This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-1602

 

In the Matter of the Welfare of:† R.T.G.

 

Filed August 13, 2002

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. J201051263

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103-2106; and

 

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

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN† 55105 (for appellant R.T.G.)

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

In this appeal from an adjudication of delinquency for third-degree criminal sexual conduct, appellant R.T.G. argues that the district court erred in allowing the state to impeach him with his prior delinquency adjudication for misdemeanor theft.† R.T.G. also argues that the court erred in allowing expert testimony by a nurse experienced in sexual-assault assessments about the possibility that a sexually inexperienced victim could be confused about different types of intercourse.† We affirm.

FACTS

††††††††††† In the morning, the victimís mother left the victim, who was then 13 years old, at E.B.ís house to spend the day.† At about 11:30 a.m., E.B. left the victim and some other children at the Boys and Girls Club and instructed them to stay there until she returned to pick them up.

M.A., a foster child who stayed with E.B., went to visit R.T.G., who lived down the block from E.B.ís house.† R.T.G. testified that sometime between 12:30 and 1:30 p.m., at M.A.ís request, he left his house to go and pick up the victim at the Boys and Girls Club.† M.A. testified that earlier in the day, the victim had told him that she wanted to have sex with him.† M.A. testified that the victim was not at the club when R.T.G. got there.† Both M.A. and R.T.G. estimated that R.T.G. was gone for only about 15 minutes, the length of time it takes to walk from R.T.G.ís to the club and back.† Both M.A. and R.T.G. denied that the victim came to R.T.G.ís house.

††††††††††† R.T.G. testified as follows:† After he returned home from the club, he and M.A. stayed in the house and watched television until about 2:30 p.m.† Then they walked over to E.B.ís house and stood outside the gate talking for about ten minutes.† R.T.G. and M.A. then walked to a park about three or four blocks away, stayed there for about 20 minutes, and then returned to E.B.ís house.† E.B.ís daughter, R.B., arrived around the same time and told him that the victim had accused him of raping her.† When the police arrived at R.T.G.ís house that afternoon, he was getting ready to take a shower.† R.T.G. had already taken a shower that morning.

The victim testified as follows:† She left the club and began walking towards E.B.ís house.† She ran into R.T.G. about two blocks from E.B.ís house, and he walked with her part way to E.B.ís house.† When no one answered the door at E.B.ís house, the victim went with R.T.G. to his house because he had told her that M.A. and another friend wanted to see her.† The victim resisted going into R.T.G.ís house, but he grabbed her arm and pulled her inside and then carried her upstairs and laid her on a bed.† When the victim was on her stomach, R.T.G. lay on top of her and sexually assaulted her.† R.T.G. put his penis into the victimís rectum and unsuccessfully tried to put it into her vagina.† After R.T.G. sexually assaulted the victim and she promised not to say anything, he got off of her, and pulled her up.† The victim put on her pants, ran out of R.T.G.ís house, and went to E.B.ís house.† When E.B. returned home later in the afternoon, E.B. and the victim went to pick up R.B. from school.† In the car, the victim reported the sexual assault to E.B. and R.B.

††††††††††† The same day, Lenore Wilson, a registered nurse who works for the Sexual Assault Resource Service, performed a forensic or evidentiary exam, which consists of an interview followed by a physical exam, on the victim.† Wilson had received training to work with sexual-assault victims and had been involved with about 55 cases at the time of trial. †At trial, Wilson described the victimís account as follows:

I believe it was that she came home from school and she normally went to a friendís house after school and that the house was locked and there was nobody home.† And that she was approached by someone who said that this friendís son was at his house and if she went over to his house they could get a key from him so that she could get into the house.† When she went back to this house the male picked her up and carried her into the house and took her into a bedroom and raped her.

 

Wilson testified that the victim was not comfortable revealing a lot of details.† Wilson explained that some young girls are uncomfortable about telling the details of a sexual assault and that in such a situation, she tries to elicit a level of detail that allows her to understand what happened but does not further traumatize the victim.† Wilson testified that the victim reported that she had had vaginal intercourse but did not mention whether she had anal intercourse.

Wilson testified that during the physical exam, she observed two injuries, a two-millimeter laceration of the victimís hymen and a three-millimeter laceration of her posterior forchette, which is located on the vaginal opening towards the anus.† According to Wilson, a two-millimeter laceration of a hymen generally involves sexual penetration.† Wilson testified that the victimís injuries were consistent with forced penetration and inconsistent with consensual penetration.† Wilson explained that when penetration is consensual, the femaleís vaginal area is lubricated and she aligns her body in a manner that does not result in injury.† Wilson opined that the injuries had occurred at most 36 to 48 hours before the exam.

In a statement to Minneapolis police detective Phillip Hogquist, the victim reported that R.T.G. penetrated her vaginally.† At trial, Hogquist did not recall the victimís exact report but thought she was on her back with R.T.G. on top of her, holding her down with his shoulders on her neck.

The district court found R.T.G. guilty as charged.† The court noted that there were many inconsistencies in the evidence regarding the comings and goings of R.T.G. and the victim and their friends and their descriptions of places and events.† The court found that the inconsistencies were attributable to the time lapse between the sexual assault and trial and to the witnessesí ages, education, experience, and language use.† Based primarily on the physical evidence and in part on the victimís immediate reports of the sexual assault and her demeanor when making the reports, the district court found that the victim had had nonconsensual sex.† The district court then stated:

††††††††††† The real question here is whether or not it was [R.T.G.] who she engaged in -- who caused the sexual penetration or who had the sexual penetration or somebody else.

 

††††††††††† There are some facts that I looked at in trying to draw some conclusions on this.† One was from the testimony of defense witnesses and [R.T.G.], about a conversation that the victim had with [M.A.] suggesting that she might be willing to have sex that day.† Apparently [R.T.G.], although the stories differ on when he did this, went to the club for the purpose of getting her to come back and have sex with [M.A.], the follow up on that Iím going to call an offer.

 

††††††††††† I find it interesting that it was [R.T.G.] who went to take care of that issue rather than [M.A.] himself.

 

††††††††††† This explains, at least in part, why the victim testified that [R.T.G.] was saying [M.A.] was looking for her.

 

††††††††††† It also shows that [R.T.G.] knew that the victim had at least thought about having sex with somebody that day.† I note that [M.A.] and [R.T.G.] are both people who used to be boyfriends of the victim and apparently know her on that basis.

 

††††††††††† So in other words, [R.T.G.] went over to the club to retrieve the victim for the possibility of having sex with somebody, whether it was -- I donít know in his mind whether it was for himself or for another.

 

††††††††††† I also know that for the second time that day it appears that [R.T.G.] took a shower and I cannot explain why that would be necessary in November, given what he testified he did that day and also given that he had showered earlier in the morning.

 

I guess the most important thing to me is, and I acknowledge all the inconsistencies here, is what I would have to believe is that the victim falsely accused [R.T.G.] to protect somebody else.† Now, Iíve already found that there was non-consensual forcible penetration.† She would have to decide not to blame the real perpetrator in order to falsely accuse [R.T.G.] in order to come forward on this.† I have nothing before me that suggests that she and [R.T.G.] had any dispute, bad relationship or anything else that would cause her to falsely accuse him and not to name the real perpetrator, if that was a lie.

 

††††††††††† What it really comes down to is she -- I see no reason to disbelieve her testimony.† I see every reason to believe it despite the inconsistencies.† In observing her testimony I felt she was direct, open and honest.† She was confused about times, as was everyone here.† If she wanted to lie I think she could have described a story that made [R.T.G.] look more guilty, for example, not relating that he actually helped her up, or tried to stop her when she left.

 

††††††††††† I noted all the inconsistencies that have been referred to here.† They are inconsistent but I think theyíre explainable.† I note also that [R.T.G.ís] -- if I can call it an alibi -- is nonexistent.† By the testimony here [R.T.G.] was at the possible time this took place, at several, multiple locations where it could not have happened and that by itself is a problem.

 

D E C I S I O N

1.†††††††† At oral argument, the state conceded that R.T.G.ís prior adjudication of delinquency for misdemeanor theft was not a crime involving dishonesty and, therefore, the district court erred in admitting it into evidence for impeachment purposes.[1]† A defendant claiming that the district court erred in admitting evidence has the burden of proving both error and resulting prejudice.† State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996); see In re Welfare of M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001) (applying harmless-error analysis to claim of erroneous exclusion of evidence in a juvenile-delinquency proceeding).† When determining whether erroneously admitted evidence prejudiced defendant,

the question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; to put it another way, if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.†

 

State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

Based on the physical evidence, on the victimís immediate reports of the sexual assault, and on her demeanor when making the reports, the district court concluded that the victim had nonconsensual sex.† From that conclusion, the court reasoned that to find R.T.G. not guilty, it would have to believe that the victim falsely accused R.T.G. instead of blaming the actual perpetrator.† The district court then noted the absence of evidence of any motive for the victim to fabricate charges against R.T.G.† The court also noted that during her testimony, the victim appeared to be ďdirect, open and honest,Ē despite some confusion about times and some inconsistencies in her testimony.† The district court noted that it seemed unusual that R.T.G. had taken a shower on a November afternoon, given his testimony as to what he had done that day and the fact that he had showered earlier in the day.† The court also found that R.T.G.ís credibility was undercut by his claims that during the time period that the sexual assault occurred, he was at several different locations where it could not have happened.† For all of these reasons, the district court credited the victimís testimony and found R.T.G. guilty.

The prior adjudication was only referred to in passing during trial, and the district courtís analysis does not indicate that its assessment of R.T.G.ís credibility was influenced by the prior adjudication.† There does not exist a reasonable possibility that the outcome of this proceeding would have been more favorable to R.T.G. if the prior adjudication had not been admitted.

2.†††††††† R.T.G. argues that the district court erred in admitting into evidence Wilsonís testimony that it would be possible for a sexual-assault victim to confuse anal and vaginal penetration.† Generally, admission of expert testimony rests within the district courtís discretion and will not be reversed absent clear error.† State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995).† Generally, expert testimony is admissible if:

(1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice.

 

State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992).† Minn. R. Evid. 702 sets forth the basic standard for admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact * * * a witness qualified as an expert by knowledge, skill, experience, training, or education may testify * * * in the form of an opinion or otherwise.

 

††††††††††† R.T.G. objected to a hypothetical question to Wilson.† After Wilson testified that she had interviewed and examined girls who were confused about what had happened to them and that a girl could possibly be confused about whether penetration was anal or vaginal, the prosecutor posed the following hypothetical:

Q† * * * If you assume that you had a 14 year old girl who had never had either anal or vaginal intercourse and that the penetration involved entry from the back, the perpetrator was behind her, would you -- if you assume those facts, a 14 year old girl with no prior sexual experience, whether anal or vaginal, and that the penetration occurred from the back, would you be able to give me an opinion as to whether or not a girl in that circumstance could be confused on whether the entry was vaginal or whether the entry was anal?

 

††††††††††† THE WITNESS:† In my professional opinion, if I was confronted with that situation, I would find it believable that a sexually inexperienced girl might be confused if sheís never had intercourse before and if itís non-consensual intercourse, I would imagine it would be painful, as anal intercourse could be painful, and I find it credible that there could be confusion about that.

 

††††††††††† Wilson had been involved with about 55 sexual-assault cases.† In most of those cases, the victims were female, and in about half of the cases, the victims were children.† In addition to her practical experience, she had received training in working with sexual assault victims.† Given her qualifications to testify as an expert, R.T.G.ís objection to the hypothetical question goes to weight, not admissibility.† See State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987) (district court did not err by allowing police officer to testify regarding reporting practices of adolescent victims of sexual assault).† The district court did not err in admitting Wilsonís testimony, and R.T.G. had the opportunity to respond to it, pointing out during closing argument that Wilson only testified that it was possible for a victim to confuse anal and vaginal penetration and did not have any actual experience with that happening.†

††††††††††† Affirmed.



* ††Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

 

[1] In light of the stateís concession, we do not address the admissibility of prior adjudications of delinquency under Minn. Stat. ß 260B.245, subds. 1-2 (2000), and Minn. R. Evid. 609, and we express no opinion regarding whether a prior adjudication should be considered a prior conviction for purposes of Minn. R. Evid. 609.