This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1511
State of Minnesota, Respondent,
vs.
Andrew Russell Severtson, Appellant.
Filed November 28, 2016 Affirmed Smith, Tracy M., Judge
Olmsted County District Court File No. 55-CR-13-6323
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant Andrew Russell Severtson appeals from his conviction of first-degree
criminal sexual conduct, arguing that (1) he is entitled to a new trial because the state failed
to disclose a colposcopy video from the victim’s medical examination and (2) the district
court erred in denying his Paradee motion for in camera review of the victim’s counseling
and mental-health records for possible discovery of the records. Because the state did not
violate its discovery obligations and because Severtson did not make a plausible showing
that the counseling records sought would be material and favorable to his defense, we
affirm.
FACTS
In August 2013, eleven-year-old E.S. told her mother that her father, appellant
Andrew Russell Severtson, had sexually assaulted her multiple times while she was living
with him from 2010 to 2012. E.S.’s mother reported E.S.’s account to Benton County
Human Services (BCHS) and the police. A Benton County child protection social worker
interviewed E.S. at the St. Cloud Police Department. Based on that interview, BCHS
referred E.S. to the Midwest Children’s Resource Center (MCRC), a department of
Children’s Hospitals and Clinics of Minnesota that specializes in medical assessments of
children who are suspected victims of abuse.
A nurse conducted the examination at MCRC while the social worker observed from
another room via a live video feed. A video recording was made of the examination (exam-
room video), in which E.S. and the nurse were mostly off screen but audible during the
2 genital examination. During the MCRC exam, the nurse examined E.S.’s genitals using a
colposcope, which is a machine that illuminates, magnifies, and records video of the area
during examination (colposcopy video). Dr. Carolyn Levitt viewed the colposcopy video
and concluded that a healed “transection” or tear in E.S.’s hymen was consistent with the
abuse E.S. described. The social worker gave the exam-room video and MCRC’s written
report to the police. MCRC’s written report described the “VIDEOCOLPOSCOPIC
GENIT[AL]/ANAL EXAM” and results. The colposcopy video remained in the medical
records at MCRC and was not sent to law enforcement. Severtson was charged with first-
degree criminal sexual conduct.
Before trial, Severtson made a Paradee motion asking the district court to review in
camera any counseling and mental-health records of E.S.1 Severtson’s main defense theory
was that E.S.’s mother had “coached” her to make false allegations, and he asserted that
counseling would be the “one place where the child would be free of the influence of her
mother and would be candid and honest.” Without a subpoena, Severtson moved the
district court to acquire E.S’s counseling and mental-health records, if any, and review
them in camera for evidence supporting his theory. The state argued that the request was
a “fishing expedition” because Severtson had not identified any evidence that E.S. had been
in counseling or that counseling records would show that E.S. had been coached. The state
further said it had not found any reference to relevant mental-health records in the police
1 A Paradee motion asks the court to review privileged material in camera to determine whether it is discoverable, balancing the defendant’s interest in obtaining beneficial evidence with the privilege holder’s interest in having her confidences kept. State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).
3 reports or at E.S.’s medical clinics. The district court agreed with the state and denied the
motion.
At a jury trial, E.S. testified that Severtson had assaulted her multiple times using
multiple forms of penetration. On the second day of trial, the state called Dr. Levitt as a
witness. Severtson moved to prevent Dr. Levitt from testifying about the colposcopy and
the report on confrontation clause and hearsay grounds because the colposcopy was
conducted by a nurse who was not testifying and Dr. Levitt based her conclusions on the
colposcopy video rather than firsthand experience conducting the exam. Severtson also
noted that the state had not disclosed the colposcopy video and claimed that he did not
know there was a colposcopy video prior to trial. The state said it did not have the
colposcopy video. The district court denied Severtson’s motion and allowed Dr. Levitt to
testify. Dr. Levitt testified that, based on the colposcopy video, she determined that E.S.
had suffered vaginal “blunt force penetrating trauma.” Dr. Levitt testified that it is
“extremely rare” for a child E.S.’s age to have a tear like the one E.S. had in the absence
of sexual abuse and that the kind of accidental injury that could cause a similar tear is “very,
very uncommon.”
On the third day of trial, after the state rested its case, defense counsel moved the
district court to order the state to obtain the colposcopy video and disclose it to Severtson
pursuant to Minn. R. Crim. P. 9.01 so he could request a continuance and hire an expert to
interpret it and testify if it could be helpful to his defense. The district court denied the
motion because Dr. Levitt had been listed as a witness, Severtson had the written report
4 from the MCRC exam that discussed the doctor’s findings, and Severtson, “all along, if
[he] wanted to, could have hired an expert,” but did not do so.
Severtson did not testify or call any witnesses.
The jury found Severtson guilty of first-degree criminal sexual conduct. The district
court sentenced Severtson to 270 months.
Severtson appeals.
DECISION
I. The state did not violate its discovery obligations by failing to obtain the colposcopy video when Severtson asked for it on the last day of trial after the state rested its case.
Severtson argues that he is entitled to a new trial because the state failed to disclose
to him the colposcopy video from the MCRC examination of E.S., violating its discovery
obligations under Minn. R. Crim. P. 9.01, subd. 1. Whether a discovery violation occurred
is a legal issue that we review de novo. State v. Palubicki, 700 N.W.2d 476, 489 (Minn.
2005). This court generally will not grant a new trial to remedy a prosecutorial discovery
violation unless the appellant shows that the discovery violation was prejudicial. Id. “A
new trial is warranted when the State’s discovery violations viewed in the light of the whole
record, appear[] to be inexcusable and so serious and prejudicial that the defendant’s right
to a fair trial was denied.” State v. Miller, 754 N.W.2d 686, 705 (Minn. 2008) (quotation
omitted). The suppression of evidence is prejudicial if “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Gorman v. State, 619 N.W.2d 802, 807 (Minn. App. 2000) (quotation
omitted), review denied (Minn. Feb. 21, 2001).
5 The Minnesota Rules of Criminal Procedure require the state to disclose to the
defense “documents and tangible objects . . . that relate to the case,” as well as the “results
or reports of physical or mental examinations.” Minn. R. Crim. P. 9.01, subd. 1(3)(b), (d);
id. at subd. 1(4)(a). The prosecutor’s disclosure obligations under subdivision 1 extend to
objects and information possessed or controlled by the prosecution staff and by “others
who have participated in the investigation or evaluation of the case and who either regularly
report, or with reference to the particular case have reported, to the prosecutor’s office.”
Minn. R. Crim. P., subd. 1a(1).
Severtson argues that the state violated its disclosure obligation by not obtaining
from MCRC and disclosing the colposcopy video when Severtson requested it after the
close of the state’s case. He asserts that the colposcopy video was material that was
possessed by MCRC and that MCRC “reported [] to the prosecutor’s office” with reference
to this case. Id. The state disputes that MCRC reported to the prosecutor’s office and
therefore disagrees that the colposcopy video fell within the scope of Rule 9.01, subd. 1a.
We need not decide whether MCRC reported to the prosecutor’s office for purposes
of Rule 9.01. The state argues, and we agree, that (1) even if MCRC did report to the
prosecutor’s office, in the circumstances of this case the state satisfied its disclosure
obligations and (2) even if the state did not satisfy its obligations, Severtson has failed to
prove he was prejudiced by the violation.
Disclosure Obligations
Under Rule 9.01, the prosecutor is required to allow the defendant to inspect and
reproduce any information required to be disclosed. Minn. R. Crim. P. 9.01, subd. 1a(2).
6 Here, the state apparently made available for discovery every discoverable item it actually
possessed related to the MCRC exam. Dr. Levitt was on the witness list that the state filed
and served on Severtson in October 2013, 18 months before the April 2015 trial. During
discovery, which began in October 2013, the state disclosed to Severtson the written report
from the MCRC investigation that was prepared by Dr. Levitt and the nurse who performed
the colposcopy. The state also disclosed the exam-room video, which shows the nurse
talking with E.S. about the reason for the exam and then moving out of frame to conduct
the colposcopy, and shows Dr. Levitt entering the exam room after the colposcopy to
conduct the rest of the physical exam. The only item Severtson claims to have been
deprived of related to the MCRC exam is the colposcopy video of E.S.’s genitals, which
the prosecution stated on the record it never possessed.
Severtson does not claim that the prosecutor had any obligation to obtain and
produce the colposcopy video prior to his request, but he argues that the state violated rule
9.01 after his request. The state argues that it satisfied its disclosure obligations when it
disclosed in pretrial discovery the medical report written by Dr. Levitt and the MCRC nurse
that identified the videocolposcopy examination and its results. In the circumstances of
this case, we agree with the state.
Severtson failed to request the colposcopy video until the final day of trial despite
the fact that the state’s pretrial disclosures were sufficient to put him on notice that a
colposcopy video existed. The written report described how the genital examination was
conducted, referring to it as a “videocolposcopic” exam using a “video colposcope.” The
report, which was written partially in the first person by the nurse and signed by Dr. Levitt,
7 indicated that the nurse conducted the colposcopy and that Dr. Levitt conducted the rest of
the physical exam and made the final diagnosis of blunt force penetrating trauma. The
exam-room video that was disclosed to Severtson shows the nurse and E.S. having a
conversation alone in the exam room and then moving off screen to conduct the
colposcopy, making it apparent that Dr. Levitt was not in the room during the genital exam.
Because Dr. Levitt then signed the report drawing a conclusion about the cause of E.S.’s
tear, an inference can be drawn that Dr. Levitt’s conclusion must have been based on
viewing the colposcopy video. The written report and video that were disclosed to
Severtson in discovery made it clear that a colposcopy video was taken. Thus, Severtson
could have asked for the video long before trial.
Instead, Severtson did not ask the state if a colposcopy video existed until voir dire
at the earliest, did not raise his concerns about the video with the district court until the
second day of trial while moving to exclude Dr. Levitt’s testimony, and did not ask the
state to obtain and produce the colposcopy video until the third and final day of trial, after
the state had rested its case.2 The state did not have the colposcopy video and noted that,
by the time Severtson asked for it, the state no longer would have been able to obtain it
without a court order or another medical records release because the release signed by
E.S.’s mother had likely expired. Severtson did not have an expert witness at the time of
his request, and the colposcopy video would have been of no use to him without an expert
to analyze it. If the district court had granted Severtson’s motion at that point, it would
2 The first time Severtson asked the state to produce the colposcopy video was when he moved the district court to order the state to obtain and produce it.
8 have had to grant a continuance, delaying trial not only long enough for the state to seek
the requisite release and obtain a copy of the video, but also long enough for Severtson to
go through the process of finding an expert witness and preparing that witness for trial.
This delay would have been undue in light of the fact that the written report and exam-
room video that were disclosed to Severtson during discovery showed that a colposcopy
video existed. We conclude that the state did not violate its disclosure obligations.
Prejudice
Even if the state violated its disclosure requirements, Severtson has failed to show
prejudice entitling him to a new trial. Miller, 754 N.W.2d at 705. Severtson’s argument
that the nondisclosure was prejudicial focuses on the fact that the doctor’s testimony about
the colposcopy video and the conclusions she drew from it “were a major part of the State’s
case.” The doctor testified in detail about what the video showed, concluded, based on the
video, that E.S. had a healed tear in her hymen indicating “blunt force penetrating trauma”
that could have been caused by the kind of abuse E.S. reported, and used her conclusions
from the video to refute Severtson’s theory that the tear may have been from an accidental
injury. The state also discussed the colposcopy during its closing argument as key evidence
corroborating E.S.’s testimony. Severtson asserts that if the colposcopy video had been
disclosed, he could have determined that it would be beneficial to obtain his own expert
witness to rebut Dr. Levitt’s testimony, creating a reasonable probability that the verdict
would have been different.
The state argues that Severtson has not shown prejudice because Dr. Levitt’s
conclusions were disclosed to Severtson long before trial in the written report, giving
9 Severtson the opportunity to call an expert to rebut those conclusions, and because
Severtson does not claim that Dr. Levitt’s conclusions were incorrect or explain how any
other expert might have reached a different conclusion from viewing the video. We agree.
Severtson chose not to obtain an expert witness despite the fact that the state’s
disclosures related to the MCRC exam and Dr. Levitt gave him a fair opportunity to seek
an expert to rebut the state’s proposition that the tear corroborated E.S.’s allegations against
Severtson. The criminal complaint filed on September 27, 2013, mentioned the MCRC
report and stated that the report said E.S. had “a transection at the 7-8 o’clock position of
her hymen which is consistent with blunt force penetrating trauma.” Dr. Levitt was
identified as a possible witness for the state a year and a half before trial. The written report
that was disclosed during discovery described the colposcope and the examination process.
The report disclosed the physical findings about the tear as well as the conclusion that the
tear was consistent with blunt force penetrating trauma. It was clear from the report that
the results of the colposcopy would be key evidence corroborating E.S.’s allegations. We
therefore conclude that the state’s disclosures gave Severtson sufficient opportunity to
obtain an expert witness to rebut Dr. Levitt’s conclusions, and the state’s failure to obtain
and disclose the colposcopy video when Severtson requested it on the last day of trial did
not prejudice Severtson.
Moreover, Severtson has not provided any basis other than speculation to conclude
that “there is a reasonable probability . . . that the outcome of the trial might have been
different” had the colposcopy video been disclosed. State v. Ramos, 492 N.W.2d 557, 560
10 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). Without prejudice, a discovery
violation does not warrant a new trial. Miller, 754 N.W.2d at 705.
II. The district court did not err in denying Severtson’s Paradee motion for in camera review of E.S.’s counseling and mental-health records.
Severtson argues that the district court erred in denying his Paradee motion for in
camera review of E.S.’s counseling and mental-health records. District courts have wide
discretion in discovery matters, and normally a discovery order will not be overturned
absent an abuse of that discretion. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009).
“To find an abuse of discretion, an appellate court must conclude that the district court
erred by making findings unsupported by the evidence or by improperly applying the law.”
Id. (citing Shetka v. Kueppers, 454 N.W.2d 916, 921 (Minn. 1990)).
When a criminal defendant seeks discovery of privileged material and it is not clear
whether the material is discoverable, the district court should examine the material in
camera to determine if the defendant’s rights should prevail over the privilege. Paradee,
403 N.W.2d at 642. To obtain in camera review, the defendant first must make a “plausible
showing that the information sought would be both material and favorable to his defense.”
State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quotation omitted).
Severtson argued that E.S.’s counseling and mental-health records might contain
material and favorable evidence that E.S.’s mother convinced her to fabricate the
allegations. At the time of the motion, neither Severtson nor the state claimed to know
whether any counseling or mental-health records for E.S. existed. However, Severtson
asked the district court to order the state to look for records of that kind and submit them
11 for in camera review because “[i]f there’s one place where the child would be free of the
influence of her mother and would be candid and honest, it should be in a counseling-type
situation.” The district court heard arguments from both parties and determined that
Severtson failed to make the requisite showing, noting that it sounded like “a fishing
expedition” and an “attack . . . on the mother more than anything else.”
The district court’s decision accords with precedent. In State v. Evans, the district
court granted in camera review of records from a single medical examination of a witness,
but the defendant argued that the court should have reviewed more of the witness’s medical
records for evidence of mental-health problems that would cast doubt on the witness’s
credibility. 756 N.W.2d 854, 873 (Minn. 2008). The supreme court in Evans rejected the
defendant’s arguments because he failed to make a showing that other records would
contain information that would be material and favorable to his case; he “only offered
argument and conjecture.” Id. Similarly, in Underdahl, the supreme court concluded that
the district court abused its discretion in finding Underdahl had shown that the source code
to an alcohol-concentration-testing instrument was relevant to his guilt or innocence. 767
N.W.2d at 687. Underdahl argued that challenging the validity of the testing instrument
was the only way to dispute the charges against him, but he “failed to demonstrate how the
source code would help him do so” and “advanced no theories on how the source code
could be related to his defense” or that it “was reasonably likely to contain information
related to his case.” Id. (quotation omitted). In contrast, the supreme court in Underdahl
concluded that another defendant, Brunner, had met the requisite showing by submitting
12 nine exhibits including source-code definitions, written expert testimony that explained
source codes, and an example of a breath-test analysis and its potential defects. Id. at 686.
Here, Severtson generally articulated a theory that E.S. might have counseling
records that might contain information related to his case based on his suspicion that E.S.’s
mother convinced her to lie and his assumption that a child is more likely to be honest in
counseling than in any other situation. Severtson argues, without providing any factual
support, that it is plausible that E.S. made statements in counseling that could help his case
“by exposing bias, motive to fabricate, or evidence that she had been coached, which could
have been used for impeachment.” Like Evans and Underdahl, Severtson explained the
logic behind his theory but did not offer any evidence to support his suspicion that the
records existed or contained material information favorable to his case. Thus, we conclude
that the district court did not abuse its discretion in denying Severtson’s Paradee motion.
III. Severtson’s Pro Se Arguments Are Without Merit.
Severtson raised additional arguments in a pro se supplemental brief. First,
Severtson challenges the credibility of E.S. and her mother as witnesses. “[D]etermining
the credibility or reliability of a witness lies with the jury alone,” and it is not within this
court’s role to reconsider witness credibility on appeal. State v. Buckingham, 772 N.W.2d
64, 71 (Minn. 2009). Additionally, Severtson offers as support for these arguments
descriptions of prior events that are not supported by evidence in the record. “An appellate
court may not base its decision on matters outside the record on appeal.” Thiele v. Stich,
425 N.W.2d 580, 582-83 (Minn. 1988).
13 Second, Severtson argued that his attorney improperly declined to call witnesses to
testify on his behalf and therefore he received ineffective assistance of counsel. To prove
ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his
counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn.
1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068
(1984)). The decision of which witnesses to call is part of trial tactics and “lies within the
proper discretion of trial counsel.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).
Severtson does not identify any factual issue material to this case to which his potential
witnesses could have testified. Severtson has failed to show there is a reasonable
probability that the result of the proceeding would have been different had his counsel
called witnesses, so he has not met his burden to prove ineffective assistance of counsel.
Gates, 398 N.W.2d at 561.
Affirmed.