This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


Andrew John Virnig, Jr., petitioner


State of Minnesota,

Filed July 2, 1996
Toussaint, Chief Judge

Morrison County District Court
File No. K2-1018

Steven J. Meshbesher, Ian A.J. Pitz, Meshbesher, Birrel, & Dunlap, Ltd., 2450 Park Avenue, Minneapolis, MN 55404 (for appellant)

Hubert H. Humphrey, III, Attorney General, Mary J. Theisen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Conrad I. Freeberg, Morrison County Attorney, 213 S.E. First Avenue, Little Falls, MN 56345 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.*


TOUSSAINT, Chief Judge

Andrew John Virnig appeals the district court's order denying a postconviction petition challenging his convictions for two counts of first-degree criminal sexual conduct, three counts of second-degree criminal sexual conduct, and one count of third-degree criminal sexual conduct. Virnig challenges the qualifications of the state's expert witness and argues that the district court abused its discretion by: denying the testimony of a witness to rebut the state's expert witness and denying testimony alleging that two of the victims had previously accused their brothers of sexual abuse. Virnig further argues that the prosecutor engaged in misconduct in closing argument and that he received ineffective assistance of counsel. We affirm.



Virnig argues that the state's expert witness, Catherine Berns, was not sufficiently qualified to testify as an expert on the reporting habits typically displayed by adolescent victims of sexual abuse. Whether a witness is sufficiently qualified to testify as an expert is within the district court's discretion, and its decision will not be reversed absent an abuse of that discretion. State v. Gallus, 481 N.W.2d 116, 119 (Minn. App. 1992), review denied (Minn. March 26, 1992) Minn. R. Evid. 702 provides that a witness may be qualified as an expert by "knowledge, skill, experience, training, or education." State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990). When determining the competency of an expert witness, the district court should examine the witness's scientific knowledge and the witness's practical experience with the subject matter of the testimony. Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn. App. 1992), review denied (Minn. June 10, 1992). Theoretical expertise alone is insufficient; the witness must possess some practical knowledge or experience in the area of his or her testimony. Id.

The district court concluded that Berns possessed both the theoretical and practical experience required of an expert witness. The record revealed that Berns is (1) the Executive Director of the Women's and Children's Center in Little Falls and Long Prairie, (2) a therapist practicing in St. Cloud working with individuals and couples in the areas of marriage and family therapy, (3) responsible for training advocates on various issues of sexual assault, and (4) supervise a staff of individuals who work with victims of sexual abuse. During her last year of graduate work and prior to receiving her master's degree, she interned with Caritas Family Services as a therapist. Berns also volunteered for five years as an advocate with the sexual assault program in St. Cloud.

The district court did not abuse its discretion in allowing Berns to testify as an expert. See State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987) (district court did not abuse its discretion by allowing police officer to testify regarding reporting practices of adolescent victims of sexual assault based on officer's experience); State v. McCoy, 400 N.W.2d 807, 810 (Minn. App. 1987) (district court did not abuse its discretion by allowing expert testimony on reporting characteristics of adolescent victims of sexual abuse where witness was licensed psychologist and social worker, who had received her master's degree, and observed and worked with several victims of sexual abuse), review denied (Minn. Mar. 25, 1987).


Virnig also argues that the district court erred when it excluded the testimony of Jody Ostrowoski, the former girlfriend of David Virnig, C.V. and T.V.'s brother. Virnig contends that this testimony was crucial to rebut the testimony of the state's expert witness with regard to C.V. and T.V.'s delayed reporting of appellant's sexual abuse.

Reviewing courts will defer to the district court's exercise of discretion in evidentiary matters absent a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Berns's testimony assisted the jury in understanding the reporting practices of adolescent sexual abuse victims. Virnig contends that Ostrowoski's testimony was necessary to show the possibility that C.V. and T.V. fabricated their allegations of sexual abuse in an attempt to blackmail him. Evidence of prior false accusations of sexual abuse is admissible to establish motive for fabrication. State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Here, there is no evidence in the record that C.V. or T.V. ever made any prior false accusations of sexual abuse against Virnig. Virnig's offer of proof revealed that, if allowed to testify, Ostrowoski would testify that she overheard C.V. and T.V. threaten to sue their mother for allowing their brothers, Felix and Benno, to abuse them sexually. Both C.V. and T.V. testified that they never confided in Ostrowoski about their brother's sexual abuse, and T.V. stated that the relationship between Ostrowoski and the family was bad. The district court did not abuse its discretion in excluding Ostrowoski's testimony.

Virnig also argues that the district court erred when it refused to allow evidence to be introduced that C.V. and T.V. had accused their brothers Felix and Benno of sexually molesting them. Virnig contends this evidence would demonstrate bias on the part of the brothers. Similarly, Virnig maintains that the district court abused its discretion by not allowing C.V. and T.V. to be cross-examined on the issue of their sexual abuse by Felix and Benno.

Generally, all evidence that may tend to impeach a witness is relevant. State v. Underwood, 281 N.W.2d 337, 341 (Minn. 1979). Minn. R. Evid. 616 provides that "for the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness, for or against any party to the case is admissible." Further, "bias, prejudice, or interest is not a collateral matter, and can be established by extrinsic evidence." See State v. Waddell, 308 N.W.2d 303, 304 (Minn. 1981); Minn. R. Evid. 616 cmt.

Here, C.V. specifically testified that no agreement existed between the sisters that they would "turn in" Felix and Benno if the two did not testify for the state. In addition, Felix and Benno's testimony went, in large part, to their father's sexual abuse of P.V., the oldest daughter. Three of the six counts in the criminal complaint stem from Virnig's abuse of P.V.

The district court excluded any testimony regarding Felix and Benno's alleged sexual abuse of C.V. and T.V. pursuant to Minnesota's rape shield statute, which states evidence of the victim's previous sexual conduct shall not be admitted, nor shall any reference to such conduct be made in the presence of the jury. Minn. Stat. ' 609.347, subd. 3 (1994). The statute provides exceptions when (1) the consent of the victim is a defense or (2) the prosecution's case includes evidence of semen, pregnancy, or disease. Minn. Stat. ' 609.347, subd. 3(a), (b). The Minnesota Supreme Court has also recognized that:

[i]n certain cases the due process clause, the right to confront accusers, or the right to present evidence will require the admission of evidence otherwise excluded by the rape shield law.

State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992).

Neither of the statutory exceptions applies in this case because consent was not presented as a defense, and the prosecution's case did not involve evidence of semen, pregnancy, or disease. In addition, none of the other exceptions to the rape shield statute applies to this case. The district court allowed limited examination of Felix and Benno on the issue of their alleged sexual abuse of C.V. and T.V.. Although the two pleaded their Fifth Amendment right against self-incrimination when asked if they sexually abused their sisters, Virnig was not deprived of his opportunity to make his point on the issue. During both cross-examination and closing, Virnig's counsel stressed to the jury the fact that Felix and Benno had asserted their Fifth Amendment right when asked whether they had sexually assaulted their sisters C.V. and T.V. The district court did not abuse its discretion in excluding the testimony of Ostrowoski and limiting or excluding evidence of Felix and Benno's alleged prior sexual abuse of C.V. and T.V.


Virnig also argues that the prosecutor engaged in misconduct during closing argument when she stated that the three Virnig brothers, all of whom testified for the state, were telling the truth and that Virnig was lying when he said he did not abuse his daughters. Virnig did not object at the time the statements were made by the prosecutor. Instead, Virnig's counsel chose to address the allegedly improper comments during his closing argument. A party has a duty to object promptly and request a curative instruction when an improper statement is made during closing arguments. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). By failing to object or to seek cautionary instructions, the general rule is that a defendant is deemed to have waived his right to raise the issue on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The failure to object implies that the defense found nothing improper in the argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). The supreme court has held that where a defendant does not object to the statement in question, but rather chooses to respond to it in closing argument, the defendant is deemed to have forfeited his right to have the issue considered on appeal. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983).

However, a reviewing court may reverse a conviction even when the defendant failed to preserve the issue on appeal if the prosecution's comments are unduly prejudicial. Parker, 353 N.W.2d at 127-28. The issue is whether the improper comment likely played a substantial part in influencing the jury to convict. State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). A review of the record here does not reveal that the comments made by the prosecutor in closing argument were so prejudicial as to deny Virnig a fair trial.


Finally, Virnig claims that he was denied effective assistance of counsel. In order to obtain a new trial on the basis of ineffective assistance of counsel, a defendant must affirmatively prove that his trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Gates, 398 N.W.2d at 561. Virnig argues that he was denied effective assistance of counsel because his trial counsel failed to move for dismissal of those charges that alleged conduct occurring prior to August 1, 1982, because they were not charged within the three year statute of limitations.

Here, five of the six counts were based on conduct that occurred between January 1, 1982, and depending on the count, ended either on February 7, 1986 or August 31, 1988. These dates were incorporated in the jury instructions without objection. Prior to August 1, 1982, the statute of limitations for criminal sexual conduct in an intrafamilial relationship and for intrafamilial sexual abuse was three years. Effective August 1, 1992, the legislature amended the limitations period to provide for a seven year limitations period for these offenses. 1982 Minn. Laws ch. 432, secs. 1 and 2. The statute changing the limitations period has been held not to apply retroactively, meaning that for acts committed prior to August 1, 1982, charges must be filed within the three year limitations period. State v. Shamp, 422 N.W.2d 736, 739 (Minn. App. 1988), rev'd on other grounds, 427 N.W.2d 228 (Minn. 1988). Virnig contends that his trial counsel should have moved to dismiss those counts alleging sexual abuse that were not filed within the old three year statute of limitations period.

The postconviction court denied appellant relief on his claim of ineffective assistance of counsel, ruling that the statute of limitations was tolled by the coercive authority doctrine and the continuing crime doctrine. The coercive authority doctrine provides that

[w]here the same parental authority that is used to accomplish criminal sexual acts against a child is used to prevent the reporting of that act, the statute of limitations does not begin to run until the child is no longer subject to that authority.

State v. Danielski, 348 N.W.2d 352, 357 (Minn. App. 1984), review denied (Minn. July 26, 1984). The continuing crime doctrine holds that the statute of limitations does not begin to run until the crime is complete. Id. at 355.

As to the coercive authority doctrine, the postconviction court held that Virnig "abused his authority over his daughters and created an environment which effectively prevented reporting of his acts." Under the continuing crime doctrine, the postconviction court found that by its very definition, the crime for that Virnig was charged required "multiple acts" committed over an "extended period of time" and thus, could not be completed until the last act of sexual abuse was committed sometime in 1986 or 1988. The postconviction court observed that

[t]o argue otherwise would compel the conclusion that each of the "multiple acts" constitutes a separate crime, each with its respective limitation period. This conclusion is contrary to the clear legislative intent of the statutes, which is to allow the prosecution the opportunity to prosecute as a single crime multiple acts of sexual conduct committed against a single victim over an extended period of time.

(Emphasis in original.)

The postconviction court also found that even if Virnig's trial counsel did err, Virnig was not prejudiced by such error. The court found that, even assuming that the statute of limitations barred conviction for offenses occurring before August 1, 1982, "there is no reasonable probability that the result at trial would have been different." The postconviction court cited three reasons for its conclusion: (1) although the testimony adduced at trial was indefinite as to when appellant's abuse began, all three victims testified that the sexual abuse continued on essentially a daily basis up until some time in 1986 or 1988; (2) there was no specific testimony regarding specific acts of abuse occurring prior to August 1, 1982; and (3) the prosecution's case rested entirely on the credibility of Virnig's three daughters.

We conclude that the postconviction court did not err in denying Virnig's petition based on ineffective assistance of counsel.



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