This opinion will be unpublished and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

A05-2013

 

 

State of Minnesota,

Respondent,

 

vs.

 

Alan Lee DelVecchio,

Appellant.

 

 

Filed December 12, 2006

Affirmed

Toussaint, Chief Judge

 

St. Louis County District Court

File No. K6-03-600131

 

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Alan Lee DelVecchio challenges the sufficiency of the evidence to support his conviction of five counts of criminal sexual conduct,  arguing (1) that the trial court erred by allowing expert witnesses to testify about recantation theories and to vouch for the complainant; (2) the evidence was insufficient; (3) he was denied a fair trial; and (4) the state’s disclosure of exculpatory evidence was untimely.  Because the evidence was sufficient to support the convictions, the trial court did not abuse its discretion in evidentiary rulings, DelVecchio was not denied a fair trial, and the untimely disclosure did not prejudice DelVecchio, we affirm.

FACTS

            In October 2002, after learning that eight-year-old R. had alleged that her father, DelVecchio, had sexually abused her, a police officer interviewed R.  In the videotaped interview, R. related, in some detail, multiple incidents of sexual contact with DelVecchio and said they began when she was six years old.  Approximately a week later, police interviewed R.’s half-sister, R.C., who indicated that R. had told her that she had sex with DelVecchio and told R.C. not to tell.  DelVecchio gave a voluntary statement to police, reporting several incidents when he woke up from sleeping on the couch to discover that R. and R.C. had apparently unbuttoned his boxer shorts and exposed his genitals.  He said on each of these occasions the girls were disciplined.  He denied any sexual contact with R.

About two months later, DelVecchio’s wife, who is the mother of R. and R.C., called police and reported that R. had recanted her accusations about DelVecchio.  Police then conducted a second interview, in which R. stated that she had not made up the allegations and had told the truth in the first interview.  R. supplied details of the abuse and indicated that DelVecchio had told her not to tell her mother.

            DelVecchio spoke with R. by telephone three or four times between the interviews.  A guardian ad litem (GAL) was appointed for R. in connection with a petition alleging that R was a child in need of protection or services (CHIPS).    R. recanted the allegations of sex abuse to the GAL twice, about six months apart.   A child protection social worker facilitated the removal of the children from DelVecchio’s wife’s care and placed them in foster care. 

            DelVecchio was charged by amended complaint with five counts of criminal sexual conduct.  His jury trial began in April 2005; at that time, he and his wife had reconciled, but their parental rights had been terminated.  R. was then 11 years old, had been adopted by her maternal grandmother, and had some contact with her mother. 

            R.’s videotaped and tape recorded interviews were played for the jury.  DelVecchio’s recorded statement was played for the jury.  DelVecchio testified, denying that he ever abused R.  DelVecchio’s mother-in-law testified on behalf of DelVecchio about the consistency of R.’s recantations and the lack of any pressure on her from her mother to recant.

            At trial, R. admitted that she had told her sister, her mother, the police, and her therapist that DelVecchio had touched her in a way she did not like.  But she testified that she had been lying at that time and that DelVecchio had never had sexual contact with her.  R. testified that DelVecchio used to spank the children and banged his wife’s head into a washing machine.  She further testified that she had said things about DelVecchio because she was afraid of him and wanted a break from him.

            R.C. testified that R. had told her that she “did sex” with DelVecchio.  R.C. testified that she told her mother the next day, that her mother told her not to tell anyone, and that she would “fix it.”  Five experts testified at trial.

1.         A child psychologist testified as an expert witness for the prosecution about the characteristics of children who have been sexually abused and the factors that lead children to recant.  Without objection, she testified that about one-fourth of all children in therapy recant but 92% of those who recant readmit and characterized the factors surrounding R. as “a recipe for recantation.”  The child psychologist also testified that, based on her review, R. looked most like children who have been sexually abused and appeared credible when making her allegations; she said she would not find R.’s recantation credible because “it doesn’t fit the pattern of a child who’s made false allegations.” 

            2.         R.’s treating psychologist testified about the characteristics of children who have been sexually abused and opined that she believed R. had been sexually abused.  She testified that R. had been very upset by a telephone call from her mother in July 2003 when her mother told her to “stop your lying about this” and used profanity.   R. recanted the abuse in some sessions with her psychologist, but in other sessions described the sexual contact in detail.  The psychologist testified about the factors that lead sexually abused children to recant and said she believed, based on the amount of detail R. revealed about the abuse and the circumstances of her recantation, that R. had been abused. 

            3.         A family physician reviewed records of R’s. physical examination, noted normal findings, and testified that they neither proved nor disproved that sexual abuse occurred.  She testified, however, about R.’s lack of natural modesty for an eight-year old child, which appeared to be “out of the ordinary.” 

            4.         A clinical psychologist who saw R. for three sessions prior to trial testified that R. did not exhibit characteristics of a child who had been sexually abused or characteristics of post-traumatic stress disorder.  DelVecchio’s wife and mother-in-law consulted this psychologist, and they remained with R. during the first two of her three sessions.  At each session, R. said that the allegations of sexual abuse were not true.

            5.         A psychologist who had two sessions with R. in connection with the CHIPS petition testified that R. had told her about the washing-machine incident, which had frightened her.  R. also said she had seen pornography and had the idea to get DelVecchio out of the family after watching something pornographic on television.

            DelVecchio was convicted of all five counts and was sentenced to the presumptive 144 months. 

D E C I S I O N

I.

            DelVecchio argues that the trial court erred by allowing the child psychologist and R.’s treating psychologist to testify as to their opinions about whether R. had been sexually abused and about her recantation.  This court will reverse a ruling on the admission of expert testimony only when the trial court has abused its discretion.  State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987).  A defendant who claims error in the trial court’s evidentiary ruling has the burden of establishing both error and prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  A reversal is warranted only when the error substantially influenced the jury to convict.  Id.  But when evidence is admitted without objection, this court reviews the trial court’s decision for plain error.   State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R Crim. P. 31.02.   Under this standard, the defendant must establish error that was plain and that affected substantial rights.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). 

            The trial court denied defense counsel’s pretrial motion not to allow the child psychologist to offer opinion testimony as to whether R. was sexually abused.  Assuming that an objection to similar testimony from the treating psychologist would have resulted in the same ruling, we apply the harmless-error standard of review to admission of this testimony.  

            Minnesota law supports the admission of expert testimony about the behavioral characteristics of a child that are consistent with sexual abuse.  See State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (ruling that expert testimony on behavioral traits and characteristics typical of sexually abused child exhibited by particular victim are admissible).  Expert opinion testimony on whether a complainant was sexually abused is admissible, as long as the expert does not offer an opinion on the identity of the person who committed the abuse.  See State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988); see also State v. Campa, 390 N.W.2d 333, 335 (Minn. App. 1986) (stating that expert opinion on whether victim has been abused was “proper testimony”), review denied (Minn. Aug. 27, 1986).  Neither the child psychologist nor R.’s treating psychologist stated an opinion on the identity of the abuser.  Therefore, the trial court did not err in admitting expert opinion testimony that R. had been sexually abused. 

            DelVecchio also challenges the trial court’s admission of the testimony of the child psychologist, R.’s treating psychologist, and a social worker on R.’s recantation as improper vouching.  But at trial, defense counsel did not object to the testimony of either of the psychologists.[1]  Because the defense failed to object to the challenged testimony during trial, the plain-error standard of review applies. 

            Vouching testimony is testimony that another witness is telling the truth or that one witness is to be believed over another witness.   See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (stating that it was not vouching testimony when witness did not testify that another was telling the truth or that he believed one person over another).  Although the psychologists and the social worker did not directly state that they believed R.’s initial story and disbelieved R.’s recantation, their testimony could be construed as vouching. 

            But this kind of vouching testimony is permissible if the defense “opened the door” by challenging R’s credibility during the time period in which she reported the abuse.  See Myers, 359 N.W.2d at 611-12 (holding that defense had waived objection to responsive expert opinion testimony by seeking to discredit child’s testimony with evidence that child’s mother did not initially believe her).  DelVecchio maintains that, because the trial court admitted expert testimony on whether abuse occurred, the defense had to elicit on cross-examination that the experts believed R.’s reports of sexual abuse and disbelieved her recantation.  But, before the experts testified, defense counsel had challenged R’s credibility by asking R. if she was lying when she reported the abuse and by asking R.C. if R. lied about other matters, such as stealing.  Moreover, vouching testimony occurred on redirect, after the defense had introduced evidence of R.’s recantation.  For example, the child psychologist was asked on redirect if the recantation evidence affected her opinions.  She replied that she “would still go back to the earlier statements and the recantation and the reaffirmation.  It’s consistent.  There’s too much detail.  There’s [sic] idiosyncratic elements that are there. . . .”   Because much of the testimony on recantation occurred in response to the defense’s attack on R.’s credibility when she initially reported the abuse, the testimony was permissible opinion testimony under Myers. 

II.

            DelVecchio asserts that the evidence is insufficient to support his conviction.  On a claim of insufficient evidence, this court carefully reviews the record, in a light most favorable to the conviction, to determine whether a jury could reasonably reach a guilty verdict based on the record and inferences drawn from the record.  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).   Recognizing that the jury is in the best position to determine witness credibility, this court assumes that the jury believed testimony supporting the verdict and disbelieved evidence to the contrary.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (determining witness credibility is usually exclusive province of jury).

            DelVecchio maintains that his conviction was based entirely on circumstantial evidence, including the testimony of expert witnesses, which was insufficient to convict him.  For the first time on appeal, he argues that R.’s first videotaped interview was admitted only as impeachment, rather than substantive, evidence.  But defense counsel, in closing argument, stated to the jury that the videotape provided “the only substantive evidence” of sexual abuse.  DelVecchio’s argument that R.’s prior statements were not admitted as substantive evidence is therefore without merit.  The direct evidence is sufficient to sustain the jury’s verdict.

            Although R. recanted the allegations made in her first police interview, she reconfirmed the allegations in her second police interview and stated that she had told the first investigator the truth.  In both interviews, R. supplied details of the abuse.  The jury was entitled to determine that R.’s interview statements to police were credible, especially when the second interview was done after she had reportedly recanted.  Weighing witness credibility is a task for the jury, not a reviewing court.  State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987), review denied (Minn. June 25, 1987). 

            R.C.’s testimony also supports the jury’s verdict.  Although on cross-examination, R.C. stated that R. told her about the abuse so that the girls would not have to go back to DelVecchio, R.C. also stated that, on several occasions, she had seen R. and DelVecchio go into a room and shut the door.  R.C. testified that, although R. told her not to tell their mother, she did tell, because “it was something important, so then it won’t happen again.” 

            Other evidence also supports the inference that R.’s recantation was not credible.  The GAL testified that, when R. was in foster care, R. appeared to be taking on the blame for the break-up of the family.  The social worker testified about her knowledge that DelVecchio’s wife indicated to R. that what DelVecchio did was “a horrible thing,” and that she would like to believe it was not true.  DelVecchio’s argument that the evidence does not support the verdict is without merit.

III.

DelVecchio argues that the trial court abused its discretion by denying his motion for a mistrial because the prosecutor used leading and confusing questions in R’s direct examination.  This court reviews the denial of a motion for a mistrial for abuse of discretion.   State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).   The trial court should deny a motion for a mistrial unless there is a reasonable probability that the outcome of the trial would be different if the event prompting the motion had not occurred.  State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). 

Minn. R. Evid. 611(c) provides that leading questions should be used in direct examination only if necessary to develop the witnesses’ testimony.  But the “use of leading questions is left to the discretion of the trial court[,]” and, when leading questions are necessary because of a witness’s  immaturity,  the trial court may permit inquiry by leading questions in direct examination.  Id., cmt.  Leading questions to child sexual-abuse complainants may be appropriate to persuade them to testify about sensitive matters.  United States v. Rossbach, 701 F.2d 713, 718 (8th Cir. 1983); United States v. Iron Shell, 633 F.2d 77, 92 (8th Cir. 1980). 

The trial court initially ruled that leading questions would be allowed to examine R. about any incidents of abuse and her statements to the police.  The prosecutor questioned R.:

Q:        You told [the police interviewer] that your dad said he was going to stop, didn’t you?

 

A:        Yes.

 

Q:        Okay.  But that he didn’t stop, is that right?

 

A:        Yes.

 

Q.:       Now, your dad told you not to tell anybody about this, didn’t he?

 

A:        Yes.

 

Q:        What did he say?

 

The defense renewed its objection to the use of leading questions and also objected that the witness had been confused by the last question.  The trial court determined that the question was not confusing but changed its ruling to prohibit the prosecutor from examining R. using leading questions.  The trial court, however, declined to strike the answers to the last two questions or give a curative instruction and denied the defense motion for a mistrial.

           The record supports DelVecchio’s argument that the use of leading questions allowed the prosecutor to reach the direct question of whether DelVecchio told R. not to say anything about the abuse.  But, as the trial court pointed out, the question would have been admissible on direct examination.  Finally, R.’s inconsistent answers to other questions suggest that the leading questions did not prompt her to answer one way or the other.  The trial court did not abuse its discretion by denying DelVecchio’s motion for a mistrial.

IV.

            In his pro se supplemental brief, DelVecchio alleges a Brady violation based on the state’s failure to timely disclose a BCA lab report indicating that a piece of the mattress taken from his bed had been tested and contained no DNA evidence.  A Brady violation occurs when the “state has suppressed evidence material to guilt or innocence that is favorable to the accused.”  State v. Burrell, 697 N.W.2d 579, 603 (Minn. 2005) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)).  The three components necessary for a “‘true Brady violation’” are that (1) the evidence at issue is favorable to the accused, (2) the evidence was willfully or inadvertently suppressed by the state, and (3) prejudice to the accused resulted.  Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005) (quotation omitted). 

            DelVecchio moved before trial for acquittal based on the state’s failure timely to disclose the BCA report.  The trial court denied the motion, determining that defense counsel had notice one or two years before trial that the samples of material to be tested showed nothing; that the prosecutor disclosed the actual DNA test report to the defense as soon as she received it, which was the day before the hearing; and that, because of the prior knowledge of the lab results and the recent discovery of the written report, the defense was not harmed by the late disclosure. 

            DelVecchio has not established that the late disclosure of the lab report violated his due process rights under Brady.  Although the report was exculpatory and was inadvertently suppressed by the state, the defense knew that the testing had shown no results at least a year before trial.  And because the report was admitted at trial, DelVecchio has failed to show prejudice from its late disclosure. 

            Affirmed.