                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1285

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Jerry Expose, Jr.,
                                      Appellant.

                                Filed July 14, 2014
                              Reversed and Remanded
                                  Chutich, Judge

                            Ramsey County District Court
                              File No. 62-CR-12-8934

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant
Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, Theodore Sampsell-
Jones, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Johnson, Presiding Judge; Rodenberg, Judge; and

Chutich, Judge.

                                  SYLLABUS

      Minnesota law does not recognize a “threats exception” to the statutory

psychologist-client testimonial privilege in Minnesota Statutes section 595.02,

subdivision 1(g) (2012).   Absent a client’s knowing and intentional waiver of the
privilege, a psychologist may not testify in a criminal trial about threats of physical

violence made by the client during an individual therapy session.

                                      OPINION

CHUTICH, Judge

       Appellant Jerry Expose Jr. appeals his conviction of terroristic threats, arguing that

the district court erroneously ruled that an exception to the psychologist-client privilege

exists for threatening statements made by a client to his or her psychologist and that the

district court improperly allowed witnesses to testify about privileged information.

Because Expose’s communications with a therapist qualify under the psychologist-client

privilege statute and no “threats exception” to the privilege exists in Minnesota, we

reverse Expose’s conviction and remand.

                                          FACTS

       In the fall of 2012, appellant Jerry Expose Jr. attended individual counseling

sessions with N.M., a therapist at Thad Wilderson & Associates, a mental-health clinic.

Expose was required to attend anger-management therapy as part of a court-ordered case

plan in a child-protection case.

       On October 10, 2012, Expose arrived at his appointment with N.M. visibly upset.

Before his appointment with N.M., Expose’s child-protection worker, D.P., canceled a

planned unsupervised visit with his children because Expose did not comply with a

requirement of his case plan. N.M. noticed Expose’s emotional state and asked him why

he was upset. In response, Expose threatened the child-protection worker. N.M. testified




                                             2
at trial that Expose said:

              [H]e felt that the child protection worker was a barrier to him
              getting his kids back and if . . . his future court date did not go
              the right way that he would break her back, and then if he
              could not get to her . . . he’d just have to make a couple
              phone[] calls and he can have someone else do it if he
              couldn’t get to her.

       After Expose made these threats against D.P., N.M. told Expose that she was a

“mandated reporter.” Expose said, “I don’t give a f-ck,” and noted that “[e]verybody has

to go to their car at some point.” Because N.M. believed that Expose’s threats triggered

an ethical duty to warn, she contacted her supervisor, H.F., the assistant clinical director.

H.F. agreed with her and directed her to call the child-protection worker and the police to

alert them to the threats.

       After learning of Expose’s threat to harm her, D.P. showed visible signs of

concern. She was no longer comfortable meeting with families at work, had nightmares,

and had difficulty falling asleep. D.P.’s superior removed her from Expose’s case,

relocated her office, and instructed a deputy to escort her to and from her car.

       In November 2012, the state charged Expose with one count of terroristic threats.

See Minn. Stat. § 609.713, subd. 1 (2012). Before trial, Expose moved the district court

to prohibit N.M. from testifying that she called D.P. and the police because she had a

statutory duty to warn D.P. He contended that because N.M. was not a licensed mental-

health professional, the duty-to-warn statute did not apply.1 In response, the prosecution


1
  The “duty to warn” statute applies to a “licensee” and requires the licensee to
communicate a “specific, serious threat of physical violence” to a potential victim. Minn.
Stat. § 148.975, subd. 2 (2012).

                                              3
asserted that N.M. should be treated as a licensed psychologist because she was working

under the supervision of someone who was licensed. The district court denied Expose’s

motion.

       After opening statements, but before any testimony, Expose again objected to

N.M.’s testimony, contending that, consistent with the district court’s prior ruling, N.M.

should be treated as a psychologist under the psychologist-client privilege and thereby

precluded from testifying against her client. The district court denied Expose’s motion,

concluding that N.M.’s testimony was admissible “[a]s an exception to the privilege.”

The district court found that the statements “are not protected because they are statements

of a threat of serious imminent harm to another person.”

       A jury convicted Expose of making terroristic threats, and the district court

sentenced him to a stayed sentence of 28 months’ imprisonment. This appeal followed.

                                         ISSUES

I.     Did Expose fail to object to N.M.’s testimony in a timely manner, waiving his
       claim of privilege?

II.    Does the psychologist-client privilege statute, Minnesota Statutes section 595.02,
       subdivision 1(g) (2012), apply to Expose’s communications with N.M.?

III.   Do Expose’s threats against a third person during a therapy session fall under an
       exception to the psychologist-client privilege statute for threatening statements?

IV.    Was admission of N.M.’s testimony harmless error?

                                       ANALYSIS

       Expose asserts that the district court erred by allowing N.M. to testify about

statements he made while he was in an individual therapy session with her. The state



                                            4
counters that we need not reach the merits of Expose’s privilege argument because

Expose failed to timely object to N.M.’s testimony and any error in admitting N.M.’s

testimony was harmless. The state further contends that N.M. does not qualify as a

psychologist under Minnesota Statutes section 595.02, subdivision 1(g), and that, even if

she did qualify as a psychologist, the threats that Expose made during therapy were not

necessary to enable N.M. to act in a professional capacity. Finally, the state asserts that

N.M. testified against Expose under a “threats exception” to the statutory privilege.

Because we conclude that Expose did not waive his objection to N.M.’s testimony; the

requirements of the testimonial privilege set out in section 595.02, subdivision 1(g), were

met; a “threats exception” to the psychologist-client privilege is not recognized in

Minnesota; and admission of Expose’s statements was not harmless, we reverse Expose’s

conviction and remand for further proceedings consistent with this opinion.

          I.     Expose Did Not Waive His Objection to N.M.’s Testimony

       As a threshold issue, the state argues that Expose waived the privilege issue on

appeal because he failed to object to N.M.’s testimony in a timely fashion under

Minnesota Rule of Criminal Procedure 10.01, subdivision 2.2 We reject this assertion

because, unlike a constitutional challenge to the admission of evidence, which must be

2
 Subdivision 2 provides in pertinent part:
             Defenses, objections, issues or requests that can be
             determined without trial on the merits must be made before
             trial by a motion . . . to grant appropriate relief. The motion
             must include all defenses, objections, issues, and requests
             then available. Failure to include any of them in the motion
             constitutes waiver . . . . The court can grant relief from the
             waiver for good cause.
Minn. R. Crim. P. 10.01, subd. 2.

                                            5
raised at an omnibus hearing to be timely, see State v. Pederson-Maxwell, 619 N.W.2d

777, 780 (Minn. App. 2000), Expose raised an evidentiary objection based on privilege.

Under the Minnesota Rules of Evidence, any “timely objection” preserves a claimed error

in admitting evidence. Minn. R. Evid. 103(a).

       Expose first objected to N.M.’s testimony through a motion in limine, which is

one way to timely object to anticipated evidence. See Minn. R. Evid. 103(a) 2006

advisory comm. cmt. Before N.M. testified, and based upon the district court’s ruling

that N.M. could testify about her duty to warn, Expose then objected to her testimony,

contending that the psychologist-client privilege precluded her from testifying against

Expose, her client. In response, the state never contended that Expose waived this

objection by failing to assert it earlier; instead, it argued the merits of the objection.

       After hearing the parties’ positions, the district court again ruled in the state’s

favor, finding that the privilege did not apply because the statements were threats of

“serious imminent harm to another person.” Accordingly, Expose preserved the issue of

the applicability of the psychologist-client privilege for appeal.

II.    The Psychologist-Client Testimonial Privilege Applies to Expose’s Statements

       The district court did not explicitly rule that Expose’s statements to N.M. were

within the scope of the psychologist-client privilege, but it implicitly did so when it ruled

that N.M.’s testimony was admissible “[a]s an exception to the privilege.” Even though

the state asserted to the district court that, for purposes of the duty-to-warn statute, N.M.

should be treated as a licensed psychologist, it now contends that the psychologist-client

evidentiary privilege does not apply because Expose did not show that N.M. fits the plain


                                               6
language of the statute. The state further contends that, even if N.M. is considered to be a

psychologist, Expose’s statements to her were not “necessary” for counseling. These

contentions are not persuasive.

         The availability of a privilege established by statute “is an evidentiary ruling to be

determined by the [district] court and reviewed based on an abuse of discretion standard.”

State v. Gianakos, 644 N.W.2d 409, 415 (Minn. 2002). “We will reverse for an abuse of

discretion where we find a clearly erroneous conclusion that is against logic and the facts

on record.” State v. Williams, 842 N.W.2d 308, 313 (Minn. 2014) (quotation omitted).

But the interpretation of a statute is a legal question that is reviewed de novo. State v.

R.H.B., 821 N.W.2d 817, 820 (Minn. 2012). And the determination of “whether a

particular testimonial privilege or exception exists . . . is a question of law” that we

review de novo. Gianakos, 644 N.W.2d at 415.

         “The object of all interpretation and construction of laws is to ascertain and

effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2012). If the language

of the statute is clear and free of all ambiguity, we apply the plain meaning of the statute.

State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011). A statute is ambiguous when its

language “is subject to more than one reasonable interpretation.” Am. Family Ins. Grp. v.

Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (quotation omitted). “We construe statutes

to effect their essential purpose but will not disregard a statute’s clear language to pursue

the spirit of the law.” Lee v. Fresenius Med. Care, Inc., 741 N.W.2d 117, 123 (Minn.

2007).




                                               7
       The psychologist-client privilege statute states, in pertinent part:

              A registered nurse, psychologist, consulting psychologist, or
              licensed social worker engaged in a psychological or social
              assessment or treatment of an individual at the individual’s
              request shall not, without the consent of the professional’s
              client, be allowed to disclose any information or opinion
              based thereon which the professional has acquired in
              attending the client in a professional capacity, and which was
              necessary to enable the professional to act in that capacity.

Minn. Stat. § 595.02, subd. 1(g). To establish the existence of a psychologist-client

privilege, the client must establish that “(1) a confidential psychologist-patient

relationship existed between defendant and the psychologist, (2) during which the

psychologist acquired information of the type contemplated by the privilege statute,

(3) while attending the patient, and (4) which was necessary for diagnosis and treatment.”

State v. Gullekson, 383 N.W.2d 338, 340 (Minn. App. 1986) (citing State v. Staat, 291

Minn. 394, 399, 192 N.W.2d 192, 197 (1971)), review denied (Minn. May 16, 1986).

“[T]he absence of one essential fact requisite to extending the privilege to a claimant is

fatal [to the privilege claim].” Staat, 291 Minn. at 403, 192 N.W.2d at 198.

   A. Existence of a Psychologist-Client Relationship

       Concerning the first disputed factor, whether a psychologist-client relationship

existed, Expose contends that the state should be judicially estopped from now asserting

that N.M. is not a psychologist, because it previously argued before the district court that

N.M. should be treated as a licensed psychologist under the duty-to-warn statute. We

need not determine whether judicial estoppel applies, however, because the undisputed




                                              8
facts in the record show that a confidential psychologist-client relationship existed

between N.M. and Expose that meets the requirements of the privilege.

       The testimonial privilege applies to “[a] registered nurse, psychologist, consulting

psychologist, or licensed social worker engaged in a psychological or social assessment

or treatment of an individual.” Minn. Stat. § 595.02, subd. 1(g). The section does not

define “psychologist,” and unlike the duty-to-warn statute, the testimonial privilege does

not specifically include a licensing requirement.3 Construing “psychologist” according to

its “most natural and obvious usage,” see Amaral v. Saint Cloud Hosp., 598 N.W.2d 379,

384 (Minn. 1999), we note that the dictionary defines the term as “[a] person trained and

educated to perform psychological research, testing, and therapy.”                The American

Heritage Dictionary 1125 (4th ed. 2007). In addition, the term “psychological treatment”

is best construed in harmony with Minnesota law that defines the “practice of

psychology.” See Minn. Stat. § 148.89, subd. 5 (2012). The practice of psychology

includes, among other things, “counseling . . . and . . . treatment of: (i) mental and

emotional disorder or disability; . . . (iii) disorders of habit or conduct; . . . [and] (vi)

child, family, or relationship issues . . . .” Id., subd. 5(4)(i), (iii), (vi).

       With these definitions in mind, we conclude that N.M. functioned as a

“psychologist” under the evidentiary privilege. When she counseled Expose for anger-

management issues, she had a bachelor’s degree in psychology, had completed the

requirements of her master’s degree program in clinical counseling and marriage and

3
  The duty-to-warn statute, by contrast, uses the term “licensee,” Minn. Stat. § 148.975,
subd. 2, which is defined to include “licensed psychologist” or a “licensed psychological
practitioner.” Minn. Stat. § 148.89, subd. 4 (2012).

                                                  9
family therapy, and was working as a mental-health practitioner under the guidance of a

supervisor at Thad Wilderson & Associates, a mental-health clinic. In short, she meets

the dictionary definition of a “person trained and educated to perform psychological . . .

therapy,” and she did, in fact, counsel Expose on managing his anger.

       Even if N.M.’s professional background is somehow insufficient to establish that

she is a “psychologist” for purposes of the privilege, N.M. held herself out as a

psychologist and informed Expose that his information would be kept strictly confidential

unless certain limited exceptions applied. Under circumstances similar to these, the

psychologist-client privilege has been applied when a client makes a “reasonable, but

mistaken, belief that a mental health counselor is a psychologist or licensed social

worker.” See Speaker ex rel. Speaker v. Cnty. of San Bernardino, 82 F. Supp. 2d 1105,

1112 (C.D. Cal. 2000). Similarly, courts have applied the attorney-client privilege when

the client reasonably believed that an imposter was a lawyer. See United States v. Mullen

& Co., 776 F. Supp. 620, 621 (D. Mass. 1991) (dictum); United States v. Tyler, 745

F. Supp. 423, 425–26 (W.D. Mich. 1990); United States v. Boffa, 513 F. Supp. 517, 523–

25 (D. Del. 1981).

       In sum, because N.M. met the common understanding of a “psychologist” when

she counseled Expose about his mental health, or, alternatively, the circumstances of their

interactions allowed Expose to reasonably believe that N.M. was a psychologist or

licensed social worker, we conclude that a psychologist-client relationship was formed.




                                            10
   B. Necessity of Statements to Treatment

       The state next contends that the psychologist-client privilege should not apply

because Expose did not show that his statements were “necessary” for N.M.’s treatment

of him. Under the statute, the privilege applies to “information or opinion based thereon

which the professional has acquired in attending the client in a professional capacity, and

which was necessary to enable the professional to act in that capacity.” Minn. Stat.

§ 595.02, subd. 1(g).

       We decline the state’s invitation to parse the dialog of a therapy session in this

manner. The record shows that N.M. acquired information on Expose’s thoughts toward

D.P. as a result of her questioning him about his emotional state during a regularly

scheduled therapy appointment for anger-management treatment in a mental-health

clinic. Ordered to attend anger-management therapy by the judicial system, Expose was

expected to fully participate in his therapy or risk failing his case plan. N.M. asked

Expose questions about his anger, and he responded.            Anger-management therapy

necessarily involves talking about and working through angry thoughts and emotions.

Notably, N.M. agreed that it is “harmful to the therapeutic process for the patient to have

to hold back,” and that a patient “should be able to tell [her] anything.”

       Similarly, when recognizing a federal psychotherapist evidentiary privilege, the

United States Supreme Court explained, “Effective psychotherapy . . . depends upon an

atmosphere of confidence and trust in which the patient is willing to make a frank and

complete disclosure of facts, emotions, memories, and fears.”       Jaffee v. Redmond, 518

U.S. 1, 10, 116 S. Ct. 1923, 1928 (1996). N.M.’s ability to help her clients is dependent


                                             11
upon establishing “an atmosphere of confidence and trust” for her clients to receive

“successful treatment.” See id. We hold that, based on these facts, Expose established

that his conversation with N.M. fell under the psychologist-client privilege statute and

that it was a necessary part of effective anger-management treatment.

       III.   Minnesota Law Contains No “Threats Exception” to the Statutory
              Psychologist-Client Privilege

       The state asks this court to affirm the district court’s ruling that Expose’s threats

are admissible because threats qualify “[a]s an exception to the privilege.” Because

section 595.02, subdivision 1(g), and other relevant laws do not contain a “threats

exception,” the district court’s erroneous legal ruling is an abuse of discretion. See

Williams, 842 N.W.2d at 313.

       We note initially that the district court made no finding, and the state makes no

claim now, that, for purposes of the privilege statute, Expose somehow “consented” to

N.M.’s testimony. To be sure, the plain language of the privilege statute allows a

psychologist to disclose information or opinion gained during therapy sessions with “the

consent of the professional’s client.” Minn. Stat. § 595.02, subd. 1(g). And Expose did

sign a “Client Rights and Responsibilities” document at the clinic before beginning

therapy. That document stated that Expose had the right to have his personal information

“treated as strictly confidential, unless: . . . There is sufficient reason to believe that a

client may do bodily harm to self or others. In such a case, appropriate persons or

agencies will be contacted in order to prevent such injury.”




                                             12
       Critically, however, the clinic never warned Expose that his treating psychologist

may disclose information gained during a therapy session not simply to a third party to

prevent possible injury, but instead by testifying in a court of law to aid a later criminal

prosecution based on Expose’s statements. And no evidence was presented to show that

Expose knew of the testimonial privilege that he purportedly consented to waive or that

he intended to waive that privilege. Cf. State v. Penkaty, 708 N.W.2d 185, 204 (Minn.

2006) (applying the intentional relinquishment standard to the waiver of a testimonial

privilege).

       Because the issue of “consent” was not raised by the state or supported by the

record, we next examine whether any other exception to the testimonial privilege may be

found in section 592.02 or elsewhere in Minnesota law.           “[T]he rules of statutory

interpretation forbid us from adding words to a statute that the Legislature omitted.”

State v. Garcia-Gutierrez, 844 N.W.2d 519, 523 (Minn. 2014). The plain language of

section 595.02 shows that the legislature knows how to create exceptions to the

psychologist-client privilege when it so desires. In fact, an entire subdivision in the

psychologist-client privilege statute sets forth “exceptions.” Minn. Stat. § 595.02, subd. 2

(2012). Subdivisions 2(a) and 2(b) create exceptions to the privilege for evidence of

child abuse and neglect, including an exception that applies to criminal proceedings. Id.,

subds. 2(a), (b). Notably absent from the “exceptions” subdivision is any reference to

threats by patients.

       In addition, the legislature created another exception to the psychologist-client

privilege in statutes pertaining to civil-commitment proceedings, specifically providing


                                            13
that “[a]ny privilege otherwise existing between . . . patient and psychologist . . . is

waived as to any . . . psychologist . . . who provides information with respect to a

patient.” Minn. Stat. § 253B.23, subd. 4 (2012). No similar language waiving the

psychologist-client privilege is present in any other Minnesota law, including

Minnesota’s duty-to-warn statute. See Minn. Stat. § 148.975, subd. 2.

       The duty-to-warn statute requires a licensee to “take reasonable precautions to

provide protection” to a potential victim of violent behavior “only when a client . . . has

communicated to the licensee a specific, serious threat of physical violence against a

specific, clearly identified or identifiable potential victim.” Id. “‘Reasonable efforts’

means communicating the . . . threat to the potential victim and if unable to make contact

with the potential victim, communicating the serious, specific threat to the law

enforcement agency closest to the potential victim or the client.” Id., subd. 1(c) (2012).

       Notably, the duty-to-warn statute makes no reference to a psychologist later

testifying in court. And it does not contain any language suggesting that it creates an

exception to the privilege, much less the explicit language used in the commitment

statute that waives “[a]ny privilege otherwise existing . . . between patient and

psychologist.” Accordingly, we conclude that the legislature did not intend for the

limited disclosure required by the duty-to-warn statute to create an exception to the

psychologist-client privilege.

       Given that the legislature has the power to create exceptions to the statutory

privilege and has used that power in the past to limit the psychologist-client privilege, the

absence of a “threats exception” in the privilege statute, or a waiver of the privilege in


                                             14
any other statutory section, shows that the legislature did not intend for a “threats

exception” to exist.4 Because the plain language of the statute governs, we need not

consider the policy arguments advanced by the state to support a “threats exception” to

the psychologist-client privilege.

       In reaching our conclusion that the psychologist-client privilege applies here, we

do not minimize the harm that D.P. suffered after she learned of Expose’s alarming

statements. We also are mindful that application of the privilege is “an impediment to the

ascertainment of truth.” Staat, 291 Minn. at 397, 192 N.W.2d at 196. Nevertheless,

where the legislature has balanced competing and weighty policy concerns, it is our duty

to apply the privilege to fulfill its purpose: to safeguard and to promote confidential

communications that enhance meaningful treatment for those suffering from mental or

emotional problems. See id. (discussing the purpose of the physician-patient privilege).

“The mental health of our citizenry, no less than its physical health, is a public good of

transcendent importance.” Jaffee, 518 U.S. at 11, 116 S. Ct. at 1929.

           IV.    Admission of D.P.’s Testimony Was Not Harmless Error

       Finally, the state contends that, even if we do not recognize a “threats exception”

to the psychologist-client privilege, we should affirm Expose’s conviction based on

D.P.’s testimony, which the state now contends on appeal is admissible through the

residual hearsay exception. Minn. R. Evid. 807. D.P. testified at trial that N.M. warned

her that Expose had threatened to harm her, and the state argues that D.P.’s testimony is


4
   We note that a majority of states “have no such [threats] exception as part of their
evidence jurisprudence.” United States v. Hayes, 227 F.3d 578, 585 (6th Cir. 2000).

                                           15
sufficient to sustain Expose’s conviction. But use of the residual hearsay exception

cannot overcome the separate basis for inadmissibility created by the psychologist-client

privilege. Because Expose’s statements to N.M. were privileged, the privilege belongs to

Expose and he did not waive it, and no “threats exception” exists, the admission of

Expose’s statements through any witness was erroneous. And no question exists that the

statements substantially influenced the jury’s decision to convict Expose. See State v.

DeShay, 669 N.W.2d 878, 888 (Minn. 2003).

       D.P. learned about Expose’s threats because N.M. believed that she had a duty to

warn D.P. under Minnesota law. The purpose of the duty-to-warn statute, however, is to

protect a third-person’s personal safety, not to facilitate criminal prosecution; it does not

pertain to the admissibility of testimony. See United States v. Ghane, 673 F.3d 771, 786

(8th Cir. 2012) (“‘[C]ompliance with the professional duty to protect does not imply a

duty to testify against a patient in criminal proceedings . . . and such testimony is

privileged and inadmissible if a patient properly asserts the psychotherapist/patient

privilege.”’ (quotation omitted)). As discussed above, nothing in the language of the

duty-to-warn statute shows that the legislature intended for it to limit the psychologist-

client privilege statute by creating a “threats exception” to the privilege. And allowing

every person warned under the duty-to-warn statute to testify under the residual hearsay

exception would undermine the purpose of the psychologist-client privilege statute. Cf.

State v. Gillespie, 710 N.W.2d 289, 297 (Minn. App. 2006) (“The [physician-patient]

privilege is solely for the protection of the patient and is designed to promote health and

not truth.” (quotation omitted)), review denied (Minn. May 16, 2006).


                                             16
      In sum, the duty-to-warn statute does not permit D.P. to testify to Expose’s

confidential communications to N.M.        Expose did not waive the privilege to the

substance of his communications with N.M. during his counseling session. Because

Expose’s communications to N.M. were privileged, neither N.M. nor D.P. can testify

about them. Without N.M. or D.P.’s testimony, the jury likely would not have found

Expose guilty. We therefore reverse and remand.

                                    DECISION

      Because Expose’s communications with N.M. met the requirements of

Minnesota’s psychologist-client privilege statute, a “threats exception” does not exist in

Minnesota law, and admission of N.M.’s testimony was not harmless, we reverse

Expose’s conviction and remand for further proceedings consistent with this opinion.

      Reversed and remanded.




                                           17
