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

Terry Viesselman, Martin County Attorney, 923 North State Street, Fairmont, MN 56031 (for Respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mansur, Judge.[*]

Appellant contends the trial court committed reversible error when it allowed the victim's doctor to testify that the victim "acted truthfully" when she reported that appellant had raped her. The admission of vouching testimony constituted harmless error because the prosecutor never mentioned the vouching testimony again during trial or closing argument. Furthermore, the record provided the jury with sufficient independent bases to determine the victim's credibility in reporting the rape. Finally, appellant opened the door to discussing the victim's truthfulness when he cross-examined the investigating officer. We affirm.

The victim reported the incident to her mother, police, and a doctor at the hospital where she went for an examination. The doctor described the victim as "extremely upset" when he first met her. The doctor said, "She was crying, tearful, unable to finish sentences." The doctor found bruises on the left side of the victim's neck and left shoulder, and abrasions on the small of her back. At trial, counsel for the prosecution asked the doctor whether the victim had "acted truthfully" when she gave her account of the incident. The doctor answered, "Yes." The court overruled defense counsel's objection to the question, permitted the answer to stand, and allowed defense counsel to cross-examine on the issue.

The jury found appellant guilty of third-degree criminal sexual conduct and acquitted him of the other charges. The trial court sentenced appellant to the presumptive guidelines sentence of 48 months.

Appellate courts defer to the trial court's exercise of discretion in deciding evidentiary questions and will not overturn the trial court's evidentiary ruling absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). An erroneous evidentiary ruling is harmless unless it affects the defendant's substantial rights. Minn. R. Crim. P. 31.01. Moreover, the court must consider the error

in the broader context of all the facts appearing in the record. If the record contains overwhelming evidence of guilt, and the statement was merely cumulative and could not have played a significant role in the jury's conviction, it is harmless.

State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).

We agree that appellant may have waived his objection to the doctor's testimony by asking the investigating officer if the victim's conduct had been "consistent with someone who made the story up." See State v. Myers, 359 N.W.2d 604, 611-12 (Minn. 1984) (holding defense waived objection to any responsive expert opinion testimony vouching for child's credibility after defense sought to show that child's mother had not believed her report of abuse for several months).

We will evaluate this case as if appellant had not opened the door, however, in order to decide the substantive issue. The court generally rejects expert opinion testimony regarding the truth or falsity of a witness's allegations about an offense because the authority of the expert 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. App. 1979)). When the jury's verdict hinges on credibility of the victim versus that of the accused, the accused is denied a fair trial if the prosecutor is allowed to admit vouching testimony to bolster the victim's credibility and refer to that testimony repeatedly in closing argument. Van Buren v. State, 556 N.W.2d 548, 551-52 (Minn. 1996). When evaluating whether certain evidence affected the fairness of a trial, this court should consider the manner in which the disputed evidence was presented. Maurer v. Department of Corrections, 32 F.3d 1286, 1289 (8th Cir. 1994). For example, was the evidence highly persuasive, did counsel use the evidence in closing argument, and was the defense able to counter the evidence effectively. Id.

When we apply that test, we see that appellant's case is distinguishable from the other cases involving vouching testimony. In Maurer and Van Buren, the prosecutor asked several witnesses about the victims' credibility and maximized the potential of the vouching testimony by referring to it in closing argument. Maurer, 32 F.3d at 1290; Van Buren, 556 N.W.2d at 550. In contrast, here the prosecutor elicited only one remark from one witness in two days of testimony, he did not refer to that remark again, and he did not use the evidence in closing argument to bolster the victim's credibility. By not referring to the doctor's comment again, the prosecutor protected the record. Thus, although admission of the vouching testimony was improper, it did not deny appellant a fair trial.

Furthermore, the record contained solid evidence of appellant's guilt for the jury to consider. See Robinson, 427 N.W.2d at 224 (court must consider alleged error in context of all facts on record). The doctor testified that the victim had bruises and scrapes on her body and exhibited behavior typical of a rape victim. The victim's mother testified the girl was traumatized immediately after the assault and during the medical examination. The investigating officer testified to the fear, anxiety, confusion, and crying the victim exhibited when reporting the incident. The officer also confirmed that the account the victim gave to police at the station was consistent with the account she initially had given him at her home. This evidence supports the victim's account of the incident.

Based on this record, we conclude that although the trial court erred in allowing the doctor to vouch for the victim's credibility, that error was harmless because the remark was confined to that one instance, the prosecutor never mentioned the vouching testimony again, and the facts and testimony elicited at trial created an independent basis upon which the jury could have judged the victim's truthfulness.

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.