Opinion
No. C0-97-721.
Filed December 30, 1997.
Appeal from the District Court, Olmsted County, File No. KX951781.
Hubert H. Humphrey III, Attorney General, Paul R. Kempainen, Assistant Attorney General, (for respondent).
Raymond F. Schmitz, Olmsted County Attorney, (for respondent).
Bradford Colbert, Assistant State Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
A jury found appellant Linda Rae Hoffman n/k/a Linda Rae Reicks guilty of second-degree criminal sexual conduct. She appeals based on improper expert testimony, improper inclusion of jury instruction of a lesser included offense, and insufficiency of the evidence. We affirm.
FACTS
J.S.'s uncle first observed her acting out sexually with a doll. A few days later, J.S.'s mother observed the same behavior. J.S. told her mother that "Linda" had been doing things to her, putting fingers and tampons into her anus and vagina and making her go into her mother's bedroom, lay down on the bed and hump the doll. She said that the penetrations happened a lot. Before J.S.'s statement, the mother had not mentioned Linda's name. Reicks was the only "Linda" in J.S.'s life at that time.
J.S. met with Dr. Peggy Larson, a psychologist. During therapy, using anatomically correct dolls, J.S. showed Dr. Larson how the abuse occurred. J.S. testified consistently at trial as to Reicks' actions. Dr. Larson testified that J.S. had been sexually abused. The jury found Reicks not guilty of first-degree criminal sexual conduct but returned a verdict of guilty of second-degree criminal sexual conduct. Reicks appeals.
DECISION
1. A trial court has discretion to admit expert testimony, and its decision will not be reversed absent an apparent error. State v. Grecinger , 569 N.W.2d 189, 194 (Minn. 1997) (citing State v. Borchardt , 478 N.W.2d 757, 760 (Minn. 1991)). Reicks argues that the trial court committed reversible error when it allowed Dr. Larson to testify that in her opinion J.S. had been sexually abused. We disagree.
Expert opinion testimony on whether a child has been sexually abused is permissible. State v. Campa , 390 N.W.2d 333, 335 (Minn.App. 1986) (citing State v. Myers , 359 N.W.2d 604 (Minn. 1984)), review denied (Minn. Aug. 27, 1986); see also State v. Dana , 422 N.W.2d 246, 250-51 (Minn. 1988) (holding that it was objectionable to allow expert to testify who abuser was; however, also holding that "[e]xpert testimony relating to whether the children had been sexually abused was properly admitted").
In Campa , Dr. Blum, a psychologist, had been seeing T.H. because she had been inappropriately acting-out in a sexual manner. Campa , 390 N.W.2d at 334. At one of the sessions, T.H. described criminal sexual conduct by Campa by pointing to an anatomically correct doll's vaginal area. Id. At trial, Dr. Blum gave her professional opinion that T.H. had been sexually abused. Id. at 335. The court held that such testimony "was, of course, proper." Id. (citing Myers , 359 N.W.2d 604). Dr. Blum went on to state that she believed that T.H. was telling the truth, and that portion of her testimony was considered improper. Id.
In the case at bar, after the prosecutor asked and was granted the trial judge's permission, the following question and answer occurred:
Q: (prosecutor) My question to you is that based upon your end experience and particularly your work with J[.S.], do you have an opinion as to whether or not J[.S.] has been sexually abused?
A: (Dr. Larson) Yes, I do believe that she was.
No further questions by either side were asked of Dr. Larson.
Unlike Dr. Blum in Campa , Dr. Larson did not testify that she believed J.S.'s testimony. Dr. Larson stated that, in her opinion, she believed that J.S. was a victim of sexual abuse. Campa held that such testimony, "was, of course, proper." Id. To allow such expert testimony is consistent with the supreme court's holding in Myers . In that case, the supreme court noted that when the alleged victim of a sexual assault is a child * * * there is presented one of those "unusual cases" in which expert testimony concerning credibility of a witness should be received.
Myers , 359 N.W.2d at 610. Accordingly, under both Campa and Myers , we affirm the trial court's decision to allow Dr. Larson's testimony.
2. Reicks argues that the trial court erred when it submitted the lesser-included offense of second-degree criminal sexual conduct to the jury. We disagree. The main difference between first degree and second-degree criminal sexual conduct is that first degree requires penetration and second-degree requires "contact." Minn. Stat. §§ 609.342 (1996) and 609.343 (1996). "The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court." State v. Kobow , 466 N.W.2d 747, 752 (Minn.App. 1991), review denied (Minn. Apr. 18, 1991).
The Kobow court, in upholding a jury instruction on second-degree criminal sexual conduct as a lesser included offense of first degree criminal sexual conduct, held that "[t]estimony regarding sexual penetration is sufficient to raise an inference of sexual contact." Id. Kobow found no error in submitting the instruction even when the distinction between penetration and contact was not made in the victim's testimony. Id. In the present case, there was testimony as to both contact and penetration. Consequently, we hold that the trial court did not abuse its discretion by submitting the second-degree charge to the jury.
3. Reicks contends that there was insufficient evidence for the jury to find her guilty. We disagree. In reviewing a jury verdict for sufficiency of the evidence, we "must take the view of the evidence most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978).
The district court stated that the trial turned on the credibility of J.S. and Reicks. Credibility determinations are the main province of the jury. See State v. White , 357 N.W.2d 388, 390 (Minn.App. 1984) ("[T]he factfinder must choose between conflicting factual accounts and determine the credibility, reliability, and weight given to witnesses' testimony."). The jury heard evidence of Reick's criminal sexual conduct. Because we view the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to find Reicks guilty of second-degree criminal sexual conduct.