This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-965

 

State of Minnesota,

Respondent,

 

vs.

 

Jerome E. Thooft,

Appellant.

 

Filed April 17, 2001

Affirmed

Shumaker, Judge

 

Lyon County District Court

File No. K098689

 

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

 

Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN  56258 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            This appeal is from a conviction of first-degree criminal sexual conduct.  Because we conclude the evidence is sufficient to support the conviction and no plain error occurred in the testimony of the state’s expert witness, we affirm.

FACTS

            Appellant Jerome Thooft was charged with first-degree criminal sexual conduct, along with lesser degrees of criminal sexual conduct, committed against B.D., the son of Thooft’s former employer.  B.D. was 16 years old at the time he reported the incident, which he testified occurred in March of 1996, when he was 15 years old.

            B.D. testified that his family was at his sister’s basketball game when Thooft called him.  B.D. testified that he agreed to go with Thooft in order to have sex with a prostitute Thooft said he had procured for him.  He testified that when they arrived at Thooft’s house, Thooft offered him a beer, which he declined, and they went to Thooft’s bedroom, where a pornographic video was playing on the TV.  B.D. then smoked some marijuana, before Thooft began tying him to the bedposts with nylon string.  Thooft performed oral sex on B.D., then had anal sex. 

            The state presented the testimony of Dr. David Kuehl, a licensed psychologist who had treated B.D.  Dr. Kuehl testified that he began meeting with B.D. in August 1998.  Dr. Kuehl testified that he diagnosed B.D. as suffering from chronic post-traumatic stress disorder (PTSD).  He also testified that B.D.’s stress symptoms were correlated with the sexual abuse incident.  The prosecutor asked Dr. Kuehl whether, in his opinion, B.D. could have fabricated his symptoms.  Dr. Kuehl replied that he doubted that and did not know how or why a person would fabricate such symptoms.  Later, after Dr. Kuehl testified he was not surprised that B.D. had trouble remembering the date of the sexual abuse, the prosecutor asked him if he believed B.D. was fabricating the incident.  Dr. Kuehl replied that he did not believe so.

            The jury found Thooft guilty of all four counts of criminal sexual conduct.  The trial court sentenced Thooft to 30 years in prison for first-degree criminal sexual conduct, an upward departure to the statutory maximum, based on the repeat-sex-offender statute.  This appeal followed.

D E C I S I O N

1.         Expert testimony

            Thooft argues that the trial court committed plain error in admitting expert testimony that the victim, B.D., had suffered “severe mental anguish” and was not fabricating the sexual assault or the PTSD symptoms that Dr. Kuehl attributed to the assault.

            This court will reverse a ruling on the admission of expert testimony only when the trial court has abused its discretion.  State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987).  Thooft concedes that defense counsel did not object to the testimony of Dr. Kuehl, and, therefore, this court may review it only for plain error.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (noting reviewing court may review unobjected-to error for plain error only).  In order to meet the plain-error test, Thooft must show error that is plain and that affects substantial rights.  Id.  This court must then determine whether it should address the error “to ensure fairness and the integrity of the judicial proceedings.”  Id.

            The jury had to determine whether B.D. suffered “severe mental anguish” in order to decide whether the state had proved “personal injury,” an element of first-degree criminal sexual conduct.  See Minn. Stat. §§ 609.342, subd. 1(e) (defining offense of first-degree criminal sexual conduct to require “personal injury”), 609.341, subd. 8 (defining “personal injury” to include “severe mental anguish”) (1994).  But expert opinion testimony is not objectionable merely because it embraces an ultimate issue for the jury to decide.  State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982).  This court has held that it was permissible to allow expert testimony on whether a child suffered substantial emotional harm although that was an element of the charged offense of malicious punishment of a child.  State v. Williams, 451 N.W.2d 886, 892 (Minn. App. 1990).  This court held that “emotional harm” caused by physical abuse was not a factual issue within the personal experience or perception of the average juror and was therefore a fit subject for expert testimony.  Id.  Whether a sexual abuse victim has suffered “severe mental anguish” is, like the issue of whether “emotional harm” was suffered by a physical abuse victim in Williams, not a matter within the personal experience of average jurors.  We conclude it was not plain error to admit this testimony.

            Thooft also argues that it was plain error for Dr. Kuehl to give “vouching” testimony in the form of an opinion that B.D. had not fabricated his symptoms or the sexual abuse itself.  See Van Buren v. State, 556 N.W.2d 548, 551-52 (Minn. 1996) (holding it was plain error to elicit testimony vouching for the credibility of another witness).  But expert opinion testimony that the victim was sexually abused has been allowed so long as the expert does not offer an opinion on the identity of the perpetrator.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).  The form of the questions put here to Dr. Kuehl, asking whether there was “fabrication,” was different, and arguably constituted “vouching.”  But the essence of Dr. Kuehl’s response was, as in Dana, that sexual abuse had occurred.

            We conclude that, while the prosecutor may have had some latitude to inquire of Dr. Kuehl whether B.D. had “fabricated” his symptoms, it was wrong to elicit an opinion that B.D. did not “fabricate” the incident.  But we do not find plain error.

            Expert opinion testimony that the defendant committed sexual abuse has been held to be harmless error where the issue in the case was not identity but the occurrence of the abuse.  Id. at 250; State v. Hollander, 590 N.W.2d 341, 349 (Minn. App. 1999).  Moreover, the prosecutor in closing argument did not make any significant use of the improper testimony.  The prosecutor noted Dr. Kuehl’s opinion testimony only once in his closing argument, and that was in the context of a discussion of whether B.D.’s symptoms were fabricated, not whether his story was fabricated.  Moreover, Dr. Kuehl’s testimony, expressed rather hesitantly and inconclusively (“I don’t believe he was [fabricating].  I don’t know why – why one would do that.”) was not a ringing endorsement of B.D.’s credibility, nor did it lend to B.D.’s testimony a “stamp of scientific legitimacy.”  State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (quoting People v. Izzo, 90 Mich. App. 727, 730, 282 N.W.2d 10, 11 (1979)).  Dr. Kuehl did not cite any scientific studies, or even the PTSD diagnosis, to support his conclusion.  Defense counsel himself admitted in closing argument that he did not know why B.D. would fabricate the incident.

            The defense thoroughly questioned Dr. Kuehl’s role in the case, both in cross-examination and in closing argument.  Defense counsel pointed to a statement in the psychological reports that B.D. had consulted a psychologist, apparently on the advice of the county attorney, to “make it look good for his case.”  Defense counsel also brought out several instances in which B.D. had lied, or at least been caught making inconsistent statements, to his psychologists.  Thus, Dr. Kuehl's opinion testimony was undermined both by questions about his role and by his reliance on the account of a possibly untrustworthy patient.

            The ultimate question under the plain-error standard is whether there is a reasonable likelihood that the error substantially affected the verdict.  Van Buren, 556 N.W.2d at 551.  The error here amounted to a single question and a single reference, made in an ambiguous context, in closing argument.  Given the significant defense attack on the psychological testimony and on the credibility of B.D., and given the defense emphasis on an alibi defense, the brief references to Dr. Kuehl’s opinion that B.D. was not fabricating were not likely to have had a substantial effect on the verdict.

            2.         Sufficiency of the evidence

            Thooft argues that the evidence is insufficient to support his conviction.  In reviewing the sufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict and assume the jury believed the state’s evidence and discredited evidence to the contrary.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).  The conviction will not be reversed if the jury, given the state’s burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  The jury determines the credibility and weight to be given the testimony of individual witnesses.  State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988). 

            Thooft’s challenge to the credibility of B.D. is without merit given our standard of review, which requires that we assume the jury believed the state’s witnesses.  Inconsistencies in the victim’s testimony, or between the victim’s testimony and his prior statements, do not require reversal.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  Furthermore, the fact that B.D. did not enter counseling until more than two years after the incident, and that some symptoms, including drug use, preceded the incident, does not make the state’s proof of “severe mental anguish” due to the offense inadequate.  In addition to Dr. Kuehl’s testimony, both B.D. and his mother gave testimony supporting this element of the offense.  Finally, B.D.  was subjected to “force or coercion” when he was blindfolded and tied to the bedposts by a man much bigger than himself who B.D. knew had been in prison.  See generally State v. Day, 501 N.W.2d 649, 652 (Minn. App. 1993) (holding that coercion requires only reasonable fear of bodily harm, not actual threat). 

            The evidence is sufficient to support Thooft’s conviction for first-degree criminal sexual conduct.

            Affirmed.