Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

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

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Lansing, Judge.

Appellant Lyf Wildenberg, in challenging his conviction and sentence for first-degree criminal sexual conduct, alleges the trial court abused its discretion by (1) disallowing discovery of, and excluding from evidence, the victim's psychological reports and private journals, (2) limiting the testimony of Wildenberg's character witnesses, (3) admitting allegedly unqualified expert testimony, (4) allowing allegedly prejudicial misconduct by the prosecution, and (5) sentencing Wildenberg to a double upward durational departure. Because we find that the trial court incorrectly disallowed discovery of the victim's private journals, we reverse and remand for a new trial. Because several of the remaining issues raised by appellant may recur upon retrial, we address those issues and find no abuse of discretion in the trial court's determinations regarding them.

In October 1988 Wildenberg began coaching for Flyaways gymnastics team. K.R.A. left the YMCA and joined Flyaways so that Wildenberg could continue coaching her. K.R.A. remained with Flyaways for three years; she was then asked to leave for disciplinary reasons. K.R.A. testified at trial that her mother blamed Wildenberg for her dismissal from Flyaways. Wildenberg claims that the abuse charges have been fabricated by K.R.A. and her mother to get back at Wildenberg for dismissing K.R.A.

After K.R.A. left Flyaways, she had only minimal contact with Wildenberg; this consisted of occasional phone conversations over the next three years. In July 1994 K.R.A. went to Wildenberg's home and the two had sexual intercourse. Wildenberg claims it was consensual; K.R.A. states that she felt that she had to and that she was unable to say "no" to him.[1] K.R.A. was seventeen when this occurred.

Wildenberg claims K.R.A. tried to have sex with him again the following week, but he refused. He argues that this rejection of K.R.A., in addition to her dismissal from Flyaways, motivated K.R.A. to claim that he abused her as a child.

In January 1995 K.R.A. notified the police that she had been abused by Wildenberg off and on over a period of two-and-a-half years. An investigator suggested that K.R.A. tape a conversation between Wildenberg and herself in an effort to elicit information regarding their relationship. In February K.R.A. called Wildenberg and taped their conversation. During this conversation K.R.A. told Wildenberg that she might submit her private journals to her psychiatrist and they contained information that could get him "in trouble." Although never actually stating that he had sexual intercourse with K.R.A., Wildenberg did refer at some point to their relationship as having a sexual nature. He also apologized to K.R.A. for his past behavior and stated that he never did anything to her out of malice. He told K.R.A. that if she discussed their relationship, he might get into trouble. At trial Wildenberg testified that he was referring to their July 1994 encounter and the way that he handled it. He stated that he thought he might get in trouble because he was unsure whether or not having sexual intercourse with a 17-year-old girl was illegal.

The day after the phone conversation, the state filed formal charges against Wildenberg. Wildenberg moved for an in camera review of K.R.A.'s journals and psychological reports. The judge reviewed the materials and found that neither the journals nor the psychological reports contained any exculpatory information for the defense. Further, the judge disallowed any reference to the journals by the defense on cross-examination. After a week-long trial, Wildenberg was convicted of first-degree criminal sexual conduct and sentenced to 86 months, a double upward durational departure from the presumptive 43 month sentence.

K.R.A.'s Psychological Reports

The Minnesota Supreme Court has ruled that review of documents in camera is proper. State v. Paradee, 403 N.W.2d 640 (Minn. 1987). In Paradee, when confronting much the same issue as is presented in this case, the court concluded that protecting the child far outweighed the probative value that may have been reached from release of the confidential records. Id. at 641-42. The Paradee court did state, however, that the trial court's duty to disclose is ongoing and information that may be deemed immaterial at the start of the trial may become important as the trial progresses, in which case the court is obligated to release information material to the fairness of the trial. Id. at 641.

A crime victim's past medical records are generally protected from disclosure by the physician-patient privilege. Minn. Stat. § 595.02, subd. 1(d) (1996). The medical privilege, however, like other privileges, sometimes must give way to the defendant's right to confront his accusers. State v. Kutchara, 350 N.W.2d 924, 926 (Minn. 1984) (citing State v. Leecy, 294 N.W.2d 280, 283 (Minn. 1980)).

In this case, the trial court determined that the psychological reports were immaterial and that admitting them would be more harmful to K.R.A. than helpful to Wildenberg. Our independent review of these reports leads us to conclude that the trial court did not abuse its discretion, and we affirm the decision to prohibit discovery of these records and their admission into evidence.

K.R.A.'s Private Journals

With regard to the journals, the trial court also determined that they were immaterial and admitting them would be more harmful to K.R.A. than helpful to Wildenberg. We find that these journals were not protected by any statutory privilege and that the trial court erred in prohibiting their discovery by defense counsel and their admissibility at trial. The defense is entitled to information that would be favorable to it even if that material is not expressly exculpatory. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 1000 (1987).

Private journals prepared by a victim are not considered medical records to be protected from disclosure. Even if we were to strain to declare these journals to be privileged documents, it is clear that any privileged nature was waived by K.R.A. She turned the journals over to the investigating police officers. The prosecutor referred to the journals in opening and closing statements at trial. Perhaps most importantly, K.R.A. repeatedly referred to these journals in the taped conversation with Wildenberg; that conversation was instrumental in bringing criminal charges against Wildenberg. Clearly the journals were evidence in the possession of the prosecutor and were discoverable. See Minn. R. Crim. P. 9.01. Defense counsel was entitled to make use of them during the trial, if desired, and to question K.R.A. about them.

The United States Constitution provides a right to

confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

Davis v. Alaska, 415 U. S. 308, 316, 94 S. Ct. 1105 (1974) (quoting J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940)). We conclude that the discoverability of K.R.A.'s journals is a confrontation issue of the nature addressed in Davis. There, the Supreme Court rejected the argument that maintaining the victim's confidentiality outweighed the defendant's interest in cross-examination and stated that:

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment * * *.

Id. at 318, 94 S. Ct. at 1111.

An additional prejudicial issue is present here because the trial court determined that the journals were immaterial to the case, yet allowed the jury to hear the fully-taped conversation replete with references by K.R.A. to matters that she had addressed in her journals. The use of the taped conversation at trial served to exacerbate the error arising from the fact that the defense was not given an opportunity to cross-examine K.R.A. on the contents of the journals or even to ask if, in fact, they existed. The tape was highly prejudicial; denial to the defense of any kind of rebuttal testimony or evidence constituted error.

Constitutional error will be found prejudicial if there is a reasonable possibility that the error complained of might have contributed to the conviction. State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986). In this case, the jury deliberated for some time and then asked to hear the taped conversation again. Within 20 to 30 minutes of rehearing the tape, they returned a verdict of guilty. It is unclear whether Wildenberg would have been acquitted or convicted if the journals had been admitted or if K.R.A. had been cross-examined as to their existence and what they contained. On the state of the record before us, we conclude that the jury was left to conjecture as to the contents of the journals, which conjecture may have been far more prejudicial to appellant than the actual contents. The judgment of conviction must be vacated and a new trial must be had.

In view of our remand for a new trial because of the error in regard to K.R.A.'s journals, we are not required to resolve the remaining issues appellant raises. However, because of the likelihood that these issues will recur upon retrial, we shall address them in order to give guidance to the trial court.

Testimony of Wildenberg's Witnesses

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell, 347 N.W.2d at 826. The accused in a criminal case may introduce evidence of his good character as proof of the substantive issue of guilt or innocence. Character evidence is not admissible to prove that an individual acted in conformity with his character on a specific occasion. Minn. R. Evid. 404(a)(1).

Wildenberg argues that his character witnesses were not allowed to testify regarding his moral character. We disagree and find that Wildenberg's witnesses did, in fact, testify as to his moral character. The witnesses all testified that they would trust their children alone with Wildenberg, that Wildenberg was their friend, and that they loved him. We note that Wildenberg's witnesses were not allowed to testify that he had never done anything improper towards their children. We find no error in this restriction. Such testimony would go to the very heart of the prohibition in rule 404(a)(1) and would be an attempt to prove that because Wildenberg did not sexually abuse the witnesses' children, he did not sexually abuse K.R.A. This is precisely what rule 404(a)(1) disallows. There was no abuse of discretion by the trial court in disallowing this testimony.

Expert Testimony

"[T]he trial court has broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980); see Minn. R. Evid. 702. Deputy Stan Johnson testified at trial as to why, in his opinion, K.R.A. did not report the alleged abuse sooner. While Wildenberg claims that the trial court failed to qualify Deputy Johnson as an expert, this lack of qualification was not objected to by defense counsel. Unobjected-to error is plain error only if it seriously affects substantial rights and has an unfair prejudicial impact on the jury's deliberations. United States v. Young, 470 U.S. 1, 16 n.14, 105 S. Ct. 1038, 1047 (1985). Absent plain error, Wildenberg's failure to object to Deputy Johnson's testimony at trial constitutes a waiver of the right to raise the issue on appeal. See State v. Haala, 415 N.W.2d 69, 75 (Minn. App. 1987) (appellant's failure to object to prosecutor's closing argument referring to appellant's propensity or disposition constituted waiver), review denied (Minn. Nov. 10, 1987).

Even if we address Wildenberg's argument on its merits, we note that the Minnesota Rules of Evidence do not require that an expert witness have formal training; the qualification may stem from knowledge, skill, or experience necessary to provide a meaningful opinion on the subject. Minn. R. Evid. 702 1977 comm. cmt. Deputy Johnson has worked on criminal investigations for eight years, has investigated over 100 criminal sexual conduct cases, and has attended various training seminars of child sexual abuse. Based on his experience and training, he was qualified to testify as an expert. There was no abuse of discretion by the trial court with regard to this issue.

Prosecutorial Misconduct

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect. The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

Wildenberg did not object at trial to any prosecutorial statements, but claims on appeal that statements made in opening and closing statements constitute prosecutorial misconduct. In reviewing these statements[3] and the standard laid out in Wahlberg, we disagree. While the statements may be questionable, they do not fall within the category of prejudicing Wildenberg's right to a fair trial.

Finally, appellant raises an issue regarding the trial court's upward departure from the sentencing guidelines. Because this issue is dependent to a great extent on testimony produced at trial (or retrial such as here), we do not address it.

Affirmed in part, reversed in part, and remanded.

[ ]¹No charges were brought against Wildenberg in connection with this incident.

[ ]²The trial court reviewed in camera both the psychological records and the journals of K.R.A., released progress notes from Park Nicollet Medical Center dated February 10, 1994, and July 19, 1994, and ruled "none of the other psychological records nor any of the alleged victim's journals are discoverable by the defendant." While apparently no distinction was made between the journals and psychological records when the trial court ruled on the discoverability of these documents, we believe that there is a qualitative distinction between the journals and the psychological records, which should be and will be made in this opinion.

[ ]³Wildenberg alleges that the prosecutor expressed a personal opinion on the credibility of witnesses, referred to Wildenberg as "manipulative, controlling, conceited and self-centered," personally attacked him ("he does not care one iota about [K.R.A.]"), and conducted an argumentative cross-examination of him.