Michael A. Fahey, Carver County Attorney, Tara E. Keehr, Assistant County Attorney, Carver County Justice Center, 600 East Fourth Street, Chaska, MN 55318 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

On appeal from a conviction for first-degree criminal sexual conduct, Jeremy Girtz challenges (1) the sufficiency of the evidence to support his conviction; (2) the admission of evidence about an interview of the victim conducted by a social worker and an investigator for the sheriff's department; and (3) the district court's calculation of his criminal history score and order for conditional release. We affirm as modified.

FACTS

Appellant Jeremy Girtz stayed at the home of his sister, B.C., for about one week during the spring of 1989. B.C.'s daughter, J.S.C., lived with her and was in kindergarten at the time. J.S.C. testified at trial that during Girtz's stay, on more than one night, after everyone was asleep, he came into her room, sat on her bed, took off her covers, and kissed her on the chest and touched her on the chest and in the vaginal area. Sometimes, Girtz put his finger inside her vagina. J.S.C. was certain Girtz had put his finger inside her vagina at least twice but could not recall whether that happened more than twice.

J.S.C. testified that she did not tell anyone about the sexual abuse when it happened because Girtz had frightened her by threatening to hurt her and her family if she told. She testified that she thought about the sexual abuse frequently and that she eventually told two friends because she could not keep it inside any longer and needed to talk to someone about the abuse.

J.S.C.'s disclosure to her friends occurred in 1995, when J.S.C. was in sixth grade. Sometime later, on June 8, 1995, someone called and reported to Carole Cole, a Carver County child protection social worker, that J.S.C. allegedly had been sexually abused. On June 12, 1995, with B.C.'s permission, Cole interviewed J.S.C. J.S.C. told Cole that Girtz had sexually molested her when she was in third grade. J.S.C. explained at trial that she had been confused about the time period because she had mistakenly associated the sexual abuse with an unrelated incident involving Girtz that occurred when she was in third grade. B.C. testified that she thought the sexual abuse occurred when J.S.C. was in kindergarten based on J.S.C.'s responses to questions about what kind of car B.C. was driving and where J.S.C. was going to daycare when the abuse occurred.

J.S.C. testified that after her interview with Cole, her whole family was angry with her, and most of her family, including B.C., did not believe the allegations against Girtz. B.C. testified that she put tremendous pressure on J.S.C. by not being very supportive, repeatedly questioning whether it could have been someone other than Girtz who abused J.S.C., and saying that J.S.C. had to be wrong about Girtz because the time frame was wrong.

B.C. testified that about one week after J.S.C.'s interview with Cole, B.C. asked J.S.C. if B.C.'s former boyfriend, Gary Davis, could have been the person who molested J.S.C. B.C. testified that she told J.S.C. to close her eyes and envision the person who had sexually abused her and that she asked J.S.C. whether the person had certain physical characteristics, including a mustache, long hair, and tatoos, that matched Davis's physical characteristics. J.S.C. told B.C. that Davis was the person who had sexually abused her and that she recalled feeling a mustache against her face. J.S.C. testified that she still believed it was Girtz who abused her, but she accused Davis because she wanted someone to believe her and she felt like no one believed her allegations against Girtz.

When J.S.C. accused Davis, B.C. called Paul Schnell, an investigator for the sheriff's department, and told him that it might not have been Girtz who sexually abused J.S.C. On June 19, 1985, Cole conducted a second interview with J.S.C. J.S.C. told Cole that she had discussed the sexual abuse allegations with her mother and that she and her mother had determined it was Davis who had sexually abused her. J.S.C. told Cole that Girtz could not have been the person who sexually abused her because of the time frame and because the person who committed the abuse had tattoos, a mustache, and long dark hair. J.S.C. denied that anyone was mad at her or had pressured her or asked her to change her story.

Cole testified as follows regarding the second interview:

Q. * * * Did you have a personal reaction to the information that you got from [J.S.C.] during the second interview?

* * * *

A. I felt that she was responding to pressure. I felt that her original information was accurate.

Q. What made you think she was responding to pressure?

A. Her manner of delivering the information, her emotional response to certain questions.

* * * *

Q. And what were the characteristics that made you believe that she was pressured at the time that you were doing the interview with her?

A. When I asked her questions about being pressured her flat affect and one-word answers.

Q. That's the only reason?

A. Becoming tearful, saying no one believed her.

Schnell watched both of Cole's interviews with J.S.C. via a video monitor. During the second interview, Cole communicated her concerns about J.S.C. changing her story to Schnell. Schnell testified that he also had concerns about J.S.C. changing her story:

My concerns essentially were -- in observing the interview, the comparison between the first interview and the second, was that her response to questions by [Cole] during the second interview appeared pressured; very short. And my concerns essentially were that subsequent to her initial interview and subsequent to the arrest of our suspect I was concerned that there would be -- there was pressure being placed on [J.S.C.] to in fact change her story.

Cole and Schnell decided that Schnell would also participate in the interview with J.S.C. Schnell told J.S.C. that if there was a problem with her initial report, this was the time to correct it and provide the truth about what she recalled. Schnell also told J.S.C. that he believed she had told the truth during the first interview. Schnell testified that ultimately, J.S.C. said Girtz was in fact the person who had sexually abused her and indicated that she had changed her story as a result of family pressure and questions family members raised about timing and other issues. Cole and Schnell described J.S.C.'s demeanor at the end of the second interview as being confident that Girtz was the person who had sexually abused her. J.S.C. testified at trial that she lied initially during the second interview because she felt pressured by her family and was concerned about the timing and confused.

D E C I S I O N

1. When the sufficiency of the evidence is challenged, this court must review

the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Girtz argues that the evidence was insufficient to identify him as the person who sexually abused J.S.C. because at times she denied that he sexually abused her and accused Davis of committing the abuse. In a criminal sexual conduct case, when the victim has given conflicting statements over time regarding a sexual assault, weighing her credibility is the jury's role. State v. Reichenberger, 289 Minn. 75, 78-90, 182 N.W.2d 692, 694-95 (1970). At trial, J.S.C. testified that she was certain that Girtz had sexually abused her. Her trial testimony about the acts of abuse was clear and unequivocal. J.S.C. explained that she had changed her story and accused Davis for a time because she felt pressured by her family to accuse someone other than Girtz. J.S.C.'s explanation was supported by B.C's, Cole's, and Schnell's testimony. B.C. admitted pressuring J.S.C. to change her story and suggesting to J.S.C. that Davis might have been the person who committed the sexual abuse. Cole and Schnell testified that when J.S.C. accused Davis during the second interview, she seemed to be responding to pressure. Their opinions were based on their observations of how J.S.C.'s demeanor during the second interview differed from her demeanor during the first interview.

Girtz also argues that J.S.C.'s allegations against him lacked credibility because of her confusion about the time frame. Initially, J.S.C. thought the sexual abuse occurred when she was in third grade. Later, it was determined that the abuse occurred when she was in kindergarten. J.S.C. explained at trial that she had been confused about the time frame because Girtz had been involved in an unrelated incident that occurred when J.S.C. was in third grade. J.S.C.'s explanation is supported by B.C.'s testimony that J.S.C.'s memories about other things that happened during the time period the sexual abuse occurred were about events that occurred when J.S.C. was in kindergarten.

It was the jury's role to evaluate J.S.C.'s confusion about the time frame and the inconsistencies between her trial testimony and earlier statements and determine the credibility of her allegations against Girtz. Viewing the evidence in the light most favorable to the verdict, as we must, we conclude the evidence was sufficient to support Girtz's conviction. See Reichenberger, 289 Minn. at 78-80, 182 N.W.2d at 694-95 (affirming conviction when victim gave conflicting statements regarding whether sexual intercourse had occurred); State v. Erickson, 454 N.W.2d 624, 625, 629 (Minn. App. 1990) (when child victim's story about sexual assaults changed over time, jury was entitled to believe her allegations against defendant), review denied (Minn. May 23, 1990).

2. Relying on State v. Myers, 359 N.W.2d 604 (Minn. 1984), Girtz argues that the district court erred by allowing Cole and Schnell to testify about their opinions regarding the truth of the statements J.S.C. made during the first interview. "Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984).

In Myers, a psychologist testified about traits and characteristics typically displayed by sexually abused children and about which of those traits she had observed in the complainant. 359 N.W.2d at 608-09. The psychologist also testified

that it is extremely rare for children to fabricate tales of sexual abuse and stated that in her opinion the complainant knew the difference between the truth and falsehood and was truthful in her allegations.

Id. at 609. The court concluded that the latter testimony was inadmissible and explained that expert opinion testimony regarding the truthfulness of a witness's allegations generally is inadmissible because "the expert's status may lend an unwarranted _stamp of scientific legitimacy_ to the allegations." Id. at 611 (quoting People v. Izzo, 282 N.W.2d 10, 11 (Mich. Ct. App. 1979)).

Here, neither Cole nor Schnell gave an opinion regarding the truth of J.S.C.'s allegations against Girtz based on a scientific theory. Rather, they testified about the differences between J.S.C.'s demeanor during the first interview and during the second interview. Their testimony was based on their observations of J.S.C. during the two interviews and was not connected to any specialized knowledge within their field of expertise. Opinion testimony by a witness not testifying as an expert is admissible provided it is

(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Minn. R. Evid. 701. Cole's and Schnell's testimony about J.S.C.'s demeanor, which was not presented as expert opinion testimony, satisfies the requirement for admissibility set forth in rule 701(a). Cf. State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (citing rule 701 as support for admitting police officer's testimony that he suspected someone threw something out of a car at one point when officer's testimony was offered as nonexpert opinion drawn from his observations, not as expert opinion testimony by a police officer).

Cole's and Schnell's testimony about J.S.C.'s demeanor also was helpful in determining the credibility of J.S.C.'s allegations against Girtz. Cf. State v. Lonergan, 505 N.W.2d 349, 355 (Minn. App. 1993) (victim's demeanor when disclosing sexual abuse, specifically "that he looked frightened, embarrassed, and ashamed" provided additional guarantee of trustworthiness necessary for admission of victim's statements under residual exception to hearsay rule), review denied (Minn. Oct. 19, 1993); State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (sexual assault victim's demeanor after assault provided corroboration for her testimony), review denied (Minn. Mar. 16, 1990).

Girtz asserts that Cole's and Schnell's testimony that they believed J.S.C. was responding to pressure during the second interview went beyond describing J.S.C.'s demeanor and improperly endorsed the credibility of her allegations against Girtz. We disagree. Because J.S.C. initially accused Girtz of sexually abusing her and later denied that he had done so, one of her stories had to be false. Cole's and Schnell's testimony that they believed J.S.C. was responding to pressure implied that the information J.S.C. provided during the first interview was accurate, and Cole even stated that she believed J.S.C.'s original information was accurate. But their testimony, considered as a whole, was directed at explaining why they conducted the second interview in the manner in which they did, not at endorsing the credibility of J.S.C.'s allegations against Girtz. They could not describe the second interview and how they attempted to determine which of J.S.C.'s stories was truthful without explaining that they concluded J.S.C. was responding to pressure during the second interview. Evidence about the manner in which Cole and Schnell conducted the second interview was helpful to determining the credibility of J.S.C.'s allegations against Girtz. See United States v. Norquay, 987 F.2d 475, 479 (8th Cir. 1993) (investigator's testimony describing sexual abuse victim's demeanor during interview was admissible to explain the manner in which investigator conducted interview), abrogated on other grounds by United States v. Thomas, 20 F.3d 817 (8th Cir.), cert. denied, 513 U.S. 828 (1994). The district court properly admitted the evidence about J.S.C.'s demeanor.

Girtz also contends that during closing argument, the prosecutor improperly emphasized Cole's and Schnell's testimony that they believed J.S.C.'s allegations against Girtz. During closing argument, the prosecutor discussed Cole's and Schnell's testimony that based on the differences between J.S.C.'s demeanor during the first interview and during the second interview, they believed J.S.C. had been pressured into changing her story. Because the evidence about J.S.C.'s demeanor was admissible, the prosecutor properly referred to it during closing argument.

3. Girtz argues that the district court erred in calculating his criminal history score. "A trial court has broad discretion in imposing a sentence." State v. Wilkinson, 539 N.W.2d 249, 253 (Minn. App. 1995). Only in a rare case will an appellate court reverse the district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Girtz's criminal history score included a custody status point because he was on probation for a 1987 assault conviction when he sexually abused J.S.C. in 1989.

The offender is assigned one point if he or she was on probation * * * following conviction of a felony or gross misdemeanor * * * at the time the felony was committed for which he or she is being sentenced.

Minn. Sent. Guidelines II.B.2.

Girtz argues that he should not have been assigned a custody status point because he has been law abiding since he completed chemical dependency treatment following a DWI conviction in 1989. He also states that he has overcome drug and alcohol addictions and is taking medications to control paranoia, delusions, and depression. Whether to consider these circumstances as mitigating factors was a discretionary matter for the district court. The district court did not err in assigning a custody status point because Girtz was on probation for the 1987 assault conviction in 1989 or in sentencing Girtz to an executed term of 65 months imprisonment, the presumptive sentence for a person with his criminal history score.

4. Girtz finally contends that the district court erred by ordering that he be placed on conditional release following his release from prison. The parties agree that Minn. Stat. § 609.346, subd. 5(a), provided the authority for imposing a term of conditional release on Girtz. Girtz was convicted of sexually abusing J.S.C. in 1989. Minn. Stat. § 609.346, subd. 5(a), was not enacted until 1992 and applies to crimes committed on or after August 1, 1992. 1992 Minn. Laws ch. 571, art. 1, §§ 25, 29. We therefore modify Girtz's sentence by vacating the part of the sentencing order placing Girtz on conditional release following his release from prison.

Affirmed as modified.