This opinion will be unpublished and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

A04-1621

 

State of Minnesota,

Respondent,

 

vs.

 

Randy Michael Johnston,

Appellant.

 

Filed September 20, 2005

Affirmed

Kalitowski, Judge

 

Otter Tail County District Court

File No. K0-03-1988

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 West Junius Avenue, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges his convictions of third- and fourth-degree criminal sexual conduct, arguing that the district court erred by admitting (1) testimony from the complainant’s social worker that complainant was a “vulnerable adult” based on social services administrative criteria; and (2) testimony from police officers that referred to the complainant as a “vulnerable adult.”  We affirm.

D E C I S I O N

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  “The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citations omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997) (holding reversal requires “apparent error”). 

I.

            Appellant argues that the district court erred by allowing testimony of a social worker that the victim was a “vulnerable adult” because that testimony encompassed an element of the offense and was a mixed question of law and fact.  But at trial, appellant’s objection to the testimony was that it was irrelevant under rule 401, inadmissible under rule 402, and confusing to the jury under rule 403.

            “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Minnesota law defines third-degree criminal sexual conduct as sexual penetration with another person if the actor “knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.”  Minn. Stat. § 609.344, subd. 1(d) (2004).

            Here, the state needed to show that (1) the complainant was mentally impaired; and (2) that appellant knew or had reason to know that complainant was mentally impaired.  Because the social worker’s testimony was relevant to show that complainant met the definition of “mentally impaired” under the statute, therefore making the existence of a fact (that complainant was mentally impaired) more probable under rule 401, the district court did not err in overruling appellant’s objection under rules 401 and 402.

            Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of . . . confusion of the issues . . . .”  Minn. R. Evid. 403.  But testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  Minn. R. Evid. 704.  In criminal sexual conduct cases, this court has approved of the admission of expert testimony regarding a victim’s borderline mental capabilities and testimony that the victim “would have difficulty appraising the nature of her conduct” to assist the jury in determining a fact issue not necessarily within the understanding of an ordinary lay person.  State v. Hitch, 356 N.W.2d 820, 822 (Minn. App. 1984); see also Minn. R. Evid. 702 (expert testimony is admissible to assist the jury in determining a fact in issue). 

            Here, appellant argues that the social worker opined on a mixed question of law and fact because the jury could confuse the social worker’s testimony about complainant being a “vulnerable adult” with the legal question of whether complainant was “mentally impaired” under the third- and fourth-degree criminal sexual conduct statutes.  The district court correctly ruled that the evidence was relevant and admissible.  The court stated:

            [T]he fact that this young lady does qualify for Human Services benefits and is mentally impaired under those regulations is certainly some evidence that she is impaired and that the jury can consider that . . . but it’s not conclusive at all on the issue of whether she’s mentally impaired under the statute . . . for criminal law purposes.

 

            On appeal, appellant also supports his objection to the social worker’s testimony by citing several cases that hold that experts may not testify as to whether a defendant has the requisite mens rea to support his argument.  See State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993) (holding that the district court improperly admitted expert testimony on the defendant’s state of mind or intent as deduced from the shape and depth of the wounds); State v. Provost, 490 N.W.2d 93, 101-02 (Minn. 1992) (holding that psychiatric opinion testimony is not admissible on the ultimate question of whether the defendant had the requisite mens rea).  But the social worker did not testify as to whether appellant knew or had reason to know that the complainant was mentally impaired; rather the social worker testified that the complainant qualified for social services as a vulnerable adult.  Accordingly, we conclude that the district court did not err in admitting the social worker’s testimony. 

            And even if the district court did err in admitting the testimony, appellant must show prejudice from the error.  Here, the complainant testified and the jury was able to assess her limitations and intelligence level.  The complainant testified that she is “mentally handicapped” and the jury was provided with the psychological reports indicating that the complainant was mildly mentally retarded.  During closing arguments, the prosecutor emphasized the complainant’s “child-like demeanor”; her general lack of sophistication and past inappropriate choices with regard to sexual matters; psychological reports indicating low or impaired intelligence; and her social age that indicated she had the “common sense” of a 10- to 12-year-old child.  The district court read the standard criminal jury instruction for third-degree criminal sexual conduct and a slightly altered instruction for fourth-degree criminal sexual conduct.  Based on these facts, appellant cannot show that he was prejudiced by the district court’s admission of the social worker’s testimony.

II.

            Appellant also argues that the district court plainly erred in admitting the testimony of two police officers that included references to the complainant as a “vulnerable adult,” although appellant did not object at trial when the officers testified.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (holding that this court may review an unobjected-to alleged error on appeal if there is “(1) error; (2) that is plain; and (3) the error [affects] substantial rights”).  Apparently relying on his argument objecting to the testimony of the social worker, appellant provides no support for the argument that police officers cannot testify as to a complainant’s mental attributes.  We thus conclude that appellant has failed to meet the Griller test and that the district court did not commit plain error in admitting the testimony of the officers at trial.

            Affirmed.