This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-1596

State of Minnesota,

Respondent,

vs.

Leonard Allen Grecinger, Sr.,

Appellant.

St. Louis County District Court

File No. K8-94-600655

Filed June 11, 1996

Affirmed

Toussaint, Chief Judge

Concurring specially

Randall, Judge

John E. DeSanto, Assistant County Attorney for St. Louis County, 100 North Fifth Avenue West, St. Louis County Courthouse Room 501, Duluth, MN 55802-1298 (for respondent)

Joanna M. Wiegert, 1000 Torrey Building, 314 West Superior Street, Duluth, MN 55802 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Mulally, Judge.*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

On September 28, 1991, appellant Leonard Allen Grecinger, Sr., physically assaulted respondent Barbara Skoglund. Skoglund was hospitalized as a result of injuries received in the assault. She initially filed a complaint against Grecinger in October 1991. Skoglund renewed the complaint, resulting in Grecinger being charged in September 1994. Subsequently, Grecinger was tried and convicted for attempted second-degree murder and third-degree assault. The trial court admitted expert testimony regarding Battered Women's Syndrome to aid the jury in understanding why Skoglund delayed reporting the incident and in understanding the inconsistencies in her testimony. The trial court denied the introduction of evidence of Skoglund's initiation of a fraudulent lawsuit. On appeal, Grecinger challenges his conviction and trial court rulings.

Grecinger argues that (1) there was insufficient evidence to support his convictions, (2) the trial court erred in admitting expert testimony regarding Battered Women's Syndrome, and (3) the trial court abused its discretion by denying the introduction of Skoglund's prior acts of fraud into evidence. We affirm.

DECISION

I.

In reviewing the sufficiency of the evidence, an appellate court must consider the record in the light most favorable to the conviction and determine whether the evidence was sufficient for the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The appellate court is limited to ascertaining whether, given the facts in the record and any legitimate inferences to be drawn therefrom, a jury could reasonably find that the defendant was guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). The facts are not retried on appeal, and the evidence is viewed in the light most favorable to the jury's verdict. Id.

Grecinger argues that the evidence presented at trial was insufficient for a reasonable jury to convict him of attempted second-degree murder [1] or third-degree [2] assault More specifically, Grecinger argues that the evidence does not support the verdict because Skoglund's testimony and the experts' testimony is inconsistent on how the injuries occurred. We are not persuaded.

Skoglund testified that Grecinger beat and choked her to the point of unconsciousness on this and other occasions. Dr. Steven Hansen treated Skoglund in the hospital emergency room, diagnosed her as having sustained a subconjunctival hemorrhage of the right eye, periorbital swelling, bruising, and facial abrasions. Dr. Hansen testified that these injuries constituted substantial bodily harm.

In 1992 Skoglund was hospitalized for post-traumatic stress disorder. Dr. Ellen Halverson treated Skoglund for depression, hypervigilance, and nightmares. Dr. Halverson testified that these adjustment disorders result from an "incident where someone has experienced something that's out of the range of normal human experiences, like they have been seriously hurt or nearly killed * * *."

The jury was able to view the witnesses and assess their credibility. There was sufficient evidence in the record to support the conviction. See State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), review denied ( Minn. March 19, 1992) (holding that even though there may be two different versions of the event, the jury is entitled to believe the state's witnesses).

II.

Whether to admit expert testimony is within the trial court's discretion, and a reviewing court will not reverse unless there is an "apparent error." State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984).

Minnesota Rule of Evidence 702 lays out the relevant considerations for the admission of expert testimony:

Rule 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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. The relevant inquiry is whether the proffered expert testimony is helpful to the jury. State v. Saldana, 324 N.W.2d 227, 229 (1982). Therefore, if the subject testimony is within the jury's knowledge and experience and it would not add "precision or depth" to the jury's ability to reach conclusions, it does not meet the helpfulness test. State v. Helterbridle, 301 N.W.2d 545, 547 (1980).

Grecinger argues that the trial court abused its discretion when it admitted expert testimony concerning Battered Woman's Syndrome. We are not persuaded by this argument. Because an assault is the central issue in the case, it was reasonable for the trial court to admit expert testimony about Battered Woman's Syndrome. We conclude that the testimony was helpful because it concerns a theory that is "beyond the experimental stage and has gained substantial scientific acceptance." State v. Hennum, 441 N.W.2d 793, 799 (Minn. 1989). Further, such testimony would tend to shed light on an area that is "not within the understanding of an ordinary lay person." Id. at 798.

Because we find that the expert testimony concerning Battered Woman's Syndrome helped the jury in understanding the delayed reporting of the incident and inconsistencies in Skoglund's testimony, we conclude that the trial court did not abuse its discretion in admitting the expert's testimony.

III.

"Whether to admit evidence of other crimes, acts or wrongs lies within the district court's sound discretion." State v. Thompson, 520 N.W.2d 468, 471 (Minn. App. 1994) (citation omitted), review denied (Minn. Oct. 27, 1994).

Minnesota Rule of Evidence 608 states that:

Evidence of Character and Conduct of Witness. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness or (2) concerning the character of truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Minn. R. Evid. 608(b). Evidence as to the credibility of a witness is admissible if it assists in the truth-seeking process. State v. Patterson, 329 N.W.2d 840, 841 (Minn. 1983). However, the trial court must perform a Rule 403 analysis before admitting the evidence. Id. The trial court must consider whether the "probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury * * * ." Id.

Grecinger argues that the trial court abused its discretion when it denied his introduction of impeachment testimony about a prior fraudulent lawsuit filed by Skoglund. It is within the discretion of the trial court to determine whether the probative value of evidence is substantially outweighed by its prejudicial effect. See State v. Forbord, 398 N.W.2d 618, 621 (Minn. App. 1986) (holding that evidence was properly held inadmissible because it was prejudicial and would have distracted the jury from making a clear decision as to defendant's guilt). The trial court did not abuse its discretion in denying the introduction of this evidence.

Affirmed.

RANDALL, Judge (concurring specially).

I concur in the result. But I write separately to address two issues raised by appellant.

The first issue is whether the trial court improperly allowed expert medical testimony as to whether the victim's injuries constituted "substantial bodily harm," pursuant to a literal reading of the statute at issue. The second issue I will address is whether the trial court improperly allowed a medical expert to testify that in her opinion the victim was telling the truth.

On the first issue, I concur in the result reached by the majority. The appellant himself had the Minnesota statutes defining two degrees of criminal assault, first and third, read and interpreted by a doctor who had qualified as an expert witness. That benefitted appellant because the trial court dismissed count II, first-degree assault in violation of Minn. Stat. ' 609.221. The jury found appellant guilty only of the lesser included third-degree assault in violation of Minn. Stat. ' 609.223, subd. 1 (in addition to the main charge, which was count I, second-degree attempted murder in violation of Minn. Stat. ' 609.19 (1)). But I write specially to point out that except for the appellant opening the door, I conclude it was highly improper for the medical experts to be read the statutory definition of "substantial bodily harm" in front of the jury and then the prosecution being allowed to inquire directly of the doctors whether they felt the victim's injuries constituted "substantial bodily harm pursuant to the elements of third-degree assault."

Doctors and/or other experts, assuming proper foundation is laid, are competent to testify as to what they saw, what they heard, what they treated the victim for, and so on and so forth, as in any standard personal injury law suit. But I cannot think of any reason that furthers the administration of justice for reading out loud to medical experts in front of a jury the statutory elements of a crime and then having the doctors give their medical opinion as to which crime they believed to be appropriate. That precise question is for the jury and the jury alone.

Lay witnesses and medical experts give testimony. The trial judge reads the essential elements of the criminal statute or statutes in question. Then the trial judge, pursuant to CRIMJIG, instructs the jury on what they need to do to apply the evidence to the controlling statutes. The trial judge reads the pertinent statutes aloud to the jury in a criminal case. The judge instructs the jury to find a verdict of guilty or not guilty on each count. This has been the format for over a century. It is not up to the "experts" to select the criminal statute that fits. It is up to experts to give relevant testimony. It is up to the jury, and the jury alone, to select the criminal statute, if any, that has been violated.

Once the door is opened for medical experts to select a specific criminal statute that involves medical terms, all areas of expert testimony immediately come into play. There is nothing sacred about medical experts. Forensic experts, ballistics experts, fingerprint experts, automobile tire tread experts, law enforcement officers (because of training and experience) might all qualify to give opinion testimony. All could then give opinion testimony on which criminal statute was violated using the state's logic in this case. For instance, since these doctors were allowed to select the statutory definition of criminal assault in the third degree, what is to keep a prosecutor from asking a trained law enforcement officer the following questions

Now officer, you have testified that you saw the defendant as he turned and fled from the scene of the bank robbery, stop and fire a revolver shot at your fellow officer "x". That bullet wound caused officer "x"'s immediate death. You have heard the trial court read out loud to the jury the statutory definition of murder in the first degree, premeditated murder, and murder in the second degree, intentional but not premeditated murder. In your opinion, based on your training, background, education, work on cases, and general experience, did the defendant, the person firing the fatal revolver shot, commit murder in the first degree, or murder in the second degree?

That is the exact parallel to the question and answer format allowed the prosecution in this appeal before us. This scenario I have described, hopefully would be strongly objected to by defense counsel, and the objection upheld by the trial court. But that is exactly the direction any expansion of the ruling in this case takes us.

The second issue I address is the trial court allowing a medical expert to testify that the victim was telling the truth. The record shows the following: After some preliminary foundational questions, the prosecutor said:

Q. Again, based on your experience and your time with her, do you have any reason to believe she was lying to you when she told you that that was the experience for which she is traumatically stressed over?

Then the medical expert answered:

A. No, I do not.

In State v. Saldana, 324 N.W.2d 227 (Minn. 1982) the supreme court specifically disapproved of the expert stating an opinion as to whether the victim was truthful or not. Id. at 232. The Saldana court reiterated our standard format in which experts are allowed to discuss what they observed about victims, but the credibility of the victim's story is left to the jury. Id. at 231. Otherwise, the expert's testimony gives the "stamp of scientific legitimacy to the truth of the complaining witness's factual testimony." Id. (quoting People v. Izzo, 282 N.W.2d 10, 11 (Mich. App. 1979)).

Between patient and doctor, whether the doctor be physician, psychologist, dentist, osteopath, chiropractor, nurse, etc., for treatment purposes, a medical professional may well assume that the victim's truthfulness as to answers about his or her condition are important, and play a part, often significant, in the diagnosis and selection of treatment and medication. But that is between the victim and the medical professional for purposes of proper medical treatment. The criminal trial, where the victim is simply one of different witnesses the state uses to attempt to deprive a citizen of liberty, and at times life, is not the forum where the doctor's opinion as to whether the victim is telling the truth is relevant, nor is it anywhere within the province of the doctor to so state. The victim's truthfulness, or the lack thereof, are entirely within the province of the jury. The defendant can take the stand and deny everything. But, we do not allow defendants to hire experts to examine them and then give an opinion that when the defendant was telling them his story about the incident and how it didn't happen, the defendant was telling the truth. An expert hired by the defendant to testify that the defendant was telling the truth when he denied the charge is something we would have to allow defendants to do if we are going to allow the prosecution to hire experts to testify that the victim was telling the truth. The Sixth Amendment to the Bill of Rights carries a constitutional guaranty of a fair trial for the defendant, not the state. The defendant citizen is at all times presumed innocent. The state is not presumed to be prosecuting a guilty person who simply has yet to admit it. The scales have to be balanced in favor of the defendant or slightly tipped in the defendant's favor. All penal statutes are to be construed strictly against the state and in favor of the defendant. State v. Lewandowski, 443 N.W.2d 551, 554 (Minn. App. 1989) (citing State v. Maas, 280 Minn. 197, 200, 159 N.W.2d 118, 121 (1968)).

I concur in the result, meaning conviction, because I can accept the trial court's reasoning that the defendant, through cross-examination, opened the door for the prosecution to engage in the questions and answers at issue. But I do not want this affirmance to be any kind of signal that the above opinions elicited from experts are proper.


Footnotes

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

[1] Subdivision 1. Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime, and may be punished as provided in subdivision 4.

Minn. Stat. ' 609.17 (1991) The elements of second-degree murder are: (1) the defendant causes the death of a person; and (2) the defendant intends to kill that person or another. State v. Angulo, 471 N.W.2d 570, 573 (Minn. App. 1991) review denied (Minn. Aug. 2, 1991).

[2] Third-degree assault in the is defined as follows:Subdivision 1. Substantial bodily harm. Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or payment of a fine of not more that $10,000, or both.Minn. Stat. ' 609.223, subd. 1 (1991).