This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Ruben Dario King,


Filed July 27, 1999


Schultz, Judge[*]

Hennepin County District Court

File No. 98032205

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

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

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

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction for third-degree criminal sexual conduct, arguing that the prosecutor committed a prejudicial discovery violation and the trial court improperly allowed expert witness testimony. We affirm.


On March 23, 1998, appellant Ruben Dario King went to the apartment of former girlfriend, A.N., to see their daughter. While there, appellant and A.N. began arguing, then physically fighting. During the fight, appellant began grabbing A.N.'s breasts and biting her neck. He also demanded oral sex. A.N. attempted to get away, but appellant caught her, removed her shorts, and penetrated her with his penis.

After appellant left, A.N. telephoned appellant's parents and told them appellant had raped her. Appellant's parents took A.N. to Hennepin County Medical Center (HCMC), where she underwent a sexual assault exam and spoke with a police officer.

Appellant was charged with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1998). He pleaded not guilty, claiming that the sex was consensual. Trial witnesses included Margaret Pharris, the nurse who performed A.N.'s sexual assault exam. The jury found appellant guilty, and the trial court sentenced appellant to 58 months (4 years, 10 months). This appeal followed.


I. Violation of Discovery Rules

The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court. Indeed, the trial court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated.

State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citations omitted). A reviewing court "may not overturn a trial court's ruling on an alleged violation of discovery rules absent a clear abuse of discretion." State v. Adams, 555 N.W.2d 310, 311 (Minn. App. 1996).

Here, Nurse Pharris prepared a report following her examination of A.N. Included in the report was Pharris's assessment: "Findings consistent with physical and sexual assault--forced vaginal penetration." Counsel for appellant did not receive a copy of the report until immediately before Pharris testified at trial. Counsel objected to Pharris's testimony on the basis of the discovery violation and requested a mistrial or an instruction to the jury that the testimony be disregarded. The trial court offered appellant the opportunity to request a continuance but denied the mistrial and jury instruction requests.

A prosecutor must disclose and permit defense counsel to inspect and reproduce any reports of physical examinations made in connection with the case. Minn. R. Crim. P. 9.01, subd. 1(4). If the prosecutor fails to comply with this rule, the court may take appropriate action to remedy the violation, including levying sanctions. Minn. R. Crim. P. 9.03, subd. 8; State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998). In determining whether sanctions should be imposed, the trial court is to consider:

(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.

Lindsey, 284 N.W.2d at 373.

Here, disclosure was not made because the prosecutor was not aware of the report until she interviewed Pharris the night before her testimony. The prosecutor obtained a copy of the report the next morning and immediately delivered a copy to appellant's counsel. The failure to disclose was inadvertent, not deliberate.

Also, although delivery of the report was late, there was no prejudice. Counsel for appellant was aware that Pharris believed A.N. had been sexually assaulted. This information was included in the investigating officer's report, a copy of which was provided to appellant's counsel during the discovery process. Because appellant had knowledge of the information contained in the report, he cannot successfully claim that he was prejudiced by its late receipt. See State v. Moore, 493 N.W.2d 606, 609 (Minn. App. 1992) (where defense counsel already knew information not disclosed by prosecution, there was no reversible error), review denied (Minn. Feb. 12, 1993).

Appellant's counsel could have requested a continuance but declined to do so. Also, counsel had sufficient time to locate a rebuttal expert witness, and, in fact, called Dr. Garry Peterson, Hennepin County Medical Examiner. Appellant was not prejudiced by the prosecutor's inadvertent failure to disclose Nurse Pharris's report, and the trial court did not abuse its discretion by declining to exclude Pharris's testimony or grant a new trial.

II. Foundation for Expert Witness Testimony

"The question of proper foundation is largely one for the discretion of the trial court * * * ." State v. Bott, 310 Minn. 331, 334, 246 N.W.2d 48, 51 (1976). Likewise, "the trial court has broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980). A reviewing court will reverse a ruling admitting expert testimony only when the trial court has abused its discretion. State v. Goldenstein, 505 N.W.2d 332, 341 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

At trial, Nurse Pharris testified that A.N. had sustained two vaginal abrasions, which "were consistent with physical and sexual assault with forced vaginal penetration." Appellant's counsel objected to Pharris's testimony on the grounds that the testimony lacked foundation and invaded the province of the jury to determine guilt.

Appellant argues that, because Pharris has no first-hand knowledge about the relationship between vaginal abrasions and consensual sex, her testimony was lacking in foundation and unreliable. Pharris, however, was not testifying about abrasions resulting from consensual sex. Instead, she testified that, in her experience, A.N.'s vaginal abrasions were consistent with sexual assault. In addition, her testimony that she was assistant director of Sexual Assault Resource Services at HCMC, that she was responsible for training the HCMC staff who perform the sexual assault exams, and that she had done approximately 800 such exams was sufficient foundation to support her testimony. The trial court did not abuse its discretion in overruling appellant's lack of foundation objection.

Appellant also argues that Pharris's opinion that A.N. was forcibly penetrated invaded the jury's guilt-determining function. Expert testimony is admissible if it helps the jury reach its decision. Helterbridle, 301 N.W.2d at 547. Such testimony is helpful if it explains a fact or conclusion that is outside the jury's common knowledge or experience. Id. Opinion testimony is not objectionable simply "because it embraces an ultimate issue to be decided by the trier of fact." Minn. R. Evid. 704.

Here, Pharris's testimony was helpful to the jury. Pharris explained that A.N. had two vaginal abrasions. She then went on to explain the meaning of the abrasions: that they were consistent with forced penetration. Without the explanation, the jury would not know the significance of the abrasions. Pharris's explanation was not, as appellant asserts, a legal opinion. Pharris was merely testifying as other medical experts have testified in similar situations. See, e.g., State v. Kroshus, 447 N.W.2d 203, 205 (Minn. App. 1989) (medical testimony indicated victim had experienced forceful vaginal penetration), review denied (Minn. Dec. 20, 1989); State v. Perez, 404 N.W.2d 834, 837 (Minn. App. 1987) (physician testified that victim exhibited vaginal injury consistent with penetration), review denied (Minn. May 20, 1987). The trial court did not err in admitting Pharris's testimony.


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