Opinion
No. A03-2004.
Filed December 21, 2004.
Appeal from the Ramsey County District Court, File No. K0-02-4148.
Mike Hatch, Attorney General, St. Paul, Mn, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, Mn, (for respondent).
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Minneapolis, Mn, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges his conviction of criminal sexual conduct in the first degree, arguing that the district court committed plain error when it permitted the prosecutor to elicit improper vouching testimony from a child-protection worker. Appellant also argues that the district court erred by considering allegations of prior acts of abuse between the parties as evidence and when it improperly ordered restitution to the complainant's mother. Respondent asserts that appellant's pro se supplemental brief should be stricken. Because we conclude that the district court did not commit plain error or otherwise abuse its discretion, we affirm. Respondent's motion to strike is granted.
FACTS
Appellant Jonathon Adam Zocher is the father of complainant A.B., who was born in 1986. A.B.'s parents divorced soon thereafter and she lived with her mother until the beginning of sixth grade. At that time, A.B. moved in with appellant, his second wife, and their two young children. A.B. lived with appellant until November 2000, when she was in the eighth grade, and has lived with her mother ever since.
In 2002, in A.B.'s presence, A.B.'s best friend asked her mother if she could help A.B. obtain birth control pills. The friend's mother declined to help, explaining that she would not want someone else's mother assisting her own daughter to obtain birth control without her knowledge. A.B. began to sob, and the friend's mother suspected that something was wrong. A.B. explained that she wanted to have "a good [sexual] experience" with her boyfriend. Upon further inquiry, A.B. confessed that she had been sexually assaulted and that she wanted to have sex with her boyfriend in order to erase the memory of the assault from her mind. Because the friend's mother sensed that the sexual assault had been committed by a family member, she told A.B. that she would give A.B. some time to tell her mother before she would.
Soon thereafter, A.B.'s mother found an unmailed letter that her daughter had written to her boyfriend that revealed that A.B. had been sexually active. A.B.'s mother confronted her about the letter and the two argued. After sensing something more was wrong, A.B.'s mother asked her daughter if she had been sexually assaulted, to which A.B. responded affirmatively. A.B. then disclosed that she had been sexually assaulted by appellant, her own father.
In response, A.B.'s mother made an appointment for her daughter to see a psychologist. When A.B. refused to go, her mother went to the appointment in her place and told the psychologist that her daughter had been sexually assaulted by her ex-husband. As a mandated reporter, the psychologist reported the case to law enforcement. While A.B. was out of town, her mother received a call from a child-protection worker (CPW), who set up an appointment to meet with A.B. in person. When A.B. returned home, she refused to attend the meeting. A.B.'s mother explained that she would have to tell this to the CPW in person. Ultimately, A.B. ended up meeting with the CPW and consented to a recorded interview that lasted about 40 minutes.
During the interview, A.B. detailed the events leading up to the sexual assault. She explained that, starting in the seventh grade, she and her father began giving each other backrubs and that they had kissed each other on the lips, with his tongue in her mouth. A.B. also admitted that appellant touched her breasts and that he wanted her to touch his private parts. She complied and noticed that appellant had an erection. A.B. then discussed the sexual assault and how both she and appellant had been consuming alcohol together that night. Appellant carried A.B. upstairs and engaged in sexual intercourse with her in a variety of positions. Afterwards, A.B. remembered being in pain from the intercourse. According to A.B., appellant said that he felt like a cigarette and had to wash up before his wife returned home because he "smelled like vagina."
Appellant was charged with criminal sexual conduct in the first degree for the statutory rape of his daughter. Appellant waived his right to a jury trial. Prior to trial, the state gave notice that it intended to introduce evidence of the history of the sexually abusive relationship between A.B. and appellant. The district court ruled that this evidence was admissible pursuant to Minn. Stat. § 634.20 (2002).
At trial, A.B. testified to the same basic facts that she had told the CPW nearly 11 months earlier. On both direct and cross-examination, the CPW testified that it was her opinion that A.B. had been sexually abused. After hearing testimony from A.B., her friend's mother, A.B.'s mother, the CPW, other family members, and appellant, the district court found appellant guilty of the crime of criminal sexual conduct in the first degree. The court explained that its ultimate determination rested on the fact that it "believed [complainant] and did not believe [appellant]." Moreover, the district court found complainant's testimony to be "completely credible and believable."
The district court sentenced appellant to 144 months in conformity with the sentencing guidelines. The court also ordered appellant to pay restitution "for any out-of-pocket expenses incurred on behalf of [complainant]," as well as any future counseling necessary for her recovery. After subtracting $300 worth of undocumented expenses that were submitted, the court determined the restitution amount to be $1,134.40. This appeal follows.
DECISION I.
Appellant argues that the district court committed plain error by permitting the prosecutor to elicit improper vouching testimony from the CPW. When a defendant fails to object to the admission of evidence, this court's review is under the plain-error standard. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). "If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (quotation omitted) (variation in original).
Appellant acknowledges that he did not object to the opinion testimony of the CPW at trial, but argues that admission of this testimony should be considered plain error. Appellant contends that the CPW (a licensed social worker) was not qualified as an expert and that her assessment of A.B.'s report of abuse as credible represented inadmissible "vouching testimony," based solely on A.B.'s statement that she had been abused. Appellant asserts that this assessment served as the "tie-breaker in the credibility contest between [A.B.] and appellant" and prejudiced the entire proceedings. He cites State v. Myers, 359 N.W.2d 604 (Minn. 1984), for the proposition that an expert witness in a child sexual abuse case may never provide testimony about the truthfulness of a complainant's allegations. See id. at 611 ("As a general rule, however, we would reject expert opinion testimony regarding the truth or falsity of a witness' allegations about a crime, for the expert's status may lend an unwarranted `stamp of scientific legitimacy' to the allegations.").
During the trial, the prosecutor posed the following questions to the CPW, "Based on your experience and your training and your interview with [A.B.], do you have an opinion as to whether or not [A.B.] was sexually abused? What is that opinion?" The CPW responded affirmatively to the first question and as to her opinion answered, "[t]hat she was [sexually abused]." On cross-examination, counsel for appellant asked the witness the same thing, "So, you ultimately made this determination that maltreatment occurred, and it's your opinion that, yes, [A.B.] was abused, based on your dealings with her, correct?" The CPW again answered affirmatively.
Appellant claims that the CPW was not qualified as an expert by the district court. But an expert witness may be qualified by "knowledge, skill, experience, training, or education. . . ." Minn. R. Evid. 702. The CPW is a licensed social worker with a master's degree in social work. In addition, she served as director of the Dakota County sexual assault program for nearly eight years. See State v. McCoy, 400 N.W.2d 807, 810 (Minn.App. 1987) (concluding admission of expert testimony in a non-jury trial to be a matter within the sound discretion of the district court), review denied (Minn. Mar. 25, 1987).
Vouching testimony is testimony that another witness is telling the truth or testimony that one believes a witness over another. See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (stating that it was not vouching testimony when the witness did not testify that another was telling the truth or that he believed one person over another). Because the credibility of a witness is for the fact-finder to decide, one witness cannot vouch either for or against the credibility of another witness. State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995). For example, in Koskela, the supreme court explained that it was problematic for a police officer to state, "I had no doubt whatsoever that I was taking a truthful statement." Id.; see also State v. Ellert, 301 N.W.2d 320, 323 (Minn. 1981) (holding that it was error to admit police testimony that defendant was lying when she made her statement to the police). But in sexual-abuse cases, the law supports the admissibility of expert opinion testimony regarding whether a child has been sexually abused because such testimony does not go to the ultimate issue in the trial — which is typically who sexually abused the child. State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988); State v. Hollander, 590 N.W.2d 341, 349 (Minn.App. 1999).
Here, the CPW did not vouch for A.B.'s testimony or testify that appellant was in fact the abuser. Instead, her ultimate opinion was only that A.B. had been sexually abused — based on her experience, training, and interview with A.B. Because there was "no allegation that anyone other than [appellant] might have committed the abuse," it was left to the district court — as the fact-finder — to determine whether appellant had sexually abused A.B. See Hollander, 590 N.W.2d at 349 (concluding no error occurred and that it was not prejudicial to permit expert testimony as to identity where "[t]here was no allegation that anyone other than [appellant] might have committed the abuse."). In addition, evidence admitted at a jury trial is distinguished from evidence admitted in a trial to the court because, while jury trials require vigilance for improperly admitted evidence, it is less of a concern in cases tried to the court because the district court is "trained to separate proper from improper evidence and erase improper actions of counsel from their minds in deciding questions of law and fact." Sandberg v. Comm'r of Revenue, 383 N.W.2d 277, 282 (Minn. 1986). Even so, the CPW's testimony did not rise to the level of vouching because she merely testified that it was her opinion that A.B. had been sexually abused, which did not go to the fundamental issue of whether appellant sexually abused his daughter. Therefore, we conclude that the district court did not err in admitting this testimony.
But even if the admission of the testimony was error, the ultimate question under the plain-error standard is whether there is a reasonable likelihood that the alleged error substantially affected the verdict. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). Given the fact that the CPW's testimony served to corroborate A.B.'s testimony and the district court made a clear credibility determination in A.B.'s favor, the CPW's opinion as to whether A.B. had been sexually abused did not substantially affect the verdict or deny appellant a fair trial. We conclude that appellant has failed to overcome his burden of proving plain error affecting substantial rights. Accordingly, we will not disturb the district court's determination.
II.
Appellant next argues that the district court erred by considering allegations of prior acts of abuse between the parties as evidence. It is well settled that "[e]videntiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
Appellant claims that the district court erred by not first requiring the state to prove specific prior conduct between A.B. and appellant by the clear and convincing proof requirements of Spreigl, relying on our opinion in State v. McCoy, 668 N.W.2d 425 (Minn.App. 2003), rev'd, 682 N.W.2d 153 (Minn. 2004). But the supreme court recently reversed our decision in that case and concluded that "evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted under Minn. Stat. § 634.20 without being established by clear and convincing evidence." McCoy, 682 N.W.2d at 155 (emphasis added). Before trial, the state gave notice that it intended to introduce evidence of prior sexual abuse between the complainant and appellant. The trial court ruled that this evidence was admissible pursuant to Minn. Stat. § 634.20 (2002).
Appellant properly informed this court of the supreme court's reversal, pursuant to Minn. R. Civ. App. P. 128.05.
As McCoy makes clear, "evidence of similar conduct in domestic abuse trials is relevant and admissible unless it should be excluded" for failure to meet a balancing test that considers "whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 682 N.W.2d at 159 (citing Minn. Stat. § 634.20). Accordingly, the heightened standard that the evidence be clear and convincing is not applicable here, and the district court did not abuse its discretion by admitting evidence of other acts of abuse between appellant and his daughter. Here, the evidence of past abuse illustrates the history of A.B.'s abnormal relationship with her father and places the sexual assault in its proper context of a sexually abusive relationship.
III.
Appellant contends that the district court erred when it ordered restitution be paid to the complainant's mother. In general, district courts are given broad discretion in awarding restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 528 U.S. 1165 (2000). But the record must provide a factual basis for an award. State v. Keehn, 554 N.W.2d 405, 408 (Minn.App. 1996), review denied (Minn. Dec. 17, 1996). Deciding whether a particular item of restitution fits within the statutory definition is a question of law that is reviewable de novo by this court. State v. Thole, 614 N.W.2d 231, 234 (Minn.App. 2000).
Appellant argues that the district court erred in awarding restitution to A.B.'s mother since she cannot properly be considered a "victim" under the restitution statute, Minn. Stat. § 611A.04 (2002). Appellant maintains that the mother's alleged "secondary victim" status does not afford her the right to recover restitution from appellant and asks this court to vacate $859.20 of the restitution order, arguing that it represents the mother's own personal expenses caused by the ordeal.
The $859.20 includes the following expenses: $150 for the mother's counseling; $90 for doctor's bills; and $619.20 for missed work.
At the sentencing hearing, and after removing $300 worth of charges for the mother's hospitalization due to lack of documentation, the district court accepted the restitution request as legitimate and ordered appellant to pay $1,134.40. At the time, appellant did not dispute any other items on the affidavit and his attorney commented that most of the itemizations seemed appropriate.
Minn. Stat. § 611A.04, subd. 1(a) (2002), provides that, "a victim of a crime has the right to receive restitution as part of the disposition of a criminal charge . . . if the offender is convicted. . . ." Minn. Stat. § 611A.01(b) (2002) defines a victim as "a natural person who incurs loss or harm as a result of a crime." This court has previously recognized that parents may be reimbursed for certain expenses in protecting the rights of their minor children. In re Welfare of J.A.D., 603 N.W.2d 844, 847 (Minn.App. 1999). Under the restitution statute, "where a victim cannot exercise her rights as a victim without assistance, the cost of such assistance is subject to reimbursement via a restitution order." Id. But at issue here are the expenses incurred exclusively by A.B.'s mother as a result of the sexual assault — not those she incurred by assisting A.B., which cannot be in dispute.
The timeline for challenging a district court's restitution order has been set forth by the legislature. In pertinent part, it reads:
An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later. Notice to the offender's attorney is deemed notice to the offender. The hearing request must be made in writing and filed with the court administrator. A defendant may not challenge restitution after the 30-day time period has passed.
Minn. Stat. § 611A.045, subd. 3(b) (2002) (emphasis added). Because appellant did not challenge the restitution order within 30 days of receiving written notification of the amount requested or within 30 days of the sentencing hearing, he is unable to do so at this time. Cf. Mason v. State, 652 N.W.2d 269, 272-73 (Minn.App. 2002) (denying a postconviction challenge to a restitution order as untimely). Accordingly, we need not address the merits of appellant's argument that the district court abused its discretion by awarding restitution to A.B.'s mother. Id. at 273.
But in his reply brief, appellant argues that, if his restitution challenge is procedurally barred, this court should find that his trial counsel was ineffective for failing to raise the issue within 30 days of the sentencing hearing. Appellant may not raise new issues in his reply brief. Minn. R. Civ. App. P. 128.02, subd. 3 ("The reply brief must be confined to new matter raised in the brief of the respondent."). If an argument is raised in a reply brief but not raised in appellant's main brief, it is not properly before this court and may be stricken from the reply brief. See Berg v. State, 557 N.W.2d 593, 596 (Minn.App. 1996) (striking portions of appellant's reply brief claiming ineffective assistance of counsel where claim was not raised in the main brief).
Moreover, appellant has not provided this court with enough information to adequately address his claim. While it is true that appellant's trial counsel failed to challenge the restitution order within 30 days, appellant has not set forth any evidence — in the form of an affidavit from his trial counsel or otherwise — that there existed an attorney-client duty of representation that continued beyond the sentencing hearing. See Minn. R. Prof. Conduct 1.2 cmt. ("The objectives or scope of services provided by a lawyer may be limited by agreement with the client. . . ."); Thole, 614 N.W.2d at 234-35 (explaining offender's statutory burden of production "to challenge the amount of restitution or specific items of restitution or their dollar amounts"). Without such information, it would not be appropriate for this court to consider appellant's ineffective-assistance-of-counsel argument. To do so would require unwarranted speculation as to trial counsel's potential duty to represent the appellant beyond the sentencing hearing. Accordingly, we do not consider appellant's ineffective-assistance argument. The district court's restitution order is affirmed.
IV.
Finally, respondent moved to strike appellant's pro se supplemental brief. Because the brief contains only argument without any citation to the record or legal authority, any additional claims made in it are waived. State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003); State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).