Opinion
No. C7-99-1014.
Filed December 21, 1999.
Appeal from the District Court, Clay County, File No. K8-98-1141.
Harlan M. Goulett, Harlan M. Goulett Associates, (for appellant).
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and Lisa Borgen, Clay County Attorney, Christopher C. Myers, Assistant County Attorney, (for respondent).
Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
A jury found appellant guilty of second-degree criminal sexual conduct. She seeks reversal, arguing that the district court abused its discretion in requiring appellant's attorney to state an offer of proof on the record rather than develop the offer of proof by way of in camera testimony. Appellant also asserts that the district court abused its discretion in not permitting her expert witness to testify. We affirm.
FACTS
After the state rested its case at the trial of appellant Deborah Kattevold on a charge of second-degree criminal sexual conduct, the district court asked appellant's attorney what he intended to do regarding expert evidence. Appellant's attorney replied that he planned to call a psychologist as an expert witness. The district court told the attorney to articulate the offer of proof on the record as the state had done earlier, rather than develop the offer of proof by in camera testimony of the psychologist.
Appellant's attorney provided as an offer of proof a letter from the psychologist, outlining the four areas of his proposed testimony, to-wit, social influence, suggestibility, the nature of human memory, and the psychological characteristics of sexual offenders, including the statement that [m]ost sexual molesters are men. Women seldom sexually abuse children. Those women that do are almost always quite disturbed individuals.
The district court refused to allow the expert witness to testify, indicating that [w]e're not talking about a young child here. * * * This young woman that is the alleged victim, is 17 years of age, as she testified here. * * * The jury has been able to observe her as she has testified, twice. * * * The witness appeared again [on] * * * a videotape, it was played for the jury. * * * [The jury] can make a judgment of credibility based on that.
Appellant contends that the district court abused its discretion, first, in requiring the offer of proof to be made by her attorney rather than by examination of the psychologist, and second, in excluding the psychologist's testimony.
DECISION
1. Offer of Proof
"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) (citation omitted). Minn.R.Evid. 103(b) provides that "[t]he court may direct the making of an offer [of proof] in question and answer form." Appellant construes "may" as "must" in asserting that the court abused its discretion in not directing the offer of proof to be made by interrogation of the witness. But the decision of how to make offers of proof is well within the district court's discretion. Moreover, the district court had previously required the state's attorney to provide an offer of proof for proposed expert testimony; imposing the same requirement on appellant's attorney was not an abuse of discretion. See also State v. Wangberg, 272 Minn. 204, 209 n. 5, 136 N.W.2d 853, 856 n. 5 (1965) ("[T]he trial judge in his discretion, if the circumstances required, could compel an offer of proof or informal examination of the expert * * * outside the presence of the jury * * *.")
2. Exclusion of the 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.
Appellant relies on State v. Wildenberg , 573 N.W.2d 692 (Minn. 1998), and State v. Bashaw, 531 N.W.2d 203 (Minn.App. 1995), to argue that the trial court abused its discretion in refusing to allow the expert testimony. Neither case supports her position. Wildenberg does not mention expert witness testimony; it involved a defendant's effort to discover the journals kept by a child sex victim while the abuse was occurring and held that the trial court's denial of discovery of the journals and of cross-examination concerning them violated the defendant's Sixth Amendment right to confrontation. 573 N.W.2d at 693.
Bashaw held that the statute requiring notice when evidence of post-accident drinking is offered to prove an affirmative defense does not apply when the evidence is offered to disprove an element of the crime. 531 N.W.2d at 207. Because an expert witness "would have relied on [the defendant's] post-accident drinking to testify that the retrograde extrapolation test showed [he] had an alcohol concentration of less than 0.10 at the time of driving," exclusion of the post-accident drinking evidence and of the expert witness was held not to be harmless error, and the case was reversed and remanded for a new trial. Id. at 208. Bashaw is readily distinguishable: the results of a retrograde extrapolation test are outside jurors' normal experience, while the credibility of an adolescent witness is not.
Appellant provides no persuasive basis for overturning the district court's decision not to permit appellant's proposed expert witness testimony. There was no abuse of discretion.