                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0837

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Justin Wayne Hannine,
                                       Appellant.

                                  Filed May 11, 2015
                                       Affirmed
                                   Connolly, Judge

                             Stearns County District Court
                               File No. 73-CR-13-6511


Lori Swanson, Attorney General, Angela Behrens, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Worke, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his conviction of second-degree criminal sexual conduct,

arguing that one of the state’s witnesses, the nurse practitioner who examined the four-

year-old complainant, improperly vouched for the complainant by bolstering the

complainant’s credibility when she said she believed the complainant had been sexually

abused based on her physical exam of the complainant, the complainant’s verbal and

nonverbal answers to questions during the exam, and the information provided by the

complainant’s mother.       Because we see no error in the admission of the nurse

practitioner’s testimony and no prejudice to appellant by its admission, we affirm.

                                           FACTS

       Appellant Justin Hannine and L.F. had a daughter, E., in April 2009.              They

separated soon afterwards. Appellant was awarded joint legal custody and parenting time

of alternate weekends, every Thursday night, and alternate Monday nights. At trial, both

appellant and L.F. testified that their relationship was good as far as E. was concerned.

       In July 2013, appellant picked up E., then four years old, for a scheduled overnight

visit and returned her to L.F. the next morning. He later called L.F. to tell her that E. had

not used the bathroom while she was with him.1




1
  In his statement to the police, appellant said only that he called L.F. to report that E. had
not used the bathroom. But when he testified, he added that E. was using the bathroom at
the time he called, that L.F. asked E., “Is everything okay?” and that E. answered,
“Yeah.”

                                              2
       The next day, E. told L.F. that she experienced pain while urinating.              L.F.

observed redness in E.’s vaginal area. When she wanted to apply a medicinal cream, E.

cried and asked L.F. not to touch her because that was where appellant touched her and

put his finger. When asked to show on a doll where appellant touched her, E. pointed to

the vaginal area. E.’s half-sister, H., 16, was present at the time.

       L.F. contacted the police. E. refused to speak to a male police officer, but did talk

to a female police officer. In a recorded interview, E. again said that appellant had

touched her vaginal area and, using a doll, demonstrated, how appellant put his finger in

her vaginal area. E. also refused to speak to a male doctor but spoke to a female pediatric

nurse practitioner, who examined her.

       Appellant was charged with first-degree and second-degree criminal sexual

conduct. He waived his right to a jury trial. Twelve witnesses testified at a bench trial,

including E., appellant, L.F., E.’s half-sister, and the nurse practitioner.

       When E. testified, she showed on an anatomical drawing where appellant touched

her and said that: (1) it made her feel sad, (2) he used his finger and “it picked,” and (3) it

hurt because “he picked.”

       The nurse practitioner testified that, in a case of suspected abuse, she first obtains

a history from the caretaker who brings the child for the appointment. She then has the

caretaker leave the room and does a physical exam of the child, during which she asks

questions.   She testified further that, in response to her questions, E. told her that

appellant touched her and showed how he made circles on her clitoris. When she asked

E. if she had been touched in various other parts of the genital area, E. said “No.”


                                               3
       The nurse practitioner was asked if her examination of E. was consistent with E.

being sexually abused. She answered, “I do believe that she’s been sexually abused,

based on her statements during my physical exam and the history that I obtained from

[L.F.].” She also testified that she based her opinion in part on E.’s putting her own

finger on her clitoris and rubbing it and in part on E.’s telling her that this was what

appellant did.

       On cross-examination, the nurse practitioner testified that, except for the

reddening of the outer labia, which was also consistent with various conditions other than

sexual abuse, the physical exam showed no sign of any sort of abuse, and that she had not

asked E. who else E. talked to about appellant’s touching her vaginal area.

       The district court found the state had not proved beyond a reasonable doubt that

appellant sexually penetrated E. but had proved that he intentionally touched her intimate

parts with sexual or aggressive intent, that E. was then under 13, and that appellant was

more than 36 months older than E., and concluded that appellant was not guilty of first-

degree criminal sexual conduct but was guilty of second-degree criminal sexual conduct.

He was sentenced to 48 months in prison, stayed, and placed on probation for 25 years.

       He challenges his conviction, arguing that it was plain error to admit the nurse

practitioner’s testimony because she vouched for E.’s credibility when she gave her

opinion, to a reasonable degree of medical certainty, that E. had been sexually abused.




                                            4
                                       DECISION

       No objection was made to the nurse practitioner’s testimony.

              [When] defense counsel fail[s] to object to the admission of
              . . . testimony, our review is under the plain error standard.
              The plain error standard requires that the defendant show:
              (1) error; (2) that was plain; and (3) that affected substantial
              rights. If those three prongs are met, we may correct the error
              only if it seriously affect[ed] the fairness, integrity, or public
              reputation of judicial proceedings.

State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation and citations omitted).

       E. was deemed competent to testify and testified.

              Once a witness is deemed competent, expert opinions
              concerning the witness’s reliability in distinguishing truth
              from fantasy are generally inadmissible because such
              opinions invade the [factfinder’s] province to make credibility
              determinations. Expert testimony concerning the credibility
              of a witness should be received only in unusual cases. An
              example of such an unusual case is a sexual assault case
              where the alleged victim is a child . . . .

State v. Saldana, 324 N.W.2d 227, 231 (Minn. 1982) (quotation and citations omitted).

“In the case of a sexually abused child consent is irrelevant and [the factfinder is] often

faced with determining the veracity of a young child who tells of a course of conduct

. . . .” State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) (holding that an expert’s

background information on abused children was “helpful and appropriate in cases of

sexual abuse of children, and particularly of children as young as this complainant,” who

was seven at the time of the abuse).

       The nurse practitioner did not testify as to who might have sexually abused E. or

as to E.’s veracity. She testified only that she believed E. had been sexually abused and



                                              5
that this belief was founded on her physical exam of E., E.’s verbal and nonverbal

answers to her questions during the exam, and the information she received from L.F.

Similar testimony has been admitted in similar cases. See, e.g., State v. Dana, 422

N.W.2d 246, 250-51 (Minn. 1988) (holding that, while expert testimony as to who had

abused two brothers aged four and five was objectionable, “[e]xpert testimony relating to

whether the children had been sexually abused was properly admitted”); State v.

Hollander, 590 N.W.2d 341, 349 (Minn. App. 1999) (holding that social worker’s

opinion that four-year-old complainant whom she interviewed had been sexually abused

was properly admitted); State v. Campa, 390 N.W.2d 333, 335 (Minn. App. 1986)

(holding that, while physician’s unobjected-to testimony that her professional opinion

that complainant had been sexually abused as a preschooler was based in part on

complainant’s personal report, which physician “believe[d] to be true,” was improper, the

error did not mandate a new trial), review denied (Minn. Aug. 27, 1986). The nurse

practitioner here did not testify that she believed E.’s account to be true; she testified that

her belief that E. was sexually abused was founded, in part, on E.’s responses to her

questions. Admitting that testimony was not plain error.

       Appellant relies on State v. Morales-Mulato, 744 N.W.2d 679 (Minn. App. 2008)

(holding that, although interviewer’s testimony that, in her opinion, 11-year-old

complainant had been sexually abused was improper vouching for complainant’s

credibility, it was harmless error, and affirming because evidence was sufficient to

sustain conviction), review denied (Minn. Apr. 29, 2008). In that case,




                                              6
              [the c]omplainant . . . was a pre-teen, aged 11 at the time of
              the interview and 12 at the time of trial, not a preschooler
              . . . . [She] did not have any cognitive deficits and was able to
              describe the various acts of sexual contact and penetration in
              great detail, including what kind of underwear appellant
              wore, how he cleaned her and himself after the incidents,
              things he told her about himself, and how his penis looked
              and felt during the abuse. . . . [The c]omplainant’s ability to
              testify was comparable to that of many adult witnesses, and
              the jury was able to judge her credibility based on the criteria
              for credibility contained in the jury instructions.

Id. at 688-89. Because the complainant was comparable to an adult rather than a small

child, this court concluded that, “based on the age and ability of complainant in this case

to testify about her allegations, . . . the district court erred by admitting [the interviewer’s]

expert testimony, particularly where no foundation for the interviewer’s expertise in

assessing credibility was established.” Id. at 688.

       Appellant’s reliance on Morales-Mulato is mistaken because that case is clearly

distinguishable. Unlike the victim in that case, E. differed significantly from an adult in

her testimony: at one point she said she had told L.F. about the abuse four times, but at

another point she said she had told L.F. 70 times. As the district court noted,

              [E.] was asked who she had practiced her testimony with . . .
              [but i]t was never established whether or not [E.] knew the
              meaning of the words ‘practiced’ and ‘testimony.’ While a
              four-year-old child may know the meaning of the word
              ‘practice,’ the Court finds it is unlikely that a four-year-old
              child understands the meaning of the word ‘testimony.’

E.’s ability to testify was not “comparable to that of many adult witnesses.”2


2
   Appellant also relies on Van Buren v. State, 556 N.W.2d 548, 552 (Minn. 1996)
(concluding that admission of testimony from 14-year-old complainant, her 12-year-old
friend, and a police officer that some members of the complainant’s family believed the

                                               7
       Finally, appellant argues that “[g]iven that this was such a close case and

[appellant’s] guilt hinged upon who was found to be more credible, the improper

vouching testimony surely affected the verdict and denied [appellant] his right to a fair

trial.” But we do not consider this to be a close case. E.’s statements as to what appellant

did were consistent throughout the investigation and consistent with her testimony. E.’s

testimony provided a basis, exclusive of the nurse practitioner’s implication that she

believed E., for the district court to independently determine E.’s credibility based on

other trial evidence. The district court’s finding that appellant was not credible was also

supported by the record: appellant’s statement to the police during investigation differed

from his testimony with respect to his phone call to L.F.

       Even if admitting the nurse practitioner’s statement was plain error, it did not

affect appellant’s right to a fair trial or the fairness, integrity, or public reputation of the

judicial proceedings. See Strommen, 648 N.W.2d at 686. Appellant’s conviction is

affirmed.

       Affirmed.




complainant’s story that a male family member had assaulted her substantially affected
the verdict that the male family member was guilty). “[W]e fail to see how what other
people believed about whether the sexual assaults took place sheds any light on [the
complainant’s] state of mind. . . . Whether others believed [her] story about [his] sexual
assaults had no probative value and should have been excluded under Minn. R. Evid.
402.” Because Van Buren does not concern the abuse of a small child or expert
testimony, it is irrelevant here.


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