Michael Terrell Cowin, petitioner, Appellant, vs. State of Minnesota, Respondent. A05-1724, Court of Appeals Unpublished, July 11, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1724

Michael Terrell Cowin, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 11, 2006

Affirmed

Lansing, Judge

Concurring specially, Randall, Judge

Ramsey County District Court

File No. K5-03-1353

John Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414(for appellant)

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

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

A jury found Michael Cowin guilty of two counts of first-degree criminal sexual conduct for sexually abusing his girlfriend’s twelve-year-old daughter. In this appeal from the denial of postconviction relief, Cowin contends that the district court abused its discretion by admitting evidence of his domestic abuse of his girlfriend and by admitting expert medical testimony that a transection injury to her daughter’s hymen was consistent with sexual abuse. Because we conclude that the district court properly admitted the evidence of abuse under Minn. Stat. ง 634.20 (2004) and that the expert did not impermissibly vouch for the child’s testimony by expressing a medical opinion on the physical manifestations of sexual abuse, we affirm.

F A C T S

Michael Cowin lived with his girlfriend, TP, and her three children intermittently for several years. The household relationships were marked by instances of physical and verbal abuse. As a result of one of the incidents, Cowin was arrested for disorderly conduct, and TP obtained a protection order against him.

In 2002 TP’s twelve-year-old daughter, EP, told her sister that Cowin had been “messing with” her. She said that he touched her between the legs, felt her breasts, and put his tongue in her ear. The children told TP about Cowin’s conduct, and TP contacted the police. Officers took EP to the Midwest Children’s Resource Center (MCRC) to be interviewed and examined by medical staff. A physical examination revealed a healed tear through EP’s hymen. The state charged Cowin with two counts of first-degree criminal sexual conduct.

During the jury trial, EP testified that Cowin began sexually abusing her when she was six years old, shortly after Cowin began living with her mother. She stated that he would wait until everyone was asleep or had left the house and then enter her bedroom, that he would touch her, and that “all sorts of things would happen.” According to EP’s testimony, Cowin touched her, kissed her, attempted vaginal and anal penetration, and engaged in masturbation and oral sex. She estimated that the abuse had occurred one or more times a week for six years.

The state also relied on the testimony of Dr. Carolyn Levitt, a pediatrician and the director of MCRC. Dr. Levitt testified that a nurse practitioner examined EP, that she and the nurse practitioner drafted the original report of the examination, and that the report’s conclusions relied on videotapes of both the colposcopic examination and EP’s interview with the nurse practitioner.

Dr. Levitt testified that the complete transection of the rim at the vaginal opening was consistent with sexual abuse, that this type of penetration injury does not normally occur in consensual sex, and that an accidental penetration injury that would produce this physical effect was extremely rare. Based on this physical evidence, which was consistent with EP’s report of the cause of the injury, Dr. Levitt testified to a reasonable medical certainty that EP had been sexually abused. Dr. Levitt also testified that based on her experience in dealing with sexually abused children, it was not unusual that EP would delay reporting the abuse.

The jury returned a verdict of guilty on both counts of first-degree criminal sexual conduct. Following a sentencing hearing, Cowin filed a petition for postconviction relief, arguing that the evidence of Cowin’s abusive relationship with TP was inadmissible and that Dr. Levitt’s testimony was similarly inadmissible because her medical opinion vouched for EP’s credibility. The district court denied Cowin’s petition. It concluded that the relationship evidence was admissible as evidence of abusive conduct against another member of the household and that its probative value outweighed any unfair prejudice. The district court also concluded that Dr. Levitt’s opinion testimony was properly admitted because it was based on a highly unusual physical injury that supported a conclusion of sexual abuse, that the medical interpretation of the injury was helpful to the jury, and that Dr. Levitt did not vouch for EP’s credibility or provide any opinion about who committed the abuse. Cowin appeals from the district court’s denial of his petition.

D E C I S I O N

On appeal from the denial of a petition for postconviction relief, we review the district court’s decision to determine whether the record contains sufficient evidence to sustain the court’s findings. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). We will reverse a district court’s denial of postconviction relief only if it represents an abuse of discretion. Id.

At trial, the district court admitted evidence of Cowin’s relationship with TP, including past instances of abuse. Cowin argues that admitting this relationship evidence constitutes an abuse of discretion. Evidentiary rulings are within the sound discretion of the district court, and we will not reverse the district court’s determination absent a clear abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) The party challenging the evidentiary ruling has the burden of establishing that the district court’s decision represents an abuse of discretion that resulted in prejudice. Id.

A district court may admit “[e]vidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members” unless its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Minn. Stat. ง 634.20 (2004). Evidence introduced under section 634.20 must therefore satisfy a two-part test: the evidence must be of similar prior conduct and its probative value must outweigh its prejudicial effect. State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000).

The district court determined that the evidence met the similar-conduct test, and the record supports this determination. Evidence of similar conduct includes evidence of domestic abuse and any violation of an order for protection. Minn. Stat. ง 634.20. Domestic abuse, in turn, is statutorily defined to include the infliction of fear of imminent physical harm by one member of a family or household against another member of the family or household, a physical assault, and any degree of criminal sexual conduct. Id. งง 518B.01, subd. 2(a) (defining domestic abuse), 634.20 (2004) (stating that definition of domestic abuse in section 518B.01, subdivision 2, applies to section 634.20).

Cowin challenges the admission of evidence that indicates that Cowin hit TP in the chest, knocked the breath out of her, “busted” her lip, and threatened her with a knife. This evidence indicates that he inflicted physical harm and the fear of imminent physical harm on TP, who was a member of the same household as Cowin. Because both the assault of TP and the criminal sexual conduct against EP are incidents of domestic abuse and because they involve members of the same household, the evidence of the conduct toward TP is admissible as similar conduct.

The district court also determined that the evidence’s probative value is not substantially outweighed by its prejudicial effect. Cowin argues that the evidence is highly prejudicial because the imagery evoked by the evidence prevents the jury from examining the evidence dispassionately and portrays him as a violent person. But Cowin testified that no sexual abuse occurred and suggested that EP’s delay in reporting the abuse demonstrates that she fabricated the sexual-abuse allegations. His defense required the state to introduce evidence demonstrating that EP was afraid of Cowin because of the repeated abuse in the home and that she feared retribution against herself or another family member if she reported the sexual abuse. EP specifically testified that she was afraid to tell anyone because she feared that Cowin “would kill my mom, my sister and my brother.” Consequently, Cowin’s previous conduct was probative on the issue of whether EP had a reason to delay reporting the sexual abuse. We recognize that evidence of past domestic abuse is prejudicial, but we conclude that, in these circumstances, the district court acted within its discretion by determining that the potential prejudice did not substantially outweigh the probative value of the evidence.

Cowin next asserts that the district court erred by permitting Dr. Levitt, a pediatrician and director of MCRC, to testify that, in her opinion, EP had been sexually abused. Specifically, he contends that her testimony vouched for EP’s credibility. The record does not support this contention.

Expert testimony is generally admissible if it assists the fact-finder, has a reasonable basis, is relevant, and has probative value that outweighs its prejudicial effect. State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992). A witness, however, may not vouch for or against the credibility of another witness. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998). While an expert may testify to the behavioral characteristics displayed by children who have been sexually abused, expert testimony of a child’s truthfulness is inadmissible because “the expert’s status may lend an unwarranted stamp of scientific legitimacy to the allegations.” State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001) (quotation omitted).

In her testimony, Dr. Levitt made no representations about whether EP was telling the truth. She testified that the physical evidence of the completely transected hymen indicated that EP’s vagina had been forcibly penetrated and that this injury does not usually occur absent abuse. She also testified that the physical examination was consistent with EP’s reported history. Dr. Levitt did not express an opinion on whether EP’s report was truthful or an opinion on who had sexually abused EP. Although, in response to questioning, Dr. Levitt testified to a medical opinion that EP had been sexually abused, she based her opinion on physiological factors. See United States v. Whitted, 11 F.3d 782, 785-86 (8th Cir. 1993) (distinguishing between qualified medical expert’s permissible testimony on whether evidence is consistent with allegations of sexual abuse and impermissible testimony on ultimate issue of sexual abuse when testimony is simply “pass[ing] judgment on the alleged victim’s truthfulness in the guise of a medical opinion”). Dr. Levitt explicitly stated in her testimony that her role as a physician is limited to diagnosing whether sexual abuse occurred and determining the necessary treatment. Because Dr. Levitt’s testimony relied on her assessment of EP’s physical condition, the district court did not abuse its discretion by admitting her testimony that sexual abuse had occurred and by denying Cowin’s petition for postconviction relief.

Affirmed.