State v. Poole, No. C3-91-1963

• Decision Date: 23 April 1993
• Docket Number: No. C3-91-1963
• Citation: 499 N.W.2d 31
• Parties: STATE of Minnesota, Respondent, v. James Robinson POOLE, Petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 31

499 N.W.2d 31

STATE of Minnesota, Respondent, v. James Robinson POOLE, Petitioner, Appellant.

No. C3-91-1963.

Supreme Court of Minnesota.

April 23, 1993.

Syllabus by the Court

1. Health care professional who accomplishes sexual penetration or contact by means of false representation that penetration or contact is for a bona fide medical purpose may be prosecuted under subdivision 1(k) of Minn.State. Secs. 609.344 or 609.345.

2. Trial court properly denied defendant's motion to suppress evidence seized pursuant to warranted search of defendant's medical records and did not abuse its discretion in admitting expert testimony on what is a bona fide medical purpose, in admitting Spreigl evidence of a prior sexual assault by defendant, or in excluding certain defense evidence which was cumulative to other admitted evidence.

3. Court of appeals did not err in reducing defendant's aggregate sentence from 18 years (six consecutive terms) to 12 years (three consecutive terms).

Marc G. Kurzman, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Mary J. Theisen, Special Asst. Atty. Gen., St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

COYNE, Justice.

In its decision in this case, the court of appeals affirmed the convictions of defendant, Dr. James Robinson Poole, M.D., for violating subdivision 1(k) of Minn.Stat. Secs. 609.344 and 609.345 ¹ but reduced defendant's aggregate sentence from 18 years (six consecutive terms) to 12 years (three consecutive terms). State v. Poole, 489 N.W.2d 537 (Minn.App.1992). We granted separate petitions for review filed by defendant and the state. Concluding that defendant received a fair trial and was properly convicted of the offenses in question and that the court of appeals did not err in reducing defendant's aggregate sentence from 18 years to 12 years, we affirm.

Dr. Poole received his license to practice medicine in Minnesota in 1968. In 1971 defendant moved to Wheaton, Minnesota, where he opened a family practice which included obstetrical and gynecological care.

In January of 1990 one of his patients complained to the Minnesota Board of Medical Examiners regarding a pelvic examination performed by defendant. The Board contacted the Minnesota Bureau of Criminal Apprehension, which began an investigation that resulted in the filing of 17 counts of criminal sexual conduct in the third or fourth degree. A district court jury found defendant guilty of 16 of those counts. The 16 counts were based on defendant's misconduct toward 11 different female patients between the 1987 effective date of Minn.Stat. Secs. 609.344, subd. 1(k) and 609.345, subd. 1(k), and 1990.

Of the 11 complainants, 8 were adolescent female patients who saw defendant for birth control services. The remaining complainants were adult women who saw defendant for obstetrical care.

Most of the young women who saw defendant received several gynecological examinations from him. Typically, defendant entered the examination room and locked the door behind him. Defendant then instructed the patient to undress. He remained in the room alone with the patient while the patient undressed and he customarily did not offer a gown or sheet with which the patient could cover herself. Ordinarily, the patient remained naked during the entire examination.

The testimony of the young women indicates that the defendant typically commenced his examination with a breast exam, then proceeded to perform a pelvic exam. During the bi-manual part of the pelvic exam defendant placed two gloved fingers in the patient's vagina. Each of the complainants who saw defendant for birth control purposes testified that during the bi-manual part of the exam defendant repeatedly moved his fingers in and out of her vagina for 10 to 20 minutes. In numerous of these instances defendant also used his thumb to stimulate the patient's clitoris. Three of the complainants testified that this caused them to experience an orgasm during the examination. At the conclusion of the examination defendant often remained in the room while the patient dressed.

Dr. Preston Williams, an obstetrical and gynecological practitioner at the University of Minnesota Hospitals, testified that an entire pelvic examination, properly conducted, usually takes 2 to 3 minutes and that there is no bona fide medical reason for any doctor to move his fingers in and out of the vagina during such an examination. Similarly, there was expert testimony that there is no bona fide medical reason for a doctor to rub a patient's clitoris during a typical pelvic exam.

The three women who saw defendant for obstetrical care had similar experiences. One of them testified that after she became pregnant, defendant told her that he gave pelvic exams on a monthly basis to his obstetrical patients and used a "stretching" procedure to obviate the need for an episiotomy (cutting of the vulva) during child birth and that this procedure involved placing his entire fist inside the vagina. This patient saw a different doctor during the remainder of her pregnancy. The other two women, however, testified that defendant actually used the technique on them. These women also testified that defendant rubbed their clitorises with his thumb during the examinations.

Several experts familiar with the technique testified that they were unfamiliar with any medical reason for inserting a fist into the vagina as a part of the so-called perineal massage procedure, which is the name for the stretching procedure some obstetricians use.

Although defendant contended in the trial court that the statute which he was convicted of violating is unconstitutionally vague, the thrust of the argument here (as well as in the court of appeals) is that the statute was meant to apply only to health care impostors, not to licensed health care professionals, and that since he is a licensed physician, his convictions must be reversed outright because there is no evidence that his conduct violated the statute. Defendant contends that the legislative history supports his argument as to legislative intent.

It appears that the event that prompted legislative action was the well-publicized decision of the Ramsey County Attorney's Office not to prosecute a man who walked into a hospital and posing as a doctor, performed "gynecological examinations" on patients. Hearing on H.F. 318, H. Jud. Comm., 75th Minn.Leg., March 10, 1987 (transcript of audio tape). It does not follow, however, that the legislature did not intend to make conduct like defendant's criminal as well.

In any event, as Justice Holmes said, "[Y]ou let in intent not to find out what the speaker meant but what he said." ² If the statute were ambiguous, it would be proper to look to any legislative history to find out what the legislature said. But the statute we deal with is not ambiguous: it clearly applies to any act of sexual penetration or contact accomplished by means of a false representation that it is for a bona fide medical purpose. To put it another way, there is nothing in the statute itself to suggest that the "false representation" language relates to the actor's status rather than to the actor's purpose in accomplishing the penetration or contact. The effect on the victim is not lessened by the fact that the false representation is by a licensed health care professional; in fact, that may exacerbate the harm.

We also reject any contention that the statute is unconstitutionally vague either on its face or as applied to defendant's conduct.

Since there is no merit to defendant's contention that his convictions should be reversed outright, we address defendant's several arguments in support of his contention that he was denied a fair trial and therefore should be given a new trial.

The most troubling of these arguments relates to the two search warrants obtained by BCA agents and executed at defendant's clinic. The first of these warrants authorized the search for and seizure of "[p]atient lists, registers, or other writings, which identify female patients of Dr. Poole who would have been at least 10 years of age at the time they visited Dr. Poole, including the patient's name, date of birth, address and phone number." The second warrant authorized the search for and seizure of:

Complete patient files of all females with dates of birth between January 1, 1965 and January 1, 1978 who saw Dr. Poole from January 1, 1987 to the present for any kind of family practice services; including any type of family planning and/or birth control consultation, treatment, requests, interviews, services or provisions; whether the family planning and/or birth control services were a part of the appointment or the sole reason for the appointment.

Acting pursuant to these warrants, BCA agents seized the records of 58 patients from defendant's office.

Defendant argues that these warrants were too broad and were not supported by probable cause. We have recognized that there is a degree of flexibility to the particularity requirement. In State v. Hannuksela, 452 N.W.2d 668, 674 (Minn.1990), we commented that "A warrant which describes things in broad or generic terms may be valid 'when the description is as specific as the circumstances and nature of the activity under investigation permit.' " [Quoting United States v. Santarelli, 778 F.2d 609, 614 (11th Cir.1985) ]. In this case, the nature of the activity under investigation did not permit investigative authorities complete knowledge of even the total number of victims. The supporting affidavits for the warrants detailed complaints from several of defendant's patients describing his use of his position as a doctor as long ago as 1980 to commit sexual assault during the course of gynecological exams. Because the examinations were of a very sensitive and personal nature, it seems highly unlikely that all victims would report defendant's conduct on their own initiative. Given...