This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Michael NMN Hale,




Filed February 27, 2001


Schumacher, Judge


Hennepin County District Court

File No. 99076908



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


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


John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Michael NMN Hale challenges his conviction for second-degree criminal sexual conduct, arguing the trial court abused its discretion by admitting opinion testimony.  We affirm.


            In the summer of 1999, Hale was visiting his cousin S.H., who lived with her boyfriend and their three sons.  Also living in the house for the summer was K.H., the eight-year-old daughter of another cousin.  On the night of August 3, 1999, Hale slept in the same bed as K.H.  When S.H. came into the bedroom to change one of her son's diapers, K.H. told S.H. that she could not sleep because Hale was "messing with her."  K.H. told S.H. that Hale had touched her "butt" and her "privacy."  S.H. phoned the police, who arrested Hale shortly thereafter.  The state charged Hale with second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1998). 

At trial, the state presented K.H.'s testimony that Hale had touched her.  Also testifying were witnesses to whom K.H. had made statements about the alleged abuse, including S.H., her boyfriend, two police officers who had interviewed K.H., and K.H.'s mother.  Among those testifying was Dr. Carrie Tibbles, an emergency medicine resident, who examined K.H. at the emergency room at approximately 2:00 a.m. on August 4, 1999.

During her testimony, Dr. Tibbles described a child protection services form she is required to fill out if there is any question of abuse or sexual assault.  The form includes an assessment of the possible sexual or physical abuse reported; categories include "clinical certainty," "high suspicion," "low suspicion," and "non-applicable."  Tibble testified that, upon conducting a physical exam, she found no signs of physical abuse, which was consistent with K.H.'s report because K.H. had reported touching but not penetration.  Over defense counsel's objection, Tibble testified that after speaking with K.H. and completing the examination she indicated an assessment of "high suspicion" on the form, which she explained is the category used when a patient relates a story of sexual abuse and witnesses corroborate the story yet no objective data is found that would make abuse clinically certain.

The jury found Hale guilty as charged.  The trial court sentenced Hale to 41 months.  Hale appeals.


"Evidentiary rulings rest within the sound discretion of the district court" and will not be reversed on appeal absent a clear abuse of discretion.  State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997) (citing State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990)).  On appeal, the defendant has the burden of establishing that the district court abused its discretion by admitting evidence and the admission of that evidence prejudiced the defendant.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).

The trial court ruled that the disputed testimony concerning the "high suspicion" assessment was properly admissible.  The disputed testimony was subject to extensive cross-examination by defense counsel and was not utilized by the state in closing argument.  While the indication of "high suspicion" on the assessment form was of questionable probative value, we find no prejudicial error.

Dr. Tibbles's account of K.H.'s description of sexual abuse was just one of many such accounts provided to the jury at trial.  Other than K.H. and Tibbles, five witnesses testified as to K.H.'s consistent account of the alleged abuse.  Given this testimony, we conclude that the jury's verdict is "surely unattributable" to any error.  See State v. Juarez, 572 N.W.2d 286, 291-92 (Minn. 1997) (setting out "surely unattributable" standard).  Tibbles testified that the category reflected nothing more than a consistent account for which clinical evidence is lacking.