This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1641

 

State of Minnesota,

Appellant,

 

vs.

 

Jeffrey Kyle Randall,

Respondent.

 

Filed May 17, 2005

Affirmed

Poritsky, Judge*

 

Yellow Medicine District Court

File No. K9-04-146

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Thomas G. Kramer, Yellow Medicine County Attorney, Keith R. Helgeson, Amanda C. Sieling, Assistants County Attorney, 132 Eighth Avenue, P.O. Box 128, Granite Falls, MN 56241 (for appellant)

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

The state appeals from a pretrial order granting respondent’s motion for adverse psychological examinations of the alleged victims of respondent’s sexual abuse.  Because we see no abuse of discretion in the order, we affirm.

FACTS

 

            L.S. is the mother of two sons who are the alleged victims in this case: J.D.R., now 19, and A.J.B., now 17.  Respondent Jeffrey Randall is not the father of either alleged victim.  L.S. and J.D.R. moved in with Randall around June 1997.  A.J.B. lived with his father but had visitation with L.S.  Randall and L.S. were married in June 1998 and dissolved their marriage sometime before September 2004.

            In September 2003, L.S. and her sons were interviewed by a county social worker in response to a report that Randall had sexually abused both sons between June 1997 and September 2003.  J.D.R. was interviewed again in March 2004 to clarify some of his statements.  Based on these interviews, Randall was charged with six counts of criminal sexual conduct in regard to J.D.R. and one count of criminal sexual conduct in regard to A.J.B.

            Randall then hired an attorney.  An investigator employed by the attorney produced an affidavit indicating that: (1) L.S. had influenced her sons to report that their biological fathers abused them; (2) L.S. had been enjoined by court order from making false reports of child abuse by A.J.B.’s father; and (3) L.S. had told her sons that it would be financially advantageous for them to report that Randall had abused them.  The district court found that this affidavit was sufficient probable cause to grant Randall’s motion for an order directing psychological evaluations of J.D.R. and A.J.B.[1]

            The state now challenges the order for the psychological evaluations.

D E C I S I O N

A district court has discretion to order an adverse psychological examination of child sexual abuse victims.  See State v. Cain, 427 N.W.2d 5, 8-9 (Minn. App. 1988) (setting out appropriate limitations on adverse psychological examinations of children who are alleged to be victims of sexual abuse).  Here, the district court, following Cain, imposed restrictions:

The examinations of J.D.R. and A.J.B. shall be limited to a standard psychological evaluation.  [The examiner] shall not subject the children to cross-examination regarding prior statements or evaluations.  Neither counsel shall be allowed to be present during said evaluation.  The mother of the children shall be present during the evaluations to provide background information as requested by [the examiner] and to provide comfort to the children.  The mother of the children is not subject to an evaluation.  Each father of the children may, but not is required, [sic] to attend the examination of each respective child to provide background information.

 

We note that at the time the court issued its order, J.D.R. was 18 and A.J.B. was 16.

The state argues that the district court abused its discretion in ordering the psychological examinations.  The state claims that no purpose would be served by adverse psychological examinations.  But an adverse psychological examination can “provide information helpful to a determination of [the alleged victims’] competency and to the factfinder’s assessment of the weight and credibility of their statements.”  Id. at 8 (affirming order for adverse psychological evaluation of alleged victims aged six and four).  In the memorandum accompanying his motion for the examinations, Randall identified their purposes:  “[T]here are two purposes to be served by a psychological examination of the alleged victim.  One purpose is to detect mental or moral delusions or tendencies which would distort the imagination and affect the probable credibility of the complaining witness.  The other is to test the competency of the alleged victim to be a witness at the trial.”  (quotation and citations omitted.)  Contrary to the state’s argument, there are purposes to the examinations, and Randall has identified those purposes.[2]

            The state also argues that the district court abused its discretion by ordering the psychological examinations without either a hearing on the factual basis for the examinations or a Frye-Mack hearing to establish the reliability of the techniques used in the examinations.  In finding that the investigator’s affidavit established a prima facie showing that psychological examinations of the alleged victims were necessary, the district court relied on Cain.  Cain concluded that a psychological evaluation was justified by “the prior allegations of abuse, viewed with suspicion by child welfare workers, and the [alleged victims’] mother’s perceived ‘obsession’ with sexual abuse.  Parental influence is suggested in the reports, but it may be difficult for a defense expert to probe such influence based on the reports alone.”  Id.  Here, the district court found that:

            [Randall] alleges [L.S.] has a history of making false and misleading reports to family services and law enforcement concerning abuse of her children.  [Randall] alleges the child’s mother [L.S.] has wrongfully accused the boys’ natural fathers . . . of abusing the children numerous times.  In [a court] order [L.S.] was enjoined from making false reports and/or accusations of child maltreatment or abuse by [her former husband, A.J.B.’s father].

[Randall] alleges parental influence on the part of [L.S.] . . .  [T]he natural father of J.D.R. in an interview with family services expressed his belief [that L.S.] would be capable of influencing the children into saying something that was not true.  [L.S.] videotaped A.J.B. stating he refused to return to his father and stating that he was being abused.  A [court] order noted [L.S.’s] actions were not appropriate and found the situation was created and encouraged by [L.S.]. 

These allegations appear to satisfy the requirements for authorizing an adverse psychological examination for each alleged victim.  

 

In support of its argument that the district court erred by failing to hold a hearing on Randall’s motion, the state relies on Cain, where a hearing was held.  Id. at 7.  But in Cain, there were two reasons for a hearing that do not exist here.  First, the alleged victims in Cain were small children, six and four years old: one purpose of the hearing was to enable their guardian ad litem to testify on whether a psychological examination would harm them.  Id. at 7.  Here, one of the alleged victims is an adult, aged 19, the other alleged victim is 17, and there is no guardian ad litem. 

Second, the alleged victims in Cain had already made statements to a psychological therapist and a doctor.  Id. at 6-7.  A purpose of the hearing was to give the psychologist who was to do the adverse evaluation an opportunity to explain how his techniques in dealing with small children differed from the techniques of the therapist and doctor who had already interviewed them.  Id. at 9.  Here, the alleged victims have not made statements to other therapists or doctors, so the methodology involved in obtaining statements is not at issue.  We conclude that Cain does not mandate a hearing in the present case. 

            The state further argues that the district court erred by failing to hold a Frye-Mack hearing.  Randall proposed asking the psychologist conducting the evaluations to rule out “psychological trauma due to post-molestation syndrome in the alleged victims” and “parental alienation perpetuated by [L.S.] against [Randall] with respect to the alleged victims” and to address “the issue of secondary gain based upon vindictiveness by the alleged victims.”  The state argues that a Frye-Mack hearing should have addressed these theories.

Minnesota adheres to the Frye-Mack standard for admission of evidence that is based on novel scientific techniques or principles. Under this two-prong standard, the scientific technique or principle at issue must be generally accepted within the relevant scientific community.  In addition, its foundation must be reliable.  Foundational reliability requires the proponent of a test to establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. The determination of whether a proper foundation has been established is largely within the discretion of the trial court.

 

 Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 824 (Minn. 2000) (quotation and citations omitted).  Thus, the foundational reliability of the psychological evaluations of the alleged victims could not possibly have been established before the evaluations were conducted; only after the evaluations were administered could it be determined that their administration “conformed to the procedure necessary to ensure reliability.”  We conclude that the district court did not abuse its discretion in failing to hold a Frye-Mack hearing before the evaluations.[3]

            We see no abuse of discretion in the order for psychological evaluations of Randall’s alleged victims.

            Affirmed.