State v. Austin
| Decision Date | 28 February 2007 |
| Docket Number | No. 20060194.,No. 20060022.,20060022.,20060194. |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Shawn David AUSTIN, Defendant and Appellant. Shawn David Austin, Petitioner and Appellant, v. State of North Dakota, Respondent and Appellee. |
| Court | North Dakota Supreme Court |
Benjamin C. Pulkrabek, Mandan, N.D., for appellant.
Ladd R. Erickson, State's Attorney, Washburn, N.D., for appellee.
[¶ 1] Shawn Austin appeals from a judgment entered after a jury found him guilty of gross sexual imposition and from an order denying his petition for post-conviction relief. We affirm.
[¶ 2] In January 2005, Austin was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with his former girlfriend's niece, D.L., who was under fifteen years of age.
[¶ 3] Before trial, Austin moved for leave to present expert testimony from Dr. Edward Kehrwald, a psychologist who conducted a psychological examination of Austin. At a hearing to decide the admissibility of the proffered testimony, Dr. Kehrwald testified about the results of Austin's psychological examination. The psychological examination included administration of the Abel Assessment of Sexual Interest, which attempts to ascertain the subject's sexual interests. Dr. Kehrwald's proffered testimony explained that the results from the Abel Assessment showed Austin had no interest in younger females, and provided Dr. Kehrwald's opinion about how child custody disputes may influence false sexual abuse allegations. The district court denied Austin's motion, finding the proffered expert testimony would not assist the jury in understanding any evidence or in deciding whether or not Austin committed the offense.
[¶ 4] At trial, D.L. testified Austin sexually abused her five times when she was ten and eleven years old. D.L. testified the incidents occurred in various locations at Austin's house, including on the roof, in a pickup truck parked in the yard, on the couch, and in a room containing multiple computers. The State introduced a videotape of D.L. talking about the allegations during a forensic interview. McLean County Sheriff's Deputy Sylvin Brunsell testified about law enforcement's investigation, including an interview with Austin in which he admitted touching D.L. and made other incriminating statements. Austin also testified at trial and denied D.L.'s allegations, but said it was possible he may have accidentally touched D.L. while they were wrestling. Austin claimed D.L. may have conspired with her mother or with Austin's girlfriend, D.L.'s aunt, to fabricate the allegations to assist Austin's girlfriend in possible child custody proceedings against Austin. Austin also testified that many of the alleged instances of abuse could not have occurred, specifically the incidents in the pickup truck because two windshields and various other automobile parts were in the pickup truck's cab, which would have made it impossible for two people to get inside the vehicle. The jury found Austin guilty, and he was sentenced to five years' imprisonment with three years suspended. Austin appealed the criminal judgment, and the appeal was stayed pending a post-conviction proceeding.
[¶ 5] In April 2006, Austin applied for post-conviction relief, arguing his trial counsel was ineffective and he did not receive a fair trial because the district court judge made improper or coercive remarks to the jury during deliberations. After a post-conviction hearing, the district court denied Austin's application. Austin appealed the district court's order denying his application for post-conviction relief, and his appeals were consolidated.
[¶ 6] The district court had jurisdiction of the criminal proceeding under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.
[¶ 7] The district court had jurisdiction of the post-conviction proceeding under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 29-32.1-03. The appeal from the order denying Austin's post-conviction relief was timely under N.D.R.App.P. 4(d), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.
[¶ 8] Austin argues the district court abused its discretion in excluding Dr. Kehrwald's proffered testimony. He claims Dr. Kehrwald's proffered testimony met the admissibility requirements for expert testimony and would have assisted the jury in deciding the probability that Austin would assault a young female and the probability that someone would fabricate a story about sexual abuse to gain an advantage in a custody dispute.
[¶ 9] Introduction of expert testimony is governed by N.D.R.Ev. 702, which allows expert testimony to be used when it assists the trier of fact:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
"Although expert testimony is admissible whenever specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, whether expert testimony is useful falls within the [district] court's sound discretion." Praus v. Mack, 2001 ND 80, ¶ 34, 626 N.W.2d 239 (citation omitted). Expert testimony is not admissible if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id.
[¶ 10] The court's decision whether to allow expert testimony will not be overturned on appeal unless the court has abused its discretion. Id. A district court abuses its discretion when "`it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.'" State v. Schmidkunz, 2006 ND 192, ¶ 15, 721 N.W.2d 387 (quoting Nesvig v. Nesvig, 2006 ND 66, ¶ 12, 712 N.W.2d 299).
[¶ 11] Austin moved for leave to present expert testimony from Dr. Kehrwald, who had conducted a psychological evaluation of Austin. The evaluation included the Abel Assessment of Sexual Interest, which is used to ascertain an individual's sexual interests. Dr. Kehrwald testified that Austin's results on the Abel Assessment showed an interest in adult females and adolescent females, with no interest in children, which are typical results for an adult male. Austin argued Dr. Kehrwald's testimony was admissible to show Austin does not have a sexual interest in children. Austin claimed the information about his sexual interests would help the jury decide the probability that Austin would assault a young female. Austin argued the evidence would be presented only as character evidence and would not be used to infer Austin's guilt or innocence.
[¶ 12] The district court excluded Dr. Kehrwald's proffered testimony, finding:
1. The Defendant is not accused of being a pedophile, but rather having committed or engaged in a sexual act with a minor child.
2. The psychological tests employed by Dr. Kehrwald in his evaluation of the defendant are not intended to be employed for the purpose of determining whether or not the Defendant committed the alleged act.
3. The expert opinion and evaluation as prepared by Dr. Kehrwald is of no probative value to the jury in its determination of whether or not the Defendant committed the alleged crime.
4. The jury is able to make a factual determination of the Defendant's guilt or innocence in the above-entitled prosecution absent expert testimony of the Defendant's character trait of sexual interest in children.
5. The Defendant's character traits are not an element of the alleged offense.
The court also found Dr. Kehrwald acknowledged the tests "do not address nor are they to be employed to determine a patient's predisposition to engage in particular conduct, and therefore should not be considered in a determination of whether or not the accused committed the alleged act." During the pre-trial hearing, the court expressed its concern that the jury would use in the information to infer Austin's guilt or innocence, and would not limit its use to character evidence. The court concluded: "While Dr. Kehrwald's testimony may be extremely valuable to the Court should the Defendant be convicted of the alleged gross sexual imposition, it does not assist the trier of fact, the jury, to understand any evidence nor to determine whether or not the Defendant committed the alleged offense."
[¶ 13] We conclude the district court's explanation for excluding Dr. Kehrwald's testimony was the product of a rational mental process and the court's decision was not arbitrary, unreasonable, or unconscionable.
[¶ 14] Austin also offered expert testimony from Dr. Kehrwald about whether a person involved in a custody proceeding would make up a story about sexual abuse to gain an advantage. Austin claimed D.L. was fabricating the allegations to help her aunt, who was Austin's girlfriend at the time of the allegations and has two children with him, in a possible future child custody dispute. Dr. Kehrwald testified he is more cautious when he conducts assessments if he is aware that a child custody proceeding may be motivating the allegations.
[¶ 15] The district court excluded Dr. Kehrwald's custody testimony, finding expert testimony was not necessary to tell a jury that a custody battle may be a motivational factor in sexual abuse allegations because the proffered testimony was generic and did not require any expertise. The court found there was no foundation for Dr. Kehrwald's opinion...
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