                           This opinion will be unpublished and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
                                      A14-1951

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Jason DeWayne Kirk,
                                        Appellant.

                                 Filed November 23, 2015
                                        Affirmed
                                      Hooten, Judge

                              Morrison County District Court
                                  File No. 49-CR-13-63

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges his first-degree criminal sexual conduct conviction, arguing

that the district court erred by denying his motion to suppress his statement to law
enforcement and by excluding expert testimony regarding the issue of false confessions.

We affirm.

                                         FACTS

       Appellant Jason Dewayne Kirk moved from Tennessee to central Minnesota in

August 2011 to live with R.B., whom he had met on the internet. Kirk’s relationship with

R.B. became romantic shortly after he moved in with her, and he began providing

childcare for R.B.’s young children, K.B. and T.B., on a regular basis.

       On January 8, 2013, when K.B. was six years old, she was working on her

homework at her grandmother’s house. K.B.’s homework was to draw what she did last

weekend, and her grandmother became concerned when K.B. drew a picture of a

computer screen depicting a woman performing oral sex on a man. K.B.’s grandmother

and grandfather went to R.B. and Kirk’s house and told them about K.B.’s drawing. K.B.

told her grandparents, her mother, and Kirk that the picture showed what she had seen on

Kirk’s computer.

       R.B. contacted a child protection worker, who referred R.B. to Jeff Guith, a child

protection investigator.   Guith interviewed K.B., and the interview was videotaped.

During the interview, K.B. initially did not recognize the picture that she drew, but later

told Guith that the picture was of a movie she saw on Kirk’s computer. K.B. explained

that the movie was of a woman “hopping up on the boy where . . . he go peed.” K.B. said

that Kirk had shown her the video in the living room of their home when her mother was

at work. K.B. said Kirk put his hand on her mouth and tried to move her mouth down to




                                            2
his “tail.” Guith clarified that “tail” meant penis. K.B. told Guith that Kirk had put his

“tail” in her butt and that his “tail” was hard at the time.

       After speaking with K.B., Sergeant Investigator Jeremy Luberts and Guith, who

often assisted law enforcement in interviewing child abuse suspects, went to Kirk’s job

site. There, they asked Kirk to accompany them to the sheriff’s office to discuss the

allegations. Kirk was cooperative and agreed to speak with Guith and Luberts.

       The three did not discuss the allegations during the ride to the sheriff’s office. The

interview took place in a small room with a table and some chairs. Kirk was told at the

very start of the interview that the interview concerned “some inappropriate touching that

occurred.” Kirk was given a Miranda warning by Luberts, and he indicated that he

understood his rights and was willing to speak with the investigators.            Guith also

informed Kirk of his privacy rights regarding the child protection investigation and told

Kirk that he did not have to answer any of the questions that he was asked. Kirk

indicated that he understood and that he wished to continue with the interview.

       During the interview, which lasted just over one hour, Kirk initially denied

watching pornographic movies with K.B. or inappropriately touching her. Kirk said that

he had only touched her butt when helping her in the bathroom. When Guith suggested

that maybe something happened when Kirk was half asleep or drinking, Kirk again

denied that anything had happened. Guith suggested a number of times that people

sometimes end up in bad situations and make a mistake, and that those people should get

counseling.




                                               3
       Luberts stated that he could tell Kirk was hiding something from them and that

“cooperation in these matters goes a long way.” Luberts said that he was not looking to

put Kirk away for life, and that he was just looking to get help for K.B. and for Kirk.

Kirk again denied that anything happened. Guith, after reiterating that some people who

abuse kids actually care about the kids and just made a mistake, said, “We have an

enormous amount of power with the County Attorney’s Office on how these cases end

up. If we make recommendations . . . the County Attorney’s Office almost always takes

that into account.” Luberts reiterated that cooperation was important and told Kirk that

he was “very, very, very likely gonna’ be charged with” this crime. Kirk still denied the

allegations.

       Guith told Kirk that the way that the case was handled would depend on whether

Kirk cooperated:

               [I]f we have to prove this . . . through physical evidence from
               the doctor, through physical DNA evidence from you . . . this
               is gonna’ be one of those cases that goes to the County
               Attorney’s Office with our recommendation to get the most
               difficult, harsh sentence possible for you, which is gonna’ be
               hard time in a state facility. If you are able to help us get to
               the bottom of this thing . . . we will make sure you get the
               proper kind of counseling. We will make sure that this is
               something that gets addressed and that you can have your
               family back together . . . .

Kirk again denied abusing K.B. Guith said Kirk seemed like a guy who ended up in a

bad set of circumstances.




                                              4
Guith stated that Kirk owed it to K.B. to admit what had happened:

              You owe it to [K.B.] after what happened, you made a
              mistake, and it’s time for you to accept that that’s done now,
              okay? . . . When I talk to victims of sexual abuse, what hurts
              them way more than the actual sexual act is people not
              believing them. . . . They’re the person that this something
              bad happened to and then when they have the courage to talk
              about what happened, to then have people turn on them and
              say that they’re lying. To have the person that sexually
              touched them turn on them and say, nope, that’s a lie, okay? I
              know you have it within you. I can tell that you’re the kind of
              person that has the ability to square up on this thing.

Kirk then stated that he was playing a computer game when K.B. came up to him and

started rubbing his genitals.    Kirk said that it felt like “somebody else was there

controllin’ me,” and that he pulled up a porn site on his computer. Kirk stated that he

showed K.B. his penis and that she started rubbing it. Kirk said that K.B. then went into

the bathroom and was having trouble pooping. Kirk stated that he rubbed Vaseline on

K.B.’s anus to help her poop and that he just got more aroused. Kirk then stated that he

put his penis in K.B.’s anus for several seconds and that he ejaculated.

       Kirk was charged with one count of first-degree criminal sexual conduct. At his

first appearance, Kirk, appearing pro se, told the district court that his statement to law

enforcement was made under duress. Later, Kirk, now represented by counsel, moved to

suppress the statement he had given to law enforcement, asserting that it was involuntary

because it had been obtained by coercion. The district court denied this motion. Before

trial, Kirk sought permission to call an expert witness to testify regarding false

confessions. The state moved to exclude such testimony, and the district court granted

the state’s motion.


                                             5
         The first trial ended in a mistrial. At the second trial, K.B. testified that Kirk had

showed her a video of women putting their mouths on a man’s penis and that Kirk had

put his penis in her “back butt.” At trial, the state played redacted versions of K.B.’s

interview with Guith and the interview of Kirk at the sheriff’s office.

         Kirk testified on his own behalf and denied that he had ever sexually abused K.B.

Kirk stated that on the day of the alleged abuse, he was home with K.B. and T.B. and

allowed K.B. to watch him play a video game for a few hours. Kirk testified that he

confessed to law enforcement because he was afraid that child protection would take the

children away unless he confessed because child protection had previously removed the

children from the house. He also stated that he thought that a therapist would recognize

that he did not do the crime and that he did not have the type of personality to harm a

child.    Kirk testified that he tried to say things during the interview so that the

investigators would think he was mentally ill, merely repeated details that they had told

him, and was sleep deprived at the time. Kirk said that he frequently helped K.B. in the

bathroom and that her statement regarding him putting his penis in her anus was probably

a description of him cleaning her after she had defecated in her pants.

         The jury initially told the district court that it was deadlocked, but after receiving

further instructions, the jury again deliberated and found Kirk guilty. The district court

sentenced Kirk to 144 months in prison. This appeal followed.

                                       DECISION

         Kirk challenges the district court’s denial of his motion to suppress his confession

as an involuntary statement.        An appellate court “review[s] the voluntariness of a


                                               6
confession de novo as a question of law based on all factual findings that are not clearly

erroneous.” State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (quotation omitted). In a

pretrial hearing at which the defendant seeks to suppress a confession on the basis that it

was involuntary, the state bears the burden to prove that the confession was voluntary by

a “fair preponderance of the evidence.” State v. Thaggard, 527 N.W.2d 804, 807 (Minn.

1995).

         “The Due Process Clause of the Fourteenth Amendment prohibits the admission

into evidence of a statement that was not voluntarily given.” State v. Zabawa, 787

N.W.2d 177, 182 (Minn. 2010). In determining voluntariness, the question is whether the

defendant’s will was overborne. Id.

         A court considers the totality of the circumstances when determining whether a

statement was voluntary. State v. Farnsworth, 738 N.W.2d 364, 373 (Minn. 2007). The

court must examine whether the actions of the police, along with other circumstances,

were “so coercive, manipulative, and overpowering that the defendant was deprived of

his ability to make an independent decision to speak.” Zabawa, 787 N.W.2d at 182.

However, the fact that police questioning encouraged inculpatory statements does not by

itself render a confession involuntary. State v. Pilcher, 472 N.W.2d 327, 333 (Minn.

1991).

         Relevant factors in determining whether a confession was voluntary include the

defendant’s intelligence, education, age, experience, maturity, and ability to comprehend.

Zabawa, 787 N.W.2d at 182; Ritt, 599 N.W.2d at 808. The court also considers the

nature and circumstances of the interview, including “its length, the lack of or adequacy


                                            7
of warnings, whether the defendant’s physical needs were met or ignored, and whether

the defendant was denied access to friends.” Zabawa, 787 N.W.2d at 183. The court

must also consider the use of trickery and deception. Thaggard, 527 N.W.2d at 810. “If

police use deception in an interrogation and it is the kind that would make an innocent

person confess, the confession is involuntary and must be suppressed.” In re Welfare of

D.B.X., 638 N.W.2d 449, 455 (Minn. App. 2002) (quotation omitted). Courts must

consider whether promises were made and the substance of the promises in determining

whether a confession was voluntary. Id. But, “the police must also be allowed to

encourage suspects to talk.” Farnsworth, 738 N.W.2d at 374 (quotation omitted). The

Minnesota Supreme Court has upheld the use of empathetic techniques that encourage

suspects to cooperate with law enforcement.          See id. at 375 (concluding that the

defendant’s statement was voluntary, even though police had told the defendant they

would try to get him “the best help” so he could retain custody of his children); Pilcher,

472 N.W.2d at 333–34 (“That the interrogating officers chose a sympathetic approach

does not, in itself, render [the defendant’s] statements involuntary.”).

       The district court found that Kirk’s statement was voluntary. In reaching this

conclusion, the district court considered the circumstances of the interview, the age,

experience, and education of Kirk, and the tactics employed by law enforcement. Despite

its overall finding that Kirk’s statement to police was voluntary, the district court

expressed some concern with the interview, noting that “Luberts and Guith came close to

making promises to [Kirk] that they could not keep. Of particular concern is their

assertion that they have ‘enormous power’ with the county attorney’s office coupled with


                                              8
their suggestion that a confession would lead to counseling and a reunification of [Kirk’s]

family.” The district court concluded, however, that the tactics employed by Luberts and

Guith were not so deceptive as to lead an innocent person to confess.

       We agree. Kirk was advised of his rights and indicated that he understood them.

At the time of the interview, Kirk was 32 years old and was employed. The district court

noted that Kirk was “articulate and educated.” Kirk had no trouble answering any

questions and never indicated that he wanted to stop answering questions.            Kirk,

however, had only “limited prior involvement with law enforcement” before his arrest.

       Here, the police chose the place and time of the interview. See Ritt, 599 N.W.2d

at 809 (noting that the defendant had herself selected the time of the interview). Kirk was

interviewed in the interview room at the sheriff’s office, which is a small room with a

table and chairs.     The interview took place in the early afternoon and lasted

approximately one hour. Kirk never asked for food, water, or an attorney. There was no

indication that Kirk was intoxicated. Kirk was not threatened with physical abuse or

promised that he would not be charged if he admitted to the crime. Instead, Kirk was

advised that “[t]his is something that you’re very, very, very likely gonna’ be charged

with and you’re gonna’ have to deal with.”

       Kirk argues that the statements and questions from Luberts and Guith are “of the

character that would convince an innocent person to confess.”           Specifically, Kirk

contends that the statements made by Luberts and Guith consisted of “threats of prison

versus family unification and counseling” which “cross[ed] the line into an impermissible

inducement to confess.”


                                             9
      The Minnesota Supreme Court has “held that offers of help do not make a

statement involuntary as long as the police have not implied that a confession may be

given in lieu of criminal prosecution.” Farnsworth, 738 N.W.2d at 374. In State v.

Slowinski, the supreme court concluded that the defendant’s confession was voluntary

even though the police improperly suggested that they had influence with the county

attorney because the officers did not promise that the defendant would receive psychiatric

help instead of being sent to prison.     450 N.W.2d 107, 111–12 (Minn. 1990).         In

Farnsworth, the supreme court found the defendant’s confession to be voluntary even

though the officer said he was trying to get the defendant help so he could retain custody

of his children because the officer’s statements did not indicate that the defendant would

not be prosecuted if he confessed. 738 N.W.2d at 375.

      As in those cases, Luberts and Guith did not indicate at any time that Kirk would

not be prosecuted if he confessed. Indeed, Kirk was informed that he was most likely

going to be charged with this crime. Furthermore, while this court looks “with disfavor

upon both implied and express promises made during an interrogation by police . . . such

promises do not automatically render a confession involuntary.” Ritt, 599 N.W.2d at 808.

The promises that the investigators made here are tempered by the fact that the

investigators were open about what they were investigating, gave Kirk adequate

warnings, and told him before he confessed that he was likely to be charged with the

offense. Additionally, Kirk was not intoxicated, was not deprived of any of his physical

needs, and was not questioned for an excessive length of time. Despite the promises of




                                           10
law enforcement, the totality of the circumstances indicates that Kirk’s statement was

voluntary.

       Guith’s claims that he had an “enormous amount of power” with the county

attorney’s office are troubling. But, Guith only told Kirk that the county attorney’s office

usually takes his recommendations into account. Though Guith may have improperly

suggested that he had influence with the county attorney, he only told Kirk that he would

make recommendations that the county attorney’s office may take into account. Such

statements are not the type of statements that would make an innocent person confess

given the totality of the circumstances here. See Slowinski, 450 N.W.2d at 112 (holding

that statements suggesting that the police had influence with the county attorney were

improper, but did not render the confession involuntary under the totality of the

circumstances).   Furthermore, Kirk maintained his innocence after the investigators

suggested that they had influence with the county attorney’s office, and only confessed

after Guith encouraged him to make things right with R.B. and K.B. And, Guith’s use of

techniques that appealed to Kirk’s emotions and sympathies did not rise to the level of

being so coercive as to deprive him of his right to remain silent. See State v. Ganpat, 732

N.W.2d 232, 240, 242 (Minn. 2007) (holding that a defendant’s confession was voluntary

when an investigator commented that he guessed the defendant had decided to “do the

right thing for your family”). The district court correctly found that Kirk’s statement was

voluntary.




                                            11
                                             II.

          Kirk challenges the district court’s exclusion of proffered expert testimony

regarding false confessions.      “A criminal defendant has the right to a meaningful

opportunity to present a complete defense.” State v. Penkaty, 708 N.W.2d 185, 201

(Minn. 2006). “A criminal defendant has the constitutional due process right to call and

examine witnesses, including expert witnesses, subject to the limitations imposed by the

rules of evidence.” State v. Mosley, 853 N.W.2d 789, 798 (Minn. 2014). Rulings

concerning the admissibility of expert testimony “rest within the sound discretion of the

trial court and will not be reversed absent a clear abuse of discretion.” State v. Hanks,

817 N.W.2d 663, 667 (Minn. 2012) (quotation omitted).

          A witness qualified as an expert may testify regarding scientific, technical, or

other specialized knowledge if such testimony will “assist the trier of fact to understand

the evidence or to determine a fact in issue.” Minn. R. Evid. 702. To be admissible,

expert testimony must be “helpful to the jury in fulfilling its responsibilities,” and its

relevance must outweigh “the danger of unfair prejudice, the potential for confusing the

issues or misleading the jury, or other concerns.” Ritt, 599 N.W.2d at 811 (citing Minn.

R. Evid. 403). “[E]xpert testimony is not helpful if the expert opinion is within the

knowledge and experience of a lay jury and the testimony of the expert will not add

precision or depth to the jury’s ability to reach conclusions.” State v. Sontoya, 788

N.W.2d 868, 872 (Minn. 2010) (quotation omitted).          The standard for determining

whether expert testimony would be helpful is an objective standard. Mosley, 853 N.W.2d

at 800.


                                             12
       Here, Kirk sought permission to call Dr. Deborah Davis as an expert witness to

testify about false confessions. Kirk explained that Dr. Davis would testify regarding: (1)

the occurrence of false confessions; (2) the occurrence of false confessions among people

without mental illness or defect; (3) why false confessions occur and what factors might

promote them; (4) how an innocent suspect could provide details of a crime without

being present during the crime; and (5) how to tell the difference between true and false

confessions. Kirk specified that Dr. Davis would not testify as to her opinion of whether

Kirk was telling the truth. The district court excluded Dr. Davis’s testimony regarding

false confessions, stating that “the case law in this state strongly suggests that [Kirk’s]

proffered expert witness testimony is not admissible at trial.”

       Kirk argues that “[t]he trial court deprived [Kirk] of his constitutional right to

present a complete defense when it excluded [Kirk’s] expert witness who would have

testified about the nature of false confessions.”      Specifically, Kirk argues that the

proposed testimony is distinguishable from the testimony excluded in the cases cited by

the district court. Kirk alleges that testimony regarding false confessions is instead

analogous to expert testimony regarding battered woman syndrome or the effect of sexual

abuse on children. Furthermore, Kirk argues that knowledge about false confessions has

expanded significantly in recent years and that changes in such knowledge may require

the “reevaluation of caselaw on the admissibility of expert evidence.”

       The district court cited two Minnesota Supreme Court cases in support of its

decision that Kirk’s proposed expert testimony would not be admissible at trial. In Bixler

v. State, the defendant sought to introduce expert testimony regarding characteristics of


                                             13
the defendant that made him susceptible to coercion. 582 N.W.2d 252, 254 (Minn.

1998). The supreme court upheld the district court’s exclusion of the expert testimony,

reasoning that the jury, without the testimony of the expert, was capable of observing the

defendant’s characteristics and taking those into account in evaluating his confession. Id.

at 256. In Ritt, the defendant sought to admit testimony regarding a specialized technique

of interrogation used by law enforcement. 599 N.W.2d at 810. The defendant in Ritt

sought to have the expert witness take the jury through the tape of the defendant’s

interview to point out specific interview techniques. Id. The supreme court noted its

concern that allowing expert testimony on the credibility of a witness’s statement could

turn into a battle between the experts:

              In most cases, even though an expert’s testimony [regarding
              witness credibility] may arguably provide the jury with
              potentially useful information, the possibility that the jury
              may be unduly influenced by an expert’s opinion mitigates
              against admission. Nor should the credibility of witnesses in
              criminal trials turn on the outcome of a battle among experts.

Id. at 811 (quotation omitted). The court affirmed the exclusion of the testimony, noting

that “the jury had ample opportunity to evaluate the veracity of Ritt’s statements to [the

officer] and . . . expert testimony was unlikely to add either precision or depth to their

evaluation.” Id. at 812.

       Kirk argues that the proffered testimony is distinguishable from Bixler and Ritt

because it would be more general than the expert testimony in those cases. Kirk argues

that “the testimony here is more like the testimony routinely allowed in Minnesota courts




                                            14
to help juries understand the behavior of victims of criminal acts or to explain

counterintuitive behavior of a defendant.”

      We disagree.     Dr. Davis’ testimony is comparable to the testimony that was

excluded in Bixler and Ritt. Like the expert testimony excluded in Ritt, Dr. Davis’

testimony was unnecessary for the jury to consider because the pressures of interrogation

techniques are within the understanding of a lay juror. “Assessment of credibility is

ordinarily within the understanding of a lay jury.” Id. at 811. Kirk’s entire interview was

recorded, and the jury had the opportunity to hear the questions that were asked and the

manner and tone of voice in which they were asked, giving the jury the ability to

determine whether the interrogation tactics elicited a false confession. Kirk himself

testified about why he allegedly gave a false confession. Kirk cross-examined both

Luberts and Guith regarding the interrogation techniques they employed when

interviewing Kirk. Where, as here, the jury has adequate information to consider the

circumstances of the defendant’s confession, expert testimony is unhelpful to the jury.

      Kirk next argues that Dr. Davis’ testimony is comparable to expert testimony on

battered woman syndrome and on the effects of sexual abuse on child victims, which is

generally permitted in Minnesota courts. See, e.g., State v. Hennum, 441 N.W.2d 793,

798 (Minn. 1989) (permitting testimony regarding battered woman syndrome because it

would “help explain a phenomenon not within the understanding of an ordinary lay

person”); see also State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987) (permitting

testimony regarding behavioral characteristics frequently seen in adolescent victims of

sexual abuse). Kirk alleges that Dr. Davis’ testimony would explain why an innocent


                                             15
person would confess to a crime, which is “as counterintuitive to the average juror as the

common behavior of child abuse victims or domestic abuse victims.”

       But, the supreme court in Ritt said that under the circumstances of that case, the

jury had sufficient evidence to determine whether the police interrogation techniques

were “coercive enough to make an ordinary innocent person confess.” 599 N.W.2d at

812. Ritt explicitly distinguished the testimony regarding interrogation techniques from

expert testimony regarding battered woman syndrome or the behavior of sexually abused

children. 599 N.W.2d at 811. The court noted that testimony regarding battered woman

syndrome or the behavior of sexually abused children, unlike testimony regarding

interrogation techniques, explained a “behavioral phenomenon not within the

understanding of an ordinary lay jury.” Id. As in Ritt, the expert testimony offered in

this case is within the understanding of a lay jury. The jury had ample evidence to

determine whether Kirk had been coerced into making a false confession, including a

recording of the interview, testimony regarding the interview techniques, and Kirk’s own

explanation of his allegedly false confession. Kirk’s argument is without merit.

       Finally, Kirk contends that the American court system is more aware of false

confessions and that, therefore, the caselaw regarding the admissibility of expert evidence

should be reevaluated. In support of his contention, Kirk cites Corley v. United States,

556 U.S. 303, 320–21, 129 S. Ct. 1558, 1570 (2009), in which the United States Supreme

Court noted its concerns with the pressures of custodial interrogation inducing people to

confess to crimes that they never committed. But Corley did not address the issue of




                                            16
whether expert testimony regarding false confessions was admissible and Kirk cites no

Minnesota case that holds that such testimony is admissible.

      Based upon the circumstances in this case and our standard of review, we

conclude that the district court did not abuse its discretion in excluding the proposed

expert testimony regarding false confessions.

      Affirmed.




                                           17
