author: WORKE, Judge. SHUMAKER, Judge

text:
    STATE of Minnesota, Respondent, v. V.A.J., Appellant.
    No. A07-71.
    Court of Appeals of Minnesota.
    Feb. 12, 2008.

      Lori Swanson, Attorney General, Paul R. Kempainen, Assistant Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, William Richardson, Assistant County Attorney, and David K. Ross, Carlson, Clelland & Schre-der, Brooklyn Center Assistant City Attorney, Minneapolis, MN, for respondent.
    Roberta B. Walburn, Anne M. Lockner, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; KLAPHAKE, Judge; and WORKE, Judge.
   OPINION

WORKE, Judge.

On appeal from the district court’s order granting her request for expungement of a misdemeanor-theft conviction but limiting the expungement to judicial-branch records, appellant argues that because the record maintained by the Bureau of Crimi-. nal Apprehension was not included in the district court’s order, she did not receive an effective remedy. We reverse and remand.

FACTS

Appellant V.A.J. was charged with gross-misdemeanor theft after she left a store with merchandise she did not purchase. In April 2000, appellant pleaded guilty to misdemeanor theft. In May 2006, appellant petitioned for expungement of the misdemeanor-theft conviction. Appellant sought an expungement for employment purposes because she had been denied positions because of her criminal record. Appellant was also scheduled to earn a finance degree and was concerned that her conviction would prevent her from using her degree to secure future employment. The city attorney and the Bureau of Criminal Apprehension (BCA) objected to the petition. The district court granted appellant’s petition, finding that there was “clear and convincing evidence that the benefit to [appellant] is greater than the disadvantage to the public.” But the district court also found that because there was no infringement of appellant’s constitutional rights, the court lacked inherent authority to expunge non-judicial records and ordered the sealing of only judicial-branch records. Thus, the order did not extend to records held by the executive branch of government, including the BCA. Appellant now challenges the district court’s order, arguing that she has not realized a meaningful remedy because the expungement did not reach BCA records, which are the records employers regularly rely on for criminal-background checks.

ISSUE

Did the district court err in concluding that it lacked inherent authority to expunge records held by the executive branch?

ANALYSIS

The district court’s determination that courts have limited inherent authority to expunge executive-branch records is a question of law, which this court reviews de novo. State v. T.M.B., 590 N.W.2d 809, 811 (Minn.App.1999) (citing Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985)), review denied (Minn. June 16, 1999).

There are two legal bases for the expungement of criminal records: Minnesota Statutes chapter 609A and a court’s inherent authority. State v. Ambaye, 616 N.W.2d 256, 257 (Minn.2000). This case involves the exercise of the district court’s inherent authority. The district court has inherent authority to expunge its own records in two situations: when the petitioner’s constitutional rights may be seriously infringed by not expunging the record and when “expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order.” Id. at 258. Here, the district court granted expungement of appellant’s judicial records after weighing the interests; that ruling has not been appealed.

Appellant argues that the district court erred by not extending the expungement order, under its inherent authority, to records maintained by the BCA in order to provide a meaningful remedy. A district court has inherent authority to expunge records when “necessary to the performance of [] unique judicial functions.” State v. C.A., 304 N.W.2d 353, 358 (Minn.1981). The court’s inherent authority to control judicial functions includes control over court records and agents of the court. Id. When a court orders expungement by way of inherent authority it “must proceed cautiously in exercising that authority in order to respect the equally unique authority of the executive and legislative branches of government.” Id. at 359. But this does not mean that a court is precluded from sealing records controlled by other branches of government when doing so is necessary or conducive to providing a meaningful remedy for the petitioner. Id. at 359-60.

Judicial intrusions upon the functions of the other branches of government are permissible in limited situations. T.M.B., 590 N.W.2d at 812. The judiciary, by means of its inherent authority, is able to protect against actions by the other branches of government that could “curtail its powers, impair its efficiency, or otherwise preclude it from accomplishing the purpose for which it was created.” Id. at 811 (citing In re Clerk of Lyon County Courts’ Comp., 308 Minn. 172, 177, 241 N.W.2d 781, 784 (1976)). The judiciary may intrude upon other branches of government in order to vindicate a petitioner’s legal rights or in order to protect the judiciary’s strength and independence. Id. at 813.

The BCA maintains criminal-history records for the entire state, information received in part from the judicial branch. With the surge in the Internet industry, increased reuse, sharing and sale of criminal records is largely unregulated. Not surprisingly, with the increasing capabilities of electronic sharing of information and increased public availability of criminal records, the extent of judicial intrusion upon the functions of other branches in furnishing expungement remedies requires clarification and direction. Reconciling the line of expungement cases gives authority to the district court, in the exercise of its inherent authority, to seal records that were initially created and developed through the judicial process and are presently being held by an executive agency, in the case of BCA records, public information. See Minn.Stat. § 13.87 (2006).

This court has previously held that a district court has discretion to expunge all public records pertaining to arrest and prosecution, including material held by the BCA. State v. P.A.D., 436 N.W.2d 808, 811 (Minn.App.1989), review denied (Minn. May 12, 1989). The P.A.D. court followed the reasoning in C.A. that a court has inherent authority to order an expungement when doing so is necessary for a meaningful remedy. Id. at 810.

Following P.A.D., the supreme court appeared to limit the court’s inherent authority to expunge criminal records by holding that the district court erred in ordering the expungement and sealing of law-enforcement records. In re Quinn, 517 N.W.2d 895, 896 (Minn.1994). The district court granted the expungement in Quinn, relying on its inherent authority, in order to protect the petitioner from the potential harm of released information because the petitioner had never been prosecuted for an alleged sexual assault. Id. at 897. The supreme court determined that ordering the expungement was not justified to protect a “unique judicial function.” Id. at 900 (quotation omitted).

Although the results in P.A.D. and Quinn appear to be inapposite, there are distinctions that reconcile the results. First, the petitioner in P.A.D. requested expungement of her criminal record after she pleaded guilty in district court; the documents sought to be sealed were judicially created materials supplied by the judiciary. 436 N.W.2d at 809. The petitioner in Quinn sought expungement and sealing of his arrest record and the investigative file; documents that were not judicially created but were police records, created and maintained by the executive branch. 517 N.W.2d at 897. The supreme court held in Quinn that the district court did not have inherent authority to control how police or prosecutors run their offices. Id. at 900. The Quinn court noted that “[i]f the records involved were judicial records and if the judiciary had some legitimate interest in expunging or sealing of the records, then the doctrine of inherent judicial authority might” apply. Id. (emphasis added).

This court then held, similar to the decision in Quinn, that a district court does not have inherent authority to order expungement of records held by the executive branch just because those records may have been used in a judicial proceeding. T.M.B., 590 N.W.2d at 812. Here, however, the records sought to be expunged were not merely created for use in a judicial proceeding but, rather, were generated as a result of a judicial proceeding. The public information generated in the district court and disseminated to the BCA, which maintains custodianship of this information, includes: offense, court of conviction, date of the conviction, and sentence information. Therefore, when a district court orders an expungement of a criminal record by way of its inherent authority, that expungement order includes the judicially created public record maintained by the BCA. In our analysis of this case we take the opportunity to better describe the public records within the reach of a district court’s expungement order.

DECISION

Because the district court erred by concluding that it did not have inherent authority to order expungement of appellant’s public record generated by the court but held by the BCA, the matter is reversed and remanded.

Reversed and remanded.

SHUMAKER, Judge

(concurring specially).

I join in the result and the reasoning reflected in this opinion, and I write separately to make two additional pertinent points. First, to offer to eligible persons the remedy of record expungement but then to limit the reach of that expungement so that the record remains accessible to the public is to effectively deny that remedy. This contradiction surely violates the principle of fundamental fairness on which our laws are premised.

Secondly, one significant benefit of an expunged record is that the person who is the subject of that record is permitted to answer inquiries by saying he or she has no criminal record. If the person gives that answer and then a records check with the BCA shows otherwise, the person’s credibility is impugned or destroyed.

Thus, as the opinion discusses, for records generated because of and through the mechanisms of the judicial system the district court has inherent expungement authority no matter where else those records might be kept.

      . Although our analysis focuses on three cases, we considered additional expungement cases in concluding that the district court has inherent authority to seal records that were initially created through the judicial process. The petitioner in State v. Schultz requested expungement of "all data related to the offense” and the district court granted expungement, ordering "all public records relating to the arrest, indictment, trial, and subsequent discharge [from probation] sealed.” 676 N.W.2d 337, 340 (Minn.App.2004). This court reversed, holding that the district court lacked inherent authority to expunge non-judicial records. Id. at 345. More recently, this court indicated that the district court lacked inherent authority to order expungement of executive-branch records, which included "records of law-enforcement agencies and the city, county, and state attorney's offices.” State v. L.W.J., 717 N.W.2d 451, 456-57 (Minn.App.2006). But the petitioner in L.W.J. did not request and the district court did not grant expungement under the court’s inherent authority. Id. at 456. What this court has not previously done and we now take the opportunity to do is more clearly define the records that an expungement order reaches.


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent v. Jorge Daniel MORALES-MULATO, Appellant.
    No. A06-1394.
    Court of Appeals of Minnesota.
    Feb. 19, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael 0. Freeman, Hen-nepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

STONEBURNER, Judge.

Appellant challenges his conviction of and sentence for first-degree criminal sexual conduct, arguing that the district court erred by (1) failing to suppress his custodial statement as a sanction for violation of his rights under article 36 of the Vienna Convention; (2) allowing the CornerHouse interviewer to opine that, based on an. interview, the complainant had been sexually abused; and (3) imposing an upward sentencing departure. In a pro se supplemental brief, appellant additionally challenges the sufficiency of the evidence to support his conviction.

FACTS

Appellant Jorge Morales-Mulato is a Mexican national who, at the time of trial in this matter, was 35 years old and had lived and worked in the United States for approximately four years. In the spring of 2004, appellant became involved in a sexual relationship with Alma Rosa Olivas, whose daughter (complainant) was ten years old. In August 2005, complainant told Olivas that appellant had sexually abused her. Olivas and complainant went to the Domestic Abuse Service Center (the center) to obtain an order for protection against appellant. The center alerted the police, and on August 23, 2005, complainant was interviewed at CornerHouse, a multi-disciplinary center. CornerHouse interviewers are trained to conduct videotaped forensic interviews of children who may have been abused or who may have witnessed a violent crime.

Appellant was subsequently arrested and taken to the police station where, with the services of an interpreter, he was questioned by Sergeant Knight, of the Minneapolis Police Department, and Lynn Hoff, a Hennepin County Child Protective Services investigator. Knight gave appellant a Miranda advisory through the interpreter. After stating each right, Knight asked appellant if he understood that right. When appellant indicated that he did not understand the right to remain silent, Knight restated the right until appellant indicated his understanding. Appellant said that he understood each of the remaining rights. Appellant declined an attorney and agreed to answer questions from Knight and Hoff. Appellant initially denied having any sexual contact with complainant, but ultimately confessed to touching and penetrating complainant, including having oral sex with her once. Appellant was charged with two counts of first-degree criminal sexual conduct under Minn.Stat. § 609.342, subd. 1(a) (2004), for sexual penetration and sexual contact with a person under 13 years of age by a person more than 36 months older than the complainant.

Prior to trial, appellant moved to suppress his custodial statement on the grounds that (1) he was not advised of his right to contact the Mexican Consulate, a violation of article 36 of the Vienna Convention on Consular Relations (Vienna Convention) and (2) he had not understood and therefore had not voluntarily waived his Miranda rights. Appellant proposed to call the director of the Mexican Capital Legal Assistance Program to testify at the suppression hearing about the differences between the legal systems in the United States and Mexico and how those differences make Miranda rights difficult for Mexican nationals to understand. The district court denied this request, determining that such testimony would not assist the court in this case.

The district court denied appellant’s suppression motion, finding that (1) although appellant’s rights under the Vienna Convention had been violated, he was not prejudiced by the violation and (2) appellant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. The recording of appellant’s police interview and a transcript of the interview were admitted into evidence at trial, and the recording was played for the jury.

Prior to trial, appellant also objected to admission of complainant’s videotaped CornerHouse interview. The district court withheld ruling on admission of the interview until trial, but admitted the tape as a prior consistent statement after defense counsel attacked complainant’s credibility. Although appellant did not object to the state calling the CornerHouse interviewer, Anne Nuernberg, as an expert witness, appellant did object to the state eliciting Nunernberg’s opinion, based on the interview, that complainant had been sexually abused. The district court expressed concern that Nuernberg’s opinion would constitute impermissible vouching. After reviewing caselaw, however, the district court concluded that it was required to admit Nuernberg’s opinion that complainant had been sexually abused but could not admit a direct opinion about complainant’s credibility or truthfulness.

At trial, complainant testified that appellant sexually abused her several times between 2004 and 2005 while her mother was at work. Complainant testified that appellant touched her breasts and private parts, penetrated her vagina with his fingers and penis, and penetrated her anus and mouth with his penis. Complainant also testified that she and appellant watched two movies depicting sex and violence, and that once appellant took a picture of her vagina and warned her that if she ever told about the sexual contact he would show this picture to the judge and “go free.” Complainant testified that appellant brandished a pocket knife that he frequently carried and threatened to harm her, her mother, her cousins, and her grandmother.

The doctor who performed a physical examination on complainant testified that the physical examination could not confirm or negate that complainant had been sexually abused.

Nuernberg testified regarding her training and experience and described the Cor-nerHouse interview protocol, including the criteria used by trained interviewers to assess interviews in order to make a finding that a child has or has not been abused, or that the interview is inconclusive on this issue. After Nuernberg described the interview protocol, complainant’s videotaped interview was played for the jury. Nuernberg then testified in detail about how aspects of complainant’s interview met the assessment criteria and stated her opinion that complainant had been sexually abused. On cross-examination, defense counsel, whose foundation objection to Nuernberg’s opinion testimony had been overruled, questioned Nuernberg about whether she had taken any classes on determining whether children are telling the truth or lying. Nuernberg said she had not, but that she had some training in “truth-detecting” based on research about children and how they disclose information, and on how to obtain accurate information from children in the interview process. When asked if her training was at the level of a psychiatrist or a PhD, Nuernberg answered, in part, that “I can form an opinion” about truthfulness.

Appellant’s defense was that both he and complainant were victims of Olivas, who was angry when she learned that appellant was living with another woman throughout his relationship with Olivas. Appellant testified at trial that he only confessed to having sexual contact with complainant because, based on his experience in the Mexican military, he was afraid that he would be tortured or beaten by the police if he did not confess. He then denied that he had any sexual contact with complainant and denied that he had threatened her with his pocket knife.

In closing arguments, the prosecutor told the jury that it was up to them to decide if complainant was believable. The prosecutor made only one reference to Nuernberg as an expert who testified that in her opinion, complainant had been sexually abused. Defense counsel told the jury during closing argument that although the prosecutor had suggested that Nuernberg was “some kind of expert on whether abuse [occurred],” she had no expertise in determining whether someone is telling the truth, and stated, “[s]he’s not an expert.” In rebuttal, the prosecutor stated: “Nuernberg is an expert.”

During deliberations, the jury requested clarification about whether Nuernberg should be considered an expert witness. Based on agreement of the parties, the district court answered the question by telling the jury that it had all of the information it needed to make that determination.

The jury found appellant guilty of both charges, and in a post-verdict sentencing proceeding found two aggravating factors: multiple acts of abuse over an extended period of time and multiple forms of penetration. Based on the jury’s determination of aggravating factors, the district court imposed a 216-month sentence, a 50% upward departure from the presumptive 144-month sentence for first-degree criminal sexual conduct under the Minnesota Sentencing Guidelines. This appeal followed.

ISSUES

I. Did the district court err in failing to suppress appellant’s statement as a consequence for violation of appellant’s rights under article 36 of the Vienna Convention?

II. Did admission of Nuernberg’s opinion that complainant had been sexually abused constitute inadmissible vouching testimony, and if so, was admission of this testimony an abuse of discretion entitling appellant to a new trial?

III. Were the aggravating factors found by the jury a proper basis for the upward sentencing departure?

ANALYSIS

I. Denial of motion to suppress

Appellant argues that the district court erred by denying his motion to suppress his custodial statements as a sanction for violation of his rights under the Vienna Convention. Appellant also contends that because the district court did not permit him to call a witness at the suppression hearing, he was prevented from meeting his burden to show that he was prejudiced by the violation of his Vienna Convention rights. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

Article 36 of the Vienna Convention requires that an arrested foreign national be notified that on his request, the authorities shall inform his consular official of his arrest, and must promptly forward to the consular post any arrestee’s communications addressed to the consular post. Ademodi v. State, 616 N.W.2d 716, 718 n. 3 (Minn.2000) (quoting Vienna Convention on Consular Relations, art. 36, ¶ 1(b), Apr. 24, 1963, 21 U.S.T. 77, 100-01, 1969 WL 97928). Because it is a treaty, the Vienna Convention is the supreme law of the land and is binding on the states. U.S. Const, art. VI, cl. 2; see also Antoine v. Washington, 420 U.S. 194, 201, 95 S.Ct. 944, 949, 43 L.Ed.2d 129 (1975) (stating that treaties are binding on affected states under the Supremacy Clause). It is undisputed that appellant was not informed of his rights under article 36 of the Vienna Convention, and the parties stipulated that if appellant had contacted the consulate, he would have been advised against speaking to police without an attorney present.

In State v. Miranda, we held that violation of a detainee’s right to consular notification under the Vienna Convention does not warrant suppression of a custodial statement absent a showing that the defendant was prejudiced by the violation. 622 N.W.2d 353, 356 (Minn.App.2001). Appellant argues that he demonstrated prejudice from the violation, or could have done so had the district court allowed the testimony of his proposed witness to explain why Mexican nationals may have difficulty understanding Miranda rights.

Conversely, the state argues that State v. Miranda has been superseded by Sanchez-Llamas v. Oregon, in which the United States Supreme Court held that suppression is not an appropriate remedy for violation of a state detainee’s rights under article 36 of the Vienna Convention. — U.S. -, -, 126 S.Ct. 2669, 2681, 165 L.Ed.2d 557 (2006). In Sanchez-Llamas, the Supreme Court noted that the Vienna Convention does not provide for suppression as a remedy, and that the rights asserted to be protected by the Vienna Convention are safeguarded by constitutional and statutory protections applicable to both citizens and foreign detainees in the United States. Id. at 2678, 2681-82. The Supreme Court further observed that no other signatories to the Vienna Convention use suppression as a remedy for due process violations, making it unlikely that such a sanction was envisioned. Id. at 2678. The Supreme Court acknowledged that a foreign detainee can nonetheless raise the issue of violation of the Vienna Convention as part of a broader challenge to the voluntariness of a statement to police. Id. at 2682.

We conclude that the holding in Sanchez-Llamas is consistent with our prior holding in State v. Miranda, but take this opportunity to refíne that holding to mirror the holding of Sanchez-Llamas. Therefore, we now hold that suppression is not an appropriate remedy for violation of a foreign detainee’s rights under article 36 of the Vienna Convention, but may be considered in assessing whether a statement was voluntary, knowing, and intelligent.

Appellant argues that because he would have heeded advice from the consulate not to speak to the police without an attorney, he was prejudiced and is therefore entitled to suppression under State v. Miranda. Essentially, appellant asserted to the district court that waiver of his rights was not voluntary, knowing, and intelligent. A state may not introduce a defendant’s in-custody statements absent the defendant’s voluntary, knowing, and intelligent waiver of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Generally, the state is deemed to have met its burden under Miranda v. Arizona if it can show that the Miranda warning was given and the defendant stated that he understood the rights. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978). We independently review whether the state has established by a preponderance of the evidence that a defendant validly waived his constitutional rights. State v. Williams, 535 N.W.2d 277, 286 (Minn.1995).

The record in this case reflects that Knight, with the assistance of an interpreter, took care to ask appellant if he understood each right as it was read, and when appellant indicated a misunderstanding of the right to remain silent, Knight explained the right in a manner that led to appellant’s acknowledged understanding.

Appellant did not express any lack of understanding or misunderstanding of any of the other rights and affirmatively stated that he understood each right as it was read to him. We find no merit in appellant’s assertion that his waiver was not voluntary due to a lack of understanding of his rights. Furthermore, because appellant stated that he understood his rights, the district court did not abuse its broad discretion to admit expert testimony by denying appellant’s request to call an expert witness to testify about why Mexican nationals may not understand the Miranda warning.

Appellant also argues that his prior experiences in the Mexican Army and his misapprehension of the American legal system are relevant factors in determining whether his waiver was voluntary. But the United States Supreme Court has soundly rejected the proposition that a waiver of constitutional rights is invalid “whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police.” Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Id. (emphasis added). “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 167, 107 S.Ct. at 522.

In this case, there is no evidence that the police coerced appellant to waive his constitutional rights, and his subjective motivations for waiving his rights and making a confession are irrelevant to a determination that the statement was not coerced by the government and was therefore voluntary. Even if appellant would have heeded advice from the consulate not to talk to the police without a lawyer present, it does not make his statement involuntary. The district court did not err in concluding that appellant’s statement and confession were voluntary, and did not err in denying his motion to suppress.

II. Opinion evidence of CornerHouse interviewer

Appellant argues that the district court erred by allowing Nuernberg to vouch for complainant’s credibility by testifying that, in her opinion, complainant had been sexually abused. “The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999) (quotation and citation omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn.1997) (holding that reversal requires “apparent error”). Expert testimony is generally admissible if it assists the fact-finder, has a reasonable basis, is relevant, and has probative value that outweighs its prejudicial effect. State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), review denied (Minn. May 15,1992).

a. Vouching testimony is inadmissible except in unusual cases

“With respect to most crimes the credibility of a witness is peculiarly within the competence of the jury, whose common experience affords sufficient basis for the assessment of credibility.” State v. Myers, 359 N.W.2d 604, 609-10 (Minn.1984). In most cases, even though an expert’s testimony about the credibility of a witness could provide the jury with useful information, “the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission.” Id. at 610. “In [State v.] Saldana, however, we recognized that when [an] alleged victim of a sexual assault is a child or mentally retarded person there is presented one of those ‘unusual cases’ in which expert testimony concerning credibility of a witness should be received.” Id. (citing State v. Saldana, 324 N.W.2d 227, 231 (Minn.1982)).

In Myers, the supreme court held that despite the effect of bolstering a complainant’s credibility, if a district court determines that such testimony will be helpful to a jury, an expert qualified to render an opinion with respect to the emotional and psychological characteristics often observed in children who are victims of sexual abuse may testify about those characteristics and may describe characteristics or emotional conditions that the expert observed in the complainant. 359 N.W.2d at 609-11 (noting that the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse). But the Myers court cautioned that, generally, even such an expert cannot testify that a child’s allegations are credible “for the expert’s status may lend an unwarranted stamp of scientific legitimacy to such allegations.” Id. at 611. (quotation omitted).

Although the present case involves a child victim of sexual abuse and therefore technically falls within the description of the type of unusual case in which the supreme court has recognized that expert testimony concerning the credibility of a witness should be received, we conclude, based on the age and ability of complainant in this case to testify about her allegations, that the district court erred by admitting Nuernberg’s opinion testimony, particularly where no foundation for the interviewer’s expertise in assessing credibility was established.

The district court relied on Myers and State v. Dana, 422 N.W.2d 246, 250-51 (Minn.1988), to conclude that it was required to admit Nuernberg’s opinion that complainant had been sexually abused. In Dana, after noting that the issue before it was a psychologist’s opinion that the defendant had abused the preschool complainants, not the psychologist’s testimony that the children had been abused, the supreme court concluded that admission of the psychologist’s opinion that the defendant had sexually abused the complainants was erroneous. 422 N.W.2d at 250. But the court determined that admitting the opinion testimony was not prejudicial to the defendant because the “real issue for the jury was whether the children had been sexually abused, not who did it.” Id. Dana concludes with the enigmatic sentence: “[e]xpert testimony relating to whether the children had been sexually abused was properly admitted.” Id. at 250-51.

This sentence appears to relate to this court’s holding that, because in a sexual assault case involving preschool-aged children “an expert’s opinion concluding that a child has been sexually abused is helpful to the jury and thus admissible,” the district court had not abused its discretion by admitting the opinion. State v. Dana, 416 N.W.2d 147, 153 (Minn.App.1987), rev’d, 422 N.W.2d 246.

Acknowledging the pressure on district court judges to promptly rule on evidentiary issues during a trial, we respectfully caution the district courts that an appellate court’s affirmance of a district court’s exercise of discretion on an eviden-tiary issue is not a mandate about what must be admitted into evidence in another case. Here, the district court erroneously concluded that Dana required admission of an expert’s testimony that sexual abuse had occurred but, at most, Dana stands for the proposition that, in an appropriate case, a district court will not be held to have abused its discretion by admitting such evidence.

Moreover, we conclude that because the facts of this case are significantly different from the facts in Myers and Dana, those eases do not justify admission of Nuern-berg’s opinion in this case. Complainant here was a pre-teen, aged 11 at the time of the interview and 12 at the time of trial, not a preschooler like the children involved in Dana, or a seven-year-old like the child involved in Myers. Complainant did not have any cognitive deficits and was able to describe the various acts of sexual contact and penetration in great detail, including what kind of underwear appellant wore, how he cleaned her and himself after the incidents, things he told her about himself, and how his penis looked and felt during the abuse. In her interview, complainant explained how appellant made her spread her legs and smile as he photographed her and told her that if she told anyone about the abuse he was going to say that she wanted to do it and that her mother was selling her. Complainant’s ability to testify was comparable to that of many adult witnesses, and the jury was able to judge her credibility based on the criteria for credibility contained in the jury instructions.

Another important distinction between this case and Myers and Dana is that the state did not offer Nuernberg as an expert qualified to testify about the characteristics of abused children or qualified to identify those characteristics in a particular child. The state presented Nuernberg, who has a bachelor’s degree in social work and sociology, as an “interview specialist” with expertise in interviewing potentially abused children in a non-leading manner that accurately preserves, in a recorded interview, any information the child is capable of reporting. Appellant did not challenge Nuernberg’s expertise in this area; he only challenged her as an expert on credibility. See Saldana, 324 N.W.2d at 229, 232 (noting that a counselor for sexual assault victims, who had a bachelor’s degree in psychology and social work but no medical education or training, was unqualified to determine whether a person could differentiate between reality and fantasy or detect whether a person was telling the truth or fabricating a story).

We also note that interviewers are not typically called upon to explain interview techniques or criteria for assessing credibility in an interview to a jury. Generally, jurors are able to discern these factors from the interview itself. But the protocol for interviewing child reporters of sexual abuse, which takes into account the manner in which children of different ages remember and communicate sensitive information, may not be within the experience of jurors or discernable from the interview itself. Therefore, a district court has the discretion to admit testimony about the interview protocol and how it is designed to elicit the maximum amount of information a child has to report that will be helpful to a jury and not overly prejudicial to a defendant. Appellant did not object to testimony on these factors.

b. Admission of Nuernberg’s opinion testimony was harmless error

On appeal, appellant argues that Nuernberg’s opinion testimony was prejudicial, noting that this court, in an opinion released after appellant’s trial, cautioned against the practice of eliciting credibility-related testimony from interviewers such as Nuernberg. See State v. Wembley, 712 N.W.2d 783, 790-91 (Minn.App.2006), aff'd, 728 N.W.2d 243, 245 (Minn.2007) (rejecting Wembley’s sole issue on review, that the district court committed reversible error by replaying the victim’s CornerHouse interview for the jury off the record and without his presence or presence of the district court).

In Wembley, we held that the testimony of a CornerHouse interviewer constituted impermissible vouching, but that such testimony was not prejudicial to the defendant. Id. at 792. Further, we reemphasized the general rule that “[’a]n expert witness may not testify as to the credibility of a specific witness, though the expert may be able to testify generally as to certain psychological or physiological conditions that may affect credibility, if such testimony is beyond the knowledge and experience of an average jury’.” Id. at 791 (quoting State v. Reese, 692 N.W.2d 736, 741 (Minn.2005)) (holding that exclusion of an expert witness’s opinion that a victim’s drug use affected her ability to give reliable testimony was not an abuse of discretion).

Appellant argues that because Nuern-berg testified not only to the details of complainant’s interview that matched the assessment criteria, but also gave her opinion that complainant had been sexually abused, he was even more prejudiced by the testimony than the defendant in Wem-bley. Although the prosecutor here carefully avoided directly asking Nuernberg about complainant’s credibility or truthfulness, it is apparent in this case, as it was in Wembley, that the interviewer was, in fact, stating her opinion that complainant was credible. And defense counsel’s cross-examination made this conclusion explicit.

After Nuernberg explained the protocol and factors for assessing a child’s responses, the jury was in a position to assess the complainant’s credibility without the aid of Nuernberg’s opinions on how complainant’s interview met the assessment criteria and that complainant had been sexually abused. And it is doubtful that Nuern-berg is qualified as an expert on a child’s credibility, despite her expertise in the interview protocol. Nonetheless, given the entire record in this case, we conclude that the verdict is surely not attributable to Nuernberg’s opinion testimony, and its erroneous admission does not require reversal of appellant’s conviction and a new trial. See State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994) (stating that if the district court erred in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict”).

The jury watched the videotape of complainant’s CornerHouse interview and could judge for itself all of the factors Nuernberg assessed in forming her opinion. The jury was able to compare what they saw and heard on the interview tape with complainant’s testimony at trial. The jury was instructed that it was the sole judge of witness credibility. The jury was capable of using the assessment factors described by Nuernberg to evaluate complainant’s interview and her trial testimony. Additionally, the jury heard appellant’s confession to the police that he digitally penetrated complainant’s vagina with his finger, performed oral sex on her, and had vaginal intercourse with her. The jury also heard evidence that appellant confessed to complainant’s mother in complainant’s presence and begged them to forgive him. The jury was able to judge the credibility of appellant’s basis for recanting his confession.

Appellant argues that because, during deliberations, the jury specifically asked the court if Nuernberg is “considered an expert in her field, thus allowed an expert opinion?” the testimony falls under the caution given in Myers that “the expert’s status may lend an unwarranted stamp of scientific legitimacy to the allegations.” Myers, 359 N.W.2d at 611 (quotation omitted). The jury’s confusion was, no doubt, caused by closing arguments in which the prosecutor declared Nuernberg an expert and defense counsel asserted that Nuern-berg was not an expert. The only answer given to this question was that the jury had all of the information it needed to make such a determination. Nuernberg’s credentials and expertise would not likely lead anyone to assign “scientific legitimacy” to her opinion on complainant’s credibility. The jury was given the usual instruction that an expert’s opinion is not entitled to any greater weight than the testimony of any other witness. Based on all of these circumstances, we conclude that despite the abuse of discretion in admitting Nuernberg’s opinion that complainant had been sexually abused, the opinion did not affect the verdict and was harmless error.

III. Sentencing

The jury found that appellant (1) committed sexual abuse multiple times over an extended period of time and (2) engaged in multiple forms of penetration. Appellant argues that these factors do not provide a proper basis for the upward durational departure in his sentence because the first factor relies on uncharged offenses and the record does not support the second factor: that multiple forms of penetration occurred during any one incident.

We review departures from the Minnesota Sentencing Guidelines’ presumptive sentence for an abuse of discretion. State v. Thompson, 720 N.W.2d 820, 828 (Minn.2006). Reversal is warranted only if the reasons for the departure are improper or inadequate and there is insufficient evidence to justify an aggravated sentence for the offense of which the defendant was convicted. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003).

Multiple acts of sexual contact and penetration committed as part of the offense of which a defendant was convicted have served as aggravating factors justifying an upward sentencing departure. Id., 670 N.W.2d at 588. But if the evidence “does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” Id. (quotation and citation omitted). Because a defendant may not be sentenced for a crime other than the one of which he was convicted, a district court may rely only on the egregious conduct underlying that offense. Id.

a. Use of multiple acts of sexual abuse and penetration to enhance sentence did not violate Taylor

Multiple acts of sexual abuse and multiple forms of sexual penetration may only serve as a basis for an upward departure if such acts took place during the offense of which appellant was convicted. Id. Appellant was convicted of two counts of first-degree criminal sexual conduct under Minn.Stat. § 609.342, subd. 1(a), for abuse occurring on several occasions between 2004 and 2005. The statute criminalizes sexual penetration and sexual contact with a person who is under 13 years of age when the actor is more than 36 months older than the complainant.

Appellant argues that because Minn. Stat. 609.342, subd. l(h)(iii) (2004), criminalizes similar conduct by an actor who has a significant relationship to the complainant and includes multiple acts committed over an extended period of time as part of the offense, the state is impermissi-bly using “another element of a more serious provision of the statute to request a sentencing enhancement.” We disagree. Because the multiple acts found by the jury occurred as part of the offense of which appellant was convicted, the district court did not err in using this factor to support the upward sentencing departure.

b. Multiple types of penetration is a valid aggravating factor in this case

Appellant does not dispute that “multiple types of penetration” can be a valid ground for upward departure when it occurs in a single behavioral incident. See, e.g., State v. Griffith, 480 N.W.2d 347, 351 (Minn.App.1992) (holding that three types of vaginal penetration justified upward departure), review denied (Minn. Mar. 19, 1992). But appellant argues that because complainant testified about multiple types of penetration that occurred over a year and the record does not support that appellant penetrated her in different ways each time there was sexual contact, multiple types of penetration is not a valid departure factor in this case.

There is no authority for appellant’s proposition that when a defendant is charged with sexual assault occurring over a period of time, multiple types of penetration cannot be considered as an aggravating factor unless the acts all occurred in a single incident. The record fully supports that appellant engaged in multiple forms of penetration with complainant, and we conclude that the district court did not abuse its discretion in relying on this factor to enhance appellant’s sentence.

IV. Appellant’s pro se claims

The only claim that appellant makes in his pro se supplemental brief that is not addressed in counsel’s appellate brief is that the evidence presented by the state was not sufficient to support his conviction. In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004). In this case, the jury apparently credited the complainant’s testimony and appellant’s confession. This evidence amply supports the verdict.

DECISION

Suppression is not an appropriate remedy for violation of appellant’s rights under article 36 of the Vienna Convention. Even though appellant’s Vienna Convention rights were violated, we conclude that appellant’s statement was voluntary, knowing, and intelligent, and the district court did not err in denying appellant’s motion to suppress his statement. The opinion testimony of a CornerHouse interviewer that the complainant had been sexually abused constituted vouching for the complainant’s credibility, and its admission was an abuse of discretion. But in light of the entire record, we conclude this was harmless error. The evidence was sufficient to sustain appellant’s conviction, and the aggravating factors found by the jury were properly used to enhance appellant’s sentence.

Affirmed.

      . All of those safeguards are assured to state detainees under the Fourteenth Amendment.

      . As the Supreme Court noted in Sanchez-Llamas, article 36 of the Vienna Convention does not guarantee assistance of any kind from a consulate notified of a foreign national's detention. 126 S.Ct. at 2681.

      . We reject as without merit the state's assertion that appellant failed to preserve this objection for appeal. Prior to and during trial, appellant specifically challenged this proposed testimony as improper vouching. The district court expressed its own concern about the vouching nature of this testimony. At trial, appellant objected to foundation for Nuernberg’s opinion on credibility, again preserving this issue for appeal.

        .Saldana held that the district court abused its discretion by allowing a sexual-assault victim's counselor to testify that she believed a complainant was a victim of sexual assault and rape and did not "make it up” or fantasize, because the jurors were as capable as the expert in assessing the credibility of the adult alleged victim. 324 N.W.2d at 231-32.

      . Findings that support an upward durational departure from the presumptive sentence must be found by a jury or admitted by the defendant in order to comply with the Sixth Amendment protections as stated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Shattuck, 704 N.W.2d 131, 142 (Minn.2005). Appellant does not dispute that the state properly provided notice of its intention to seek an upward sentencing departure and that the district court properly convened a sentencing jury to answer additional questions regarding aggravating factors.

      . There is no merit in appellant’s argument that the state could have charged him with a violation of section 609.342, subd. l(h)(iii), because the state could reasonably conclude that appellant did not have a significant relationship to the complainant as defined in section 609.341, subd. 15(3) (2004).


text:
    2008 ND 15
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 1 with Chambers in Fargo, North Dakota, East Central Judicial District.
    No. 20070368.
    Supreme Court of North Dakota.
    Feb. 4, 2008.
   ORDER

[¶ 1] On December 17, 2007, the Supreme Court received notice that the Honorable Cynthia A. Rothe-Seeger, Judge of the District Court, with chambers in Fargo, East Central Judicial District, did not intend to seek reelection when her term ends December 31, 2008. Under Section 27-05-02.1(4), N.D.C.C., a vacancy is created.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the East Central Judicial District was posted December 21, 2007, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through January 25, 2008. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of this vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed January 23, 2008, by the East Central Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court concludes that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 1 at Fargo in the East Central Judicial District be filled, that an election for this office be held, and that this office appear on the 2008 primary and general election ballots in North Dakota.

GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, DALE V. SANDSTROM, JJ., concur.


author: PER CURIAM.

text:
    2008 ND 17
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Kerry A. O’DONNELL, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Kerry A. O’Donnell, Respondent.
    No. 20080039.
    Supreme Court of North Dakota.
    Feb. 20, 2008.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On February 9, 2008, an Application for the Interim Suspension of Kerry A. O’Donnell, a member of the Bar of North Dakota, and a certified copy of the Criminal Judgment and Commitment in State of North Dakota v. Kerry Andrew O’Donnell, Cass Co. 07-K-00933, were filed under N.D.R. Lawyer Discipl. 4.1D by Brent J. Edison, Assistant Disciplinary Counsel. The Criminal Judgment shows that O’Donnell plead guilty to Attempt to Acquire or Obtain Possession of a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception, or Subterfuge, in violation of N.D.C.C. §§ 12.1-06-01 and 19-03.1-25(l)(c), a Class A Misdemeanor.

[¶ 2] N.D.R. Lawyer Discipl. 4.1D provides that upon the filing with the Court of a certificate or other satisfactory evidence of conviction demonstrating that a lawyer has been convicted of a serious crime, the Court shall enter an order immediately suspending the lawyer pending final disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 3] Under N.D.R. Lawyer Discipl. 4.1C, a serious crime is any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit any of those crimes.

[¶ 4] ORDERED, under N.D.R. Lawyer Discipl. 4.1D, Kerry A. O’Donnell’s certificate of admission to the Bar of the State of North Dakota is SUSPENDED effective immediately and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 5] FURTHER ORDERED, Kerry A. O’Donnell comply with N.D.R. Lawyer Discipl. 6.3, Notice of Status.

[¶ 6] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DANIEL J. CROTHERS, JJ, concur.


author: KAPSNER, Justice.

text:
    2008 ND 37
    In the Interest of P.F. Cynthia M. Feland, Burleigh County Assistant State’s Attorney, Petitioner and Appellee v. P.F., Respondent and Appellant.
    No. 20070133.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellee.
    Kent M. Morrow, Bismarck, N.D., for respondent and appellant.
    Ken R. Sorenson, Assistant Attorney General, Office of the Attorney General, Bismarck, N.D., for amicus curiae State of North Dakota.
   KAPSNER, Justice.

[¶ 1] P.F. appeals from the district court’s order for commitment and order denying his motion to have a statute declared unconstitutional. P.F. argues N.D.C.C. § 25-03.3-17 violates the separation of powers doctrine, and N.D.C.C. ch. 25-03.3 violates equal protection. We affirm.

I

[¶ 2] In 2005, the district court ordered P.F.’s commitment as a sexually dangerous individual, and this Court affirmed the order. In the Interest of P.F., 2006 ND 82, 712 N.W.2d 610.

[¶ 3] In May 2006, P.F. petitioned for discharge and requested a hearing on the petition, under N.D.C.C. § 25-03.3-18(1). Dr. Joseph Belanger, a psychologist with the North Dakota State Hospital, completed an evaluation and recommended P.F. continue to be committed as a sexually dangerous individual. The district court appointed a psychiatrist, Dr. Edward Kelly, to complete an independent evaluation. Dr. Kelly concluded P.F. meets the statutory requirements for designation as a sexually dangerous individual, P.F. should continue to be committed because he has not engaged in any sex offender treatment, and the most significant portion of P.F.’s treatment should focus on his alcohol dependence, but also must include sex offender treatment. Based on Dr. Kelly’s evaluation, P.F. requested the court to order that he receive chemical dependency treatment before beginning sex offender treatment. In an order continuing the discharge hearing, the district court stated it had informed P.F. the discharge hearing was not the appropriate place to address any type of treatment regime.

[¶ 4] In February 2007, P.F. moved to have N.D.C.C. ch. 25-03.3, regarding the commitment of sexually dangerous individuals, and N.D.C.C. § 25-03.3-17, regarding post-commitment proceedings and discharge, declared unconstitutional. P.F. argued N.D.C.C. § 25-03.3-17 unconstitutionally delegates judicial authority because it expressly authorizes the executive director of the Department of Human Services (“DHS”) to determine whether the committed individual is safe to be at large. He also argued N.D.C.C. ch. 25-03.3 violates the equal protection clause because it does not provide the same procedures as N.D.C.C. ch. 25-03.1 provides for individuals committed because of mental illness or chemical dependency, and there is not any rational basis, close correspondence, or compelling governmental interest justifying the different treatment.

[¶ 5] The district court concluded the statutes are constitutional and denied P.F.’s motion. The court concluded N.D.C.C. § 25-03.3-17 does not violate the separation of powers doctrine because it allows the executive director of DHS to petition for the release of the committed individual if the director determines the committed individual is safe to be at large. The court considers the director’s report, but is not mandated to follow the report, and it requires that the court make the ultimate decision about discharging a committed individual. The district court noted this supplements the right to an annual review in which, if the committee petitions for discharge, the court makes the ultimate decision whether to release the committee. The court concluded N.D.C.C. ch. 25-03.3 does not violate equal protection, regardless of the level of scrutiny applied, because the state has a compelling interest in protecting the public, and P.F. failed to show the legislature is not justified in treating mentally ill and sexually dangerous committees differently.

[¶ 6] In April 2007, a hearing on P.F.’s petition for discharge was held, and the district court ordered P.F.’s continued commitment. The court also indicated the review hearing was not the appropriate setting to decide whether the court should order chemical dependency treatment.

II

[¶ 7] Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167. “All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution.” Olson v. Bismarck Parks and Recreation Disk, 2002 ND 61, ¶ 11, 642 N.W.2d 864.

A

[¶ 8] P.F. argues the district court erred when it held N.D.C.C. § 25-03.3-17 does not violate the separation of powers doctrine. He claims N.D.C.C. § 25-03.3-17 unconstitutionally delegates judicial authority because it mandates that the executive director of DHS, rather than the court, decide when a committed individual is safe to be at large.

[¶ 9] The procedure for post-commitment proceedings and discharge is contained in N.D.C.C. § 25-03.3-17, which states:

1. A committed individual must remain in the care, custody, and control of the executive director until, in the opinion of the executive director, the individual is safe to be at large.
2. Each committed individual must have an examination of that individual’s mental condition at least once a year. A report regarding the examination must be provided to the court that committed the individual. At the time of the annual examination, the committed individual has the right to have an expert examine the individual, and, upon the request of an indigent committed individual, the court shall appoint a qualified expert to examine the committed individual and report to the court. The department of human services shall compensate a qualified expert appointed by the court in a reasonable amount based on time and expenses. That expert must have reasonable access to the committed individual and to all records relating to the committed individual, including confidential records.
4. After any report pursuant to this section is provided to the court, the court may order further examination and investigation of the committed individual as the court considers necessary. The court may set the matter for a hearing. At the hearing, the committed individual is entitled to be present and to the benefit of the protections afforded at the commitment proceeding. The state’s attorney shall represent the state at the hearing. After the hearing, the court shall determine whether the committed individual is to be discharged or to be retained as a sexually dangerous individual in the care, custody, and control of the executive director.
5. The executive director may only discharge a sexually dangerous individual from commitment pursuant to a court order. The executive director may petition the committing court at any time for the discharge of the committed individual.

[¶ 10] The district court held P.F. failed to establish N.D.C.C. § 25-03.3-17 violates the separation of powers doctrine. In interpreting the statute, the court said:

Reading the statute as a whole to give effect to each section and to the Legislature’s intent, the executive director is able to petition at any time for the release of the committee if he determines the committee is safe to be at large. Otherwise, the committee is entitled to an annual review where the court considers the report of the executive director, but is not mandated to follow that report. In either case, the court makes the ultimate decision on whether to release the committee.

P.F. claims the district court erroneously misread the statute and confused the ability of the executive director to petition for release with the plain wording of the statute, which mandates that an individual may not be released until the executive director decides the individual is safe to be at large.

[¶ 11] The interpretation of a statute is a question of law, which is fully reviewable on appeal. In re Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842.

The primary objective in interpreting a statute is to determine legislative intent. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We construe statutes to give effect to all their provisions, so that no part of the statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4). We also construe statutes to avoid constitutional infirmities.

Id. (citations omitted). We avoid interpreting statutes in a way that would lead to unreasonable or absurd consequences, and we presume a just and reasonable result was intended. State ex rel. Workforce Safety, and Ins. v. Altru Health Sys., 2007 ND 38, ¶ 15, 729 N.W.2d 113.

[¶ 12] It would be unreasonable to interpret N.D.C.C. § 25-03.3-17 as prohibiting the committed individual’s release until the executive director decides the individual is safe to be at large and should be discharged. Rather, when N.D.C.C. § 25-03.3-17(1) and (5) are read together to give effect to each provision and the legislature’s intent, the executive director may petition for discharge if the executive director decides that discharge is appropriate because the individual is now safe to be at large. In addition the committed individual is entitled to petition for discharge annually. N.D.C.C. § 25-03.3-18. Thus, there is an opportunity for discharge independent of the determination of the executive director. In either ease, the court ultimately decides whether the committed individual is to be discharged, and the executive director may not discharge the individual until directed to by a court order. We conclude N.D.C.C. § 25-03.3-17 does not violate the separation of powers doctrine by unconstitutionally delegating judicial authority to the executive director.

[¶ 13] Furthermore, to the extent N.D.C.C. § 25-03.3-17(1) represents a practical impediment to discharge, P.F. does not have standing to challenge the statute because P.F. did not show that he was denied release based upon the executive director’s decision. P.F. petitioned for discharge under N.D.C.C. § 25-03.3-18. The record contains no report of the executive director. A party only has standing if he has suffered some threatened or actual injury resulting from the alleged illegal action, and the claimed harm is not a generalized grievance shared by all or a large class of citizens. Flatt ex rel. Flatt v. Kantak, 2004 ND 173, ¶ 38, 687 N.W.2d 208. The plaintiff must assert his own legal rights and interests, and “[w]here the feature which allegedly makes a statute unconstitutional is not shown to exist in the ease of the party challenging the statute, then he is in effect arguing the unconstitutionality of the statute on the ground that it is unconstitutional as applied to others.” State v. Morris, 331 N.W.2d 48, 58 (N.D.1983). The district court did not deny P.F.’s application for discharge based on a decision by the executive director that P.F. should not be released, but instead the court said:

From clear and convincing evidence, the Court finds that the Respondent continues to suffer from a severe antisocial disorder. That the Respondent has not received sex offender treatment sufficient to lower his risk of engaging in further acts of sexually predatory conduct as evidenced by the report of both the State’s expert and the independent expert.

Based on those findings the court ordered P.F.’s continued commitment. P.F. has not shown that the court delegated its authority to decide whether to continue P.F.’s commitment to the executive director and will continue to refuse to release P.F. until the executive director petitions for release. We conclude P.F. has not shown N.D.C.C. § 25-03.3-17 is unconstitutional as applied to him.

B

[¶ 14] P.F. argues the district court erred in concluding N.D.C.C. ch. 25-03.3 does not violate the equal protection clauses of the United States and North Dakota Constitutions. P.F. claims individuals with mental illness or chemical dependency committed under N.D.C.C. ch. 25-03.1, and those committed as sexually dangerous individuals under N.D.C.C. ch. 25-03.3, are similarly situated classes, and therefore there must be a rational basis, close correspondence, or a compelling governmental interest in treating mentally ill and sexually dangerous individuals differently. He specifically compares N.D.C.C. § 25-OS.1-21, which requires the court to “review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility,” and N.D.C.C. § 25-03.3-13, which states, “[t]he executive director shall place the respondent in an appropriate facility or program at which treatment is available. The appropriate treatment facility or program must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter.” He contends individuals committed as sexually dangerous individuals are treated differently because N.D.C.C. § 25-03.3-13 removes the determination of the “least restrictive treatment program or facility” from the court and gives it to the executive director without any basis for the different treatment.

[¶ 15] The federal constitutional right to equal protection is provided in Amend. XIV, § 1, U.S. Const., which states, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article I, §§ 21 and 22, N.D. Const., provide our state constitutional guarantee of equal protection:

Section 21. No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.
Section 22. All laws of a general nature shall have a uniform operation.

“The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people.” State v. Leppert, 2003 ND 15, ¶ 7, 656 N.W.2d 718. Rather, the equal protection clause prohibits the government from treating individuals differently who are alike in all relevant aspects. Hamich, Inc. v. State ex rel. Clayburgh, 1997 ND 110, ¶31, 564 N.W.2d 640. Legislative classifications are subject to different levels of judicial scrutiny, and the level applied depends on the right infringed by the challenged classification. Leppert, at ¶ 7. There are three levels of scrutiny that are applied to equal protection claims:

We apply strict scrutiny to an inherently suspect classification or infringement of a fundamental right and strike down the challenged statutory classification “unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the law are necessary to further its purpose.” When an “important substantive right” is involved, we apply an intermediate standard of review which requires a “ ‘close correspondence between statutory classification and legislative goals.’ ” When no suspect class, fundamental right, or important substantive right is involved, we apply a rational basis standard and sustain the legislative classification unless it is patently arbitrary and bears no rational relationship to a legitimate governmental purpose.

Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 433 (N.D.1988).

[¶ 16] Many courts that have considered equal protection challenges to statutes governing the commitment of sexually dangerous individuals compared to statutes governing the commitment of mentally ill individuals have applied a rational basis standard of review and concluded there was not an equal protection violation. See Hudson v. State, 825 So.2d 460, 468 (Fla.Dist.Ct.App.2002); In re Detention of Samuelson, 189 Ill.2d 548, 244 Ill.Dec. 929, 727 N.E.2d 228, 236 (2000); In re Detention of Williams, 628 N.W.2d 447, 453 (Iowa 2001); In re Detention of Petersen v. State, 104 Wash.App. 283, 36 P.3d 1053, 1057 (2000). Yet other courts applied strict scrutiny and also concluded equal protection was not violated. See In re Care and Treatment of Norton, 123 S.W.3d 170, 174 (Mo.2003) (apply strict scrutiny, no equal protection violation); State v. Post, 197 Wis.2d 279, 541 N.W.2d 115, 130 (1995) (court declined to decide which level of scrutiny to apply, because the statutes pass even the highest level).

[¶ 17] In State v. Nording, 485 N.W.2d 781 (N.D.1992), this Court addressed whether N.D.C.C. ch. 12.1-04.1, which authorizes the commitment of a defendant who is found not guilty by reason of lack of criminal responsibility, violates equal protection because it does not provide the same rights and procedures as N.D.C.C. ch. 25-03.1 provides to civilly committed mentally ill individuals. We declined to decide whether a rational basis or heightened standard of review should be applied because the equal protection challenge would fail under either. Nording, at 784. We concluded Nording’s equal protection rights were not infringed because “[a]l-though the goals are similar, the differences in the classifications justify different procedures and other safeguards to attain those goals,” and therefore there is a close correspondence between the statutory classification and the legislative goals. Id. at 786.

[¶ 18] Similarly, we do not need to resolve which level of scrutiny applies in this case, because we conclude N.D.C.C. ch. 25-03.3 survives P.F.’s equal protection challenge under even the highest level of scrutiny. When strict scrutiny is applied the State must articulate a compelling governmental interest and must show the distinctions are necessary to further its purpose. Gange, 429 N.W.2d at 433.

[¶ 19] There are important differences between those committed because the court has determined they are sexually dangerous and those committed because of mental illness or chemical dependency. A sexually dangerous individual is:

an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. It is a rebuttable presumption that sexually predatory conduct creates a danger to the physical or mental health or safety of the victim of the conduct. For these purposes, mental retardation is not a sexual disorder, personality disorder, or other mental disorder or dysfunction.

N.D.C.C. § 25-03.3-01(8). Only those determined to be sexually dangerous may be committed under N.D.C.C. ch. 25-03.3. N.D.C.C. § 25-03.3-13. In contrast, a person may only be involuntarily committed under N.D.C.C. ch. 25-03.1 if they are:

mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d.Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.

N.D.C.C. § 25-03.1-02(11). The potential level of danger these two groups pose to society is different. Sexually dangerous individuals are distinctively dangerous due to the high probability that they will commit further acts of sexually predatory conduct if not confined in a secure facility.

[¶ 20] The purpose of N.D.C.C. ch. 25-03.3 is to protect the public, particularly children who are generally the victims of sexual abuse. Hearing on H.B. 1047 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (March 5, 1997) (testimony of Attorney General Heidi Heitkamp). The legislation was enacted to stop the abuse of children and adults, which causes lifelong psychological and emotional harm, by removing the most dangerous offenders and providing them with treatment to allow them to safely return to the community. Id. at 9-10. Chapter 25-03.3, N.D.C.C., is intended “to provide a secure treatment program for individuals with a mental disorder who are likely to engage in harmful sexual conduct and, thus, pose a danger to society.” Id. at 2. The State has a compelling interest in protecting the public, and that interest justifies treating sexually dangerous individuals differently.

[¶ 21] Sexually dangerous individuals present specialized treatment problems, which justify the distinct procedures and safeguards in N.D.C.C. ch. 25-03.3. The procedures used to treat mentally ill committees do not necessarily work on sexually dangerous individuals because the nature of the illness is different. See Minutes of Senate Judiciary Comm. 3 (March 5, 1997). Treatment for sexually dangerous individuals may be long term and take years before the individual is safe to be released, and treatment may require the use of different types of therapies. See Hearing on H.B. 1047 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (March 5, 1997) (testimony of Attorney General Heidi Heitkamp); In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708, 722-23 (2003) (sexually violent predators have treatment issues distinct from those committed because of mental illness, their treatment needs are long term and the treatment modalities are different); Post, 541 N.W.2d at 131 (sexually violent persons pose specialized treatment problems and may require nontraditional therapies). The distinctions in N.D.C.C. ch. 25-03.3 are necessary to further its purposes of protecting the public and treating sexual predators.

[¶ 22] The heightened risk sexually dangerous individuals pose and the State’s compelling interest in protecting the public justify the classification and differences in the treatment of sexually dangerous individuals, and the distinct procedures and safeguards further the State’s interest in protecting the public. We conclude N.D.C.C. ch. 25-03.3 does not violate equal protection.

C

[¶ 23] As a part of P.F.’s equal protection argument, he also questions whether the district court retains any authority over the treatment a sexually dangerous individual receives while committed. During the commitment review hearing, P.F. requested the district court order that he receive chemical dependency treatment before receiving sex offender treatment. The court denied his request, stating, “I’m not sure that this is the appropriate hearing to make that determination. There may need to be a separate procedure or motion for that. I think all we’re dealing with today is the continued commitment.” P.F. claims the court erred in denying his request, and the court’s decision subjects P.F. to a longer period of commitment because there was evidence alcohol dependency treatment is essential to his treatment plan and he could complete his sex offender treatment in a shorter amount of time if he receives alcohol dependency treatment first.

[¶ 24] We have already held that N.D.C.C. § 25-03.3-13 does not violate equal protection because the commitment of the sexually dangerous individual does not have to completely mirror the commitment of the mentally ill. P.F’s argument might be more appropriately raised as a due process argument. A majority of this Court has held that the determination of the least restrictive treatment available is initially made by the executive director and this initial determination does not violate due process. In re G.R.H., 2006 ND 56, ¶¶ 21-27, 711 N.W.2d 587. We do not, however, limit the ability of a committed individual to challenge his continued commitment under due process if a case can be made that the statutory requirements are being violated. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 322-25, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (a civilly committed individual had a constitutionally protected interest in reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and minimally adequate training as reasonably may be required by these interests; decisions about what is minimally adequate or reasonable training may be left to a professional decisionmaker to decide, but limited judicial review of that decision is available); Bailey v. Gardebring, 940 F.2d 1150, 1154 (8th Cir.1991) (claim for psychiatric treatment can succeed only if there is a showing that hospital psychiatrists’ “presumptively valid” decision not to provide the requested treatment was not based on professional judgment). However, P.F. has not brought that challenge and we do not reach it. His argument that chemical dependency treatment must come first in order for his treatment to be the least restrictive, even if challenged under due process, would fail for lack of support.

Ill

[¶ 25] We hold N.D.C.C. § 25-03.8-17 does not violate the separation of powers doctrine by unconstitutionally delegating judicial authority to the executive director of DHS. We also hold N.D.C.C. ch. 25-03.3 does not violate equal protection. We affirm the district court’s order for commitment and order denying P.F.’s motion to declare a statute unconstitutional.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.