State of Minnesota v. Osma Mardoqueo Escho Sanchez

This opinion will be unpublished and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
A14-0741

State of Minnesota,
Respondent,

vs.

Osma Mardoqueo Escho Sanchez,
Appellant.

Filed March 9, 2015
Affirmed
Rodenberg, Judge

Stearns County District Court
File No. 73-CR-12-11282

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, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Smith, Judge.

UNPUBLISHED OPINION

RODENBERG, Judge

Following his convictions for first- and second-degree criminal sexual conduct,

appellant Osma Mardoqueo Escho Sanchez challenges two evidentiary rulings by the
district court. He argues that the district court abused its discretion in excluding evidence

of the victim’s sexual history and in allowing a police officer to testify as an expert

concerning delayed reporting of sexual abuse. We affirm.

FACTS

In August 2011, a child (referred to herein as “the child”) reported to his stepfather

that he had been sexually abused by his step-grandfather, appellant, on numerous

occasions. The abuse occurred when the child was between the ages of five and eleven

and began when the child lived with his grandmother and appellant in California. In

California, appellant rubbed the child’s leg and touched his buttocks, both on top of and

underneath his clothing; touched the child’s penis and testicles; had the child touch

appellant’s penis with both his hands and his mouth; and attempted to anally penetrate the

child.

The child later moved to Minnesota to live with his mother and stepfather.

Appellant moved in with the family about a year later. While in Minnesota, appellant

resumed the sexual abuse by entering the bathroom while the child was showering;

touching the child’s leg and buttocks; forcing the child to touch appellant’s penis and

perform fellatio; and attempting to anally penetrate the child. The child did not

immediately report the abuse because appellant threatened to leave the child’s

grandmother and the child feared the consequences of reporting the abuse.

Based on the conduct in Minnesota, the state charged appellant with two counts of

first-degree criminal sexual conduct and one count of second-degree criminal sexual

2
conduct. See Minn. Stat. § 609.342, subd. 1(a) (2012); Minn. Stat. § 609.343, subd. 1(a)

(2012).

Appellant waived his right to a jury trial. Before the court trial began, the state

moved to preclude evidence of the child’s alleged prior sexual conduct. The district court

granted the motion in part and denied it in part, ruling that the parties could introduce

evidence that the child was “in trouble” or “being investigated” for an incident, but could

not address the specific act for which the child was being investigated.

The state also moved to have Officer Jessica Schlieman testify at trial as an expert

on children’s delayed reporting of sexual abuse after learning that its original expert on

the topic was unavailable to testify. Appellant objected to Officer Schlieman testifying as

an expert, arguing that she did not possess expert qualifications and her testimony would

not assist the trier of fact. The district court determined that the officer was qualified as

an expert witness and that her testimony would be helpful.

The district court found appellant guilty of all three charges of criminal sexual

conduct and sentenced appellant to 144 months in prison. This appeal followed.

DECISION

I.

Appellant argues that the district court abused its discretion when it excluded any

evidence regarding the child’s alleged prior sexual conduct, as the evidence was relevant

and prevented appellant from presenting a complete defense. We disagree.

“[E]videntiary rulings rest within the sound discretion of the trial court and will

not be reversed absent a clear abuse of discretion.” State v. Griffin, 834 N.W.2d 688, 693

3
(Minn. 2013) (quotation omitted). A district court abuses its discretion when it acts

“arbitrarily, capriciously, or contrary to legal usage.” State v. Profit, 591 N.W.2d 451,

464 n.3 (Minn. 1999) (quotation omitted). On appeal, the party challenging the district

court’s evidentiary rulings has the burden of showing the error and any resulting

prejudice. State v. Jackson, 770 N.W.2d 470, 482 (Minn. 2009).

The district court granted in part and denied in part the state’s pretrial motion to

preclude reference at trial to the child’s alleged prior sexual conduct pursuant to rule 412

of the Minnesota Rules of Evidence. Rule 412, Minnesota’s rape-shield rule, provides

that “evidence of the victim’s previous sexual conduct shall not be admitted nor shall any

reference to such conduct be made in the presence of the jury, except by court order

under the procedure provided in rule 412.” Minn. R. Evid. 412(1); see also Minn. Stat.

§ 609.347, subd. 3 (2014) (Minnesota’s rape-shield law, using nearly identical language

as rule 412).

Appellant argues that the district court erred because it prevented him from

presenting relevant evidence demonstrating the child’s motive to fabricate appellant’s

criminal sexual conduct, thus preventing him from presenting a complete defense.

Appellant’s theory was that the child lied about appellant’s sexual abuse to try to deflect

attention from himself and his own sexual misconduct.

Evidence of a victim’s prior sexual conduct “may be admitted where it is

constitutionally required by the defendant’s right to due process, his right to confront his

accuser, or his right to offer evidence in his own defense.” State v. Kobow, 466 N.W.2d

747, 750 (Minn. App. 1991) (citing State v. Caswell, 320 N.W.2d 417, 419 (Minn.

4
1982)). “The right to present a defense includes the opportunity to develop the

defendant’s version of the facts, so the [factfinder] may decide where the truth lies.”

State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995), review denied (Minn. Jan. 23,

1996). “The right to present a defense is not unlimited; the admission of evidence of a

witness’s prior sexual conduct is highly prejudicial and will not survive a rule 403

balancing test unless a special exception applies.” State v. Olsen, 824 N.W.2d 334, 340

(Minn. App. 2012), review denied (Minn. Feb. 27, 2013). One special exception permits

admission of “[a]ny evidence tending to establish a predisposition to fabricate a charge of

rape . . . unless its potential for unfair prejudice outweighs its probative value.” Id.

(quotation omitted).

The district court’s pretrial ruling attempted to strike a balance between allowing

evidence of the child having been “in trouble” or “being investigated” for something,

while excluding evidence of the specific conduct of the child. The district court’s ruling

allowed appellant reasonable latitude to explore the possible motive of the child to

fabricate the sexual abuse allegations, while remaining true to the purpose of Minnesota’s

rape-shield rule and law. Evidence of the details of the child’s prior sexual conduct

(which allegedly occurred after appellant’s abuse of the child began but before trial) is

not sufficiently probative or relevant to the issues at trial, and appellant was able to

present a complete defense without the detailed evidence of the child’s sexual history.

The district court correctly applied rule 403, and its ruling was well within the

discretion afforded to it by the law.

5
 II.

Appellant also argues that the district court abused its discretion by allowing

Officer Schlieman to testify as an expert concerning the phenomenon of delayed

reporting of sexual abuse by children. Appellant asserts that Officer Schlieman’s

testimony did not assist the trier of fact and that, in any event, she was not qualified to

testify as an expert.

The admission or exclusion of expert testimony is within the broad discretion of

the district court, and rulings regarding such testimony are reversed only when the district

court clearly abused its discretion. State v. Sontoya, 788 N.W.2d 868, 872 (Minn. 2010);

see State v. Dao Xiong, 829 N.W.2d 391, 395-96 (Minn. 2013). “[A] witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify . . . in the

form of an opinion or otherwise” “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in

issue.” Minn. R. Evid. 702. Accordingly, the district court must decide “whether the

expert is qualified to express [an] opinion, and whether the opinion is helpful because it

will assist the trier of fact.” Sontoya, 788 N.W.2d at 872 (quotation omitted).

Helpfulness of Officer Schlieman’s Testimony

Appellant argues that Officer Schlieman’s testimony did not assist the trier of fact

because the district court was already familiar with the issue of delayed reporting among

child sexual abuse victims. The record, however, does not support appellant’s

contention.

When admitting Officer Schlieman’s expert testimony, the district court noted:

6
 Clearly, I’ve had extensive training myself and have had
years of experience in dealing with child protection cases and
also criminal cases, but that doesn’t make me necessarily an
expert. I haven’t gone through the CornerHouse training
myself. So I do believe that some expert testimony would be
helpful and would assist the Trier of Fact in reaching its
decisions.

The district court specifically determined that Officer Schlieman had specialized

knowledge and training helpful to the trier of fact. Officer Schlieman described in her

testimony her CornerHouse training, the interview techniques she used while conducting

a CornerHouse interview in this case, and her knowledge of delayed reporting. Officer

Schlieman’s testimony assisted the trier of fact in understanding the child’s delayed

reporting of the sexual abuse he experienced. Therefore, the district court acted within its

discretion in admitting the testimony. See Minn. R. Evid. 702 (providing that expert

testimony is allowed only when it “assists the trier of fact to understand the evidence”).

Officer Schlieman’s Qualifications as an Expert

Appellant further argues that Officer Schlieman’s qualifications as an expert are

lacking because they pale in comparison to those of similar witnesses, most notably the

expert the state had initially listed as its expert until that witness became unavailable.

Minnesota appellate courts have permitted police officers to provide expert

testimony “concerning subjects that fall within the ambit of their expertise in law

enforcement.” State v. Carillo, 623 N.W.2d 922, 926 (Minn. App. 2001), review denied

(Minn. June 19, 2001). These subjects may include the topic of children’s delayed

reporting of sexual abuse. See State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987) (“[I]n

cases where a sexual assault victim is an adolescent, expert testimony as to the reporting

7
conduct of such victims . . . is admissible in the proper exercise of discretion by the trial

court.”); State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987) (allowing expert

testimony from a detective who was a police officer for 15 years, worked in the juvenile

division for 9 years, investigated 500 child-abuse cases, and was involved in 26 classes

about child abuse).

Officer Schlieman testified at trial about her general training and certifications as a

police officer, and her training and experience dealing with child-sexual-abuse cases

specifically. A graduate of St. Cloud State University with a B.A. in criminal justice, she

completed several courses concerning general and child psychology. Officer Schlieman

also testified that she completed CornerHouse and other child abuse training, and was

working towards completing her Master’s degree in marriage and family therapy. During

her 18 years as a police officer, she has interviewed hundreds of children, approximately

40 victims of child abuse, and has conducted approximately 20 CornerHouse interviews.

Officer Schlieman’s testimony was not and did not purport to be diagnostic or specific to

the child in this case.

Appellant contrasts Officer Schlieman’s qualifications with those of the state’s

original expert, arguing that the original expert “possessed a skill and experience level

that Officer Schlieman lacked.” The original expert possessed an advanced degree and

practiced as a licensed psychologist. But Officer Schlieman’s credentials need not be the

same as those of another expert to qualify her as an expert with sufficient training,

education, and experience in the area of children’s delayed reporting of sexual abuse to

provide expert testimony. This is an area wherein the district court is afforded broad

8
discretion, and the district court did not abuse that discretion in determining that Officer

Schlieman was qualified to offer expert testimony concerning delayed reporting by child

sexual abuse victims. Accordingly, we conclude that the district court did not err in

admitting Officer Schlieman’s expert testimony.

Affirmed.

9