This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Joel Thomas Sawyer,
Filed September 16, 2003
Ramsey County District Court
File No. K601692
Mike Hatch, Attorney General, Craig L. Engwall, Thomas R. Ragatz, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Parker, Judge.*
Appellant challenges his convictions of criminal sexual conduct involving a mentally impaired person on the grounds that (1) the photo line-up was impermissibly suggestive, (2) the trial court impermissibly allowed hearsay evidence when a nurse’s assistant testified that the victim disclosed to the nursing assistant that she had been sexually abused, (3) the trial court abused its discretion by allowing an expert medical witness to testify that the victim’s allegations were not the delusional product of her mental illness, and (4) the evidence was not sufficient to convict him. We affirm.
Appellant Joel Sawyer worked as a nursing assistant (NA) at the Lexington Health Care Center (Lexington) from February 9, 1999 to March 25, 1999. On April 12, 1999, M.T., a Lexington resident, disclosed to another NA that a member of the health-care center’s staff had sexually abused her. M.T., who has been diagnosed with paranoid schizophrenia and dementia, was living at Lexington because she is unable to care for herself.
Because of M.T.’s difficulty with standing, she uses a wheelchair and requires assistance with basic daily activities, including bathing. At Lexington, M.T. was scheduled for a bath three times a week. In early April 1999, M.T. requested for the first time that only female NAs bathe her. On April 12, 1999, after being helped with a bath by Maggie Harris, an NA, M.T. asked Harris if Harris was going to “shave” her. When Harris said that she thought that they had agreed not to shave M.T.’s legs anymore, M.T. replied, “No, not my legs” and then pointed to her pubic area and said, “Down there.”
M.T. told Harris, after some prompting, that two or three weeks earlier a male NA had come back into her room after helping her with an evening bath and told her that he needed to shave her pubic area. While doing this, the NA told her that he needed to obtain some bodily fluids for the nurses and inserted his finger into M.T.’s vagina. M.T. stated that the NA also fondled her breasts and then told M.T. not to report the incident to anyone and left the room.
Harris asked her who had done this. Although M.T. did not know the NA’s name, she described her assailant as a clean-shaven African American, whose complexion was similar to Harris’s, with short, curly hair. Harris specifically named some of the four male African American NAs working on M.T.’s ward and asked M.T. if one of these men had assaulted her. M.T. said that they had not. Harris did not include appellant’s name as part of the group. Harris retrieved pictures of the male staff members who fit M.T.’s description of the assailant, but did not include a photo of appellant. By this time, appellant was no longer employed at Lexington. Harris asked M.T. if she saw the NA in the group, but M.T. said that she did not.
Harris immediately reported M.T.’s statements to her nursing supervisor, Mary Scullard. Scullard went to M.T.’s room and M.T. gave her the same account of the incident. After learning of the incident, Kristie Beaudet, Lexington’s director of nursing, examined M.T. Beaudet noticed that a sizable portion of M.T.’s pubic hair appeared to have been recently shaved. M.T. relayed essentially the same facts to Beaudet as she had to Harris and Scullard. M.T. stated that she did not know the man’s name but thought it was “Julian” or something similar. The next day, M.T. was interviewed by a police officer. The taped recording was admitted at trial.
In July 2000, a St. Paul police officer presented M.T. with photographs of six different men that generally matched her description of her assailant. Appellant was the only man pictured who was known to have worked at Lexington. After studying the pictures for a few minutes, she selected appellant’s picture (# 2) and said, “That is him.”
Appellant was subsequently charged by amended complaint with criminal sexual conduct in the third degree, penetration of a mentally impaired person in violation of Minn. Stat. § 609.344, subd. 1(d) (1998); criminal sexual conduct in the third-degree, penetration by means of deception or false pretenses of a bona fide medical purpose, in violation of Minn. Stat. § 609.344, subd. 1(k) (1998); criminal sexual conduct in the fourth degree, sexual contact with a mentally impaired person in violation of Minn. Stat. § 609.345, subd. 1(d) (1998); and criminal sexual conduct in the fourth degree, sexual contact by means of deception or false pretenses of a bona fide medical purpose, in violation of Minn. Stat. § 609.345, subd. 1(k) (1998).
During trial, the court made several evidentiary rulings that appellant now challenges. The jury found appellant guilty of both criminal sexual conduct charges involving a mentally impaired person, but acquitted him of the two false-pretense charges. This appeal follows.
Appellant argues that the police pretrial-identification procedure violated his due-process rights because it was impermissibly suggestive when appellant was the only person in the photo line-up that the victim had met. A reviewing court must “determine whether the identification procedures used were so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.” State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979) (quotation omitted). The due-process rights of a defendant may be violated by the use of an unduly suggestive identification procedure. Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 380 (1972). Reliability is the touchstone for determining the admissibility of identification evidence. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).
When determining whether the trial court properly admitted pretrial identification evidence, the appellate courts apply a two-part test. Id. The first prong of the analysis requires an examination of whether the defendant was unfairly singled out by an unnecessarily suggestive identification procedure. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). If the procedure is determined to be unnecessarily suggestive, the reviewing court must then determine whether, under the totality of the circumstances, the identification created “a very substantial likelihood of irreparable misidentification.” State v. Sims, 375 N.W.2d 73, 75 (Minn. App. 1985).
Where the identification procedures are found to be suggestive, the court examines several factors to determine whether the identification is, nevertheless, reliable: (1) the witness’s opportunity to view the defendant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the witness’s level of certainty in his or her identification; and (5) the time between the crime and the identification. State v. Stauffacher, 380 N.W.2d 843, 849 (Minn. App. 1986), review denied (Minn. Mar. 21, 1986). When the identification is found to have an “adequate independent origin, it is considered to be reliable despite the suggestive procedure.” Taylor, 594 N.W.2d at 161 (quotation omitted).
The supreme court has held that a one person show-up was not unduly suggestive, despite the fact that the victim was acquainted with the defendant, precisely because the victim had identified the defendant as her attacker. Id. at 162. Similarly, this court held that a photo line-up was not impermissibly suggestive even though the defendant was the only person pictured with a facial scar, because the scar was not conspicuous. State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986), review denied (Minn. Jan. 16, 1987); but see State v. Darveaux, 318 N.W.2d 44, 47 (Minn. 1982) (finding a line-up to be unduly suggestive where the victim described her assailant as having a limp and the defendant was the only person in the line-up who limped).
Here, based on M.T.’s consistent description that her assailant was an African-American male who was clean shaven and had short, curly hair, the police compiled a photo line-up of six men who fit that description. It would have made little sense to include pictures of the other African-American Lexington employees who worked on M.T.’s floor because she had already stated that they had not assaulted her. We, therefore, conclude that the photo line-up was not impermissibly suggestive. Because the line-up was not impermissibly suggestive, we need not reach the issue of whether there was a substantial likelihood of irreparable misidentification.
Next, appellant contends the trial court abused its discretion by allowing Harris to testify about M.T.’s out-of-court statements concerning the sexual abuse. Appellant argues that the court erroneously ruled that the statements were admissible under Minn. R. Evid. 803(4), because they were made for the purpose of making a medical diagnosis. The state argues that not only were these statements covered by the medical-diagnosis exception to the hearsay rule, but because they have sufficient indicia of trustworthiness, they are also covered by Minn. R. Evid. 803(24)’s catchall exception.
In general, the trial court’s evidentiary decisions will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). It is well established that statements made for the purpose of medical diagnosis carry with them a special guarantee of trustworthiness where a declarant knows that false statements may cause misdiagnosis or mistreatment. White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 743 (1992). In order to be admissible under rule 803(4), however, the statements need not be made to a physician. See State v. Richards, 552 N.W.2d 197, 209 (Minn. 1996) (statement to counselor), and In re Welfare of R.T., 364 N.W.2d 884, 886-87 (Minn. App. 1985) (statement to psychologist). But the mere fact that an individual knows that she is speaking to a health-care provider does not render the statements admissible. State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993). The statements will only be admissible under Minn. R. Evid. 803(4) if the evidence suggests that the declarant knew that she was speaking to medical personnel and that it was important to tell the truth. Id.
In Salazar, the court deemed admissiblestatements made by a child to a social worker, detailing the manner in which she had been abused, because the social worker was part of the diagnostic team and was following up on a doctor’s suspicion that the child had been abused. Id. at 778. Similarly, statements made by a child to a child-protection specialist working in conjunction with a physician were deemed admissible because the specialist did not use leading questions, the child appeared to be attempting to protect her suspected abuser, and became hysterical upon disclosing the abuse. State v. Larson, 472 N.W.2d 120, 127 (Minn. 1991). Conversely, the Larson court did find that statements made to another social worker were inadmissible because the questions posed to the child were leading, they suggested to the child that the social worker suspected that appellant had abused the child, and the child’s answers were ambiguous. Id. at 127-28.
Here, the record does not present a clear picture whether M.T. knew that it was important to tell the truth in order to prevent a potential misdiagnosis or mistreatment when disclosing the sexual abuse to Harris. Although NAs at Lexington do participate to some extent in the medical care of the residents, their duties are not primarily medical in nature. And unlike Larson or Salazar, Harris was not working in conjunction with a physician or other diagnostician to determine whether M.T. had been abused. Although M.T. made the initial disclosure of abuse, once Harris realized that M.T. had been touched inappropriately, she engaged in a quasi-investigation of her own before reporting the matter to her supervisor. For these reasons, we conclude that the statements were not admissible under rule 803(4).
The state makes the alternative argument that even if the statements are not admissible under rule 803(4), the trial court could have admitted them under the residual exception contained in Minn. R. Evid. 803(24). Minn. R. Evid. 803(24) creates a residual exception for a statement that is not admissible as a result of a specific exception to the hearsay rule. The catchall rule provides that a statement is “not excluded by the hearsay rule, even though the declarant is available as a witness” if the statement is
not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Minn. R. Evid. 803(24). Here, M.T. testified at trial, so the issue of appellant’s right to confront his accuser is not present. M.T.’s disclosures go to a material fact – specifically, whether she was sexually abused by appellant. The statements made to Harris are more probative than other evidence because the manner of disclosure (a general question about whether Harris would shave her “down there”) suggests a spontaneous disclosure rather than a rehearsed accusation.
We must also examine whether the statement is trustworthy. In determining whether an out-of-court statement is admissible under Minn. R. Evid. 803(24), “trustworthiness guarantees must be shown from the totality of the circumstances that surround the actual making of the statement.” Larson, 472 N.W.2d at 125. Whether the circumstances surrounding an out-of-court statement possess sufficient guaranties of trustworthiness is a question of law. Salazar, 504 N.W.2d at 776-77. In this line of inquiry, courts have considered whether the statements were spontaneous, whether the person hearing the statements had any preconceived idea of what the declarant would say, whether the declarant made the statements in response to leading or suggestive questions, and whether the declarant had a motive to fabricate the statements or alternatively to speak truthfully. Id. at 777.
Here, M.T.’s disclosure was a spontaneous statement made to Harris as Harris was helping her into bed. Harris clearly had no preconceived ideas concerning what M.T. would say because she initially responded to M.T.’s statement by asking “Down where?,” not understanding that the statement might relate to sexual abuse. Rather than asking leading questions, Harris instead asked M.T. why she was asking Harris if she would shave M.T. Harris testified that she never suggested appellant’s name to M.T. Further, there is no evidence that M.T. had a motive to fabricate the statements.
On this record, we conclude that the statements were sufficiently trustworthy and that the interests of justice were best served by admission of the statements to Harris into evidence. The initial statements to Harris are more probative on the issue for which they are offered than any other evidence because the statements were spontaneous and concern M.T.’s first disclosure and identification. Further, her description of the incident remained largely consistent throughout the investigation and trial.
Appellant next challenges the trial court’s decision to allow William B. Orr, M.D., the state’s forensic psychiatrist, to testify regarding M.T.’s vulnerability and her ability to testify in court, given her psychiatric diagnoses. Appellant asserts that the trial court improperly allowed Dr. Orr to testify that M.T. was a credible witness who the jury could believe. We disagree. Our review of the record reveals that the issue of M.T.’s competency to testify as well as the trial court’s restrictions on the scope of Dr. Orr’s testimony were carefully and repeatedly addressed by the court, beginning with appellant’s in limine motion. With respect to Dr. Orr’s testimony, the trial court stated:
I conclude that the testimony of Dr. Orr with respect to the diagnosis and the factors rendering [M.T.] a vulnerable adult are admissible. I also conclude that her credibility has been put in question in the opening statements by the reference to delusions and so I will permit evidence regarding her mental capacities as experienced by Dr. Orr in his dealing with her. I will not permit him to give an opinion, his opinion as to whether or not [M.T.] is telling the truth with respect to the events at issue here but I will permit him to testify as to his experience with her in concluding within that his opinion as to whether or not she was accurately relating events to him other than the events that gave rise to this particular case.
“Expert testimony generally 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) (citing State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989)), review denied (Minn. May 15, 1992). Under Minn. R. Evid. 608(a), opinion evidence may support the credibility of a witness, but only where the character of the witness has been attacked. State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997). The standard of review for determinations of expert-witness qualifications and helpfulness is an abuse-of-discretion standard. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000). The decision to admit expert testimony will not be reversed on appeal absent clear error. Bixler v. State, 582 N.W.2d 252, 255 (Minn. 1998).
Minnesota courts have addressed questions relating to whether expert testimony is permissible in various sexual assault cases. In State v. Saldana, 324 N.W.2d 227 (Minn. 1982), the supreme court ruled impermissible expert testimony from an adult victim’s rape counselor who described typical behavior of a rape victim. Id. at 230-31. The court reached this conclusion because testimony that the victim exhibited the symptoms of a rape victim and had, therefore, been raped would prejudice the appellant and would not assist the jury. Id. at 231.
We reached a similar conclusion in State v. Danielski, 350 N.W.2d 395 (Minn. App. 1984), where the prosecutor contended that the expert’s testimony would show that a 17-year-old victim’s behavior was consistent with having been a victim of sexual abuse. Id. at 398. The concern in both instances was that expert testimony on rape-trauma syndrome and familial sexual abuse is not the type of evidence that accurately and reliably determines whether a rape has occurred. Saldana, 324 N.W.2d at 229; Danielski, 350 N.W.2d at 397.
Conversely, in State v. Myers, 359 N.W.2d 604 (Minn. 1984), the supreme court held that the district court did not err in admitting the testimony of a clinical psychologist concerning traits and characteristics typically found in sexually abused children, those traits she observed in the complainant, and her opinion that complainant’s allegations were truthful. Id. at 609. The expert did not testify as to her opinion that abuse had occurred, but that the child’s allegations had remained consistent throughout their meetings. Id. at 608. The Myers court reasoned that, in most sexual-assault cases, the risk of undue influence on the jury mitigates against admitting expert testimony concerning an adult complainant’s credibility, but recognized limited exceptions for unusual cases such as where the alleged victim is a child or mentally impaired person. Id. at 609-10. The court reasoned that, although an indirect effect of the testimony was to bolster the child’s credibility, that fact alone would not preclude the evidence. Id. at 609. The court determined that the particularities of how a child or mentally impaired person could react to a sexual assault might go beyond the realm of most jurors’ knowledge and experience. Id. at 610. Thus, the opinion evidence was admissible.
Here, a significant theme of appellant’s theory of defense, first stated to the jury during his counsel’s opening statement, was that due to her mental illness, M.T. was not a reliable witness. In his opening statement, appellant’s counsel stated:
You’re going to hear testimony and evidence about [M.T.] in the nature of her illness and how it affects her and how it doesn’t affect her. You’re going to hear testimony of in the past [M.T.] has had delusions . . . in regards to what types of things have been done to her and who have done them. All of that is part of this picture. . . . Your job as the jurors is to listen to that evidence and to think about this person, [M.T.], think about how it came up, how this allegation arose, when it arose, and under the circumstances of how it was presented . . . . [L]aying out a road map of what you can expect to hear elicited from the defense is [M.T.] is not always the most compliant with staff at Lexington. [M.T.] is strong-willed, [M.T.] was not always taking her medication as she should be . . . .
Much of appellant’s counsel’s questioning on cross-examination of both Dr. Orr and M.T. centered on the significant delusions she sometimes suffered as a result of her paranoid schizophrenia.
Because appellant questioned M.T.’s ability to accurately perceive reality, Minn. R. Evid. 608(a) allowed the state to offer limited opinion evidence to bolster M.T.’s credibility in its case in chief. See Grecinger, 569 N.W.2d at 194. The trial court concluded that M.T.’s “credibility has been put in question in the opening statements by the reference to delusions and so I will permit evidence regarding her mental capacities as experienced by Dr. Orr in his dealings with her.” The court clearly stated that he would not allow Dr. Orr to give his opinion as to M.T.’s truthfulness regarding the events at issue, but he would allow Dr. Orr to testify as to whether or not M.T. was accurately relating events. Specifically, Dr. Orr was directed to answer three questions: (1) M.T.’s psychiatric diagnosis, (2) whether or not she was a vulnerable individual, and (3) her ability to testify in a courtroom. Appellant does not challenge that M.T.’s psychiatric condition and her vulnerability were relevant because “mental impairment” was an element of the criminal charges. But appellant contends that Dr. Orr improperly “did no more than what the average jury is called to do in virtually every case: decide credibility based upon differences in the witness’ statements.”
Here, Dr. Orr provided the jury with a substantial amount of evidence about how paranoid schizophrenia and dementia affect a person and about M.T.’s ability to accurately perceive and report events. Dr. Orr also testified that in his opinion, M.T.’s allegation of sexual abuse was not consistent with her delusions, because delusions tend to remain constant and follow a particular theme.
This case is different than Saldana. In Saldana, the expert concluded based on the alleged victim’s behaviors, which were consistent with rape-trauma syndrome, that the alleged victim had been raped. 324 N.W.2d at 230-31. Such testimony had the improper effect of suggesting that the victim had been truthful and had been raped. Id. Additionally, the trial court questioned the science leading to the conclusion as much as the admissibility of the conclusion itself. Id. at 229-30.
But in this case, the underlying scientific foundation for Dr. Orr’s opinions concerning paranoid schizophrenia and dementia is not in question. Second, Dr. Orr was respectful of the court’s rulings and walked the fine line between putting his expert “stamp of approval” on M.T.’s testimony, as argued by appellant, and explaining M.T.’s mental capacity in relation to the type of delusional behaviors she exhibits when not taking her medication regularly. Dr. Orr did not testify that M.T. told the truth; he testified as to his understanding of what M.T.’s delusions are and why M.T.’s allegations were not delusional. This testimony did not go to the ultimate factual question in this case. Dr. Orr did not foreclose the possibility that M.T. may have fabricated the event or that her testimony may not have been credible for other reasons, such as an inability to see her assailant or identify him. Like Myers, where an indirect effect of the testimony was to bolster the child’s credibility, that effect alone does not preclude the evidence. 359 N.W.2d at 609. We, therefore, conclude that the trial court did not abuse its discretion.
Finally, appellant argues that the evidence produced at trial was insufficient to convict him. In considering a claim of the sufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that 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, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Here, the jury heard from M.T., herself, who disclosed the details of the sexual assault and identified appellant as the assailant. The state presented no less than five witnesses to whom M.T. recounted essentially the same details of the incident. The state also presented evidence that appellant was at work on the March 1999 dates that he was assigned to bathe M.T. Dr. Orr provided his opinion that M.T.’s testimony was not the product of her mental illness. Viewing the evidence in the light most favorable to the verdict, it was sufficient to allow the jurors to reach the verdict that they did.
G. Barry Anderson, Judge (dissenting)
Because I conclude the district court abused its discretion in allowing the state’s expert witness to testify that the complainant’s allegation of sexual abuse was not a delusional by-product of her paranoid schizophrenic condition, I respectfully dissent and would reverse and remand for a new trial. I concur in all other parts of the majority opinion.
It is well established that the district court enjoys considerable discretion in its decision on whether or not to admit expert witness testimony. State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1997). It is only appropriate to reverse a conviction when the requirement of “apparent error” has been met. State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997).
The touchstone for the admission for expert witness testimony is found in rule 702 of the Minnesota Rules of Evidence. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.
Expert opinion testimony is permissible so long as it addresses matters outside the jury’s knowledge and experience, helps the jury understand the evidence or facts, and the probative impact of the testimony is not substantially outweighed by the danger of unfair prejudice or confusion. State v. Vue, 606 N.W.2d 719, 722 (Minn. App. 2000). But opinion evidence may not be used to vouch for a witness’s credibility. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).
The admissibility of expert psychiatric evidence in a case involving paranoid schizophrenia and the extent to which that testimony can address, directly or indirectly, the credibility of the complainant is a question of first impression for Minnesota appellate courts. But two Minnesota Supreme Court decisions provide helpful guidelines in analyzing this issue.
In State v. Myers, 359 N.W.2d 604 (Minn. 1984), the Minnesota Supreme Court permitted the testimony of an expert witness in connection with sexual abuse of a young child and allowed the expert to explain in some detail the traits and characteristics typically found in sexually abused children and also permitted the expert to testify that complainant’s allegations were truthful. In State v. Saldana, 324 N.W.2d 227 (Minn. 1982), the Minnesota Supreme Court held inadmissible expert testimony regarding rape trauma syndrome because evidence of the typical reactions of a victim did not assist the jury in determining whether or not the act was consensual in a particular case and because the jury was as capable as the expert in assessing the credibility of the alleged adult rape victim. In dicta in Saldana, repeated in Myers, the court noted that “when the alleged victim of a sexual assault is a child or a mentally retarded person there is presented one of those ‘unusual cases’ in which expert testimony concerning credibility of a witness should be received.” Myers, 359 N.W.2d 604, 609.
But no appellate decisions have extended the rules announced in Myers and Saldana to the mentally ill. And even under the Myers and Saldana rules, the expert testimony here “crossed the line” and was not admissible under rule 702 of Minnesota Rules of Evidence.
Here, the state’s psychiatric expert, Dr. Orr, provided the jury with a substantial amount of evidence about paranoid schizophrenia and dementia. This evidence was most likely outside the realm of a juror’s collective knowledge and experience. The psychiatrist explained that although those who suffer from paranoid schizophrenia are delusional, the delusion is generally focused on a particular theme. The delusions experienced by M.T. centered on her family and her father in particular; those delusions included the belief that her father murdered her sister and that her father had hypnotized the world into forgetting that M.T. had walked on the moon. This expert testimony was unobjectionable and no doubt helpful to the jury in evaluating M.T.’s ability to accurately report events. Had his testimony stopped there, appellant’s argument would be without merit.
But, unfortunately, the record is replete with examples of improper expert witness testimony by Dr. Orr in response to direct examination:
Q Did her mental illness affect her ability to recall the incident of March 9, 1999?
. . . .
A I think the dementia interferes with her ability to recall some of what I would term minor details such as the color of the razor or exactly how many – whether it was three weeks or three months ago that the events happened. But in total listening to the story I did not feel the mental illness interfered with my ability to understand her telling me about the event.
. . . .
Q Knowing what you know about [M.T.’s] delusions, is the allegation of sexual abuse that occurred in March of 1999 consistent with her delusions?
. . . .
Q Did she recognize this as a sexual assault?
A I think she recognized that this was not right that it was done to her, that she didn’t want this to happen, that was clear.
. . . .
Q During your evaluation did you determine that [M.T.] understood her role as a victim witness?
Q What about understanding the oath she is going to take?
A In my opinion she does understand.
Q Does she understand the necessity to tell the truth?
A I believe she does . . . .
Q Was [her testimony] consistent with the tapes you have listened to?
A Generally and definitely it was consistent with the tapes.
Q Was it consistent with the statement that she gave to Miss Harris?
The testimony by the expert, considered in total, places the expert in the position of vouching for the complainant’s version of the events and determining that she was, in fact, credible. That determination of credibility should be made by the jury, based on her actual testimony in open court, rather than assurances from an expert that she was credible and consistent. See Vue, 606 N.W.2d at 722 (holding generalized cultural expert testimony could not be used to explain why a Hmong woman would not report incidents of domestic violence because the victim testified and was more than capable to explain her reluctance to go to the police).
Further, the decision to admit this evidence was no small error. The state’s evidence here was relatively weak. The sole link between appellant and the assault came from M.T.’s identification of appellant in a photo line-up conducted nearly a year and a half after the assault. Indeed, M.T. at trial did not even identify appellant as her assailant. At the end of the day, the state’s case consisted primarily of witnesses assuring all concerned that the complainant had told a fairly consistent account of the attack throughout the protracted investigation.
There is little doubt that the evidence was prejudicial to the appellant. Once the expert went beyond generalizations about paranoid schizophrenia and offered the jury specific assurances that this complainant’stestimony was not consistent with her delusions, that this witness understood her oath to tell the truth and that this witness told a version of events consistent with earlier versions, the expert’s testimony unfairly prejudiced the appellant.
Given the record before this court, I believe the district court abused its discretion in allowing the state’s expert psychiatric witness to impermissibly vouch for the credibility of M.T. and I would reverse and remand for a new trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Although M.T. has a roommate, the roommate takes medication that makes her very sleepy in the evening.
 There were only four male African American nurses’ assistants working on M.T.’s ward.
 Unlike many cases where disclosures of sex abuse are admitted pursuant to Minn. R. Evid. 803(4), here appellant had an opportunity to question M.T. about these disclosures, so he was not prejudiced.
 The state first made this argument to the trial court. But because the trial court ruled that the statements satisfied the medical-diagnosis exception, it did not reach this issue. Because the trial court did not reach a decision contrary to the state’s position, the state is permitted to argue this alternative theory without filing its own notice of appeal. Waynewood v. State, 547 N.W.2d 453, 455 (Minn. App. 1996), aff’d on other grounds, 552 N.W.2d 718 (Minn. 1996).