State v. Muhle, 20060328.

• Decision Date: 22 August 2007
• Docket Number: No. 20060328.,20060328.
• Citation: 737 N.W.2d 647,2007 ND 132
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Andrew Brice MUHLE, Defendant and Appellant.
• Court: North Dakota Supreme Court

737 N.W.2d 647

2007 ND 132

STATE of North Dakota, Plaintiff and Appellee v. Andrew Brice MUHLE, Defendant and Appellant.

No. 20060328.

Supreme Court of North Dakota.

August 22, 2007.

Mark Rainer Boening, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Monty Grant Mertz, Fargo, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Andrew Brice Muhle appeals from the criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition and one count of abuse or neglect of a child. We affirm, concluding that the district court did not abuse its discretion in admitting the children's out-of-court statements and did not violate Muhle's constitutional right to confront his accusers, that the State's failure to disclose a witness's pre-trial statement did not violate Muhle's right to a fair trial, that prosecutorial misconduct did not warrant reversal of the judgment, and that sufficient evidence supports Muhle's conviction on the class AA felony count of gross sexual imposition.

I

[¶ 2] Relevant facts are provided in our decision regarding Shannon Muhle's appeal, State v. Muhle, 2007 ND 131, and we will not repeat these facts here except as necessary to resolve the issues raised in this appeal.

[¶ 3] In October 2005, Muhle was charged with one count of gross sexual imposition as a class AA felony, one count of gross sexual imposition as a class A felony, and one count of abuse or neglect of a child, a class B felony. Andrew Muhle and his wife, Shannon Muhle, lived in West Fargo with their three minor children, a daughter, S.M., and two sons, K.E. and G.E. Andrew Muhle is not the biological father of K.E. or G.E. In August 2005, an investigation began when Detective Tim Runcorn of the West Fargo police department and Tammy Anderson from Cass County Social Services interviewed the three children.

[¶ 4] As a result of the investigation, both Andrew Muhle and Shannon Muhle were charged with criminal offenses. Before trial, the State made a motion to determine the admissibility of the children's statements about sexual abuse, and the district court held a hearing on May 1, 2006. The court issued a memorandum opinion and order holding S.M.'s and K.E.'s prior statements about sexual abuse to be admissible if they testified at trial, although the Court did redact a portion of K.E.'s statement. The district court did not rule on the admissibility of G.E.'s statement since the State no longer intended to offer G.E.'s out-of court statement at trial. The district court also held a hearing to determine whether the children were competent to testify, determining they were.

[¶ 5] In May 2006, Andrew Muhle and Shannon Muhle were tried together before a jury and were convicted. In November 2006, the court sentenced the Muhles. Andrew Muhle and Shannon Muhle have proceeded separately on appeal.

II

[¶ 6] Muhle argues the district court abused its discretion by admitting the children's out-of-court statements and violated Muhle's constitutional right to confront his accusers.

A

[¶ 7] We review the district court's evidentiary ruling for an abuse of discretion. State v. Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d 515. "A district court abuses its discretion when it `acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.'" Id. (quoting State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498).

[¶ 8] Here, the State offered and the district court admitted into evidence the audiotape recordings of the interviews with S.M. and K.E. Although the jury was also given transcripts of these interviews, the transcripts were not admitted into evidence. In State v. Muhle, 2007 ND 131, ¶¶ 10-18, we addressed the district court's decision in this case to admit S.M.'s and K.E.'s prior out-of-court statements into evidence and concluded the court did not abuse its discretion. We adhere to that conclusion.

[¶ 9] The State also offered testimony at trial from Dr. Alonna Norberg, who examined S.M., in addition to Dr. Norberg's medical report. Muhle suggests that N.D.R.Ev. 803(4), which provides an exception to exclusion by the hearsay rule for statements made for purposes of medical diagnosis or treatment, should not apply to portions of Dr. Norberg's medical report that Muhle describes as "interrogation."

[¶ 10] Muhle asserts that Dr. Norberg is the medical director of the Red River Valley Children's Advocacy Center and that the entire examination was done for purposes of investigation and prosecution. Muhle asserts there is no evidence that Dr. Norberg had ever been S.M.'s doctor at any time prior to the investigation. However, N.D.R.Ev. 803(4) provides an exception to the hearsay rule for: "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

[¶ 11] This Court has previously addressed treatment in sexual assault cases:

In addition to diagnosing and treating such physical injuries as cuts or bruises, health care providers examining one claiming to be the victim of a sexual assault must diagnose whether or not the alleged victim has suffered psychological trauma and, if so, its nature and extent, and treat that as well. The intensity of psychological trauma suffered by the victim of a sexual assault may vary, depending upon such things as the location of the attack, the kind and degree of restraint of movement or force used, or the imposition of fear through an assailant's admonition to the victim not to tell anyone. Thus, such matters are "reasonably pertinent to diagnosis and treatment" and statements about them are admissible under Rule 803(4), N.D.R.Ev.

State v. Weatherspoon, 1998 ND 148, ¶ 16, 583 N.W.2d 391 (quoting State v. Janda, 397 N.W.2d 59, 63 (N.D.1986)). While Muhle contends that this exception to the hearsay rule should not apply to the "interrogation portion" of the medical report, the rule also permits statements describing "the inception or general character of the cause or external source thereof." There is also no requirement that the physician must have been the person's doctor at any time prior to the examination. Moreover, such questions regarding the cause or external source of symptoms or pain, including S.M.'s responses to those questions, fall within N.D.R.Ev. 803(4).

[¶ 12] In this case, the district court had sufficient evidence to assess the reliability of the children's out-of-court statements. After reviewing the record, we conclude the district court did not abuse its discretion either in admitting the children's out-of-court statements or in admitting Dr. Norberg's testimony and medical report at trial.

B

[¶ 13] Muhle argues that his Sixth Amendment right to confront his accusers was violated by permitting the children's out-of-court statements to be admitted into evidence. Muhle specifically asks this Court to reconsider our holding in Sevigny, 2006 ND 211, 722 N.W.2d 515, based upon his assertion that cross-examination of a small child is "nearly impossible" and that a child cannot be "effectively" cross-examined on prior statements.

[¶ 14] We review de novo for violations of constitutional rights. Sevigny, 2006 ND 211, ¶ 28, 722 N.W.2d 515. We considered the issue raised by Muhle in Sevigny, at ¶ 29:

In [State v.] Blue, 2006 ND 134, ¶ 7, 717 N.W.2d 558, we clarified when a witness testifying to a child's out-of-court statements about sexual abuse violates a defendant's constitutional right to confront his accuser. We held an out-of-court testimonial statement may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. Id. at ¶ 8. We also said,

If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford makes clear that, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements ...."

Id. at ¶ 23 (citations omitted) (quoting Crawford v. Washington, 541 U.S. 36, 59-60 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In this case, S.S. and S.J.M. both testified at the trial and Sevigny had the opportunity to cross-examine both children. We conclude Sevigny's Sixth Amendment rights were not violated.

[¶ 15] In Sevigny, at ¶ 29, this Court concluded the defendant's Sixth Amendment rights were not violated because both of the child victims testified and were subject to cross-examination by the defendant. As in Sevigny, the children in this case, S.M., K.E., and G.E., all testified at trial. Muhle also had the opportunity to cross-examine the children.

[¶ 16] We recognize there may be difficulty in cross-examining some children; however, this difficulty concerns the competency of the child to testify. The district court in this case found all three children competent to testify at trial. We reject Muhle's assertion that cross-examination is, as a matter of law, impossible or ineffective when a child witness is involved, or that a child's out-of-court testimonial statements that are not subject to "effective" cross-examination at the time they were given should never be admitted as substantive evidence.

[¶ 17] Although Muhle argues that the children's out-of-court statements, including the physician's testimony and medical report, are testimonial in nature, all three children and Dr. Norberg testified at the trial. We decline Muhle's invitation to reconsider Sevigny. We conclude Muhle's Sixth Amendment rights were not violated.

III

[¶ 18] Muhle asserts the State violated his right to a fair trial by failing to...