This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jeffrey Kyle Randall,
Yellow Medicine District Court
File No. K9-04-146
Thomas G. Kramer, Yellow Medicine County Attorney, Keith R. Helgeson, Amanda C. Sieling, Assistants County Attorney, 132 Eighth Avenue, P.O. Box 128, Granite Falls, MN 56241 (for appellant)
John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
The state appeals from a pretrial order granting respondent’s motion for adverse psychological examinations of the alleged victims of respondent’s sexual abuse. Because we see no abuse of discretion in the order, we affirm.
L.S. is the mother of two sons who are the alleged victims in this case: J.D.R., now 19, and A.J.B., now 17. Respondent Jeffrey Randall is not the father of either alleged victim. L.S. and J.D.R. moved in with Randall around June 1997. A.J.B. lived with his father but had visitation with L.S. Randall and L.S. were married in June 1998 and dissolved their marriage sometime before September 2004.
In September 2003, L.S. and her sons were interviewed by a county social worker in response to a report that Randall had sexually abused both sons between June 1997 and September 2003. J.D.R. was interviewed again in March 2004 to clarify some of his statements. Based on these interviews, Randall was charged with six counts of criminal sexual conduct in regard to J.D.R. and one count of criminal sexual conduct in regard to A.J.B.
Randall then hired an attorney. An investigator employed by the attorney produced an affidavit indicating that: (1) L.S. had influenced her sons to report that their biological fathers abused them; (2) L.S. had been enjoined by court order from making false reports of child abuse by A.J.B.’s father; and (3) L.S. had told her sons that it would be financially advantageous for them to report that Randall had abused them. The district court found that this affidavit was sufficient probable cause to grant Randall’s motion for an order directing psychological evaluations of J.D.R. and A.J.B.
The state now challenges the order for the psychological evaluations.
D E C I S I O N
A district court has discretion to order an adverse psychological examination of child sexual abuse victims. See State v. Cain, 427 N.W.2d 5, 8-9 (Minn. App. 1988) (setting out appropriate limitations on adverse psychological examinations of children who are alleged to be victims of sexual abuse). Here, the district court, following Cain, imposed restrictions:
The examinations of J.D.R. and A.J.B. shall be limited to a standard psychological evaluation. [The examiner] shall not subject the children to cross-examination regarding prior statements or evaluations. Neither counsel shall be allowed to be present during said evaluation. The mother of the children shall be present during the evaluations to provide background information as requested by [the examiner] and to provide comfort to the children. The mother of the children is not subject to an evaluation. Each father of the children may, but not is required, [sic] to attend the examination of each respective child to provide background information.
We note that at the time the court issued its order, J.D.R. was 18 and A.J.B. was 16.
The state argues that the district
court abused its discretion in ordering the psychological examinations. The state claims that no purpose would be
served by adverse psychological examinations.
But an adverse psychological examination can “provide information
helpful to a determination of [the alleged victims’] competency and to the
factfinder’s assessment of the weight and credibility of their
state also argues that the district court abused its discretion by ordering the
psychological examinations without either a hearing on the factual basis for
the examinations or a Frye-Mack hearing to establish the reliability of
the techniques used in the examinations.
In finding that the investigator’s affidavit established a prima facie
showing that psychological examinations of the alleged victims were necessary,
the district court relied on Cain.
Cain concluded that a psychological evaluation was justified by
“the prior allegations of abuse, viewed with suspicion by child welfare
workers, and the [alleged victims’] mother’s perceived ‘obsession’ with sexual
abuse. Parental influence is suggested
in the reports, but it may be difficult for a defense expert to probe such
influence based on the reports alone.”
[Randall] alleges [L.S.] has a history of making false and misleading reports to family services and law enforcement concerning abuse of her children. [Randall] alleges the child’s mother [L.S.] has wrongfully accused the boys’ natural fathers . . . of abusing the children numerous times. In [a court] order [L.S.] was enjoined from making false reports and/or accusations of child maltreatment or abuse by [her former husband, A.J.B.’s father].
[Randall] alleges parental influence on the part of [L.S.] . . . [T]he natural father of J.D.R. in an interview with family services expressed his belief [that L.S.] would be capable of influencing the children into saying something that was not true. [L.S.] videotaped A.J.B. stating he refused to return to his father and stating that he was being abused. A [court] order noted [L.S.’s] actions were not appropriate and found the situation was created and encouraged by [L.S.].
These allegations appear to satisfy the requirements for authorizing an adverse psychological examination for each alleged victim.
In support of its argument that the
district court erred by failing to hold a hearing on Randall’s motion, the
state relies on Cain,
where a hearing was held.
Second, the alleged victims in Cain
had already made statements to a psychological therapist and a doctor.
The state further argues that the district court erred by failing to hold a Frye-Mack hearing. Randall proposed asking the psychologist conducting the evaluations to rule out “psychological trauma due to post-molestation syndrome in the alleged victims” and “parental alienation perpetuated by [L.S.] against [Randall] with respect to the alleged victims” and to address “the issue of secondary gain based upon vindictiveness by the alleged victims.” The state argues that a Frye-Mack hearing should have addressed these theories.
Sentinel Mgmt. Co. v.
We see no abuse of discretion in the order for psychological evaluations of Randall’s alleged victims.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court denied Randall’s motion for a psychological evaluation of L.S. That denial is not challenged on appeal.
 The state also argues that the district court abused its discretion in granting Randall’s motion for psychological examinations because, although the state moved to offer expert testimony on “characteristics of adolescents who are being sexually abused” (emphasis added), the district court allowed expert testimony “as to common characteristics and behaviors of children who have been sexually abused” (emphasis added). The state claims that the district court mischaracterized the expert testimony that the state intended to offer. But the state fails to explain why a mischaracterization of the state’s purpose in offering expert testimony equates to an abuse of discretion in permitting Randall to offer expert testimony.
 The district court addressed the state’s request for a Frye-Mack hearing in its memorandum, noting that the hearing would be appropriate only after the evaluation and would be necessary only if respondent intended his expert to offer testimony on parental alienation or secondary gain syndromes.