This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Robert Swoboda,
Filed February 29, 2000
Renville County District Court
File No. K09982
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David J. Torgelson, Renville County Attorney, Benjamin H. Frisch, Assistant County Attorney, P.O. Box D, Olivia, MN 56277 (for appellant)
John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414; and
Ralph Edward Daby, John E. Mack, Mack & Daby, 26 Main Street, New London, MN 56273 (for respondent)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant State of Minnesota challenges a pretrial order in a child sexual abuse prosecution, arguing that the district court abused its discretion by (1) ordering an adverse psychological examination of the alleged victim, (2) failing to restrict the examination to non-intrusive questioning, and (3) ordering the mother of the alleged victim to make herself available to the defense expert. We affirm.
Respondent James Robert Swoboda was charged with one count of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(g) (1988), and one count of criminal sexual conduct in the second degree, in violation of Minn. Stat. § 609.343, subd. 1(a) (1988), following allegations made by his stepson E.E. regarding conduct that occurred when E.E. was between four and seven years old. According to the complaint, E.E. gave a statement on September 25, 1998, indicating that from 1989 to 1992, Swoboda had touched E.E.’s penis every night when he put E.E. to bed. He also reported that Swoboda gave him presents to entice him not to tell what Swoboda was doing, and once when he threatened to tell, Swoboda hit him, knocking him unconscious. E.E’s mother corroborated the information that Swoboda put E.E. to bed every night and singled him out by buying him toys. She also stated that one night when Swoboda was putting E.E. to bed, he called out for her to come to the bedroom, and she found E.E. "passed out" and unresponsive.
E.E. has two older siblings, a sister and a brother. Following their parents’ divorce in October 1986, E.E.’s sister lived with her father and the boys with their mother. On February 4, 1990, following sexual abuse allegations against various individuals, including Swoboda, a CHIPS petition was filed. The boys were removed from their home and placed in foster care while Renville County Social Services investigated. At that time, E.E. made no allegations of being touched inappropriately by Swoboda.
The interviews and evaluations of E.E. and his siblings did not substantiate sexual abuse by Swoboda. Therefore, on October 12, 1990, the portions of the CHIPS petition that alleged that he committed acts of inappropriate sexual contact were dismissed before trial.
E.E. did not allege abuse by Swoboda until September 25, 1998. According to the omnibus hearing record, E.E. was in detention at that time for sexual contact with another youth. A police officer who interviewed E.E. asked why he was interested in touching other kids, and E.E. made the allegations about Swoboda touching him while putting him to bed.
At his attorney’s request, Swoboda was evaluated by a licensed psychologist, Dr. S. Margretta Dwyer. Her report was inconclusive regarding whether Swoboda committed the acts of sexual abuse. She requested the opportunity to evaluate E.E. and his mother to better assess whether abuse occurred. Dwyer reported concerns that sexual experimentation among the siblings, counseling, repeated evaluations, and comments or pressure from family members might be influencing E.E.’s memory. Swoboda moved for an order requiring E.E. and his mother to undergo a psychological examination by Dwyer. The state opposed the motion, arguing that the case did not fit within the parameters of State v. Cain, 427 N.W.2d 5 (Minn. App. 1988), and that Cain required that the scope of the examination be limited.
The district court ordered E.E. to make himself available for a standard psychological evaluation during which Dwyer could not subject E.E. to cross-examination regarding prior statements or evaluations. Neither counsel was allowed to be present. The district court found an insufficient basis to require E.E.’s mother to submit to a psychological examination, but ordered her to make herself available to attend E.E.’s evaluation to provide background information as requested.
D E C I S I O N
The district court has discretion to regulate discovery in a criminal case by restricting time, place, and manner. Minn. R. Crim. P. 9.03, subd. 3. This discretion extends to orders for adverse psychological examinations. State v. Cain, 427 N.W.2d 5, 8 (Minn. App. 1988). The state’s appeal from such orders is not subject to the critical impact requirement of pretrial orders regarding suppression of evidence. Id. at 9-10.
1. Adverse Psychological Examination
The state argues that the district court abused its discretion by ordering E.E. to undergo an adverse psychological examination because Swoboda lacks the "compelling reasons" or "substantial showing" of need required by Cain before the district court may allow such an examination. The district court found the facts of the case consistent with the factors this court found appropriate for ordering the evaluation in Cain, particularly in regard to prior allegations of abuse viewed with suspicion by child welfare workers.
The Cain court did "not attempt to formulate a standard for allowing adverse psychological examinations of child sexual abuse victims." Id. at 8. In Cain, the factors found to justify an adverse psychological evaluation of two alleged victims of sexual abuse by their father were prior allegations of abuse viewed with suspicion by child welfare workers, the mother’s perceived "obsession" with sexual abuse, and possible parental influence. Id.
Similarly, the dismissal of portions of the CHIPS petition before trial in 1990, following interviews with E.E. and his brother that failed to confirm the alleged sexual abuse by Swoboda, indicates that the prior allegations of abuse were viewed with suspicion by child welfare workers.
Unlike Cain, there is no indication here that mother is perceived as being obsessed with sexual abuse. But the record of the omnibus hearing indicates that the mother previously made allegations of child sexual abuse against others.
Also, here, as in Cain, there is evidence of possible parental influence on E.E. Comments in the records of the children’s evaluations during the CHIPS investigation indicate that the evaluators believed that mother was "coaching" the boys and putting pressure on them not to talk about any inappropriate sexual behavior.
Because the alleged abuse occurred from seven to ten years ago during the same time period when E.E. (who was four to seven years old) was interviewed and reported no abuse by Swoboda, and because parental pressure may play a role, we conclude that the district court did not abuse its discretion by ordering E.E. to undergo an adverse psychological examination.
The state argues that the district court abused its discretion by failing to impose restrictions on the examination. See id. at 9 (holding that district court abused its discretion by imposing no restrictions on adverse psychological examination). "Case law supports a concern about possible harassment of, or harm to, victims through adverse examinations." Id. at 8. In Cain, the case was remanded "for a protective order limiting the time allowed for the examination and imposing other appropriate restrictions," such as limiting the examiner to a nonintrusive examination that did not approach the scope of a deposition. Id. at 9. Here, the district court ordered a full psychological evaluation, but limited the examination to a standard psychological evaluation, and ordered Dwyer not to subject E.E. to cross-examination regarding prior statements or evaluations. Although the district court did not impose a time limit, E.E. is fourteen, considerably older than the four- and six-year-old children evaluated in Cain. See id. at 6.
We conclude that the state failed to show that the restrictions imposed by the district court were insufficient to protect the victim.
3. E.E.’s Mother
The state argues that the district court abused its discretion by requiring E.E.’s mother to make herself available to provide background information to Dwyer. The district court found insufficient basis to require E.E.’s mother to submit to a psychological evaluation, but ordered her to attend E.E.’s evaluation to provide background information, finding this to be consistent with the restrictions in Cain. The district court also stated in its memorandum that it believed a one-hour general-purpose interview would be sufficient.
The state failed to show that the district court abused its discretion by requiring E.E.’s mother to make herself available to provide the defense psychologist with background information relating to the alleged abuse.