Olmsted County District Court

File No. K2951757

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street S.E., Rochester, MN 55904 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Willis, Judge and Mansur, Judge.

Edwin Curry was convicted of three counts of criminal sexual conduct and sentenced to 48 months in prison. Curry argues that he was denied his constitutionally-protected right to self-representation, and that the district court abused its discretion by allowing expert testimony regarding witness credibility. We affirm.

After examining J.C., Dr. McCoy asked J.C. why she was at the clinic. J.C. told the doctor that Curry had been touching her "pee-pee" and that the most recent physical abuse had occurred the day before. When the Currys returned to the room, Dr. McCoy told them of J.C.'s accusation. Curry's wife admitted that she knew of previous assaults upon the child by Curry, but claimed she did not know about any recent abuse. Curry admitted to Dr. McCoy that he had touched his daughter in the past but insisted that he had not done anything to her recently.

Hours later, Curry spoke with Sergeant Timothy Heroff of the Rochester Police Department. Social Services had contacted the department because a neighbor informed Social Services that J.C. had told her of the abuse. Heroff alleges Curry told him that he had never "raped or penetrated" J.C. but that he supposed most people would consider what he had done molestation. Curry was charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1996) (intentional contact by the actor's bare genitals with the complainant's bare genitals with sexual intent when the complainant is under 13 years of age and the actor is more than 36 months older than the complainant); one count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (1996) (sexual contact where the complainant is under 13 years of age and the actor is more than 36 months older than the complainant); and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (1996) (sexual contact where the actor has a significant relationship to the complainant, the complainant was under 16 years of age, and the sexual abuse involved multiple acts over an extended period of time).

At trial, Curry's wife testified that she found Curry inappropriately touching J.C on a prior occasion and had confronted him. She testified that Curry had admitted to the touching and agreed to seek counseling. J.C. testified at trial that she was scared and unable to remember if Curry had touched her. She also stated that she didn't love Curry anymore and would cry if she was forced to look at him.

Curry acknowledged at trial that when his wife confronted him about abusing J.C. he told her he had a problem. Curry denied ever having talked to Heroff about molesting J.C. and testified that any genital contact he may have had with the child was inadvertent.

A jury found Curry guilty of all charges, and he was sentenced to 48 months in prison. At his sentencing hearing Curry protested that he did not receive a fair trial because he was denied his right to self-representation. Curry reasserts this claim on appeal and further argues that the trial court abused its discretion by allowing expert witness testimony regarding J.C.'s credibility.

Curry again raised the issue of self-representation at a subsequent motion hearing. After consulting with Wright, however, Curry stated that he wished to continue having Wright represent him. There was no further discussion of the issue until a February 2, 1996 pretrial hearing when Curry stated that he had "fired" Wright and wished to proceed pro se. The trial court instructed Curry that he was free to seek self-representation but that the court would have to review Curry's decision to ensure that it was knowing and voluntary. The court then sent a letter to Curry's counsel stating:

In the event Mr. Curry intends to waive his right to counsel and proceed to trial as scheduled next week pro se, he must be prepared to persuade me on the record * * * that the waiver is knowingly, voluntarily, and intelligently made. In assessing his competency to waive counsel, I will apply the standard set forth in [Minn. R. Crim. P.] 20.01, subd. 1.

Curry made no further objections and the case proceeded to trial with Wright representing Curry. At his sentencing hearing, Curry complained that he had been denied the right to represent himself.

A defendant has an absolute right under the Sixth Amendment to proceed pro se if the request is timely and not made for dilatory purposes. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). However, a defendant must be apprised of the dangers and disadvantages of self-representation and competently and intelligently accept them. Id. at 835, 95 S. Ct. at 2541. Additionally, the trial court may not allow a defendant to waive counsel "before a lawyer consults with the defendant and the lawyer has an opportunity to be heard by the court." Minn. R. Crim. P. 20.01, subd. 1.

Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence. McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 953 (1984). We have previously held that a defendant must articulately and unmistakably assert his right of self-representation. State v. Halverson, 381 N.W.2d 40, 44 (Minn. App. 1986) (citing United States v. Weisz, 718 F.2d 413, 425 (D.C. Cir. 1983), cert. denied, 465 U.S. 1027 (1984)), review denied (Minn. Mar. 21, 1986).

Because Curry did not object to Wright's representation at the hearing just prior to trial, the trial court reasonably concluded that Curry had accepted Wright as defense counsel. See id. (stating that defendant's failure to object to appointment of counsel resulted in a waiver of his right to self-representation). The record contains no "clear and unequivocal" denial of a request by Curry to represent himself. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (denial of defendant's clear and unequivocal wish to represent himself constituted denial of defendant's Sixth Amendment right). We conclude that Curry was not denied his right to self-representation.

Generally, expert testimony regarding witness credibility is inadmissible. State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984). However, Myers distinguishes incest cases:

With respect to most crimes the credibility of a witness is peculiarly within the competence of the jury, whose common experience affords sufficient basis for the assessment of credibility. * * * The nature, however, of the sexual abuse of children places lay jurors at a disadvantage. Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse.

Id. at 609-10. In Myers, the supreme court found that an expert could testify regarding a child's credibility because the defense had "opened the door" to such testimony by soliciting testimony from the child's mother that the mother did not believe the child's allegations of sexual abuse. Id. at 611.

Here, Curry "opened the door" to the issue of J.C.'s credibility by alleging in his opening statement that J.C.'s statements were fabrications instituted by her mother. Additionally, during a sidebar regarding the expert testimony, Curry's counsel stated that he intended to attack J.C.'s credibility throughout the trial. Upon this statement by defense counsel, the trial court determined that the door had been opened and allowed Dr. McCoy to testify that she had observed nothing that would cause her to doubt J.C.'s credibility.

Even if the trial court's admission of this statement was error, this error was not prejudicial. See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (defining prejudicial error as "`a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict'") (quoting State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)). Our independent review of the record reveals overwhelming evidence upon which a jury could have based their finding of guilt in this case.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.