This opinion will be unpublished and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

A03-1769

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Robert Voracek,

Appellant.

 

Filed November 3, 2004

Affirmed

Willis, Judge

 

Goodhue County District Court

File No. K6-02-1118

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN  55066-2475 (for respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, Room 254, 875 Summit Avenue, St. Paul, MN  55105 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

On appeal from convictions of second- and fifth-degree criminal sexual conduct, appellant argues that the district court erred by admitting out-of-court statements of the victim and expert testimony that the victim was sexually abused.  Because we find no error, we affirm.

FACTS

            In July 2002, T.M.P., a mentally impaired girl who was then ten years old told her cousin A.M.S. that appellant DaleVoracek recently had touched T.M.P. on her vagina and had kissed her when T.M.P. was at Voracek’s house.  A.M.S. related the statements to T.M.P.’s mother, Christine Smith, who called the Red Wing Police Department to report her daughter’s allegation. 

Detective Craig Lunde of the Red Wing Police Department interviewed T.M.P. at the Goodhue County Law Enforcement Center.  Detective Lunde taped the interview, which was conducted using the Cornerhouse forensic interview technique.[1]  During the interview, T.M.P. repeated her allegations against Voracek.

            The following day, Detective Lunde and another officer went to Voracek’s residence, asked him to accompany them to the police station, and advised him that a complaint of inappropriate touching of a young girl had been filed against him.  That same day, Dr. Margaret Decker, a pediatrician with training in child sex-abuse matters, examined T.M.P. at the Fairview Red Wing Medical Center.  Goodhue County authorities subsequently charged Voracek with criminal sexual conduct in the first, second, and fifth degrees.[2]

            In January 2003, Kathryn Bystrom, a social worker for Goodhue County Social Services, interviewed T.M.P. in an unrelated matter, again using the Cornerhouse technique, and T.M.P. iterated her sexual-abuse allegations against Voracek.

            After a hearing on the state’s pre-trial motion to admit T.M.P.’s out-of-court statements, the district court ruled, without objection by Voracek, that T.M.P.’s out-of-court statements were admissible as substantive evidence.

            Following trial to the court, the district court found Voracek guilty of criminal sexual conduct in the second and fifth degrees and sentenced him to 21 months, stayed, plus a five-year conditional-release term, and placed him on probation for ten years.  This appeal follows.

D E C I S I O N

Voracek contends that the district court erred by admitting into evidence T.M.P.’s out-of-court statements to A.M.S., Smith, Detective Lunde, Dr. Decker, and Bystrom, arguing that the statements were repetitious and, therefore, the evidence substantially prejudiced his defense.  The state contends that Voracek is barred from raising this claim because he did not object to the statements when the state offered them into evidence. 

Generally, a party waives his right to appeal an error by the district court if he did not object to the claimed error at trial.  State v. Wellman, 341 N.W.2d 561, 564 (Minn. 1983).  There is an exception to this rule when (1) there has been an error; (2) the error is plain; and (3) the error affected substantial rights of the appellant.  State v. Winter, 668 N.W.2d 222, 225 (Minn. App. 2003).  An error affects an appellant’s substantial rights if the error was prejudicial and affected the outcome of the case.  State v. Lindsey, 654 N.W.2d 718, 724 (Minn. App. 2002).  An error is prejudicial if there exists a reasonable likelihood that it had a significant effect on the jury’s verdict.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

            Minn. Stat. § 595.02, subd. 3 (2002), provides that

[a]n out-of-court statement made by a . . . mentally impaired [person] as defined in section 609.341, subdivision 6, alleging, explaining, denying, or describing any act of sexual contact . . . performed with or on the . . . person who is mentally impaired . . . not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

 

(a)       the court . . . finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

 

(b)       the . . . person mentally impaired [under 609.341] . . . testifies at the proceedings . . . ; and

 

(c)       the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

 

Minn. Stat. § 609.341, subd. 6 (2002), defines a “mentally impaired” person as “a person [who] as a result of inadequately developed or impaired intelligence . . . lacks the judgment to give a reasoned consent to sexual contact.”

Before trial, the district court determined that T.M.P. is “mentally impaired” under the definition in Minn. Stat. § 609.341, subd. 6.  And the district court ruled that the time, content, and circumstances of T.M.P.’s out-of-court statements and the reliability of the persons to whom the statements were made provided sufficient indicia of reliability to admit the statements as substantive evidence at trial. 

            In support of his argument that he was prejudiced by repetitious testimony regarding T.M.P.’s out-of-court statements, Voracek cites Wilde v. State, 74 P.3d 699 (Wyo. 2003).  In that case, the Wyoming Supreme Court considered a number of issues, including whether the trial court should have admitted into evidence repetitious statements vouching for the credibility of the victim, and concluded that such statements can have a prejudicial effect on the jury that substantially affects the rights of the defendant.

            In addition to the fact that Wilde has no precedential value here, we find the case distinguishable in at least two respects:  first, Wilde reviewed a jury trial.  Voracek’s case was tried to the court.  Sandberg v. Comm’r of Revenue, 383 N.W.2d 277, 282 (Minn. 1986), distinguishes evidence admitted at a jury trial from evidence admitted in a trial to the court, noting that, while jury trials require vigilance for improperly admitted evidence, it is less of a concern in cases tried to the court because “[t]rial judges are trained to separate proper from improper evidence and erase improper actions of counsel from their minds in deciding questions of law and fact.”  Id.  Second, nothing in Wilde suggests that Wyoming had a statute paralleling Minn. Stat. § 595.02, subd. 3, or that the trial court in that case had admitted out-of-court statements after determining, as the district court did here, that there were sufficient indicia of the reliability of the statements.

Moreover, we note that while Voracek argues on appeal that the out-of-court statements were repetitious; he argued at trial, both in his opening statement and his closing argument, that the inconsistencies in T.M.P.’s out-of-court statements showed that she lacked credibility, thereby attempting to use to his advantage the fact that there was testimony describing multiple statements by T.M.P.  We find that the district court did not err by allowing into evidence T.M.P.’s out-of-court statements.

            Voracek also contends that the district court erred by admitting Dr. Decker’s testimony that it was her diagnosis that T.M.P. had been sexually abused because the diagnosis was based solely on what T.M.P. had told Dr. Decker.  He argues therefore, that the testimony was an impermissible opinion regarding T.M.P.’s credibility.  In support, Voracek cites State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984), in which the supreme court stated that “[a]s a general rule . . . [the court will] reject expert opinion testimony” concerning the veracity of a witness. 

            But in Myers the supreme court ruled, inter alia, that expert testimony regarding whether behavioral traits and characteristics typical of a sexually abused child are exhibited by a particular victim is not inadmissible simply because it may bolster the victim’s credibility.  Id. at 609-11.  Here, Dr. Decker testified that she based her diagnosis on a clear statement from T.M.P. that there had been sexual contact between T.M.P. and another person and on “nonspecific” physical-examination findings, which are findings consistent with sexual contact but not conclusive evidence of such contact.  She did not specifically testify whether she believed T.M.P. was telling the truth or whether Voracek had sexually abused T.M.P.  But in any event, the Myers court determined that because the defendant there had put the victim’s credibility at issue, he waived objection to the response of expert-opinion testimony that the victim was truthful in making her allegations.  Here, also, Voracek made T.M.P.’s credibility an issue at trial.  We conclude that the district court did not err by admitting Dr. Decker’s testimony that she diagnosed T.M.P. as having been sexually abused.

            We find that the district court did not err by admitting T.M.P.’s out-of-court statements to A.M.S., Smith, Detective Lunde, Dr. Decker, and Bystrom.  Further, T.M.P. testified at trial and was therefore available for cross-examination, thus satisfying the Confrontation Clause requirements described in Crawford v. Washington, 124 S. Ct. 1354 (2004).

            Affirmed.



[1] The Cornerhouse technique relies on open-ended questioning of a victim, allowing the interviewer to obtain information without prompting a particular response.

[2] The state later dropped the first-degree criminal-sexual-conduct charge.