State v. Boyd, C2-82-1624.

• Decision Date: 01 April 1983
• Docket Number: No. C2-82-1624.,C2-82-1624.
• Citation: 331 NW 2d 480
• Parties: STATE of Minnesota, Appellant, v. Steven Leonard BOYD, Respondent.
• Court: Minnesota Supreme Court

331 N.W.2d 480 (1983)

STATE of Minnesota, Appellant, v. Steven Leonard BOYD, Respondent.

No. C2-82-1624.

Supreme Court of Minnesota.

April 1, 1983.

Hubert H. Humphrey III, Atty. Gen., St. Paul, Arvid Wendland, County Atty., Blue Earth, for appellant.

C. Paul Jones, Public Defender, and Robert D. Goodell, Asst. Public Defender, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

This is a pretrial appeal by the state, pursuant to Minn.R.Crim. 29.03, from an order of the district court granting a defense motion to limit (and in effect suppress) the testimony of an expert witness for the state in its prosecution of defendant for criminal sexual conduct in the third degree, Minn.Stat. § 609.344(b) (1982).¹ The testimony, which the state wants to use to prove that defendant sexually penetrated the victim, is that the complainant has given birth to a child after the alleged act of penetration and that blood test results indicate that defendant is the father of the child.

In May of 1981 defendant gave birth to a baby. Subsequently she stated that she had had sexual intercourse with defendant two to three times a week over a 2-year period, ending sometime prior to December of 1980.

On January 15, 1982, the present charge was filed against defendant.

Defendant thereafter voluntarily gave a sample of his blood for comparative analysis with the blood of the complainant and the blood of her baby at the War Memorial Blood Bank.

Comparing the blood types of the three with respect to 15 different gene systems, Dr. H.F. Polesky, M.D., who is director of the Blood Bank, came to the following conclusions: (a) that use of the 15 genetic systems will provide evidence of nonpaternity in 94% to 97% of the cases in which the man in fact is not the father of the child, and that in this case the results do not provide evidence of nonpaternity; (b) that 1,121 unrelated men would have to be randomly selected from the general population of men before another man would be found with all the appropriate genes to have fathered the child in question; and (c) that the index (1121.39) can be converted to a percent (99.911%) to determine the likelihood that defendant in fact is the father of the child.

On June 30, 1982, Dr. Polesky's deposition was taken. At that time he elaborated on and explained the test results. Asked a hypothetical question, which included the assumption that complainant would testify that she had had sexual intercourse with defendant and not with any first-degree relative of his and the assumption that defendant is fertile, he expressed the opinion that defendant was the father of the child in question.

Shortly before trial was to begin, defense counsel moved for an order limiting the expert testimony on two grounds: first, that the expected testimony was inadmissible evidence of statistical probability; second, that Dr. Polesky's opinion would be based on an assumption that defendant had sexually penetrated the complainant, and yet whether defendant had sexually penetrated the complainant was the ultimate issue in the case. The trial court granted defendant's motion.

This appeal followed.

There are a number of cases in other jurisdictions dealing with the admission of evidence of subsequent pregnancy to establish that the crime occurred (in the context of statutory rape) or that penetration occurred (in the context of nonstatutory rape). See, e.g., Hall v. State, 378 So.2d 1193 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1196 (Ala.1980). However, the general view expressed in these cases is that the evidence may not be admitted to prove identity, that is, that, it was the defendant who committed the act of penetration.

None of these cases confronts the issue of admission of evidence of the sort in this case. That is because the scientific advances which have made possible the sort of testimony used in this case are relatively recent. See State on Behalf of Kremin v. Graham, 318 N.W.2d 853 (Minn.1982), Hepfel v. Bashaw, 279 N.W.2d 342 (Minn.1979), and State, on Behalf of Ortloff v. Hanson, 277 N.W.2d 205 (Minn.1979), all dealing with the use of blood tests to establish paternity in paternity suits.

In dealing with the issue, we prefer to start with the elementary proposition that an act of sexual penetration is a physical act and the related proposition that a man who commits such an act often leaves behind physical evidence connecting him to the act.

There are numerous examples of such evidence:

(a) If a man having venereal disease sexually penetrates a woman and she contracts the same disease, that fact, assuming proper foundation, is evidence tending to establish that the man sexually penetrated the woman. See State v. Mason, 152 Minn. 306, 310, 189 N.W. 452, 453 (1922).

(b) Science has devised ways of testing semen and determining some of the blood types of the source. This sort of testing can show that the defendant could have been the source of the semen (or that he could not have been the source). See A. Moenssens, R. Moses and F. Inbau, Scientific Evidence in Criminal Cases, §§ 6.16, 6.19 (1973).

(c) Similarly, if the rapist cuts himself and leaves blood at the scene, the blood can be analyzed and compared with that of the suspect and he can either be included or excluded as a possible source.

(d) The same can be said of pubic hairs left by the rapist or fibers or footprints or fingerprints.

In this case we are dealing with a form of physical evidence left by the rapist.

In ruling that the evidence was inadmissible, the trial court alluded to cases dealing with admission of statistical probability evidence in criminal cases. The leading such case in Minnesota is State v. Carlson, 267 N.W.2d 170 (Minn.1978), where we held that it was error (although nonprejudicial) to admit expert testimony expressing the results of...