State v. Paul

Decision Date09 July 2009
Docket NumberNo. 20080292.,20080292.
Citation2009 ND 120,769 N.W.2d 416
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Wilson Grant PAUL, Sr., Defendant and Appellant.
CourtNorth Dakota Supreme Court

Leah Jo Viste, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Monty Grant Mertz, Fargo Public Defender Office, Fargo, ND, for defendant and appellant.

MARING, Justice.

[¶ 1] Wilson Grant Paul, Sr., appeals from a criminal judgment entered on a jury verdict finding him guilty of class AA felony gross sexual imposition. We conclude the district court did not commit reversible error in its evidentiary rulings and the evidence is sufficient to sustain the verdict. We affirm.

I

[¶ 2] In July 2007, Paul, his girlfriend, and their three children lived in a small apartment in Fargo. Paul's girlfriend's son from a previous relationship and a nephew also lived in the apartment. The apartment was located on the second floor of a house that had been converted into apartments, and Paul's mother lived on the first floor. During the July 4th holiday that year, Paul had numerous guests at the apartment. The victim, L.L., a nine-year-old niece of Paul's girlfriend, was one of the guests.

[¶ 3] L.L. and her fourteen-year-old sister, V.L., had resided with Paul and his girlfriend when the family lived in South Dakota from 2004 to 2006. In March 2006, the family moved with L.L. and V.L. to Fargo. L.L. and V.L. left Fargo two months later in May 2006 to live with the mother of Paul's girlfriend, S.L., in Oklahoma. After their July 2007 visit to Fargo, S.L., V.L., and L.L. returned to Oklahoma. In August 2007, L.L. informed V.L. and S.L. that Paul had been inappropriately touching her. S.L. contacted the Oklahoma Department of Health and Human Services, and a social worker there conducted a videotaped interview with L.L. Following an investigation by Oklahoma authorities and the Fargo Police Department, Paul was charged with gross sexual imposition for having L.L. "touch his penis with her hand" in the apartment during June or July 2007.

[¶ 4] After a pretrial evidentiary hearing, the district court ruled out-of-court hearsay statements made by L.L. to V.L., S.L., and the Oklahoma social worker on the videotape were admissible. During trial, the jury was allowed to view the social worker's videotaped interview of L.L. and to hear S.L. and V.L.'s testimony about what L.L. had told them. The substance of the testimony included allegations that Paul had sexually abused L.L. at times and places other than during June or July 2007 in Fargo. The court also allowed a counselor from the Rape and Abuse Crisis Center of Fargo/Moorhead to testify as an expert witness about the length of time children would delay reporting sexual abuse and what their presentation would be when they reported it. L.L. testified three times during the trial. The first two times L.L. said she could not remember any sexual abuse occurring. The third time she testified that while in the bathroom of the apartment, Paul "made me go like this (indicating) to his privates." Paul denied having sexually abused L.L. and his girlfriend also testified in his defense. The jury returned a guilty verdict, and Paul was sentenced to 25 years in prison with 7 years suspended, and to 10 years of supervised probation.

II

[¶ 5] Paul argues the district court erred in allowing a counselor from the Rape and Abuse Crisis Center to testify as an expert on the delay in reporting sexual abuse by children and the presentation of children when they make disclosures about sexual abuse.

[¶ 6] Under N.D.R.Ev. 702, "[i]f 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." The rule envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify. State v. Streeper, 2007 ND 25, ¶ 23, 727 N.W.2d 759. The decision to admit expert testimony is discretionary with the district court. State v. Schmidkunz, 2006 ND 192, ¶ 15, 721 N.W.2d 387. 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. Id.

[¶ 7] The counselor testified she had a master's degree in clinical counseling and her clients are people of all ages who have experienced sexual abuse, sexual assault, domestic violence, dating violence, and harassment. She has counseled approximately 115 children in the 12 years she has worked at the Center. She takes continuing education courses to keep her certification and has attended national training conferences on child sexual abuse. In ruling the counselor could testify as an expert, the court reasoned:

[The counselor] did say that she's worked with 111 children that were sexually abused themselves. She worked with them as a therapist. She bases her opinion on her expertise and her experience, her 12 years of experience working at Rape and Abuse Center, the ongoing education that she had received in those areas, the books that she's read, the staffing and consultation that she's done with other employees at the agency and in national conferences that she's been to. And the Court concludes that on the very narrow issue that she is testifying to that she is qualified as an expert.

[¶ 8] The district court's decision is not arbitrary, unreasonable, or unconscionable, and is the product of a rational mental process. We conclude the district court did not abuse its discretion in allowing the counselor to testify as an expert.

III

[¶ 9] Paul challenges on two grounds the admission of L.L.'s videotaped interview and the testimony of S.L. and V.L. regarding what L.L. had told them. Paul argues L.L.'s out-of-court hearsay statements lacked sufficient guarantees of trustworthiness, and because the substance of those statements implicated him in crimes for which he was not charged, admission of this "other crimes" evidence was reversible error.

A

[¶ 10] Paul argues the district court erred in admitting L.L.'s out-of-court hearsay statements under N.D.R.Ev. 803(24) because there were insufficient guarantees of trustworthiness and reliability for those statements.

[¶ 11] Although Paul challenged the admission of the evidence before trial, he did not renew his objection when the evidence was offered at trial. Because Paul failed to make a contemporaneous objection on hearsay grounds when the evidence was presented at trial, we review for obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). See, e.g., State v. Wegley, 2008 ND 4, ¶ 13, 744 N.W.2d 284. An alleged error does not constitute obvious error unless it is a clear deviation from an applicable legal rule under current law, State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631, and even if the defendant establishes obvious error, we will not exercise our discretion to correct the error unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings. State v. Hirschkorn, 2002 ND 36, ¶ 22, 640 N.W.2d 439, overruled on other grounds, State v. Blue, 2006 ND 134, ¶ 21, 717 N.W.2d 558.

[¶ 12] Rule 803(24), N.D.R.Ev., provides a hearsay exception for a child's out-of-court statements about sexual abuse:

An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:

(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and

(b) The child either:

(i) Testifies at the proceedings; or

(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

The nonexclusive factors to be considered for Rule 803(24) trustworthiness include "(1) `spontaneity and consistent repetition' of the statements, (2) `the mental state of the declarant,' (3) `use of terminology unexpected of a child of similar age,' and (4) `a lack of motive to fabricate.'" State v. Muhle, 2007 ND 131, ¶ 12, 737 N.W.2d 636 (quoting State v. Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109, overruled on other grounds, State v. Blue, 2006 ND 134, ¶ 21, 717 N.W.2d 558). The factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made, and a district court must make explicit findings on the factors and explain its reasoning for its decision. Muhle, at ¶ 12. We apply the abuse of discretion standard to review a district court's evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse unless the court's ruling was arbitrary, capricious, or unreasonable, or a misinterpretation or misapplication of the law. Wegley, 2008 ND 4, ¶ 12, 744 N.W.2d 284.

[¶ 13] The district court made oral findings at the conclusion of the pretrial evidentiary hearing:

[A]t issue before the Court are the admissibility of the out-of-court statements that L.L. made to her sister V.L., her grandmother [S.L.] and the Oklahoma social worker. These statements clearly are hearsay and would be inadmissible as such without an exception. The applicable exception is Rule 803(24). That exception would allow these out-of-court statements to be admissible if two criteria are met. First, the declarant, L.L., must testify at the trial which I understand that she will and this condition is met.

Secondly, the Court must find that the time, content, and circumstances of the statement provide ... sufficient guarantees of trustworthiness. And in assessing this...

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