State of Minnesota v. Scott Michael Popa

This opinion will be unpublished and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
A14-0408

State of Minnesota,
Respondent,

vs.

Scott Michael Popa,
Appellant.

Filed July 27, 2015
Affirmed
Rodenberg, Judge

Anoka County District Court
File No. 02-CR-12-4843

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, M. Katherine Doty, Assistant County Attorney, Anoka, Minnesota (for
respondent)

Eric L. Newmark, Jill A. Brisbois, Newmark Law Office, LLC, Minneapolis, Minnesota
(for appellant)

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

Klaphake, Judge.*

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.
 UNPUBLISHED OPINION

RODENBERG, Judge

Appellant appeals from his criminal sexual conduct convictions, arguing that the

district court erred by improperly limiting its in camera review of evidence submitted

under the procedure provided by State v. Paradee, 403 N.W.2d 640 (Minn. 1987), and

that the district court erred at trial when it admitted evidence relating to herpes diagnoses

of both appellant and the victim. We affirm.

FACTS

Appellant Scott Michael Popa was charged with two counts of first-degree

criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(b) and 1(h)(iii)

(2010). Subdivision 1(b) criminalizes sexual conduct between an actor who is 48 months

older than the complainant and in a position of authority over the complainant when the

complainant is at least 13 years of age but less than 16 years of age. Subdivision 1(h)(iii)

criminalizes sexual conduct between an actor who has a significant relationship to the

complainant when the complainant is under 16 years of age and the sexual abuse

involved multiple acts committed over an extended period of time.

The victim testified at trial over the course of two days. Her testimony recounted

sexual assaults committed by appellant over a period beginning in late 2005 and

continuing through May 2012. She testified that appellant sexually penetrated her orally,

anally, and vaginally on many occasions, and over the course of many years and from

when she was nine years old until she was fifteen years old.

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In Camera Paradee Review

Appellant moved the court to order discovery of the victim’s mental health and

social services records.1 Appellant suggested that there may be exculpatory information

in these records because “[the victim was] encouraged to discuss the details of the harm,

and the accuracy of her memory” with the mental health and social services

professionals. Appellant specifically requested discovery of “[a]ny evidence of the

alleged victim’s accusations against the Defendant or others of sexual misconduct. Past

false allegations of a similar nature to the instant case are relevant and not shielded.”

At the motion hearing, appellant argued that the court should “conduct some type

of an in camera review of these documents to see if there is, in fact, exculpatory

information in them.” Appellant argued that the victim had made and later recanted

similar abuse allegations in the past, that she had recanted parts of her allegations against

appellant, and that she may have claimed other instances of abuse by other people.

The district court stated at the motion hearing that it was “not going to review

records to look for exculpatory information. That makes [the court] do[] [counsel’s]

job.” The district court concluded that it would examine the mental health and social

services records “for one, evidence of fabrication of similar allegations in the past; or,

two, recanting of the allegations in this case. That’s all I’ll be looking for.” Appellant

made no objection to or further argument concerning this scope of review by the district

court at that time.

1
There were two trials in this case. The first trial ended when appellant had a medical
emergency in front of the jury and the district court declared a mistrial. This motion was
originally made before the first trial.

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 The district court issued a written order specifying that it would “conduct an in

camera review for the following issues: a. Fabrication by [the victim] for claims of

sexual abuse or sexual contact on prior occasions. b. Recantation by [the victim] of the

claims of sexual conduct by the Defendant occurring between October 8, 2006 and

May 1, 2012.” After reviewing the records in camera, the district court issued two

identical orders, one addressing the records produced by Anoka County Child Protection,

and the other addressing the records produced by Prairie Care, the victim’s mental health

facility. Both orders conclude that

The Court has found no documents which contain evidence
that in the past [the victim] has fabricated reports of sexual
abuse or made comments relative to the incident which is the
subject of this proceeding.2

Appellant later moved the court to expand its in camera review, arguing that

“Paradee says that we were to review for anything that could be relevant to the case and

not just fabrication or recanting,” and expressed concern “that maybe the Court has, in

fact, with all due respect, reviewed [these records] under maybe the wrong standard.”

The district court orally denied this motion stating:

[T]he party seeking the Paradee review needs to show a basis
to believe that the records contain something and to identify
the records. It is not a fishing trip or a blank check. The
Court is always careful on doing Paradee reviews to identify
what records are required to be disclosed to the Court and
what the Court is looking for.

2
The district court’s order does not explicitly identify whether the court received the
records for evidence of abuse of the victim by persons other than appellant or if it
declined to do so because such evidence would not be exculpatory or otherwise relevant.

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 I disagree . . . that the Court should be engaging in
finding anything relevant or useful to the defense. That turns
the Court into the defense attorney . . .
Your request is denied.

Herpes Evidence

At trial, the state introduced evidence that both appellant and the victim carried

herpes simplex, virus 2 (HSV-2), also referred to by the parties as herpes and/or genital

herpes. Appellant moved the district court in limine to exclude the victim’s medical

records concerning her herpes diagnosis, arguing that the records lacked foundation. The

district court denied appellant’s motion. The district court limited its denial by stating

that “[s]uch evidence will be admissible, subject to any objection at trial as to foundation

or relevance.”

At trial, the victim was the first witness to testify. She testified at length about her

initial herpes outbreak in 2008, her diagnosis, and her continued struggle with the

disease. Appellant did not object to this testimony.

The state later called a records custodian with HealthPartners to lay foundation for

the 2008 medical record diagnosing the victim with herpes. The state offered the medical

record and appellant objected, arguing that it was cumulative in light of the victim’s prior

testimony concerning herpes, and “also 403,” apparently referring to Minn. R. Evid. 403

(concerning exclusion of relevant evidence that is unfairly prejudicial, confusing, or

cumulative). The district court overruled the objection and received the medical record

into evidence.

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 The investigating detective testified that the victim told him that she had carried a

herpes diagnoses since 2008, and further testified that medical records verified the

victim’s assertion. Further, the detective testified that “we also received . . . medical

records indicating that [appellant] was seen in March of 2008 at Regions. And he was in

there for a wart on his finger, but he also complained that he was having a rash in his

genital area.” The state asked, “So what did you do with that information?” The

detective began to answer but stopped after appellant’s hearsay objection was sustained.

The detective testified that the investigative team was unable to discover whether

appellant also had herpes and that a search warrant was executed in order to obtain a

biological sample for testing. The detective did not testify to the result of the herpes test,

only that he forwarded the results to the prosecutor.

Finally, the state called the medical lab technician who tested appellant’s

biological sample for herpes. The laboratory results showing that appellant tested

positive for HSV-2 were received without objection.

Appellant called his fiancé, H.K, to testify in his defense. She testified about

appellant’s herpes diagnosis, and that she knew appellant had herpes. She had never

“been aware of any herpes outbreaks,” and she was not concerned that she might have the

HSV-2 virus, although she had never been tested. H.K. also testified that she knew the

victim had herpes.

During closing arguments, both the state and appellant discussed the herpes

diagnoses of both appellant and the victim. In its closing, the state argued that the system

failed the victim when it failed to make further inquiries about an 11-year-old girl with

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herpes, but did not advance the specific proposition that the presence of herpes in both

appellant and the victim proves sexual penetration. Appellant argued during closing that

the evidence of herpes failed to prove that appellant sexually penetrated the victim.

Appellant argued that the herpes evidence “raises reasonable doubt. Could it have

happened; could it not have happened.” Appellant also argued the following:

One thing I just thought of, too, as I’m standing here.
I’m thinking about this testimony – or the evidence about the
testing, this herpes testing. We talk about how it’s ten times
the limit3 – or the threshold … And how that – I mean, what
does that mean? But you don’t know because there’s nobody
that testified about that for sure. Does that mean an old
infection, where it could have come from? Could it have
come from [others]? We don’t know.
If you have questions about that, if you have doubts
that creep into your mind about how does that even get here?
If you have questions in your mind that creep into your mind
about, Does this even add up? That is reasonable doubt.

During deliberations, the jury submitted four questions to the court, as follows:

(1) Can you provide us with a medical definition of HSV-2?
(2) How is it contracted?
(3) Symptoms of HSV-2?
(4) How contagious?

The district court did not answer the jury’s questions, but instead instructed the jury that

“you have to decide this case based upon the testimony you have heard and the exhibits

you have received. The Court cannot provide answers to the questions you have asked.”

The jury returned guilty verdicts on both counts of first-degree criminal sexual

conduct. This appeal followed.

3
Appellant tested at 11.70 for HSV-2. Any result over 1.10 is considered positive.

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 DECISION

I.

Appellant first challenges the scope of the district court’s in camera review of the

victim’s records. “Criminal defendants have a broad right to discovery in order to

prepare and present a defense.” State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012)

(citing Paradee, 403 N.W.2d at 642). However, individual mental health and social

services records are privileged and generally protected from disclosure. Minn. Stat.

§ 595.02, subd. 1(g) (2014). In order to balance the privilege-holder’s right to privacy

with the defendant’s right to prepare and present a defense, Minnesota courts require that

the district court review privileged documents in camera to determine whether there are

documents that are relevant to the defense, if the defendant has first shown that the

privileged records plausibly contain material information favorable to the defense.

Hokanson, 821 N.W.2d at 349 “If a defendant is aware of specific information contained

in the file, he is free to request it from the court, and argue in favor of its materiality.”

Paradee, 403 N.W.2d at 641 (quotation omitted). Whether or not the documents

disclosed by the district court are sufficient is an issue we review for an abuse of

discretion. Hokanson, 821 N.W.2d at 349.

The district court here specified that it would examine the privileged records for

evidence of (1) fabrication by the victim and (2) recantation of the allegations against

appellant by the victim. Appellant argues that, in so limiting its review, the district court

erred.

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 Once the defendant makes an initial showing that the specific documents plausibly

contain specific exculpatory evidence, the district court is to review privileged documents

in camera for “all relevant evidence that might help [the] defense.” Paradee, 403

N.W.2d at 642. “[District] courts, who by training and experience are qualified for the

task of determining matters of relevancy, are capable of determining what if any of the

information in the records might help in the defense.” Id.

In its order denying disclosure, the district court found that “no documents which

contain evidence that in the past [the victim] has fabricated reports of sexual abuse or

made comments relative to the incident which is the subject of this proceeding.”

(Emphasis added.) The district court’s order is broad, suggesting that the district court

reviewed the entire record and found no exculpatory evidence. We see no abuse of the

district court’s discretion in its in camera review of the victim’s records.

Additionally, and after our own careful review of the privileged documents, it is

clear to us that the district court’s decision not to order disclosure any of the victim’s

medical records was proper. The records contain no exculpatory, discoverable, or

admissible information.

II.

Appellant next challenges the district court’s admission of “evidence relating to

the herpes test of [the victim] (and all other evidence regarding herpes).” Appellant

argues that admitting the test results without testimony from a medical expert explaining

the meaning of the tests rendered the evidence more prejudicial than probative under

Minn. R. Evid. 403.

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 While appellant seems on appeal to be challenging the admission of all evidence

relating to herpes, his objections at trial were limited to the admission of the victim’s

medical records. Appellant argues on appeal that all evidence that both he and the victim

had herpes is unfairly prejudicial because “[t]he evidence presented was so speculative,

incomplete, and confusing that no reasonable jury could have known what to make of the

evidence and any marginal relevancy was substantially outweighed by the danger of

unfair prejudice.”

A. The Victim’s Medical Records

We review a district court’s decision to admit evidence for a clear abuse of

discretion. State v. Hahn, 799 N.W.2d 25, 33 (Minn. App. 2011) review denied (Minn.

Aug. 24, 2011); see also State v. Winter, 668 N.W.2d 222, 225 (Minn. App. 2003)

(“Rulings on evidentiary matters rest within the sound discretion of the district court.”).

Generally, relevant evidence is admissible. Minn. R. Evid. 401. Relevant evidence is

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence.” Id. However, relevant evidence may be excluded if its probative value is

outweighed by its potential prejudicial effect. Minn. R. Evid. 403. “Unfair prejudice

does not mean the damage to the opponent’s case that results from the legitimate

probative force of the evidence; rather, it refers to the unfair advantage that results from

the capacity of the evidence to persuade by illegitimate means.” Hahn, 799 N.W.2d at 33

(quotation omitted).

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 Here, the victim’s medical records were relevant. In order to convict appellant of

criminal sexual conduct in the first degree, the state had to prove sexual penetration. See

Minn. Stat. § 609.342, subds. 1(b), 1(h)(iii). Jurors were instructed to use their common

sense. The testimony regarding HSV-2 concerned genital rashes, “outbreaks,” and

appellant’s own fiancé testifying that she knew appellant had HSV-2, but she had not

been tested herself. HSV-2 is a sexually-transmitted disease. Appellant and the victim

presenting with the same sexually-transmitted disease tends to make the fact that

appellant sexually penetrated the victim more probable than it would have been without

that evidence.

Although appellant also challenged foundation in a pretrial motion, the district

court’s admission of the victim’s medical records is consistent with the business records

exception to the hearsay rule. See Minn. R. Evid. 803(6). A records custodian from the

hospital testified at length about the manner in which the hospital keeps its records and

that the victim’s medical record was made and kept as a regularly conducted business

activity.

Finally, at the point during the trial when the medical record was offered and

received, the victim had already testified concerning her herpes diagnoses. Producing

medical records confirming testimony already heard by the jury tended only to bolster the

victim’s credibility, which appellant had attacked on cross-examination. The district

court did not err in admitting the victim’s hospital records.

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 B. Other Evidence Concerning Herpes

Appellant did not object to any other evidence at trial concerning herpes.4 “In

general, a defendant is deemed to have forfeited his right to have an alleged error

reviewed on appeal if he fails to object to the error at trial.” Winter, 668 N.W.2d at 225.

We may review unobjected-to evidence for plain error. Id. Admission of evidence is

plainly erroneous if (1) there was an error, (2) the error was plain, and (3) “the error

affected the substantial rights of the appellant.” Id. An error is plain if it is clear or

obvious. Id. at 226. An appellant’s substantial rights have been affected if there is a

reasonable likelihood that the erroneously admitted evidence significantly affected the

jury’s verdict. Id. “To determine whether the error had a significant effect on the jury’s

verdict, we review the strength of the State’s case, the pervasiveness of the error, and

whether the defendant had an opportunity to respond to the testimony.” State v. Sontoya,

788 N.W.2d 868, 873 (Minn. 2010).

Evidence regarding the herpes diagnosis pervaded the trial. Both the state and

appellant discussed the herpes diagnoses in opening statements and closing arguments.

The victim testified extensively about her diagnosis and her continued struggle with the

condition. The state introduced both the victim’s medical records from 2008 diagnosing

her with herpes and the testimony of a medical lab technician who performed the lab test

4
The district court sustained appellant’s objection to the investigator testifying about
what he did with the information concerning appellant “having a rash in his genital area,”
and sustained appellant’s objection to the investigator testifying to the results of testing of
applicant’s biological sample by a lab technician. But appellant then interposed no
objection to the investigator’s testimony that a search warrant was obtained to authorize
seizure of a biological sample for testing, or the testimony of the lab technician who
tested the sample and concluded that appellant was positive for HSV-2.

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confirming that appellant has HSV-2. Appellant himself elicited testimony from his

fiancé about his herpes diagnosis and the victim’s diagnosis.

Even assuming an error in admitting the herpes evidence was plain (which we do

not decide), any such error did not affect appellant’s substantial rights. First, the state’s

case was strong. The victim’s testimony, on which the state largely relied, was consistent

and detailed. See State v. Juarez , 572 N.W.2d 286, 292-93 (Minn. 1997) (explaining

that, although the state’s case relied heavily on the victim’s testimony, the victim’s

testimony was credible because it was consistent and partially corroborated). She

testified in detail over the course of two days. Her testimony was consistent with that of

other witnesses. Two of her friends testified that the victim told them that she was being

abused in 2011, a year before appellant’s arrest. Further, the investigating detective

testified that the victim’s statements to him were consistent with her trial testimony. The

victim’s foster mother also testified to the victim’s prior consistent statements.

And while H.K. denied ever witnessing or hearing any sexual conduct occurring

between appellant and the victim, her testimony confirmed that, on May 1, 2012, the date

of the last sexual penetration, appellant was with the victim. H.K. confirmed that

appellant and the victim were alone before H.K. arrived home from work. H.K. also

confirmed the victim’s testimony in other important respects. Finally, appellant had

ample opportunity to respond to the evidence concerning herpes, and did so.

Appellant makes much of the fact that the jury asked four questions regarding the

herpes virus and disease during deliberations. However, the jury, having been properly

instructed concerning the necessity of proof beyond a reasonable doubt in order to

13
convict, returned guilty verdicts. Any confusion that there may have been relating to

herpes likely inured to appellant’s benefit. The jury was instructed on the prohibition

against speculation and on the meaning of reasonable doubt. The jury’s questions

concerning HSV-2 indicate that it was holding the state to its burden of proof and

otherwise following the district court’s instructions. And, in response to the questions,

the district court properly refrained from adding to the record. The guilty verdicts

confirm that, despite its unanswered questions, the jury was convinced of appellant’s

guilt beyond a reasonable doubt.

Affirmed.

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