Jack W. Smith, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-509

 

Jack W. Smith,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 10, 2001 Affirmed Willis, Judge

 

Hennepin County District Court

File No. 00043892

 

Robert D. Sicoli, Sarah M. Aho, Thompson, Sicoli & Aho, Ltd., 2520 Park Avenue South, Minneapolis, MN  55404 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Mulally, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Following a jury trial, appellant was convicted of second-degree criminal sexual conduct, a violation of Minn. Stat. § 609.343, subd. 1(a) (2000). Appellant argues that the district court erred by admitting expert testimony concerning the characteristics typically exhibited by sexually abused children and expressing the opinion that the victim was credible.  Appellant also argues that defense counsel was ineffective by failing to object to (1) testimony regarding appellant's bad character, (2) testimony regarding statements made by the victim, and (3) the expert testimony.  Because the district court did not err by admitting the expert testimony and defense counsel did not render ineffective assistance, we affirm. 

FACTS

            Appellant Jack Smith was charged with second-degree criminal sexual conduct for sexually abusing his daughter, G.S.  See Minn. Stat. § 609.343, subd. 1(a) (2000). At trial, G.S. testified that (1) Smith began sexually abusing her when she was five years old by entering her room late at night and rubbing her vaginal area over her underwear;  (2) the abuse continued until she was 14 years old; (3) she did not report the abuse while it was occurring because she was scared; and (4) when she was 16 years old, she told her mother, Pamela Smith, of the abuse.  G.S. also testified that Smith violated a restraining order by going to the Kingdom Hall of Jehovah's Witnesses, where the family worshipped, and sitting in front of G.S. and following her to the bathroom.[1]

Pamela Smith testified that G.S. told her that (1) Smith entered G.S.'s room at night beginning when G.S. was five years old and would touch G.S.'s genital area, (2) Smith stopped touching G.S. when Smith moved out of the house,[2] and (3) Smith went to the Kingdom Hall and sat near G.S. and followed her to the bathroom. Finally, Pamela Smith testified that several years before G.S. reported the abuse, G.S. witnessed Smith masturbating.  Defense counsel did not object to any portion of Pamela Smith's testimony. 

Kimberly Jones-O'Brien, a police officer at G.S.'s school, testified that G.S. told her that (1) Smith began sexually abusing G.S. when G.S. was five years old, (2) Smith would enter G.S.'s bedroom in the middle of the night and fondle G.S.'s genital area, (3) the abuse stopped when G.S. was about 14 years old, and (4) Smith physically abused G.S. throughout her childhood. Jones-O'Brien also testified that G.S. appeared afraid because Smith "was still showing up at Kingdom Hall" and that G.S. felt that she had been stalked by Smith.   Defense counsel did not object to any portion of Jones-O'Brien's testimony. 

G.S.'s two siblings testified that they never witnessed any physical abuse of G.S. and that G.S. never told them about the abuse.   Further, Sallie Sonntag, a close friend of the family, testified that she had personally been abused as a child and that G.S. never reported any abuse to her and she saw no signs that G.S. had been abused.

When defense rested, the prosecutor moved to call Dr. Julia Davis, a sexual-abuse expert, as a rebuttal witness.   The prosecutor argued that Dr. Davis's testimony would explain why (1) G.S. delayed in reporting the abuse and (2) G.S. exhibited no signs of abuse. The prosecutor told the court that Dr. Davis would testify regarding the characteristics of a sexually abused child, including, specifically, whether a delay in reporting abuse was typical of a sexually abused child.  Over defense counsel's objection, the court allowed Dr. Davis to testify.

A jury found Smith guilty of criminal sexual conduct in the second degree, a violation of Minn. Stat. § 609.343, subd. 1(a).  This appeal follows.  

D E C I S I O N

I.

Smith argues that the district court erred by admitting Dr. Davis's testimony, which (1) described the characteristics typically exhibited by sexually abused children; (2) provided eight specific cases of sexually abused children who exhibited behaviors and characteristics similar to G.S.'s; and (3) offered an opinion on the credibility of a hypothetical child, based on G.S., who reported sexual abuse.

The Minnesota Rules of Evidence provide for the admission of expert testimony.  Rule 702 states:

If 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.

 

Minn. R. Evid. 702.  The basic consideration in admitting expert testimony under rule 702 is whether it will assist the jury in resolving the factual questions presented.  As the supreme court has explained,

[i]f 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.

 

State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).  A trial court "has broad discretion in deciding whether testimony by a qualified expert should be received." Id. (citation omitted).  The decision to admit expert testimony will not be reversed on appeal absent clear error.  Bixler v. State, 582 N.W.2d 252, 255 (Minn. 1998).  To warrant reversal, there must be a showing of prejudice as well as error.  State v. Chambers, 507 N.W.2d 237, 239 (Minn. 1993). 

            After the defense rested, the prosecution moved to call Dr. Davis as a rebuttal witness. The court asked the prosecutor if she intended to have Dr. Davis testify to the "likelihood of [G.S.] being sexually abused" or to any "statistics or quantification or any sort of testifying as to [G.S.'s] credibility."  The prosecutor stated that she "would not ask whether [Dr. Davis] believes [G.S.] was sexually abused or whether there was a likelihood that [G.S.] had been sexually abused."

 Dr. Davis testified about the behavioral traits and characteristics typical of sexually abused children and presented case histories of sexually abused children whom she had previously counseled.   The prosecutor then presented a hypothetical based on a child with a history similar to G.S.'s.  Based on the hypothetical, the prosecutor asked Dr. Davis if an assertion of sexual abuse by the child would be credible.  Dr. Davis testified that she "would think that what [the child] was saying * * * [makes] it highly probable that [the child] is credible."

Admissibility

Smith argues that because G.S. was 17 years old at the time of trial and able to testify competently about the abuse, expert testimony should not have been admitted.  Relying on State v. Saldana, 324 N.W.2d 227 (Minn. 1982), and its companion case, State v. McGee, 324 N.W.2d 232 (Minn. 1982), Smith argues that Dr. Davis's testimony exceeded the parameters of permissible expert testimony in sexual-abuse cases.  In Saldana, the supreme court held inadmissible expert testimony about the typical characteristics displayed by a victim of sexual abuse and opinion testimony that the complainant had been raped.  324 N.W.2d at 229-31.  In McGee, the supreme court held inadmissible that expert testimony regarding the complainant's behavior as being consistent with rape-trauma syndrome.  324 N.W.2d at 233.

Smith also relies on State v. Hall, 406 N.W.2d 503 (Minn. 1987), and State v. Danielski, 350 N.W.2d 395 (Minn. App. 1984).  In Hall, the supreme court held admissible expert testimony on the behavioral characteristics of adolescent victims of sexual assault.  406 N.W.2d at 505.  The court limited the scope of its holding, stating that "we do not intend to establish a categorical rule that expert testimony concerning all characteristics typically displayed by adolescent sexual assault victims is admissible."  Id.  In Danielski, this court held inadmissible expert testimony concerning the behaviors associated with sexual abuse where the victim was 17 years old at the time of trial and was capable of testifying about the abuse.  350 N.W.2d at 398.

We conclude, for two reasons, that G.S.'s age and competence at the time of trial did not render Dr. Davis's testimony impermissible.  First, State v. Myers,359 N.W.2d 604 (Minn. 1984), is dispositive here.  In Myers, the district court permitted an expert to describe the characteristics and traits typically observed in sexually abused children and then identify those characteristics and traits that had been observed in the victim.  359 N.W.2d at 608-09.  In holding the expert testimony admissible, the supreme court noted that "[b]y explaining the emotional antecedents of the victim's conduct," the expert "assist[ed] the jury in evaluating the credibility of the complainant."  Id. at 610 (citation omitted).  The court also noted that expert testimony could help explain puzzling aspects of a young victim's behavior, such as a lengthy delay in reporting abuse.  Id.  Similarly, Dr. Davis's testimony here assisted the jury in evaluating G.S.'s credibility because it explained why G.S. delayed in reporting the abuse and did not exhibit signs of abuse. 

Second, Smith's reliance on Saldana and McGee is misplaced.  The victims in Saldana and McGee were adult victims of sexual assault.  Hall, 406 N.W.2d at 504.  In Myers,the court made it clear that Saldana did not apply to situations where the victim was a child, stating that

when the alleged victim of a sexual assault is a child * * * there is presented one of those unusual cases in which expert testimony concerning credibility of a witness should be received.

 

359 N.W.2d at 610 (quotation omitted).  Although G.S. was 17 years old at the time of trial, the abuse began when she was five years old and continued until she was 14.  G.S.'s failure to report the abuse from age five to age 16 was at issue, not her ability to testify about the abuse at the age of 17.

Substance of the Testimony

            Smith also argues that Dr. Davis impermissibly testified (1) about eight specific cases of sexually abused children that exhibited behaviors and characteristics similar to G.S.'s and (2) to the credibility of a hypothetical child, based on G.S., who reported sexual abuse.

But Dr. Davis's case presentations illustrated a characteristic typical of sexually abused children, that is, that many children delay in reporting abuse, particularly if a child is young when the abuse begins or if the child is abused by a family member.  Thus, the case presentations helped the jury understand why G.S. had not reported the abuse.  See, e.g., id. at 608-10 (approving admission of testimony "describ[ing] characteristics or traits typically observed in sexually abused children"); State v. Davis, 422 N.W.2d 296, 299 (Minn. App. 1988) (holding that expert testimony was helpful to the jury because "it provided relevant insight into the cause of some of [the victim's] peculiar behavior, and assisted the jury in evaluating her credibility"). 

            Dr. Davis's testimony on the credibility of a child who reported sexual abuse followed the testimony of G.S.'s siblings and Sallie Sonntag, who testified for the defense.  G.S.'s siblings testified that they never witnessed any physical abuse of G.S. and that G.S. never told them about the abuse.  Sonntag testified that she had been sexually abused by a neighbor when she was a child and that she was "very conscious of the character that strangers, or even familiar people may show * * * especially toward young girls."  She stated that she "did not see at any time [G.S.] showing any signs of that."

            By calling G.S.'s siblings and Sonntag, Smith sought to discredit G.S.  Again, we find Myers dispositive here.  In Myers, the victim's mother conceded that she had not believed her daughter's report of sexual abuse until many months after the report was made.  359 N.W.2d at 611.  In response, an expert on child sexual abuse gave an opinion that the "child was truthful in making her allegations."  Id.  The supreme court held that

[h]aving sought * * * to discredit the child's credibility by showing that the child's mother (the ultimate "expert" with respect to [her child]) did not believe [her child] for several months, the defendant must be said to have waived objection to responsive opinion testimony even though elicited from an expert of a different kind.

 

Id. at 611-12.  Here, the combined testimony of two siblings and a close family friend tended to discredit G.S. to a degree approaching or exceeding the testimony of the victim's mother in Myers.  We conclude that the substance of Dr. Davis's testimony was permissible.

Prejudice

            Finally, Smith argues that the district court's error in admitting Dr. Davis's testimony was prejudicial and, therefore, a new trial is required.  Because we find no error in the admission of the testimony, we do not reach this argument.

II.

Smith contends that he was denied effective assistance of counsel.  A defendant who claims ineffective assistance of counsel must show that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's defective performance, the outcome of the proceeding would have been different.  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).  Whether representation falls below an objective standard of reasonableness requires a determination of whether counsel exercised "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances."  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (quotation omitted).  On review, there is a strong presumption that counsel acted competently.  Dukes, 621 N.W.2d at 252.

Character Evidence

Smith argues that it was objectively unreasonable for defense counsel to fail to object to testimony about Smith's "bad acts."  He asserts four specific claims.

First, Smith contends that defense counsel should have objected to Pamela Smith's testimony that Smith behaved badly during their dissolution proceeding.  But during opening argument, defense counsel strongly implied that G.S.'s credibility would be suspect because her allegations of sexual abuse were made during the context of a "very bitter divorce proceeding."  Pamela Smith's testimony established a factual basis for this implication.

Second, Smith argues that defense counsel should have objected to testimony that Smith physically abused G.S.  But defense counsel used this testimony to discredit G.S.  During closing argument, defense counsel stated to the jury that G.S.'s allegations of physical abuse "did not take place" because "[p]eople would have known," and that "quite clearly, by inference, you should be very skeptical of any claims that [G.S.] makes that she was sexually abused."

Third, Smith claims that defense counsel should have objected to testimony that Smith violated a restraining order at the Kingdom Hall.  But on redirect examination of Smith, after the prosecutor had asked about the restraining order, defense counsel asked whether any referee found that Smith violated the order.  Smith replied, "None whatsoever."  Defense counsel also asked whether Smith obeyed the order even though he did not agree with it.  Smith replied that he did.

Finally, Smith argues that it was "patently unreasonable" for defense counsel to elicit Pamela Smith's testimony that G.S. saw Smith masturbating.  Although the incident was embarrassing, defense counsel sought to bolster Smith's credibility by introducing evidence that when he was confronted about the incident, he told the truth about what had happened.  Defense counsel also sought to discredit G.S. by suggesting that the incident provided a good opportunity for G.S. to tell Pamela Smith about the sexual abuse but that she did not.

We conclude that defense counsel acted competently.  Although defense counsel was ultimately unsuccessful in obtaining a favorable verdict for Smith, the record does not support Smith's claim that he was denied effective assistance of counsel.

Hearsay Statements

Smith also argues that Pamela Smith and Jones-O'Brien testified to statements made by G.S. and that defense counsel should have objected to this testimony as hearsay. 

Pamela Smith's and Jones-O'Brien's testimony was not hearsay, but rather evidence of prior consistent statements made by G.S.  See Minn. R. Evid. 801(d)(1)(B) (providing that statement is non-hearsay if declarant testifies at trial or hearing and is subject to cross-examination concerning statement and statement is consistent with declarant's testimony and helpful to trier of fact in evaluating declarant's credibility as witness).  Before a statement can be admitted under rule 801(d)(1)(B),

the witness' credibility must have been challenged, and the statement must bolster the witness' credibility with respect to that aspect of the witness' credibility that was challenged.

 

State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997). 

            G.S.'s credibility was challenged by the defense. Thus, Pamela Smith's and Jones-O'Brien's testimony was admissible.  Defense counsel did not render ineffective assistance by failing to object to them. 

Expert Testimony

Finally, Smith contends that because it was error for the district court to admit Dr. Davis's testimony, defense counsel should have objected to the testimony.  But because the district court did not err by admitting Dr. Davis's testimony, it was not ineffective assistance to fail to object to the testimony.

Affirmed.

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

[1]After appellant and Pamela Smith separated, Pamela Smith obtained a restraining order against Smith.

[2]Appellant and Pamela Smith separated approximately one year before G.S. reported the abuse.  At the time of trial, appellant and Pamela Smith were divorced.