State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0589

State of Minnesota,
Respondent,

vs.

Joshua Steven Mittelsted,
Appellant.

Filed June 19, 2017
Affirmed
Larkin, Judge

Mower County District Court
File No. 50-CR-14-2947

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

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

Alexander H. De Marco, Law Office of Alex De Marco, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Klaphake,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his criminal-sexual-conduct convictions, arguing that the
postconviction court erred by denying his claims without an evidentiary hearing, that he
received ineffective assistance of counsel at trial , and that the district court erred in its
evidentiary rulings. Appellant also challenges his sentence. We affirm.
FACTS
In Decembe r 2014, the State of Minnesota charged appellant Joshua Steven
Mittelsted with nine counts of criminal sexual conduct. The complaint alleged that
Mittelsted lived with his girlfriend, S.C., and her three daughters, M.C., L.C., and A.C.,
and that Mittelsted sexually abused M.C. and L.C. on multiple occasions over a period of
two years. The alleged abuse occurred at the home that Mittelsted shared with S.C. and
her daughters, and it was initially reported to the police by the children’s biological father.
In May 2015, the state amended its complaint to add a tenth count of criminal sexual
conduct, identifying A.C. as a victim.
The case was tried to a jury. M.C., L.C., and A.C., testified against Mittelsted, as
well as the girls’ therapists and a child-sex-abuse expert. M.C. testified that Mittelsted first
touched her “private parts” on Halloween of 2012 and that after the Halloween incident ,
Mittelsted touched her nearly every week. M.C. described an incident in which she sat on
a chair with Mittelsted while they watched a movie, and he put his hands down her pants
and his fingers inside her. M.C. described another incident in which Mittelsted touched
her private parts while she was waiting to leave for church. M.C. recounted that on another
3
occasion, Mittelsted forced her hand to touch his genitals. M.C. testified that the abuse
continued for approximately two years and that she did not report it because she was afraid
that no one would believe her.
L.C. testified that she saw Mittelsted “kissing or doing something on [M.C.’s] neck”
while the two were watching TV in the living room. L.C. also testified that “stuff like that”
had happened to her. A.C. testified that Mittelsted touched her “privates” once.
M.C.’s therapist testified that M.C. disclosed that Mittelsted “would masturbate in
front of her and ejaculate on her” and “would kiss her neck.” L.C.’s therapist testified that
L.C. described “being fondled and digital penetration .” L.C.’s therapist also testified that
she conducted group therapy with M.C., L.C., and A.C. and that there was no indication
that they fabricated the abuse. A.C.’s therapist testified that A.C. disclosed that “she was
touched.”
Mittelsted, his daughter, and S.C. testified on Mittelsted’s behalf. Mittelsted
testified that his relationship with M.C. “[s]tarted off really good” and that they “got along
really well until about a month or so before [the sexual-abuse] disclosure.” He explained
that M.C. “was getting in a lot of trouble on her phone,” that they “had a lot of trust issues
between [them],” and that M.C. was mad at him for taking away her phone. Mittelsted
suggested that the girls’ biological father fabricated the sexual-abuse allegations because
he wanted custody of the girls. Mittelsted also suggested that the girls fabricated the
allegations because M.C. was angry with Mittelsted for taking her phone away and that
M.C. convinced L.C. to lie. Mittelsted admitted that he was affectionate with the girls and
gave them “[h]ugs and kisses.” He also admitted that M.C. occasionally sat on his lap.
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Mittelsted’s daughter testified that she never saw M.C. and L.C. fight with
Mittelsted. She also testified that A.C. did not like Mittelsted and that A.C. never disclosed
the alleged inappropriate-touching to her.
S.C. testified that her daughters adored Mittelsted and there was no animosity
between them. She also testified that Mittelsted was hardly ever alone with her daughters.
But she admitted that Mittelsted had stayed home alone with L.C. and A.C. when they were
sick. S.C. explained that “in the last year or so, [M.C.] started lying a lot.” However, S.C.
testified that she did not have problems with L.C. or A.C. lying. S.C. also testified that she
watched videos in which M.C. and L.C. described the sexual abuse to the police and that
she believed the girls were lying in the video s. At the time of S.C.’s testimony, she had
lost custody of her daughters and continued to reside with Mittelsted.
The jury found Mittelsted g uilty of two counts of first -degree criminal sexual
conduct and two counts of second -degree criminal sexual conduct against M.C., and two
counts of first -degree criminal sexual conduct and one count of second -degree criminal
sexual conduct against L.C. Th e jury found Mittelsted not guilty of criminal sexual
conduct against A.C.
Mittelsted moved for a downward dispositional sentencing departure. The district
court denied his motion and imposed a presumptive, executed 388-month prison term.
Mittelsted petitioned for postconviction relief , generally alleging that his trial
attorney was ineffective, that he is entitled to a new trial because of juror bias, that the
district court erred in its evidentiary rulings, and that the district court did not consider his
motion for a sentencing departure . Two weeks later, Mittelsted filed a direct appeal with
5
this court. The postconviction court denied Mittelsted’s postconviction petition because
his direct appeal was pending. This court granted Mittelsted’s motion to stay his direct
appeal, and he refiled his postconviction petition.
The postconviction court denied Mittelsted’s second postconviction petition without
an evidentiary hearing. This court dissolved the stay on his appeal.
D E C I S I O N
I.
Minnesota’s postconviction statute provides:
Except at a time when direct appellate relief is available, a
person convicted of a crime . . . may commence a proceeding
to secure relief by filing a petition in the district court in the
county in which the conviction was had to vacate and set aside
the judgment and to discharge the petitioner or to resentence
the petitioner or grant a new trial or correct the sentence or
make other disposition as may be appropriate.

Minn. Stat. § 590.01, subd. 1 (2014). It further provides, “Nothing contained herein shall
prevent the Supreme Court or the Court of Appeals . . . from granting a stay of a case on
appeal for the purpose of allowing an appellant to apply to the district court for an
evidentiary hearing under the provisions of this chapter.” Id.; see Minn. R. Crim. P. 28.02,
subd. 4(4) (authorizing stay of appeal for postconviction proceedings). “When a defendant
initially files a direct appeal and then moves for a stay to pursue postconviction relief, we
review the postconviction court’s decisions using the same standard that we apply on direct
appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012).
A postconviction court is required to hold an evidentiary hearing on a petition
“[u]nless the petition and the files and records of the proceeding conclusively show that
6
the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2014); Leake v. State,
737 N.W.2d 531, 535 (Minn. 2007) . A hearing is unnecessary if the petitioner fails to
allege facts that are sufficient to entitle him to the relief requested. Davis v. State , 784
N.W.2d 387, 392 (Minn. 2010). This court “must consider [the petitioner’s] allegations in
the light most favorable to him , and also consider the files and records of the proceeding,
including the State’s arguments.” State v. Nicks, 831 N.W.2d 493, 505 -06 (Minn. 2013)
(quotation omitted). But a llegations in a postconviction petition must be “more than
argumentative assertions without factual support.” Hodgson v. State, 540 N.W.2d 515, 517
(Minn. 1995) (quotation omitted).
Mittelsted contends that he “was entitled t o a post -conviction relief hearing.”
However, t he issues raised in this appeal are essentially identical to the claims in
Mittelsted’s postconviction petition, a nd many of the claims are no more than
argumentative assertions without adequate factual support. Moreover, as discussed below,
the record establishes that Mittelsted is not entitled to relief on any of his claims. The
postconviction court therefore did not err by denying Mittelsted’s claims without an
evidentiary hearing.
II.
Nine of the issue s in Mittelsted’s appellate brief are based on arguments that he
received ineffective assistance of counsel at trial . An ineffective -assistance-of-counsel
claim involves a mixed question of law and fact that is reviewed de novo. State v. Rhodes,
657 N.W.2d 823, 842 (Minn. 2003).
7
Appellate courts generally analyze i neffective-assistance-of-counsel claims as trial
errors under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. Under
Strickland, a defendant “must show that counsel’ s representation fell below an objective
standard of reasonableness” and “there is a reasonable pr obability that, but for counsel’ s
unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at
688, 694, 104 S. Ct. at 2064, 206 8; see also Rhodes, 657 N.W.2d at 842 (applying
Strickland to an ineffective -assistance-of-counsel claim) . Appellate courts “ need not
analyze both prongs if either one is determinative .” Leake v. State , 767 N.W.2d 5, 10
(Minn. 2009).
This court applies “a strong presumption that a counsel’ s performance falls within
the wide range of ‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d 224,
236 (Minn. 1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Moreover, we
generally will not review attacks on counsel ’s trial strategy , so long as the strategy was
reasonable. Ives v. State , 655 N.W.2d 633, 636 (Minn. 2003) ; see also Opsahl v. State ,
677 N.W.2d 414, 421 (Minn. 2004).
We consider each of Mittelsted’s ineffective -assistance-of-counsel arguments in
turn.
A.
Many of Mittelsted’s arguments challenge his attorney’s trial strategy. For example,
Mittelsted argues that “his trial attorney failed to elicit testimony regarding his scant
opportunity to commit the crimes alleged.” Specifically, Mittelsted argues that his attorney
should have presented evidence regarding Mittelsted’s work schedule and the layout of the
8
house where the alleged abuse occurred, and that his attorney should have called
Mittelsted’s son to testify.
“Decisions about which witnesses to call at trial and what information to present to
the jury are questions of trial strategy that lie within the discretion of trial counsel.” Leake,
737 N.W.2d at 539. Mittelsted therefore fails to satisfy the first pron g of Strickland.
Moreover, Mittelsted testified that he lacked the opportunity to commit the crimes. For
example, his attorney elicited the following testimony:
Q: [S.C.] testified yesterday that she was home with the girls
99.9 percent of the time. Is . . . that accurate testimony?
A: That’s pretty accurate.
Q: And why do you say that?
A: I worked a lot . . . .
. . . .
Q: Were there ever times when you were just home —where
you would have been just home with [M.C.]?
A: I don’t recall any time being home just with [M.C.].

Mittelsted does not persuade us that additional evidence regarding his lack of
opportunity to commit the crimes would have changed the outcome at trial. He therefore
fails to satisfy the second Strickland prong.
B.
Mittelsted argues that “trial counsel failed to fully flush out the bias of the initial
reporting party.” He contends that his attorney should have elicited more testimony that
the victims’ biological father “encourage[d] his daughters to fabricate allegations of ch ild
molestation” and regarding the girls’ “congruent motives to participate in this plan.” A
trial attorney’s decision regarding whether to cross -examine a witness is a matter of tria l
strategy. See Francis v. State, 781 N.W.2d 892, 898 (Minn. 2010) (concluding that whether
9
to cross-examine the state’s expert witnesses constitutes trial strategy); State v. Pearson ,
775 N.W.2d 155, 165 (Minn. 2009).
Mittelsted’s attorney asked the victims’ biological father, “[W]ould it be accurate
to say that you h ad some misgivings about [Mittelsted] from the beginning?” and “You
would have been more comfortable if [ your daughters] were living with you, as opposed
to [their mother] and [Mittelsted]?” Mittelsted’s attorney asked M.C., “Did you ever talk
to your dad about moving into his house, rather than living with your mom and
[Mittelsted]?” And, Mittelsted’s attorney asked A .C., “Are you saying [Mittelsted]
touched your privates because [M.C.] and [L.C.] said that? ” These questions suggested
that the victims and their biological father were biased against Mittelsted. Whether
Mittelsted’s attorney should have asked additional questions to establish bias is a matter of
unreviewable trial strategy.
Mittelsted argues that “ [t]rial counsel was also deficient when he did not object to
the motion by the state to suppress evidence of prior actions of a sexual nature by [M.C.].”
Before trial, the state requested that the district court exclude evidence regarding sexual
text messages and photographs that M.C. had sent and received. The district court granted
the state’s request.
Generally, “[i]n a prosecution for criminal sexual conduct, ‘evidence of the victim's
previous sexual conduct shall not be admitted nor shall any reference to such co nduct be
made in the presence of the jury.’ ” State v. Wenthe, 865 N.W.2d 293, 306 (Minn. 2015)
(quoting Minn. Stat. § 609.347, subd. 3 (2014) and Minn. R. Evid. 412), cert. denied, 136
S. Ct. 595 (2015) . But a defendant may introduce evidence of a victim’s prior sexual
10
conduct when “admission is constitutionally required by the defendant ’s right to due
process, his right to confront his accusers, or his right to offer evidence in his own defense.”
State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).
Mittelsted argues that the text messages were necessary to show tha t he punished
M.C. for her cell phone use, that M.C. resented this discipline, and that the punishment
motivated M.C. to falsely accuse him o f sexual abuse. We are not persuaded because
Mittelsted testified that he punished M.C. by restricting her cellphone use, as illustrated in
the following exchange between Mittelsted and his attorney:
Q: Did you use the phone as a form of discipline?
A: Correct.
. . . .
Q: Was [M.C.] mad at you for any reason?
A: Yes.
Q: What?
A: Taking her phone away was a big one?
Q: When did you take her phone away?
A: I took it away a lot. Probably a couple weeks prior to the
disclosure she got in trouble on it, got it taken away.

Mittelsted did not need to introduce evidence regarding the sexual content of M.C.’s
text messages to establish her purported motive to fabricate the sexual -abuse allegations
against him. He therefore fails to satisfy both prongs of Strickland.
C.
Mittelsted argues that “trial counsel failed to cause key evidence to be investigated,
namely, the cell phone of one of the victims which was seized as evidence, and a tablet on
which he and his girlfriend discovered the kids had searched for sexually explicit material.”
11
He argues that it “is not clear at all that full analysis was done on the oldest victim’s cell
phone.”
“The extent of counsel’s investigation is considered a part of trial strategy.” Opsahl,
677 N.W.2d at 421. “It is within trial counsel’s discretion to forgo investigation of leads
not reasonably likely to produce favorable evidence.” Gustafson v. State, 477 N.W.2d 709,
713 (Minn. 1991). “[T]he failure to further investigate various leads is not error by defense
counsel without a showing that significant exculpatory evidence could have been
uncovered.” Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994), review denied (Minn.
Sept. 28, 1994).
Mittelsted again challenges unreviewable trial strategy. His trial attorney could
have forgone the investigation under the belief that the investigation was not reasonably
likely to produce favorable evidence. See Gustafson, 477 N.W.2d at 713. Mittelsted has
not provided any reason to conclude otherwise. He therefore fails to satisfy the first prong
of Strickland.
D.
Mittelsted argues that his “attorney failed to adequately investigate and challenge
the additional counts alleging criminal sexual conduct with a brand new victim, counts
added on the day of trial.” (E mphasis omitted.) The record refutes this argument. The
state amended the complaint to add the third victim, A.C., months before trial. Moreover,
the jury acquitted Mittelsted of the charge regarding A.C . Mittelsted therefore fails to
establish both of the Strickland prongs.
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E.
Mittelsted argues that his “trial attorney failed to make a motion for a new trial
despite post trial discovery of inappropriate influence and prejudice by a juror , and
independent from this, this prejudiced juror justifies a new trial.” He asserts that a juror
who was interviewed after the trial “indicated she was hung up on whether he was guilty
or not.” Mittelsted’s trial attorney investigated the situation and sent Mittelsted a letter
explaining:
I questioned [the juror] regarding whether or not she felt you
had a fair trial. Once again she indicated that she felt the trial
was fair, but that [ S.C.’s] testimony was not at all helpful to
your case. Based upon my conversation with her there does
not appear to be grounds for us to motion for a new trial based
upon jury coercion or a faulty verdict.

If a defendant suspects a guilty verdict was tainted by juror misconduct, the
defendant may make a post -trial motion for a Schwartz hearing. See Minn. R. Crim. P.
26.03, subd. 20(6) (providing for verdict impeachment) ; Schwartz v. Minneapolis
Suburban Bus Co. , 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960) (establishing
Schwartz hearing procedure) . The defendant must establish a prima facie case of jury
misconduct before a hearing will be granted. State v. Pederson , 614 N.W.2d 724, 730
(Minn. 2000). “To establish a prima facie case, a defendant must submit sufficient
evidence which, standing alone and unchallenged, would warrant the conclusion of jury
misconduct.” Id. (quotation omitted).
The evidence admissible at a Schwartz hearing is limited as follows:
[A] juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or to the
13
effect of anythi ng upon that or any other juror’ s mind or
emotions as influencing the juror to assent to or dissent from
the verdict or ind ictment or concerning the juror’ s mental
processes in connection therewith, except tha t a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear
upon any juror, or as to any threats of violence or violent acts
brought to bear on jurors, from whatever source, to reach a
verdict, or as to whether a juror gave false answers on voir dire
that concealed prejudice or bias toward one of the parties, or in
order to correct an error made in entering the verdict on the
verdict form.

Minn. R. Evid. 606(b). Jurors are not permitted to “ disclose any matters which inhere in
the verdict, such as their mental processes in connection with it or any other matter resting
alone in their minds or consciences.” State v. Hoskins, 292 Minn. 111, 125, 193 N.W.2d
802, 812 (1972).
Mittelsted has not made a prima facie showing of juror misconduct. He has not
presented evidence that would be admissible at a Schwartz hearing. Instead, he relies on a
juror’s statement regarding the juror’s mental processes. Thus, his attorney’s decision not
to move for a new trial based on the juror’s statement was neither objectively unreasonable
nor prejudicial. Mittelsted therefore fails to establish i neffective assistance of counsel
based on the alleged juror misconduct and that, “independent from [his ineffective-
assistance-of-counsel claim],” he is entitled to a new trial.
F.
Mittelsted argues that his “trial attorney failed to make appropriate and necessary
objections before and during trial,” specifically, to M.C.’s, L.C.’s, and A.C.’s out-of-court
statements to police and a child-protection worker regarding the sexual-abuse allegations.
14
“Decisions about objections at trial are matters of trial strategy .” Leake, 737 N.W.2d at
542.
Under Minn. R. Evid. 801(d)(1)(B), a witness’s prior statement that is consistent
with her trial testimony is admissible as nonhearsay evidence if the statement is helpful to
the jury in evaluating the witness’s credibility, “and if the witness testi fies at trial and is
subject to cross-examination about the statement.” State v. Bakken, 604 N.W.2d 106, 108-
09 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000). “[B]efore the statement can
be admitted, the witness ’ credibility must have been chall enged, and the statement must
bolster the witness ’ credibility with respect to that aspect of the witness ’ credibility that
was challenged.” State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).
The state filed a motion in limine to admit the victims’ out -of-court statements
regarding the sexual abuse, and Mittelsted’s attorney did not object to the victims’
statements to police and a child-protection worker. The district court granted the motion,
reasoning that Mittelsted challenged the credibility of M.C., L.C., and A.C. and that the ir
proffered consistent statements would help the jurors evaluate their credibility. We discern
no error in the district court’s reasoning or its admission of the prior consistent statements
under Minn. R. E vid. 801(d)(1)(B). Indeed, Mittelsted’s defense at trial was that M.C.,
L.C., and A.C. fabricated the abuse allegations. Thus, trial counsel’s failure to object was
not objectively unreasonable or prejudicial , and Mittelsted therefore fails to satisfy both
prongs of Strickland.
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G.
Mittelsted argues that “the case load of [his] trial attorney prevented him from being
effective trial counsel and exceeded [American Bar Association] recommended ethical
case load limits.” Mittelsted relies on a document generated from a court website that
shows his trial attorney’s scheduled court appearances over a period of approximately two
months.
Mittelsted does not persuade us that his attorney’s caseload resulted in ineffective
representation. In fact, his attorney’s caseload could suggest that his trial attorney is a
competent, efficient attorney, who is in high demand. Moreover, Mittelsted does not
explain how his attorney’s caseload affected the attorney’s represent ation in this case or
the outcome of trial. Mittelsted therefore fails to satisfy both prongs of Strickland.
H.
Mittelsted argues that his “trial attorney did not disclose to [him] that he had a close
friendship and ongoing social relationship with the prosecutor and in fact a pending
business relationship.” Mittelsted contends that “mere months after [his] trial, . . . the trial
prosecutor in this case, became law partner to the defendant’s trial attorney.” He
“categorically assert[s] that the relationship between his trial counsel and the prosecuting
attorney was so close and social” that it “impacted the zealotry of his trial counsel and
essentially caused [trial counsel] to not want to give the state too much trouble.”
A criminal defendant’s constitutional right to effe ctive assistance of counsel
includes “representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S.
261, 271, 101 S. Ct. 1097, 1103 (1981). “A defendant who raised no objection at trial must
16
demonstrate that defense counsel ‘actively represented conflicting interests ’ and this
conflict ‘adversely affected [the] lawyer’s performance.’” Cooper v. State , 565 N.W.2d
27, 32 (Minn. App. 1997) (alteration in original) (quoting Cuyler v. Sullivan, 446 U.S. 335,
348, 350, 100 S. Ct. 1708, 1718, 1719 (1980)), review denied (Minn. Aug. 5, 1997). If the
defendant shows that “a conflict of interest actually affected the adequacy of his
representation,” he “need not demonstrate prejudice in order to gain relief. ” Gustafson,
477 N.W.2d at 713 (quotation omitted). Representation is actually affected if “counsel was
influenced in his basic strategic decisions” or “the advocate’s conflicting obligations have
effectively sealed his lips on crucial matters.” Wood, 450 U.S. at 272, 101 S. Ct. at 1103-
04; Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1181 (1978).
Mittelsted did not object to the alleged conflict at trial. And he has not established
that his trial attorney actively represented a conflicting interest . Instead, he generally
asserts that because his attorney and the prosecutor appeared to be friends and became
business partners months after trial, a per se conflict existed . Because Mittelsted did not
object at trial and has not shown an actual conflict, his ineffective-assistance-of-counsel
claim fails.
I.
Mittelsted argues that his “counsel was deficient in not presenting further mitigating
circumstances” to support his request for a downward dispositional sentencing departure ,
alluding to his mental -health issues . In “order to constitute a mitigating factor in
sentencing, a defendant’ s [mental-health] impairment must be ‘extreme’ to the point that
17
it deprives the defend ant of control over his actions.” State v. McLaughlin , 725 N.W.2d
703, 716 (Minn. 2007).
Mittelsted’s psychosexual evaluation recommended, in part, that he “participate in
individual therapy sessions . . . to assist him with res olving his Persistent Depressive
Disorder.” The evaluation does not support Mittelsted’s assertion that there were
“significant concerns for [his] mental health” that would give rise to a departure ground.
(Emphasis omitted.) And Mittelsted does not otherwise provide support for his assertion
that he had serious mental-health issues that his attorney failed to investigate.
In sum, none of Mittelsted’s arguments persuades us that he received ineffective
assistance of trial counsel that justifies appellate relief.
III.
Mittelsted contends that the district court erred in certain evidentiary rulings .
“Evidentiary rulings re st within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion. ” State v. Amos, 658 N.W.2d 201, 203 (Minn.
2003). We address each of Mittelsted’s assignments of evidentiary error in turn.
A.
Mittelsted argues that “ [e]xpert testimony of scant probative value, and lacking
appropriate foundation, was presented which was highly prejudicial to [his] case.” He
argues that the expert testimony of Judy Dawley “served to simply bolster the alleged
victims’ credibility and was ultimately used to argue that their behavior was consistent with
being sexually assaulted.” At trial, Dawley testified that it is fairly common for a child-
sex-abuse victim to delay reporting and that a child may refrain from disclosing abuse
18
because of shock, confusion, denial, or fear that they will get into trouble or that the person
who has hurt them will hurt other members of their family.
The admission of expert testimony is reviewed for an abuse of discretion. State v.
Mosley, 85 3 N.W.2d 789, 798 -99 (Minn. 2014) . “ [E]xpert testimony is admissible if:
(1) the witness is qualifi ed as an expert; (2) the expert’ s opinion has foundational
reliability; (3) the expert testimony is helpful to the jury; and (4) if the testimony involves
a novel scientific theory, it must satisfy the Frye-Mack standard.” State v. Obeta , 796
N.W.2d 282, 289 (Minn. 2011) (citing Minn. R. Evid. 702).
In State v. Hall , the district court permitted expert testimony explaining why
adolescents may delay reporting sex abuse. 406 N.W.2d 503, 504 (Minn. 1987) . The
supreme court affirmed the ruling, concluding that
expert testimony as to the reporting conduct of [adolescent
sexual-assault] victims and as to continued contact by th e
adolescent with the assailant is admissible in the proper
exercise of discretion by the trial court, [but] we caution that
we do not intend to establish a categorical rule that expert
testimony concerning all characteristics typically displayed by
adolescent sexual assault victims is admissible.

Id. at 505.
In a pretrial order, the district court ruled that Dawley would be “allowed to testify
as an expert at trial solely on the typicality of delayed reporting of sexual assault by
adolescents and children , and the typicality of continued contact by adolescent and child
victims of sexual assault with their assailants.” (Emphasis omitted.) The district court
reasoned that the “probative value of [the expert testimony] will not be outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.”
19
Mittelsted argues that the “limitations [that] the court placed on the expert’s
testimony in this case were insufficient.” But because the district court’s ruling regarding
Dawley’s expert testimony is consistent with Hall, Mittelsted has not shown a clear abuse
of discretion.
B.
Mittelsted contends that “ [i]nappropriate hearsay evidence was admitted at trial.”
He generally asserts that “hearsay evidence of the father and family members, as well as
the social worker and the therapist, was cumulative and sought only to bolster credibility.”
He does not cite to the record to specifically identify the evidence that he challenges. Nor
does he cite legal authority or provide legal analysis in support of his assertion.
An appellate court may decline to consider an issue on the merits if the appellant
does not “cite either the record or legal authority to support [the] claim.” State v. Sontoya,
788 N.W.2d 868, 876 (Minn. 2010) . Because Mittelsted does not cite to the record or
provide legal authority, we decline to consider this issue.
C.
Mittelsted argues that “ [t]he court erroneously deprived [him] of the right of
confrontation when it suppressed evidence of supposed pr ior sexual conduct.” This
argument is similar to Mittelsted’s ineffective -assistance-of-counsel claim regarding his
trial attorney’s failure to object to the state’s motion to exclude evidence of M.C.’s sexual
text messages.
This court may review an unobjected-to trial error for plain error. State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998) . To establish p lain error, the appellant must show
20
(1) error, (2) that the error was plain, and (3) that the error affected his substantial rights.
Id. An error affects substantial rights “if the error was prejudicial and affected the outcome
of the case.” Id. at 741. If the three prongs are met, this court determines whether it “should
address the error to ensure fairness and the integrity of the judicial proceedings.” Id. at
740.
As we explained regarding Mittelsted’s ineffective-assistance-of-counsel claim, he
did not need to introduce evidence regarding the sexual content of M.C.’s text messages to
establish her purported motive to fabricate the sexual -abuse allegations . Mittelsted
therefore fails to show that alleged error affected his substantial rights.
In sum, Mittelsted has not shown error in the district court’s evidentiary rulings that
justifies appellate relief.
IV.
Mittelsted asserts that his “motion for [sentencing] departure was not even
considered by the court and rested in part on an insufficient and biased psycho -sexual
evaluation.” This court “may not interfere with the sentencing court ’s exercise of
discretion, as long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). At sentencing, the district court
stated:
[W]e had a Pre-Sentence Investigation that has been filed, plus
there was an addendum . . . the parties now have. There was
also a Psychosexual Evaluation that I have also reviewed.
And, also, the Motion For Departure from the defense . . ., and
I also reviewed that.
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The state opposed the motion and argued , “When looking through the PSI,
[Mittelsted] denies any of the conduct occurring. The Psychosexual indicates that any
treatment that should occur, there is a recommendation that it occur while [Mittelsted] is
incarcerated.” Mittelsted’s attorney argued that “[Mittelsted] indicate [d] that he is very
sorry for what has happened here. However, as I acknowledged, he does maintain his
innocence.”
The district court reasoned that it was “not going to put somebody on probation
[who] accepts no responsibility for what [he has] done and shows no remorse for it. That
is not amenability to probation, and it’ s certainly not particular amenability to probation,
which is what [the court] would need to find.” See State v. Soto, 855 N.W.2d 303, 308-09
(Minn. 2014) (requiring district court to support departure with finding that defendant is
“particularly amenable to probation,” and not “merely . . . amenable to probation”). The
district court concluded that there was no legal basis for the departure and denied
Mittelsted’s motion.
The record refutes Mittelsted’s assertion that the district court did not consider his
request for a sentencing departure. Mittelsted’s assertion of sentencing error is therefore
not a basis for relief.
Affirmed.