Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Thoreen, Judge.^**

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

Pro se appellant, Abdullah Mansoor, f/k/a James (NMN) Banks, III, was convicted of first-degree criminal sexual conduct for sexually abusing his nine-year-old stepdaughter, and sentenced to two and one-half times the presumptive sentence. On direct appeal, this court rejected appellant's challenges to the sufficiency of the evidence and the sentencing departure. See State v. Banks, No. C1-94-1491 (Minn. App. Mar. 21, 1995), review denied (Minn. Apr. 18, 1995).

In his petition for postconviction relief, appellant argued that two recent supreme court cases made significant changes in the law which would have had an impact on the outcome of the case had they been applied at trial. See State v. Van Buren, 556 N.W.2d 548 (Minn. 1996); State v. Pride, 528 N.W.2d 862 (Minn. 1995). We affirm because (1) both cases dealt with well-known legal concepts and did not involve issues so novel that they were not reasonably available to counsel at the time the direct appeal was taken, and (2) neither case applies to the facts of this case.

In this case, the trial court denied on two grounds appellant's request for a hearing and for postconviction relief. First, the court concluded that the two cases cited by appellant did not make significant changes in the law, but merely applied well-established and known legal concepts to the particular situations before them. Second, the court concluded that nowhere in appellant's submission did he present facts to explain how the holdings in those cases would have affected the outcome in his direct appeal. Each case will be discussed separately below.

Van Buren

In Van Buren, the supreme court concluded that the defendant had been denied a fair trial when the prosecutor elicited improper "vouching" testimony from a number of witnesses, or testimony that others believed the victim's allegations of sexual assault. 566 N.W.2d at 552. In reaching its decision, the supreme court explicitly relied on Maurer v. Department of Corrections, 32 F.3d 1286 (8th Cir. 1994), which was decided prior to appellant's direct appeal. Maurer states that it is "hornbook law" that opinion testimony as to a victim's credibility is inadmissible. Id. at 1289. Thus, because the issues discussed in Van Buren are not novel and were available to defense counsel at the time of direct appeal in this case, appellant is barred from arguing that he is entitled to a new trial because improper "vouching" testimony was allowed at trial. See Case, 364 N.W.2d at 800.

Even if Van Buren could be characterized as novel, appellant has failed to demonstrate that the testimony he challenges is vouching. The challenged testimony came in response to a question posed to an expert witness by defense counsel, not the prosecutor. In that testimony, the witness explained that the purpose of an interview with a child complainant is not to create a case for the prosecution, but "to allow the child to tell the truth." The witness did not "vouch" for the victim's credibility here, or otherwise suggest that she believed that the victim here was telling the truth.

Appellant also appears to challenge closing argument statements by the prosecutor that the victim's trial testimony was consistent with her prior statements regarding abuse by appellant, that the victim had no motive to lie, and that the victim had the ability to know, remember, and relate what happened to her. These statements also do not constitute improper "vouching" testimony. While it is improper for a prosecutor to express a personal opinion regarding witness credibility, these statements did not amount to improper personal opinions. See State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991); State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (prosecutor has right to analyze evidence and vigorously argue that state's witnesses were worthy of credibility).

Pride

In Pride, the supreme court concluded that the trial court erred in limiting defense counsel's cross-examination of two state witnesses who had been romantically involved and who possibly had ulterior motives and an interest in the outcome of the case. 528 N.W.2d at 866-67. The holding in Pride was based on the well-known legal concept that a criminal defendant has a right to cross-examine a witness and elicit evidence probative of a witness's credibility, such as a witness's possible bias or motivation to testify. Id. at 865-67. Because on direct appeal appellant could have raised any claim regarding limited cross-examination, he is barred from raising this issue in these postconviction proceedings. See Case, 364 N.W.2d at 800.

Even if Pride could be characterized as having articulated a new legal principle, appellant has failed to demonstrate that it applies to the facts of this case. At trial, defense counsel's cross-examination of the victim was not limited. To the contrary, the trial court allowed defense counsel to cross-examine the victim regarding her alleged sexual encounter with a boy name "Andre." Defense counsel was also allowed to question appellant, the victim's mother, and the victim's brother regarding what they knew of the victim's alleged sexual encounter with "Andre." The jury heard this testimony and obviously chose to reject it as an explanation of what had happened to the victim. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (jury alone determines credibility of witnesses and resolves testimony conflicts).

Under these circumstances, the trial court did not abuse its discretion in denying appellant's petition for postconviction relief. See Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (standard of review).

Affirmed.