State of Minnesota v. Eh Doh Par

• Court: Court of Appeals of Minnesota
• Decided: November 20, 2023
• Docket: a221822
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A22-1822

State of Minnesota, Respondent,

vs.

Eh Doh Par, Appellant.

Filed November 20, 2023 Affirmed Schmidt, Judge

Mower County District Court File No. 50-CR-19-1119

Keith Ellison, Attorney General, Ed W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and

Kristen M. Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Schmidt, Judge. NONPRECEDENTIAL OPINION

SCHMIDT, Judge

In this appeal from the final judgment of conviction for first-degree criminal sexual

conduct, appellant Eh Doh Par argues that he should receive a new trial because he was

deprived of his right to an impartial fact-finder at the hearing where the district court

qualified a witness as an expert, and because the prosecutor failed to abide by the district

court’s order limiting that expert’s testimony. Because we determine the district court

acted impartially when certifying the witness as an expert, and the prosecutor did not

violate the district court’s order, we affirm.

FACTS

In 2019, P.B.W.’s school made a referral for a diagnostic assessment for services

after the school noticed a change in P.B.W.’s behavior and she made statements of wanting

to harm herself. P.B.W. was ten years old at the time. During the assessment, P.B.W.

indicated that a relative, Par, had sexually abused her on multiple occasions over the past

several months, the most recent being within the past month.

A detective interviewed P.B.W. at her school and later at the police station. During

the interview, P.B.W. confirmed that Par began sexually abusing her when she was nine

years old and that the abuse had occurred five or six times. Police arrested Par, and

respondent State of Minnesota charged him with multiple counts of criminal sexual

conduct.

2 Expert Witness Certification

At a pre-trial motion hearing, the state moved to admit the detective who

interviewed P.B.W. as an expert witness. Par objected.

Before the district court received testimony from the detective at the motion hearing,

the follow exchange occurred:

THE COURT: . . . I don’t think I actually need to put this on the record because I think that [defense counsel] is well aware of it, but I’ve been CornerHouse trained and advanced CornerHouse trained as well. [Defense counsel], you’re aware of that?

[DEFENSE COUNSEL]: Yes.

THE COURT: I don’t believe I went to training with [the detective], however. I went to training with [the sheriff] back in the day. Is that correct, [detective]?

THE WITNESS: Correct.

THE COURT: And I don’t think I’ve had much, if any, occasion to ever experience [detective]—as a prosecutor [detective]—

THE WITNESS: Maybe once.

THE COURT: Maybe once or twice, but that was really towards the end of my career. The last time I would have been in the county attorney’s office would have been 2013 or ’14, so it’s been quite some time. Just so that any—any conflict is on the record if there is one.

Par did not object or raise any potential conflict. After the parties examined the

detective, the district court conducted its own examination, which included the following

exchange:

3 [THE COURT]: Detective . . . , different departments and different agencies tend to question in a different manner or different setting. I have some familiarity of how it was done when I was there, and you’re talking about these interviews being conducted at the Law Enforcement Center; is that correct?

[THE WITNESS]: Correct.

After the conclusion of the detective’s testimony, the district court certified the

detective as an expert witness and provided guidance on the scope of the detective’s

testimony:

The limited list in Exhibit 3 1 that I have received with regard to the content of that testimony is acceptable. And certainly what his knowledge, skill, training, and experience[,] with respect to those issues are[,] are the subject of cross-examination. And the concerns that [defense counsel] brings forward with regard to nameless or faceless internet websites can certainly be addressed through the constitutional right of confrontation.

I, I think, would be remiss at this time not to caution, however, that this expert testimony is not to be vouching testimony. The limits of the expert testimony are to be able to say that in his knowledge, training, experience certain things are not uncommon to view or are common to view, or however he’s testifying. But specifically relating it to this interview or this child and saying that this interview or this child exhibits those things is the prohibited piece of testimony that we are unable to draw the links for the jury. He can talk about what he observed, but linking that directly to “and that’s a common characteristic of” I think is the kind of vouching testimony that we need to specifically avoid.

1 The “list in Exhibit 3” is a reference to a written summary of the subjects of the detective’s expert testimony.

4 Expert Testimony

At trial, the detective’s expert testimony began with information about how children

typically report abuse, the impact of trauma on a child’s report and ability to recall details,

and how children report multiple incidents. The detective then detailed P.B.W.’s report

and interview, as well as his interview with Par. Par did not object at any point during the

detective’s testimony.

The jury found Par guilty on all counts. Par appeals.

DECISION

I. The district court judge did not not deny Par an impartial fact-finder.

This court reviews the constitutional question of whether a defendant is deprived of

his right to an impartial fact-finder de novo. State v. Hicks, 837 N.W.2d 51, 59 (Minn.

App. 2013), aff’d, 864 N.W.2d 153 (Minn. 2015). A district court judge is presumed to

have set aside collateral knowledge and been neutral and objective in their disposition. See

State v. Burrell, 743 N.W.2d 596, 603 (Minn. 2008).

“An impartial trial requires that conclusions reached by the trier of fact be based

upon the facts in evidence, and prohibits the trier of fact from reaching conclusions based

on evidence sought or obtained beyond that adduced in court.” State v. Dorsey,

701 N.W.2d 238, 249-50 (Minn. 2005) (citations omitted). Judges may not “rely upon

extra-record knowledge when sitting as the finder of fact.” Id. at 251.

In determining whether a judge acted as an impartial fact-finder, “the question is

whether an objective examination of the facts and circumstances would cause a reasonable

examiner to question the judge’s impartiality.” Hicks, 837 N.W.2d at 59 (quotation

5 omitted). The fact that a party declares a judge partial does not, in itself, generate a

reasonable question as to the judge’s impartiality. Burrell, 743 N.W.2d at 601-02.

Par argues the district court judge’s reference to her CornerHouse training deprived

him of an impartial fact-finder. Par asserts that the judge’s “repeated references” to this

training indicated that the district court judge relied upon that training when certifying the

detective as an expert. We disagree. The district court judge’s reference to her training

and potential previous work with the detective did not indicate that the judge relied on that

information when certifying the detective as an expert. Instead, the district court judge

addressed her CornerHouse training and potential past experience with the detective to

disclose any potential conflict and provide the parties an opportunity to address any

perceived conflict. Par did not object or raise any issue of a conflict.

Par argues the district court primarily based the expert certification of the detective

on the judge’s prior CornerHouse training. The record shows otherwise. Both parties and

the district court extensively examined the detective. The district court also had ample

other relevant information regarding the detective’s extensive work experience. The record

does not show that the district court judge relied on her extra-record knowledge in

certifying the detective as an expert witness.

An objective review of these facts and circumstances would not cause a reasonable

examiner to question the district court judge’s impartiality. Hicks, 837 N.W.2d at 59. Par’s

declaration that the district court judge was partial does not in itself generate a reasonable

question as to the judge’s impartiality. Burrell, 743 N.W.2d at 601-02. Par has not

6 overcome the presumption that the district court judge set aside collateral knowledge and

remained neutral and objective in her disposition. Id. at 603.

In the alternative, Par argues that even if there was no structural error, the district

court judge’s “reliance on general knowledge outside the record that arguably favors the

State could make her impartiality be reasonably questioned.” We are not persuaded.

Even if a judge’s conduct does not satisfy the test for structural error, reversal may

still be warranted under the Powell test if the impartiality of the judge may be reasonably

questioned. See State v. Lopez, 988 N.W.2d 107, 121-22 (Minn. 2023) (citing

Powell v. Anderson, 660 N.W.2d 107, 121 (Minn. 2003)). Under the Powell test, the court

must consider the risk of injustice to the defendant, the risk of injustice to other defendants

in similar circumstances, and how the district court’s conduct impacts public confidence in

the judicial system. Id.

Par has failed to establish that the district court judge’s reference to her

CornerHouse training presented a risk of injustice to Par, a risk of injustice to other

defendants in similar circumstances, or a risk of impact on the public confidence in the

judicial system. The record also contains sufficient information, beyond Par’s concern

with the mention of the judge’s CornerHouse training, to certify the detective as an expert

witness.

The district court’s statements did not deprive Par of his right to an impartial

fact-finder.

7 II. The prosecutor did not exceed the scope of the district court’s order regarding the expert’s testimony.

Par argues that the district court plainly erred in failing to stop the prosecutor’s

examination of the detective when, according to Par, the prosecutor committed misconduct

by violating the district court’s order limiting the scope of the detective’s testimony and by

soliciting vouching testimony. Par did not object during the testimony challenged on

appeal.

When the defendant fails to object during trial, we review claims of prosecutorial

misconduct under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302

(Minn. 2006). The defendant bears the burden of establishing error that is plain. Id. “An

error is plain if it is clear or obvious, which is typically established if the error contravenes

case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787

(Minn. 2017) (quotation omitted). If the defendant meets this burden, the burden then

shifts to the state to prove there is no reasonable likelihood that the absence of the

misconduct would have had a significant effect on the jury’s verdict. Ramey, 721 N.W.2d

at 302. We may affirm if any of the plain-error prongs are not satisfied without considering

the other prongs. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).

A. The prosecutor did not exceed the scope of the district court’s order limiting the detective’s expert testimony.

A prosecutor commits misconduct if their acts have the effect of materially

undermining the fairness of a trial. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007).

“[M]isconduct results from violations of clear or established standards of conduct, e.g.,

rules, laws, orders by a district court, or clear commands in this state’s case law.” Id.

8 Here, Par did not object to the detective’s testimony at trial. On appeal, Par contends

the prosecutor committed misconduct by eliciting testimony from the detective that went

beyond the scope of the district court’s order. This argument misconstrues the district

court’s order regarding the scope of the detective’s testimony.

Par appears to suggest the district court limited the detective’s testimony to only

those subjects disclosed in his summary of expert testimony. But the district court merely

approved the “limited list in Exhibit 3 that [it] received with regard to the content of that

testimony.” This approval did not represent a simultaneous order limiting the detective’s

testimony to only that content. Instead, the district court clarified with the prosecution that

the testimony sought from the detective would be characteristics of victims of sexual abuse,

specifically those behaviors, affects, and manners of reporting such as delayed or

incremental reporting, and the affect of the victim in making the reports. This exchange

demonstrates that the district court anticipated a wide range of testimony that was not

limited to those areas specifically enumerated in Exhibit 3.

B. The prosecutor did not elicit vouching testimony from the detective.

“Prosecutors may not elicit credibility-vouching testimony from trial

witnesses.” State v. Robideau, 783 N.W.2d 390, 400 (Minn. App. 2010), rev’d on other

grounds, 796 N.W.2d 147 (Minn. 2011). Vouching occurs where one witness testifies for

or against the credibility of another witness. See State v. Vick, 632 N.W.2d 676, 689

(Minn. 2001). However, an expert may opine about the common behaviors of child victims

of sexual abuse without crossing the line into impermissible vouching. Id. at 689.

9 Par argues that the prosecutor exceeded the scope of the district court’s order

regarding the detective’s testimony by eliciting vouching testimony meant to bolster

P.B.W.’s testimony. We disagree.

Par argues the district court precluded testimony regarding common characteristics

because that would present vouching testimony. Par misconstrues the district court’s order.

The district court’s ruling, in fact, authorized the detective to testify regarding common

characteristics so long as those characteristics were not related directly to P.B.W. The

district court ruled:

The limits of the expert testimony are to be able to say that in his knowledge, training, experience certain things are not uncommon to view or are common to view, or however he’s testifying. But specifically relating it to this interview or this child and saying that this interview or this child exhibits those things is the prohibited piece of testimony that we are unable to draw the links for the jury.

The prosecutor’s examination of the detective followed this limitation. The

detective testified, consistent with the district court’s order, to common characteristics he

has seen through his knowledge, training, and experience regarding child abuse victims

and how they report abuse. At no point did the detective relate common characteristics of

child abuse or the reporting of such abuse to P.B.W.

The detective’s testimony was also consistent with Minnesota caselaw that holds an

expert witness may provide testimony regarding common behaviors of child victims of

sexual abuse and that such testimony does not inherently cross the line into impermissible

vouching. See Vick, 632 N.W.2d at 689; State v. Myers, 359 N.W.2d 604, 610-11

(Minn. 1984). Accordingly, the detective’s testimony stayed within the limitations

10 imposed by the district court and the prosecutor did not violate the order by eliciting this

testimony.

Par also suggests that the prosecutor committed misconduct by vouching for P.B.W.

in closing arguments. This contention conflates vouching testimony from a witness with

vouching during a closing argument. In closing arguments, a prosecutor may not

“personally endorse the credibility of witnesses.” See State v. Leutschaft, 759 N.W.2d 414,

425 (Minn. App. 2009). But the rule does not prohibit a prosecutor “from arguing that

particular witnesses were or were not credible.” Id. In reviewing the prosecutor’s full

closing argument, the record demonstrates the prosecutor did not impermissibly vouch for

P.B.W., but instead, argued she was a credible witness.

Affirmed.