This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



John Wesley Hope Cox,


Filed June 15, 1999


Schultz, Judge[*]

Concurring specially, Randall, Judge

Martin County District Court

File No. K596315

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Terry Viesselman, Martin County Attorney, 923 North State Street, Fairmont, MN 56031 (for respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Schultz, Judge.



Appellant challenges the district court's evidentiary rulings concerning (1) admittance as prior consistent statements of two videotaped interviews with investigators by A.H. and T.Y., (2) exclusion of evidence of A.H.'s and T.Y.'s abuse by others, (3) admittance of appellant's prior child sex abuse convictions for impeachment purposes, (4) admittance of expert testimony concerning children denying abuse or delay in reporting abuse, (5) admittance of Spreigl evidence, and (6) sentencing appellant as a pattern sex offender. We affirm.


The victim, A.H. lived in Fairmont with her grandmother. A.H.'s mother and sister T.Y. also lived in Fairmont and A.H. visited them frequently. Appellant was a neighbor of A.H.'s mother. Appellant gave candy and played with A.H. and T.Y. During 1993 appellant began molesting A.H. and T.Y. by feeling their chests and vaginas when they were inside his home. A.H. did not report the abuse and continued to go to appellant's home because she feared something would happen if she did not go. On one occasion appellant showed A.H. and T.Y. the back bedroom where he kept his mother's ashes. T.Y. was in the bedroom and A.H. was sitting on the bed when appellant unzipped his pants. A.H. told appellant to redo them. Appellant stated "No, no, just shut up you stupid fuckin' bitch." Appellant then unzipped A.H.'s pants and pulled them down. A.H. told appellant to leave her alone and struggled with appellant while he laid on top of her and put his penis into her vagina. A.H. did not tell anyone about the rape because she believed it to be her fault.

In 1994, T.Y. saw an article in the newspaper concerning appellant and abuse against other children. T.Y. told her foster mother that appellant had abused her and A.H. Deputy Eugene Post conducted a videotaped interview with T.Y. about this abuse. A.H. denied that the rape and other abuse occurred when asked by Deputy Post because she was ashamed and scared. In February 1996, A.H. had a flashback about the incident with appellant while at a group home in Hayward, Minnesota. The authorities were contacted and Bradley Hady of the Fairmont Police Department conducted a videotaped interview with A.H. where she recounted the rape and other incidents of abuse committed by appellant.

Both videotapes were admitted into evidence as prior consistent statements. Dr. John Helminski testified during trial that children will often deny or delay reporting sexual abuse occurred because of fear of being blamed or not believed.

Appellant was not allowed to introduce evidence of A.H. and T.Y's abuse by others. Appellant did not testify at trial citing the admittance of his previous child sexual abuse convictions for impeachment purposes as his reason. Spreigl evidence was allowed, including appellant's molesting of T.Y. and another young girl, B.J.

Appellant was found guilty of criminal sexual conduct in the first degree and criminal sexual conduct in the third degree. The district court sentenced appellant to 220 months as a pattern sex offender.

Appellant contests (1) the district court's admittance of the videotapes as prior consistent statements, (2) the district court's exclusion of A.H.'s and T.Y's sex abuse by others as a motive for fabrication, (3) the admittance of appellant's prior convictions for impeachment purposes, (4) the admittance of Dr. Helminski's testimony relating to the delay in reporting by child sex abuse victims, (5) the admittance of Spreigl testimony, and (6) the district court's sentencing of appellant as a pattern sex offender.


1. Prior Consistent Statements

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). This court, therefore, will not reverse the ruling unless the district court abused its discretion. State v. Lonergan, 505 N.W.2d 349, 353 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

The district court admitted the videotapes as prior consistent statements under Minn. R. Evid. 801(d)(1)(B). Under that rule a statement is not hearsay if:

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness[.]

Minn. R. Evid. 801(d)(1).

The statements must be helpful to the trier of fact in evaluating the witness' credibility. Thus, before the statement can be admitted, the witness' credibility must have been challenged, and the statement must bolster the witness' credibility with respect to that aspect of the witness' credibility that was challenged. Finally, under Rules 403 and 611, the trial court retains authority to either limit or exclude the statement and, if admitted, to control the manner in which it is admitted.

State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).

Appellant argues that the videotapes and live testimony of A.H. and T.Y. were not consistent. Based on a review of the trial testimony and videotape transcript the testimony is consistent. The testimony does not have to be exact in every detail in order to qualify as a prior consistent statement. State v. Hanson, 286 Minn. 317, 335, 176 N.W.2d 607, 618 (1970).

Appellant also argues that the videotaped statements were not spontaneous. However, Rule 801(d)(1)(B) does not have a requirement of spontaneity. Therefore, this argument is without merit. Further, appellant's arguments concerning the interviews being prearranged, the statements were not reliable, the officer conducting the interviews was wearing a gun, and the interview occurred at the courthouse are without merit. Witness interviews with police are often prearranged and the fact A.H. and T.Y.'s interviews were prearranged does not make the statements inadmissible.

The court declined to read into the rule a requirement that a prior consistent statement before being admitted must bear significant indicia of reliability. 561 N.W.2d at 909. Appellant's argument concerning the interviewing officer being armed has no bearing on the admissibility of the videotape as a prior consistent statement.

Appellant argues the statements were made in preparation for litigation. However, police interviews are admissible as prior consistent statements. State v. Sullivan, 360 N.W.2d 418, 422 (Minn. App. 1985), review denied (Minn. Apr. 12, 1985).

Appellant's argument that the admission of the videotapes violated his right to confront the witnesses is incorrect. The confrontation clause is generally satisfied when a defendant has a full and fair opportunity to expose any infirmities in an out of court statement through cross-examination. Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985). Appellant was allowed to cross-examine both A.H. and T.Y. The fact T.Y. did not testify to everything contained on the videotape should not have hampered appellant's ability to cross examine T.Y. Therefore, the district court did not abuse its discretion in admitting the videotaped interviews of A.H. and T.Y. as prior consistent statements pursuant to Minn. R. Evid. 801(d)(1)(B).

2. A.H. and T.Y.'s sexual abuse by others

In Minnesota the appellate courts defer to the district court's discretion in evidentiary matters and will not lightly overturn a district court's evidentiary ruling absent a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). If exclusion of the evidence did violate defendant's right to present a defense, the appellate court will not reverse the decision if the error is found to be harmless beyond a reasonable doubt. Id. The ruling is prejudicial and subject to reversal if there is a reasonable possibility the error may have contributed to the conviction. Id.

Appellant argues the exclusion of evidence that others had abused A.H. and T.Y. thwarted his ability to present a defense. Appellant contends the allegations against him were fabricated. However, appellant does not make a legitimate argument as to how the admittance of sexual abuse against A.H. and T.Y. by others would show they fabricated the allegations against appellant. Appellant relies on State v. Kobow, 466 N.W.2d 747 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991) for the allowance of evidence of sexual abuse against a victim by others as a means of proving a motive of fabrication. However, Kobow, 466 N.W.2d at 751, along with State v. Anderson, 394 N.W.2d 813 (Minn. App. 1986), review denied (Minn. Dec. 12, 1986), hold that only prior false reports of abuse are admissible. Appellant did not show any of the reports of abuse against A.H. and T.Y. are false. On the contrary, appellant conceded the allegations concerning abuse by others was not false during a motion hearing. Further, the admittance of the excluded evidence would not further appellant's defense of fabrication.

3. Prior convictions

This court looks at State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) for the relevant factors to analyze whether prior convictions were properly admitted for impeachment purposes. The five factors outlined in Jones are: "(1) [T]he impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history," (3) the similarity of the crimes, "(4) the importance of defendant's testimony, and (5) the centrality of the credibility issue." Id. at 538.

The value of the prior crimes is to allow the jury to see the entire person the jury is entitled to infer a lack of trustworthiness from previous contempt for laws. State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979). Appellant's prior convictions are three and a half years old and two and a half years old. The recency of the convictions and the fact appellant continued in this type of behavior weighs heavily on their admittance for impeachment purposes. State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998).

The fact appellant's previous convictions also concerned child sex abuse does not determine that the district court abused its discretion in admitting them for impeachment purposes. The district court does not abuse its discretion in admitting prior convictions for the same offense as currently being prosecuted. Jackson v. State, 447 N.W.2d 430, 434 (Minn. App. 1989).

Appellant's proposed testimony is not clear because no offer of proof was made. Without an offer of proof this court is to assume appellant would have denied the allegations of criminal sexual conduct. Ihnot, 575 N.W.2d at 587. The importance of credibility is an important factor in this case. The prior convictions allow respondent to make a stronger case against appellant. The impeachment evidence would have allowed the jury to see the entire person who was asking them to believe him. Contrary to appellant's argument, the fact Spreigl evidence was admitted does not prevent the use of the prior convictions for impeachment as well. C.f. Jackson, 447 N.W.2d at 434.

Therefore, four of the five factors weigh in respondent's favor and the third factor, concerning the similarity of the crimes, is not determinative in finding the district court abused its discretion in allowing the prior convictions to be used as impeachment evidence.

4. Expert testimony

"Rulings on evidentiary matters rest within the sound discretion of the trial court."

Caldwell, 347 N.W.2d at 826 (citation omitted). This court, therefore, will not reverse the ruling unless the district court abused its discretion. Lonergan, 505 N.W.2d at 353.

Minn. R. Evid. 702 states:

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.

The expert testimony is admissible if the testimony (1) assists the trier of fact, (2) has a reasonable basis, (3) is relevant, and (4) its probative value outweighs prejudicial effect. State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992). Dr. Helminski testified that adolescent sexual abuse victims may deny abuse or delay reporting abuse because of fear of being blamed or not believed.

Dr. Helminski's testimony is helpful to the trier of fact because the report of the rape occurred over two years after the incident and explained A.H.'s initial denial and subsequent delay in reporting the incident. Further, the testimony of Dr. Helminski has been proffered in other adolescent sexual abuse cases. There appears to be a reasonable basis for the actions of the adolescents, and Dr. Helminski's testimony shed light on those reasons for the jury. The probative value of this testimony far outweighs any prejudicial effect against appellant. Several cases in Minnesota have allowed expert testimony concerning this type of testimony. See State v. Sandberg, 406 N.W.2d 506 (Minn. 1987); State v. Hall, 406 N.W.2d 503 (Minn. 1987); State v. Myers, 359 N.W.2d 604 (Minn. 1984). In all these case the appellate court held the district court had not abused its discretion in allowing the expert testimony on this issue.

5. Spreigl evidence

The district court's decision to admit Spreigl evidence will not be reversed on appeal absent a clear abuse of discretion. State v. Drieman, 457 N.W.2d 703, 709 (Minn. 1990). Under Minn. R. Evid. 404(b)

[e]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, [or] plan.

Spreigl evidence relevant under rule 404(b) is not admissible unless: (1) the state gives notice of its intent to introduce the evidence, (2) the state specifies at the time the evidence is introduced the evidentiary exception under which it seeks to admit the evidence, (3) if the evidence establishes identity there must be a time, place, or modus operundi nexus, (4) the evidence is necessary to the state's burden of proof, (5) the evidence of the prior bad acts is clear and convincing, and (6) the court gives appropriate jury instructions as to the purpose of the evidence. State v. Hannuksela, 452 N.W.2d 668, 678 (Minn. 1990). In addition, the probative value of the evidence must outweigh the potential for unfair prejudice. State v. Robinson, 427 N.W.2d 217, 227 (Minn. 1988).

B.J. and T.Y. testified appellant would talk and play with them. Appellant would invite them into his house and feel their chests and vaginas underneath their clothes. Evidence of prior sexual misconduct in cases involving sex crimes against minors is admissible as Spreigl evidence showing a common scheme or plan. State v. Spencer, 366 N.W.2d 656, 660 (Minn. App. 1985), review denied (Minn. July 11, 1985). The trial court gave the proper instruction to the jury prior to the Spreigl testimony. The district court found the incidents tended to establish appellant's common plan or scheme to engage in sexual acts with the neighborhood children. The testimony of B.J and T.Y. described incidents similar in location, similar in time, and similar in modus operandi to the charged incident with A.H. Based on these facts it does not appear as though the district court abused its discretion by allowing the state to introduce the testimony of B.J. and T.Y. to establish a common scheme or plan.

6. Sentencing

A sentence imposed under the patterned sex offender statute is a departure from the sentencing guidelines. Minn. Stat. § 609.1352, subd. 4 (1992). A departure from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

Minn. Stat. § 609.1352, subd. 1 (1992) requires the court to sentence a defendant to at least double the presumptive sentence if (1) the court imposes a sentence inter alia for first degree criminal sexual conduct, (2) the court finds that the defendant is a danger to public safety, and (3) the court finds the defendant needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. The finding must be based on a professional assessment concluding the defendant is a pattern sex offender. To support a departure, the district court is required to make written findings. Minn. Stat. § 244.10, subd. 2 (1992).

Appellant's conviction under Minn. Stat. § 609.342, subd. 1(a) (1992) satisfies the first requirement of section § 609.1352, subd. 1. Concerning the danger to public safety requirement, Minn. Stat. § 609.1352, subd. 3 (1992) states:

The court shall base its finding that the offender is a danger to public safety on either of the following factors:

(1) the crime involved an aggravating factor that would justify a durational departure from the presumptive sentence under the sentencing guidelines; or

(2) the offender previously committed or attempted to commit a predatory crime or a violation of section § 609.224, including an offense committed as a juvenile that would have been a predatory crime or a violation of section § 609.224 if committed by an adult.

The district court found four aggravating factors to meet the danger to public safety analysis. The district court found (1) appellant planned or manipulated the victim by grooming her to be a victim; (2) appellant abused his position of trust with the victim and other children in the neighborhood by holding himself out as "Santa Claus" and being friendly to the children; (3) appellant used physical force to penetrate A.H.; and (4) A.H. and T.Y. suffered permanent trauma. These aggravating factors are supported by the record and not clearly erroneous.

Appellant challenges the finding of needing long-term treatment on two grounds. First, appellant states the evaluator, Mr. Harding did not contact a counselor appellant was seeing. However, appellant never mentioned this counselor to Mr. Harding and therefore, the evaluator was not aware of the counselor's existence.

Second, appellant argues there is no evidence that his behavior is ingrained and not amenable to treatment. Mr. Harding testified at the sentencing hearing that appellant's behavior is so engrained that the risk of further abuse is great. Mr. Harding also testified appellant was in denial as to his problem and he could not offer a treatment option while appellant was in denial. Appellant's argument that the behavior must be ingrained and not amenable to treatment is misguided. Minn. Stat. § 609.1352, subd. 1, does not require the district court to find that the pattern sex offender is untreatable. Rather, the pertinent language states "criminal sexual behavior so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or long-term controls." Id. at (3). The statute's clear meaning is that the offender can be amenable to treatment, but any treatment has to be long-term to be successful.

Therefore, the district court met the requirements of the statute and did not err in sentencing appellant as a pattern sex offender pursuant to Minn. Stat. § 609.1352.


RANDALL, Judge (concurring specially).

I concur in the result. I write separately to point out the present imbalance in trials of alleged child abusers, an imbalance that exists nowhere else in the law. The imbalance of which I speak is the right of the state to qualify "experts" who will then testify, as here, giving an opinion, for instance, that young sexual abuse victims may deny that abuse has happened, may delay reporting the abuse, may act as if nothing unusual has happened in their lives, when something has, or may act as if something bad has happened to them when, in fact, it has not. Experts have also been allowed to give an opinion that a witness is "truthful." The majority cites the trilogy that supports this: State v. Hall, 406 N.W.2d 503 (Minn. 1987); State v. Sandberg 406 N.W.2d 506 (Minn 1987); and State v. Myers, 359 N.W.2d 604 (Minn. 1984). In Myers, the court stated in part:

Finally, Dr. Bell explained that it is extremely rare for children to fabricate tales of sexual abuse and stated that in her opinion the complainant knew the difference between the truth and falsehood and was truthful in her allegations.

Myers, 359 N.W.2d at 609.

Historically, in criminal cases going back hundreds of years to the common law of England, it has always been acknowledged that what is sauce for the prosecution has to be sauce for the defendant or due process is violated. Centuries ago when the investigation of crimes was rudimentary, often depending on little more than confessions or people claiming to be eye witnesses, the defendant's attorney always had a right to cross-examine those claiming to be witnesses and who testified for the prosecution. With advancement in the science of criminal investigation, including but not limited to: fingerprints; ballistics; autopsies; plaster casts of shoeprints and tire tracks, etc.; and analysis of blood, semen, synthetic fibers, human hair, etc. through DNA testing, the courts have never questioned the absolute right of a defendant to employ experts in all cases to counter the state's experts.

The civil bar has acknowledged this for decades, and trials and life go on when it is admitted that if one side gets to call an expert, the other side has to have access to the same option or there is no justice.

In a typical auto accident case, the plaintiff may put on two orthopedic surgeons, one neurosurgeon, and a dermatologist to give an expert opinion that the accident victim has a soft tissue injury. The civil defense bar will promptly put on three orthopedic surgeons, two neurosurgeons, and a proctologist to testify that he does not. In civil cases, including but not limited to, vehicular accidents, product liability, and malpractice, trial by experts has been an integral part of the fabric for years, and no one questions the right of both sides to attempt to qualify their own expert.

Historically, in criminal cases, "experts" were not allowed to give opinions on the credibility of victims. That all changed in the last two decades in favor of the prosecution in child abuse cases. As stated in Myers:

In most cases, even though an expert's testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert's opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts. The nature, however, of the sexual abuse of children places lay jurors at a disadvantage.

Id. at 610. Myers went on to rule the opinion testimony of Dr. Bell was admissible. Id. at 609.

The state can now routinely qualify experts to bolster a child victim's credibility, and to directly infer to the jury that the child victim is truthful. This is a radical departure from decades ago, but since it is the law, due process demands that defense attorneys be allowed a chance to qualify experts who can testify that based on their educational degrees, experience, research, hands-on case studies, etc., that, for instance, young children who have been sexually abused before are more likely to misinterpret innocent touches than someone who has not been previously sexually abused or to testify, by giving an opinion, to any other theory that tends to discredit the state's case. See Minn. R. Evid. 702 (providing witness may qualify as expert "by knowledge, skill, experience, training, or education").

If an expert can be found to give an opinion that children who have been sexually abused before are most likely to distort or fabricate or lie about the next incident, then that expert, if they qualify, should be allowed to opine that. For instance, here, the children had been sexually abused by others. If appellant could have found an expert to testify that the prior abuse negatively impacted the victims' credibility on this trial, the expert should have been allowed to give that opinion for whatever the jury would find it worth. I would find that expert testimony easily as credible as prosecution experts who testify in one trial that quick reporting, lurid details, visible emotional stress, and prompt contact with a parent are signs of credibility and truth telling, and then, as here, testify in the next trial that delay in reporting and denial are signs of credibility and truth telling! In other words, no matter what the facts are, the state will find an expert to bolster the child's credibility. This, unfortunately, is the state of the law. For that to be called due process and a fair trial, the defendant, as a matter of law, has to be allowed to counter and rebut that testimony.

I concur in the result in this case. No record was made that appellant had such an expert and made an in-camera offer of proof that was rejected. But the day has to come (and none too quickly - due process and a fair trial should not be delayed much less denied) when a defendant in a child sexual abuse case can qualify an expert to counter every expert the state puts forward. See U.S. Const. amend. V, VI, XIV, § 1 (guaranteeing right to fair trial and due process of law in criminal trial); Minn. Const. art. I, §§ 6, 7 (guaranteeing right to fair trial and due process of law in criminal trial).

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.