conclusions about that subject which is within their experience, then the testimony does not meet the helpfulness test, and the district court is within its discretion to exclude it.  Id.  

But even if the testimony is helpful to a jury, the concerns expressed in Minn. R. Evid. 403 must also be considered.  Thus, even relevant, helpful expert testimony may be excluded if the probative value of the testimony is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, or other concerns.  Minn. R. Evid. 403. 

Here, prior to trial, appellant brought a motion seeking to allow the expert testimony of Stanley M. Slowik.  Slowik viewed the videotape of the interview of V.P. conducted at CornerHouse on September 23, 1999.  In that videotaped interview, an employee of CornerHouse questioned V.P. about her allegations that appellant sexually abused her.  In a report prepared for appellant, Slowik listed several observations that he believed made the truthfulness of V.P.'s allegations suspect, including the interviewer's alleged failure to use a structured interview format, the repeating of questions and answers, and the use of leading questions.  Appellant wanted to use Slowik's opinion of the validity of the interview techniques used to indirectly cast doubt on the reliability of the interview. 

The district court, after hearing arguments on the subject, issued an order that prohibited appellant from calling Slowik as an expert witness.  Appellant later brought a motion asking the district court to allow the testimony of Dr. Mary Kenning.  Like Mr. Slowik, Dr. Kenning also would have critiqued the interviewing techniques utilized during the CornerHouse interview.  The district court again denied appellant's motion.  Appellant argues that by not allowing an expert to critique the interviewing techniques used during the CornerHouse interview, the district court abused its discretion.  We disagree.

In State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984), the Minnesota Supreme Court held that comparisons of the emotional and psychological characteristics observed in sexually abused children to those observed in the complainant is a proper subject of expert testimony because it is outside the knowledge of a lay jury and would be helpful to it.  Thus, although Myers dealt with a different aspect of expert testimony regarding a sexually abused child, the holding in Myers suggests that the proffered expert testimony here, which involved the critique of interviewing techniques utilized on a child who complains of sexual abuse, may be helpful to a jury.

            But even if the expert testimony may have been helpful to a jury under Minn. R. Evid. 702, we conclude that on these facts it was within the discretion of the district court to conclude that the testimony's prejudicial effect outweighed its probative value under Minn. R. Evid. 403. 

            In State v. Erickson, 454 N.W.2d 624, 626 (Minn. App. 1990), this court addressed whether the district court abused its discretion by excluding expert testimony regarding learned memory and the suggestibility of children.  The expert in Erickson would have testified about certain characteristics of the child's speech and how the new words, lack of detail, and ambiguity in her speech indicated that she was not talking about actual events.  Id. at 627-28.  After analyzing Myers, we concluded that even if the testimony met the helpfulness requirement of Minn. R. Evid. 702, it was within the district court's discretion to exclude it under Minn. R. Evid. 403.  Id. at 628-29. We noted that in most cases, even though an expert's testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert's opinion mitigates against admission.  Id. at 628.  And we held that although the expert testimony may not be properly excluded based solely on the fact that it tends to show that a witness is not telling the truth, it was within the discretion of the district court to find that the potential for unduly influencing the jury's credibility assessment was too great for such arguably helpful information.  Id.

            As in Erickson, the district court here carefully and properly analyzed whether the expert's potential for confusing or misleading the jury was high.  The court noted that the interview was conducted by an employee of an independent state agency, CornerHouse, that specializes in child abuse evaluation and has been recognized by courts in Minnesota for the "professionalism" of its interviews.  See State v. Danforth, 573 N.W.2d 369, 375 (Minn. App. 1997).  And most importantly, the district court concluded that the expert testimony proffered by appellant was likely to mislead or confuse the jury.  By attacking the interviewing techniques used by the interviewer, appellant's expert would have implicitly asserted that V.P. was not telling the truth.  And credibility determinations are ordinarily within the province of the jury.  State v. Saldana, 324 N.W.2d 227, 231 (Minn. 1982).  Moreover, expert testimony on the truthfulness of sexual abuse allegations by children in general is improper.  Adesiji v. State, 384 N.W.2d 908, 912 (Minn. App. 1986), review denied (Minn. June 13, 1986).

We conclude that it was within the discretion of the district court to determine that the credibility of V.P. should not turn on the outcome of a battle of experts.  See Myers, 359 N.W.2d at 609-10.  Thus, the court also limited the CornerHouse interviewer's testimony to the general interview process and the protocol used in the interview, and did not allow the interviewer to testify as to her evaluation of the interview or to give any judgment as to the truthfulness of the interview.  On these facts we cannot say the district court abused its discretion by prohibiting both appellant and respondent from presenting testimony that would have implied that V.P. was either lying or telling the truth. 

            Finally, we note that the supreme court has been very reluctant to allow experts to testify about matters that are generally for the jury's determination and are susceptible to cross-examination.  State v. Ritt, 599 N.W.2d 802, 812 (Minn. 1999).  Thus the district court here properly let the jury view the tape of the interview and draw its own conclusion as to V.P.'s credibility.  In addition, during appellant's cross-examination of the interviewer and closing argument, the district court allowed appellant to explore the interviewing techniques that were used and to argue to the jury that those techniques may have influenced V.P.'s answers.  Thus appellant had the opportunity to question the interviewer about the interview format, the repetition of questions, and the alleged use of leading questions.

            Because we conclude the district court properly exercised its discretion in determining that the potential for unduly influencing the jury's credibility assessment in this case was high, the court did not abuse its discretion by not allowing the proposed expert testimony, notwithstanding the fact that the proposed testimony may have met the helpfulness requirement of rule 702.

III.

            Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court.  State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978).  And rulings on relevancy will only be reversed when that discretion has been clearly abused.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  "The party claiming error has the burden of showing both the error and the resulting prejudice."  State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995) (citation omitted). 

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

Minn. R. Evid. 401.  The district court determined that evidence of appellant's financial status and drug use was relevant and allowed the state to question appellant about those topics.  Appellant argues that the district court abused its discretion by permitting the questions.  We disagree.

            During the trial, appellant implied that V.P.'s father had coached V.P. to lie about the sexual abuse in order to get money from appellant.  Thus the prosecutor's questions of appellant, which elicited answers indicating that appellant did not have many assets, made it less probable that V.P. would attempt to blackmail or extort money from appellant.  Therefore, the district court did not abuse its discretion by determining that questions concerning appellant's financial status were relevant.   See State v. Klosterboer, 529 N.W.2d 705, 711 (Minn. App. 1995) (admitting testimony regarding defendant's financial condition was not an abuse of discretion as the evidence could have been relevant to the issue of defendant's motive). 

            And the questions relating to appellant's drug use were also relevant.  V.P. stated that after appellant removed his penis from V.P.'s mouth, appellant blew cigar smoke into her mouth.  This was a unique, consistent detail surrounding the sexual abuse that appellant attempted to discredit at trial by presenting evidence that appellant did not smoke cigars in the house and did not allow others to smoke in the house.  To show that there could have been something else appellant smoked that a person of V.P.'s age could have mistaken for a cigar, respondent introduced evidence of crack pipes that were found in appellant's home. 

            We conclude that the district court did not abuse its discretion by finding that the prosecutor's questions regarding the crack pipes were relevant.  The prosecutor asked the questions to counter the claim made by appellant that appellant could not have possibly blown smoke into V.P.'s mouth because no one ever smoked in the house.  Because evidence of the crack pipes makes it more probable that appellant could have blown smoke into V.P.'s mouth, the questions were relevant.

IV.

The district court is in the best position to determine what harm is caused by discovery violations and whether such harm can be eliminated or alleviated.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  The district court has wide discretion with respect to discovery matters and will not be reversed unless it clearly abuses that discretion.  State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995).  But even if the district court abuses its discretion, this court should not reverse if there is no reasonable probability that, without the error, the result of the trial would have been different.  Id.

Appellant contends that the prosecutor committed four separate discovery violations and argues that these violations require that appellant be granted a new trial.  Appellant argues that discovery violations occurred when the prosecutor failed to disclose (1) V.P.'s accusation against her aunt's boyfriend of sexual abuse; (2) statements by V.P.'s father and mother to the prosecutor that they had smoked crack with appellant in appellant's home; (3) materials relating to appellant's financial situation; and (4) the rebuttal testimony of V.P.'s father.

            1.         Prior Accusation of Sexual Abuse

            The prosecutor immediately informed the trial judge upon learning that the victim had stated she was also abused by another man.  And the trial judge approved of not disclosing this information to appellant.  Thus, there is not a discovery violation.  And even if the prosecutor should have immediately disclosed this information, appellant was not prejudiced by late disclosure.  Appellant concedes that he learned of V.P.'s allegations involving sexual abuse by another man before the trial began.  And the district court heard arguments on whether to admit these allegations as evidence of a prior false accusation of sexual abuse by V.P.  Thus, even if the prosecutor had immediately informed appellant of the allegations of abuse by the other man, the result of the trial would not have been any different. 

            2.         Statements Alleging Use of Crack

            The prosecutor "shall provide defense counsel with the substance of any oral statements which relate to the case."  Minn. R. Crim. P. 9.01, subd. 1(2).  Appellant argues that the prosecutor committed a discovery violation by not informing appellant that both V.P.'s father and V.P.'s mother told the prosecutor that they had smoked crack with appellant in appellant's home.  Appellant contends that this prevented appellant from being prepared to cross-examine those witnesses about their claim of drug use by appellant and about their own drug use.

            Respondent concedes that failing to inform appellant about the allegations involving crack was a discovery violation but argues that appellant was not prejudiced by it.  We agree.

            The district court stated that even if appellant had been told earlier about the statements involving crack, the court would not have permitted appellant to question V.P.'s father and V.P.'s mother about their own drug use as a way of attacking their character because their drug use was a collateral issue.  Moreover, appellant cannot claim that he was unfairly surprised by the allegation that he had smoked crack cocaine because several crack cocaine pipes were found in appellant's home and were admitted into evidence at trial without objection.  Thus, appellant should have been prepared to deal with accusations concerning drug use.  We conclude that it is not reasonably probable that the result of the trial would have been different had disclosure of the statements been made.

            3.         Appellant's Financial Situation

            Respondent admits that it had notes from an investigator on appellant's financial status that the prosecutor failed to share with appellant.  But because the information was within appellant's knowledge, there was no discovery violation.  See Minn. R. Crim. P. 9.01, subd. 1 (requiring disclosure of matters in the "possession or control" of the prosecutor "which relate to the case").  Since the information concerned appellant's own financial status, appellant had equal or greater access to that information.  In addition, the questions could not have unfairly surprised appellant because it was appellant who made his financial status relevant by suggesting at trial that V.P.'s father ordered V.P. to make up the accusations of sexual abuse to extort money from appellant.  

            4.         Rebuttal Testimony

            Respondent admits that it did not inform appellant about the rebuttal testimony of V.P.'s father, but states that the prosecutor learned about the testimony only about a half-hour before the testimony was given.  Thus, while there may have been a technical discovery violation, the violation does not warrant a new trial.  See State v. Spann, 574 N.W.2d 47, 52-53 (Minn. 1998).  The discovery violation was inadvertent, not deliberate and there were no objections to the rebuttal testimony at the time it was given.  And even if appellant had knowledge of the rebuttal testimony, the outcome of the trial would not have been different because the father still would have been permitted to testify about the conversation he had with appellant in order to rebut appellant's testimony. 

V.

            District courts are allowed "considerable latitude" in selecting the language in the jury charge.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (quotations omitted). 

            Appellant was charged with one count of first-degree criminal sexual conduct.  Minn. Stat. § 609.342, subd. 1(a) (2000).  The only element in dispute at trial was whether the act of penetration occurred.  At trial, the state alleged that multiple acts of penetration occurred over a certain period of time.  The district court instructed the jury that in order to find appellant guilty, the state needed to prove beyond a reasonable doubt that

[t]he [appellant's] act took place from on or about December of 1998 to on or about September of 1999 in Hennepin County.  Now, it is not necessary for the State to prove the commission of the charged offense within the precise time period stated in the complaint, which I said is on or about December of 1998 to September of 1999.  As long as the evidence shows beyond a reasonable doubt that the offense occurred very near that time period, further specificity is not required.

 

Although appellant did not object to this instruction, this court may consider the issue on appeal if it involves plain error that is shown to affect substantial rights.  State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999); Minn. R. Crim P. 31.02.

Appellant contends that the district court committed reversible error by not instructing the jury that it had to unanimously agree on which of the alleged multiple acts of sexual penetration appellant committed.  Appellant argues that the absence of such an instruction deprived appellant of his right to a unanimous verdict.  See Minn. R. Crim. P. 26.01, subd. 1(5) (providing that verdicts in criminal cases must be unanimous).  We disagree. 

Appellant relies on State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001), to support his argument.  In Stempf, we held that juries must unanimously agree on which acts the defendant committed if each act constitutes an element of the crime charged.  Id.  

But Stempf is distinguishable because in Stempf the defendant requested and was denied a specific-unanimity jury instruction.  Id. at 357-58.  More importantly, in Stempf the offenses occurred on two different, known dates and in two different, known locations.  Therefore, the offenses lacked a unity of time and place and were thus separate and distinct acts.  Here, the state did not charge and the victim never testified to separate and distinct acts of penetration.  Instead, the victim testified that the sexual penetration occurred over a considerable period of time when she was six and seven years old.  And the state offered evidence that appellant's conduct involved ongoing sexual abuse that occurred in appellant's home over a certain period of time.  Therefore, there is a unity of time and place here that is lacking in Stempf.

Further, Minnesota caselaw indicates that a jury may reach a unanimous verdict without agreeing on precisely how or when a crime was committed if those facts are not elements of the crime charged.  See State v. Cross, 577 N.W.2d 721, 726-27 (Minn. 1998) (jury need not unanimously agree on the incidents establishing a pattern of domestic abuse); State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (permitting the state to charge multiple acts of sexual abuse over an unspecified period of time); State v. Poole, 489 N.W.2d 537, 543-44 (Minn. App. 1992) (holding, in a sexual-abuse case, that because specific dates of sexual abuse were not elements of the offense, the jury was not required to agree on them), aff'd 499 N.W.2d 31 (Minn. 1993).  Therefore, the district court's general unanimity instruction was sufficient to protect appellant's right to a unanimous verdict.  The act of penetration was an element of the crime charged, and the jury was properly instructed that it had to unanimously agree that appellant sexually penetrated V.P.  But it was not necessary for the jury to unanimously agree on exactly when or how the act of penetration occurred, as long as the jury agreed that the act of penetration occurred some time between December 1998 and September 1999. 

Finally, we have considered the additional arguments in appellant's pro se brief and find them to be without merit.

Affirmed.

 

 

HUDSON, Judge (dissenting)

            I respectfully dissent.  While I agree with the majority opinion in all other respects, I would reverse the trial court on issue two, relating to the admissibility of appellant's expert testimony, and remand the matter for a new trial.

            Rule 702 marks the threshold determination for admissibility of expert testimony, that is, helpfulness to the finder of fact.  Minn. R. Evid. 702 (governing expert testimony).  The majority opinion concedes that appellant's proffered expert testimony concerning the validity of the interview techniques used probably satisfied the helpfulness requirement, but concludes that the court had the discretion to exclude the expert's potential testimony because it was likely to mislead or confuse the jury; and because it came too close to invading the jury's exclusive province, that of credibility determination.  I disagree.

            In State v. Myers, 359 N.W.2d 604 (Minn. 1984), the court addressed the admissibility of expert testimony as it relates to the traits of sexually abused children.  Id. at 609.  The court found the expert testimony admissible because the topic met the helpfulness requirement; i.e., the characteristics of sexually abused children are outside the scope of an average jury's knowledge and such information is helpful to deciding the case.  Id. at 610.  Similarly, here, expert testimony concerning the techniques of interviewing sexually abused children is a separate but integrally related component of evaluating the emotional and psychological characteristics of sexually abused children.  I do not believe we can realistically expect an average jury to comprehend interview techniques of sexually abused children because, in essence, we are asking them to understand the emotional and psychological characteristics of sexually abused children, something Myers said we could not expect of an average jury.

The trial court was properly concerned about the credibility of V.P. turning on the outcome of a battle among experts.  The majority opinion echoes that concern.  But I believe that the trial court went too far here in excluding appellant's expert testimony.  Myers recognized that much expert testimony "tends to show that another witness either is or is not telling the truth.  That fact, by itself, does not render the testimony inadmissible."  Id. at 609.  At the end of the day, the proper emphasis should be on whether the expert testimony either aids the jury in determining a fact at issue or helps the jury understand the evidence.  Id. at 609.  As in Myers, appellant's proffered expert testimony would have significantly aided the jury in understanding the evidence presented at trial.[1]  Thus, on these facts, the trial court abused its discretion by refusing to allow appellant's expert to testify about the validity of the CornerHouse interview technique.  

Such a holding is especially warranted here, where the trial court's refusal to allow appellant's expert testimony resulted in an unequal playing field between the state and the defendant.  The trial court allowed the state to "build up" the credentials of the CornerHouse interviewer through a discussion of the interviewer's experience and credentials.  The state was also allowed to present the jury with CornerHouse's standard interviewing protocol.  The end result was that the state clearly implied that V.P.'s CornerHouse statement was obtained by an expert and in a manner designed to elicit accurate and truthful information from a child.  This was a close case in which the CornerHouse tape played a critical role - the jury asked to view the taped interview a second time.  In addition, the jury sent two notes to the court, first inquiring whether they could be a hung jury and later informing the court that they could not come to a unanimous decision.  Against this backdrop, I believe that the probative value of appellant's expert witness testimony outweighed any prejudicial effect under Minn. R. Evid. 403, and the trial court abused its discretion in refusing to allow appellant's expert witness to testify.  Appellant is entitled to a new trial.

 

[The following footnote is from the dissenting opinion.]

[1] Because interviewing techniques in child sexual abuse cases is a subject with which lay jurors are often unfamiliar, some jurisdictions have adopted a bright line rule by holding that it is error to preclude expert testimony regarding the propriety and effect of specific interviewing techniques on children in sexual abuse cases.  See, e.g., Barlow v. State, 507 S.W. 416 (Ga. 1998); State v. Gersin, 668 N.E.2d 486 (Ohio 1996).