This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Douglas Arthur Conger,




Filed January 22, 2002


Mulally, Judge*


Otter Tail County District Court

File No. K200326



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


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

David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)



Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.

U N P U B L I S H E D  O P I N I O N


A jury convicted appellant of second-degree criminal sexual conduct.  At trial the district court admitted appellant’s unrecorded statement made during a noncustodial interrogation at a police station as well as the testimony of two witnesses who testfied that sexual abuse had occurred.  We affirm.


After participating in a sexual-abuse program at school in January 2000, then nine-year-old A.C. revealed to Sharon Bjork, a social worker, that her father, Douglas Conger, had touched her breasts and crotch once or twice while she was in her parents’ bed.  Bjork reported A.C.’s allegations to Brian Fox, a detective at the Otter Tail County Sheriff’s Office. 

On January 24, 2000, A.C. was brought to the local police station where, in an interview with Bjork, she repeated the allegations.  A.C. was also examined by Lawrence Eisinger, M.D., a pediatrician.  She repeated the allegations to Eisinger during his medical examination of her.  The day of A.C.’s interview at the police station, Bjork called A.C.’s mother, and asked her and Conger to come to the police station to talk about A.C.’s allegations of sexual abuse.  Fox interviewed Conger twice that day.  Neither interview was recorded. 

Conger subsequently was charged with two counts of second-degree criminal sexual conduct.  He moved to suppress the evidence obtained during his interviews with Fox, alleging that Fox violated the recording requirement in State v. Scales, 518 N.W.2d 587 (Minn. 1994) by failing to record those interviews.  Based on conflicting evidence presented at the omnibus hearing, the district court found that the interrogation was noncustodial and denied Conger’s motion to suppress.  After a trial, a jury found Conger guilty of both counts of second-degree criminal sexual conduct.  This appeal followed.



On appeal, Conger does not allege that the district court erred in determining that the interrogation was noncustodial, but requests that this court extend State v. Scales, 518 N.W.2d 587 (Minn. 1994) to impose a recording requirement on noncustodial interrogations that occur in a police station. 

The supreme court based the Scalesrecording requirement on its “supervisory power to insure the fair administration of justice.”  Id. at 592.  As an intermediate appellate court, we cannot exercise supervisory powers reserved to the supreme court.  State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995).  Accordingly, we previously have held that “[a]ny modification of the recording requirement of Scales must be left to the discretion of the Minnesota Supreme Court.”  Id.

            Here, the district court determined that Conger was not in custody.  He does not appeal that finding.  Because we do not modify decisions based on the supreme court’s supervisory power over the courts, and we have declined to extend the recording requirement in the past, we will not do so now.


Conger also contends that the district court erred in allowing Bjork and Eisinger to testify that they believed that sexual abuse occurred.  Conger argues that these witnesses “vouched” for A.C.’s credibility, and that the district court erred in allowing this testimony. 

            We review Bjork’s testimony for plain error because defense counsel did not object to Bjork’s testimony.  See e.g. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (failure to object to admission of evidence generally constitutes waiver of right to appeal on that basis); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (we may consider waived issue if there is (1) error, (2) error is plain, and (3) error affects the defendant's substantial rights). 

It is well settled that one witness may not “vouch for or against the credibility of another witness.”  State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).  In Van Burenv. State, 556 N.W.2d 548, 550 (Minn. 1996), the supreme court found error where the state elicited testimony from a minor victim, the victim’s friend, and an investigating officer that other people “believed” the victim’s story.  Similarly, in Maurer v. Dept. of Corrections, 32 F.3d 1286, 1290 (8th Cir. 1994), the court found error when four witnesses testified that the complainant was “sincere” in her complaint.

Here, the prosecutor asked Bjork whether she had “made a determination of sexual abuse in this case.”  Bjork responded that she believed that “maltreatment occurred and protective services were needed in this case.”  Bjork only related what she had determined during the course of her investigation and what she believed occurred.  She next stated that A.C. was placed in foster care because of this determination.  In her testimony, Bjork did not “vouch” for A.C.’s statements.  At no time did Bjork comment on whether A.C. was being truthful.  We do not find that the admission of Bjork’s testimony constitutes plain error.

We review the admission of Eisinger’s statements to determine whether the trial court abused its discretion.  See e.g. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997) (court of appeals will not reverse evidentiary rulings absent a clear abuse of discretion). 

In most sexual-assault cases, the risk of undue influence on a jury mitigates against admitting expert testimony concerning a complainant’s credibility, but a limited exception exists for unusual cases.  State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984).  In cases where the alleged victim is a child, experts are permitted to testify about their opinion of whether sexual abuse has occurred.  Id.  We have specifically held that a prosecuting attorney may ask a child abuse expert to give a professional opinion about whether a seven year old was sexually abused.  See State v. Campa, 390 N.W.2d 333, 335 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986). 

Here, the prosecutor asked Eisinger, its expert witness, if he had “an opinion based on a reasonable degree of medical certainty whether or not [A.C.] was sexually abused?”  He responded that he “believed [that A.C.] was sexually abused.”  Over an objection, the judge allowed the question.  In light of State v. Myers, the district court did not abuse its discretion by allowing the question and the expert’s opinion in response.


            Conger also raises several issues in a pro se brief.  He makes a factual argument that the abuse could not have happened without his wife’s knowledge.  But on appeal we must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).   We will not disturb the verdict if the jury could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  Here, A.C. and other witnesses testified that the abuse occurred.  Consequently, we will not disturb the verdict because it is based on evidence presented at trial.

            Conger also questions whether the trial judge’s alleged personal conflicts tainted the proceedings.  But Conger never moved to recuse the trial court judge.  We generally will not consider matters not argued before and considered by the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  We decline to do so here where there is no record on which to determine this issue. 

            Conger’s argument that the trial judge, in response to the jury’s question during deliberations, instructed the jury to assume that the abuse occurred in 1999 is factually incorrect.  The judge did not instruct the jury to make any assumptions about the date.

Conger also raises several issues involving a termination of parental rights action.  That case is distinct from this criminal action and not part of this appeal.  We also decline to dismiss the case based on Conger’s disability.


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