This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Shawn Gregory Mosier,


Filed July 8, 1997


Parker, Judge

Benton County District Court

File No. K595540

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael Jesse, Benton County Attorney, Suzanne Bollman, Assistant County Attorney, 531 Dewey Street, Foley, MN 56329 (for respondent)

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

Considered and decided by Harten, Presiding Judge, Parker, Judge, and Davies, Judge.



Appellant Shawn Mosier was convicted of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342 (1996). Mosier appeals the denial of his motion for new trial, alleging that (1) the Benton County Attorney had a conflict of interest in prosecuting him; (2) the victim's out-of-court statements were improperly admitted; (3) the trial court improperly excluded expert witness testimony; and (4) he was erroneously sentenced at severity level VIII for his conviction. We affirm.


A postconviction proceeding is reviewed by this court only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

1. Conflict of Interest

Mosier argues that the Benton County Attorney's participation in the prosecution of the case against him constituted a conflict of interest. Mosier contends that because Benton County Attorney Michael Jesse represented him a number of years prior in a financial fraud and probation revocation matter, his office should have been prevented from having any part in this case. He claims that the close-knit structure of the Benton County Attorney's office prevented him from receiving a fair trial because the work of the entire staff was tainted by Jesse's conflict.

The Minnesota Rules of Professional Conduct provide:

A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation * * * .

Minn. R. Prof. Conduct 1.9. However,

the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Id. cmt. Whether representation is precluded turns on whether the subject matter of the current litigation is "substantially related" to that prior representation. Production Credit Ass'n of Mankato v. Buckentin, 410 N.W.2d 820, 823 (Minn. 1987). In determining whether the pending suit is a substantially related matter, the trial court must "first factually reconstruct the scope of the prior representation." Id. at 823 (citing Novo Terapeutisk Lab. A/S v. Baxter Travenol Lab., Inc., 607 F.2d 186 (7th Cir.1979)). Next, the court must determine whether it could reasonably infer that confidential information allegedly given would have been given to a lawyer representing a client in those matters. Id. Lastly, the trial court must determine "whether that information is relevant to the issues raised in the litigation pending against the former client." Id.

Applying the test outlined in Production Credit, the trial court found that Jesse represented Mosier only in a probation revocation hearing after his sentence on a fraud conviction and did not represent Mosier in the proceedings leading to those convictions. The trial court then determined that a lawyer would not have learned any confidences related to the fraud case by representing Mosier in the subsequent probation revocation hearing. Furthermore, the state used only the fraud conviction, not the underlying facts, for impeachment purposes and in determining Mosier's criminal history score. The trial court then found that the probation revocation hearings had nothing to do with the underlying conviction. The trial court noted that it could not reasonably be inferred that there was a substantive connection between the probation hearing and the fraud trial and, therefore, no substantial relationship between the representations on the probation violations and this proceeding. Mosier's motion for new trial was denied.

We observe that appellant's counsel made much of this perceived injustice at oral argument. However, despite repeated requests to identify instances of shared confidences or other prejudice in the record, counsel instead articulated only conjecture. We note that Mr. Jesse testified he did not participate in the charging procedure and that mention of Mosier's impending trial did occur, but only during a passing discussion with an assistant county attorney regarding her schedule. Appellant's counsel also argued that, based on his former representation, Jesse had formed a negative opinion of Mosier. Even assuming Jesse had such an opinion, we are directed to nothing in the record to support Mosier's supposition that the prosecution was tainted by Jesse's "negativity." Absent evidence to show specific instances of prejudice or a substantial relationship between Mosier's previous convictions and the matter now before the court, we conclude the trial court did not abuse discretion in determining that no conflict of interest existed.

2. Out-of-Court Statements

Mosier argues that it was an abuse of discretion for the trial court to admit out-of-court statements made by the victim. He contends that M.V.'s statements were made in response to leading or suggestive inquiries and were not spontaneous. He claims that M.V.'s statements were the result of an active imagination and lacked the "lurid" details necessary to give her claims credibility. Mosier also argues that M.V.'s statements to her mother, Leah Voss, and her day-care provider, Margaret Couch, did not possess the requisite guarantee of trustworthiness to be admitted at trial. Because the trial court admitted these statements, Mosier contends, he was denied his right to a fair trial.

Out-of-court statements made by a child under the age of ten that allege, explain, deny, or describe an act of sexual conduct or penetration performed on the child may be admitted as substantive evidence. Minn. Stat. § 595.02, subd. 3 (1996). Admission of such statements requires (1) a finding, in a hearing conducted outside the presence of the jury, that "the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made" provide sufficient indicia of reliability; (2) in-court testimony of the child, or corroboration of the act if the child is unavailable; and (3) sufficient notice to the adverse party that the statement will be offered. Id.

Trial courts exercise discretion when ruling on evidentiary matters. State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990). However, whether statements possess particular guarantees of trustworthiness is a question of law, subject to de novo review by this court. State v. Salazar, 504 N.W.2d 774, 776-7 (Minn. 1993). Hearsay statements that are not admissible under a firmly rooted exception are presumptively unreliable. Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 3147 (1990). Minn. Stat. § 595.02, subd. 3, is not a firmly rooted hearsay exception. See State v. Goldenstein, 505 N.W.2d 332, 343 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Thus, the state must show the statement's reliability based on the totality of the circumstances surrounding the making of the statement before a trial court may admit the evidence. Wright, 497 U.S. at 819, 110 S.Ct. at 3148.

A hearsay statement is reliable if "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Id. at 820, 110 S.Ct. at 3149. When making a determination of reliability, courts should consider (1) the spontaneity and consistent repetition of the statements; (2) the mental state of the declarant; (3) the use of terminology unexpected from a child the age of the declarant; and (4) the lack of a motive to fabricate. Id. at 821-22, 110 S.Ct. at 3150. Other relevant factors include whether (1) the person talking to the child had a preconceived notion of what the child should say; (2) suggestive or leading questions were used to elicit the information; and (3) one would expect a child of the declarant's age to fabricate the types of statement sought to be admitted. State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990), cert. denied 498 U.S. 1033 (1991).

Citing to the Wright and Lanam factors, the trial court reviewed the admissibility of the out-of-court statements M.V. made to her mother and her day-care provider. The trial court determined that M.V.'s statements would be admitted as trustworthy. After an evidentiary hearing, the trial court found the statements of Voss and Couch had sufficient indicia of reliability and that both witnesses testified that M.V. spontaneously told each of them the same set of facts (that "Shawn touched my privacy area"). The trial court then concluded that the statements should be admitted. Referring to his own experiences with M.V. at the competency hearing, the trial court determined that the child would be unable to testify truthfully and without inhibition with Mosier in her presence. The trial court then granted the state's motion to allow M.V. to testify outside the presence of Mosier, but in accordance with Minn. Stat. § 595.02, subd. 4 (1996).

We do not believe that the trial court's determination to admit M.V.'s out-of-court statements into evidence was error. Both Voss and Couch gave similar accounts, that M.V. had not been coached to make negative statements about Mosier, and that she spontaneously stated that Mosier "licked her privacy area." The record does not reveal any reason why M.V. would have fabricated such a story about Mosier, who was a friend of her father. Voss also testified that she had never even discussed good and bad touches with M.V., given her young age.

We also hold that the trial court's decision to allow M.V. to testify outside the presence of Mosier did not constitute an abuse of discretion. There was testimony by Voss that M.V. was afraid of Mosier. M.V. testified that Mosier forcibly held her down on her chest, removed her pants, and licked her. M.V. also testified that Mosier threatened her and warned her not to tell her mother or father. This is the same account M.V. gave her mother and Couch. Furthermore, the trial court complied with the requirements of Minn. Stat. § 595.02, subd. 4, by allowing Mosier to sit in a room with a one-way mirror and view M.V. during her testimony. Mosier was also simultaneously able to communicate with his attorney by phone.

We conclude, therefore, that the personal observations of the trial court and the testimony of Voss and Couch were sufficient to support the ruling that M.V's out-of-court statements should be admitted and that M.V. was too traumatized to testify in Mosier's presence. See State v. Conklin, 444 N.W.2d 268, 274 (Minn. 1989) (holding that trial court's finding of traumatization must be based on the court's personal observation of the witness, or by additional testimony of a someone having personal knowledge of the witness).

3. Exclusion of Expert Testimony

Mosier also argues the trial court erred by excluding the testimony of his expert, Dr. Robert Barron, as to whether M.V. exhibited characteristics consistent with sexual abuse.

Trial courts have broad discretion in deciding whether testimony by a qualified expert should be received. State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980); Minn. R. Evid. 702. The test for admitting an expert's testimony is whether it is helpful to the jury. State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). Expert testimony describing traits and characteristics of sexually abused children may be admissible. See State v. Myers, 359 N.W.2d 604, 609 (Minn. 1984). However, when a ruling in a case excludes evidence, the failure to make an offer of proof precludes the claim of error. Minn. R. Evid. 103(a)(2); see State v. Rice, 411 N.W.2d 260, 262 (Minn. App. 1987).

Mosier's argument is misplaced. The following exchange took place between Dr. Barron and Mosier's counsel:

Q: Did you happen to observe in your review of the videotapes--any of the videotapes--whether the child in this case was exhibiting any of the characteristics and traits consistent with stress or with sex abuse?

State: Objection, Your Honor.

Court: I'll sustain as to sex abuse. He can answer as to characteristics of stress.

Mosier's counsel made no offer of proof after the trial court's partial exclusion of his question. We note that the trial court allowed Barron to testify even though he had not examined the victim, but only reviewed M.V.'s testamentary video tape. Furthermore, admission of expert testimony is within the trial court's discretion. We hold that the trial court's limitation of the expert testimony was not an abuse of discretion and, further, that Mosier's failure to make an offer of proof must be treated as a waiver of the claim of error.

4. Sentencing

Mosier argues that the trial court abused discretion in sentencing him at a severity level eight. He contends that first-degree criminal sexual conduct is a level-eight offense only if it involves penetration and otherwise is a level-seven offense. He claims that the state should have requested a special verdict form to clarify whether there was sexual penetration or contact. Because he contends that no distinction can be made as to which crime he was convicted of, Mosier argues his sentence should be lowered to the level-seven presumptive guideline.

Minn. Stat. § 609.342, subd. 1 (1996), provides in part:

A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if * * * :

(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. * * *

For purposes of the statute, "sexual penetration" is defined as

(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse or

(2) any intrusion however slight into the genital or anal openings:

(i) of the complainant's body of any part of the [actor's] body * * * .

Minn. Stat. § 609.341, subd. 12 (1996). Cunnilingus is defined as an "act of sex committed with the mouth and the female sexual organ." Black's Law Dictionary 380 (6th Ed. 1990). Furthermore,

[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.

Minn. R. Crim. P. 26.03, subd. 18(3).

In his charge to the jury, the trial court read the above statutes and then stated in part:

Now, there are four elements that the State must prove regarding the charge of criminal sexual conduct in the first degree * * *. First, that Defendant intentionally sexually penetrated M.V. * * * Cunnilingus constitutes sexual penetration if there is any contact between the female genital opening of one person and the mouth, tongue or lips of another person, however slight. * * * If you find that each of these four elements has been proved beyond a reasonable doubt, Defendant is guilty of criminal sexual conduct in the first degree.

Mosier's argument is mistaken. M.V. testified that Mosier "licked" her "privacy area." The language of Minn. Stat. § 609.341, subd. 12, provides that this action would constitute "sexual penetration," thereby rendering it a severity-level-eight offense. The trial court gave a thorough instruction to the jury and made clear that the facts, if proved, would fall within Minn. Stat. §§ 609.342, subd. 1(a), and 609.341, subd. 12. Mosier did not object to the instruction.

We conclude, therefore, that the trial court gave the jury appropriate instructions on the offense charged and that Mosier was correctly sentenced at a severity level eight upon conviction of first-degree criminal sexual conduct.