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This opinion will be unpublished and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
A16-1472

State of Minnesota,
Respondent,

vs.

Charles Anthony Tong,
Appellant.

Filed October 2, 2017
Affirmed
Kirk, Judge

Isanti County District Court
File No. 30-CR-14-644

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Jeffrey R. Edblad, Isanti County Attorney, Cambridge, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his four third-degree criminal sexual conduct (psychotherapist -
deception) and one third-degree criminal sexual conduct (force or coercion) convictions,

2
arguing that: (1) there was insufficient evidence to support his four third -degree criminal
sexual conduct (psy chotherapist-deception) convictions because there was no evidence that
he “purported” to provide “professional” treatment1; and (2) the prosecutor committed
“unusually serious” and prejudicial misconduct that entitles him to a new trial. Because we
conclude that there was sufficient evidence to support appellant’s psychotherapist-deception
convictions, and that the prosecutor’s misconduct was harmless error, we affirm.
FACTS
Appellant Charles Anthony Tong was charged with four counts of third -degree
criminal sexual conduct (psychotherapist -deception), in violation of Minn. Stat. § 609.344 ,
subd. 1(j) (2014), and one count of third-degree criminal sexual conduct (force or coercion),
in violation of Minn. Stat. § 609.344, subd. 1(c) (2014). Appellant was convicted on all counts
following a six-day jury trial.
J.M., the victim, testified at trial that she struggles with drug and alcohol addiction and
has fetal alcohol syndrome (FAS ). In the past, J.M. rece ived inpatient and outpatient
treatment for her addictions, where counselors helped her with coping skills and also ran A.A.
and N.A. progr ams. J.M. described her counselors as knowledgeable and helpful and said
that they helped her set goals.
In 2014, J. M. and appellant attended Spirit River Community Chur ch (Spirit River).
Appellant and J.M. were acquaintances who had attended community college together.
Appellant led a recovery group, Together in Recovery (TIR ), at Spirit River. J.M. started

1 Appellant does not challenge the sufficiency of the evidence supporting his conviction on
count 5, third-degree criminal sexual conduct (force or coercion).

3
attending TIR in early 2014 and shared with the group that she had alcohol and opiate
addictions, as well as “ a problem with sex.” J.M.’s grandmother, who also attended Spirit
River, testified that she asked appellant to help J.M. quit drinking and doing drugs, a nd that
she told appellant that J.M. had FAS. Starting in March or April of 2014, after J.M. disclosed
her problem with sex at TIR, appellant began meeting with J.M. one-on-one.
The first time appellant met with J.M. alone , they met at her apartment and appellant
explained his similar problem with sex. Appellant told J.M. that he previously attended a sex-
addiction group and offered to help J.M. with her addictions. Appellant told J.M. that he
knew how sex-addiction treatment was handled at other treatm ent facilities. J.M. explained
that appellant spoke like counselors speak and that he set the goal of eliminating J.M.’s
constant need for sex. They discussed that it would be helpful for J.M. to have someone
“safe” to meet her sexual needs so she would not act on her addiction with other people.
Appellant told J.M. that having sex with him would help her control her sex addiction and
that they would discuss her addiction to find its cause. Appellant led J.M. to believe that sex
with him would be therapeutic, otherwise she would not have had sex with him.
J.M. testified that appellant told her that he could be her counselor, and she felt like he
wanted to help her. J.M. believed that appellant was treating her for sex add iction and
chemical dependency, and that having sex with appellant would help her recover from her sex
addiction. J.M. would not have had a problem paying appellant, but thought he did not ask
her for payment because he was her friend and was doing her a favor. At the end of their first
one-on-one meeting, appellant and J.M. engaged in sexual intercourse.

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Appellant met with J.M. alone a second time at her apartment where they had a
conversation about “counseling stuff ” and her sex addiction. Appellant again presented
himself “like a counselor, ” and “like he knew what he was talking about.” They discussed
fixing J.M.’s sex addiction and how she felt about the process. Appellant and J.M. had sexual
intercourse at the end of the second meeting because appellant told her that “it was part of the
program.” J.M. believed that the sexual contact “was part of the treatment.”
After the first two meetings, J.M. moved in with her grandparents and started meeting
appellant at a local coffee shop. There were two meetings at the coffee s hop that included
discussions about J.M.’s sex-addiction treatment and that concluded with sexual intercourse
between appellant and J.M. in a private meeting room. All four meetings that concluded with
sexual intercourse occurred before July 2014.
Investigator Kevin Carlson of the Isanti County Sheriff’s Office investigated J.M.’s
allegations and as a result interviewed her on multiple occasions. Investigator Carlson
described J.M. as impressionable. J.M. referred to appellant as her counselor and report ed
that she did not believe she had a sex addiction until appellant told her she did, and that he
also told her that having sex with him would be therapeutic and could help cure her sex
addiction. J.M. explained that TIR did not cover sex addiction, so appellant “made an
exception” to help her privately. J.M. reported that before each sexual encounter, appellant
would counsel her for her sex addiction.
Pastor James Crecelius of Spirit River testified at trial that TIR was an informal peer
recovery group loosely based on A.A. Appellant began leading TIR in late summer or fall of
2013 and was very engaging and helpful at the meetings. A ppellant was professional and

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there was a sense that he knew what he was doing. Pastor Crecelius testified that J.M. is very
impressionable, easily manipulated, and has very low self-esteem.
At trial, the prosecutor sought to introduce a statement that appellant made following
a pretrial hearing to a courtroom bailiff . The bailiff believed that the statement was an
admission of guilt. The prosecutor indicated that she would not ask the bailiff her
interpretation of the statement, and would only ask her about the statement itself and the
context in which appellant made it. Appellant objected to the bailiff’s testimony. The district
court ruled that the bailiff’s testimony about the statement was admissible, but that the bailiff
would not be permitted to testify about her interpretation of the statement.
The bailiff testified during direct examination that she was working as the courtroom
bailiff during a June 22, 2015 hearing for appellant’s case and that his charges, including those
for “impersonating a therapist,” were discussed. The n the following testimony was elicited
by the prosecutor:
Q: Did anything happen after this hearing in relation to the
defendant and yourself?

A: Yes.

Q: And please describe that for the jury.

A: He made a statement to me that sounded like a confession.

Appellant objected to the bailiff’s testimony and a recess was taken.
Outside of the hearing of the jury, appellant’s attorney argued that the bailiff should
have been better prepared. He continued, “I think the remedy at this point would be to instruct
the jury to disregard the rema rk and to preclude the rest o f the [bailiff’s] testimony.” The

6
prosecutor agreed that the bailiff’s statement should be stri cken, but argued that precluding
all of the bailiff ’s testimony about appellant’s statement was not an appropriate remedy
because a jury instruction would be sufficient.
The district court asked the prosecutor, “Did you prepare the witness? Because I
specifically, when I allowed the statement to come in, informed everyone . . . that I was
excluding any interpretation of the statement. Did you inform [the witnes s] that that was
excluded?” The prosecutor responded that before the court made its ruling she informed the
bailiff that she would not ask about her interpretation of appellant’s statement, but said that
she had not spoken with the bailiff since the court’s ruling. The prosecutor noted that the
court’s ruling was consistent with her prior instructions to the bailiff . The prosecutor
explained that she prepared the bailiff by providing her with a transcript from a previous
hearing with notations regarding the portions of her testimony that would and would not be
elicited. The prosecutor also noted that the bailiff said that she remembered being told not to
talk about her interpretation of appellant’s statement, but said that she blurted it out because
she was nervous.
The district court decided to instruct the jury to disregard the bailiff’s last testimony,
but determined that excluding the rest of her testimony would be more prejudicial than
allowing it. The court was concerned that excluding all of the bailiff’s testimony would only
serve to further highlight her improper statement and would allow the jury to speculate on
what the stricken testimony referred to, even if the court instructed the jury not to. The court
denied appellant’s re quest to exclude further testimony from the bailiff and allowed her to

7
testify only about the content of appellant’s statement. The court noted that although it would
instruct the jury to disregard the bailiff’s last testimony, it would not repeat her statement.
When the jury returned, the court instructed, “You are to disregard the witness’s last
answer and testimony. It is not evidence and may not be considered by you in any way, shape
or form as evidence in this case. I expect that you will follow thi s . . . ruling.” The bailiff
then testified that after the June 22, 2015 hearing, appellant said to her either, “I tell people
. . .” or “I can tell people . . .” or “I can tell everybody . . . that’s a warning to never play
doctor.” During final instructions, the district court also instructed the jury “to disregard all
evidence I have ordered stricken or I have told you to disregard.” The bailiff’s testimony was
not referenced in closing arguments.
The jury found appellant guilty on all four cou nts of third -degree criminal sexual
conduct (psychotherapist -deception), and of count 5, third-degree criminal sexual conduct
(force or coercion).2 This appeal follows.
D E C I S I O N
I. There was sufficient evidence presented to the jury to establish be yond a
reasonable doubt that appellant purported to provide professional treatment,
assessment, or counseling to J.M. for her sex addiction.

When a sufficiency -of-the-evidence claim involves the question of whether the
defendant’s conduct meets the statutory definition of an offense, an appellate court is
presented with a question of statutory interpretation that is reviewed de novo. See State v.
Hayes, 826 N.W.2d 799, 803 (Minn. 2013). In considering a claim of insufficient evidence,

2 For count 5, a ppellant was convicted of forcing and coercing J.M. to perform oral sex on
him in a church basement on July 4, 2014.

8
this court’s review is limited to a thorough analysis of the record to determine whether the
evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the
jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
The reviewing court assumes that “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). The reviewing
court will not disturb the verdict if the fact-finder, 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).
Minn. Stat. § 609.344, subd. 1 (j) (2014), provides that “A person who engages in
sexual penetration with another person is guilty of criminal sexual conduct in the third degree
if . . . the actor is a psychotherapist and the complainant is a patient or former patient and the
sexual penetration occurred by means of therapeutic deception.” A “patient” is “a person who
seeks or obtains psychotherapeutic services.” Minn. Stat. § 609.341, subd. 16 (2014). A
“psychotherapist” is “a person who is or purports to be a physician, psychologist, nurse,
chemical dependency counselor, social work er, marriage and family therapist, licensed
professional counselor, or other mental health service provider; or any other person, whether
or not licensed by the state, who performs or purports to perform psychotherapy.” Id., subd.
17 (2014). “Psychotherapy” is “the professional treatment, assessment, or counseling of a
mental or emotional illness, symptom, or condition.” Id., subd. 18 (2014). “Therapeutic
deception” is “a representation by a psychotherapist that sexual contact or sexual penetration

9
by the psychotherapist is consistent with or part of the patient’s treatment.” Id., subd. 20
(2014).
“Professional” and “purport” are not defined in Minn. Stat. § 609.341 (2014), nor are
they defined in relation to Minn. Stat. § 609.344 (2014) in caselaw. To determine the plain
and ordinary meaning of an undefined term, the court turns to dictionary definitions. State v.
Thonesavanh, ___ N.W.2d ___, ___, 2017 WL 3880768, at *3 (Minn. Sept. 6, 2017). Black’s
Law Dictionary 1403 (10th ed. 2014), defines “professional” as “[s]omeone who belongs to
a learned profession or whose occupation requires a high level of training and proficiency.”
The American Heritage Dictionary of the English Language 1406 (5th ed. 2011) defines
“professional” as: “1 . A person follo wing a profession, especially a learned profession [;]
2. One who earns a living in a given or implied occupation . . . [;] 3. A skilled practitioner; an
expert.” “ Purport” is defined as “[t]o profess or claim, esp[ecially] falsely; to seem to be
. . . .” Black’s Law Dictionary 1431. Or as “[t]o have or present the often false appearance
of being or intending; claim or profess. . . .” American Heritage Dictionary at 1431.
Appellant argues that the state failed to present sufficient evidence to prove b eyond a
reasonable doubt that he “purported” to J.M. that he was performing “professional” treatment,
assessment, or counseling for her sex addiction, or that he told J.M. that he was a professional
sex-addiction counselor. Appellant contends that because he did not purport to be providing
professional treatment, assessment, or counseling to J.M., it was not a crime for him to have
sex with J.M. or to suggest to J.M. that having sex with him would alleviate her sex addiction.
Appellant asks this court to reverse his four third -degree criminal sexual conduct
(psychotherapist-deception) convictions.

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The state argues that there was sufficient evidence presented to the jury to support its
conclusion that appellant purported to be a psychotherapist and to provi de professional
treatment to J.M. The state argues that the legislature’s use of the word purport only requires
the state to prove that appellant claimed to be performing professional treatment, assessment,
or counseling, not that he claimed to have a formal degree or license. The state argues that in
addition to claiming to treat J.M.’s sex addiction, the evidence also established that appellant
purported to provide a professional assessment and diagnosis of J.M. by telling her that she
had a sex addiction. In support of its argument, the state notes that J.M. testified about a
number of ways in which appellant made himself appear to be a counselor who was providing
her with counseling services.3 The state asks this court to affirm appellant’s convictions.
At trial, the jury heard testimony from J.M. that appellant appeared to be a professional
and offered to help her overcome her sex addiction based on his experience and familiarity
with sex -addiction treatment. J.M. testified that appellant told her t hat he could be her
counselor and could help her control her sex addiction. The jury also heard about the
structured meetings between appellant and J.M. that included conversations resembling
counseling sessions that were followed by sexual contact that appellant characterized as
therapeutic.

3 In its appellate brief, the state mischaracterize s J.M.’s testimony by claiming that J.M.
testified at trial that appellant diagnosed her with a sex addiction and that he told her having
sex with him would be therapeuti c. Although J.M.’s testimony indicated that appellant led
her to believe that having sex with him would be therapeutic, it was Investigator Carlson’s
testimony about J.M.’s statements to him that contained this information.

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Viewing the record in the light most favorable to the verdict s, and assuming that the
jury believed J.M., there is sufficient evidence for the jury to have reasonably concluded that
appellant presented himself as a chemical-dependency counselor with experience and
familiarity with sex -addiction treatment. There is also sufficient evidence that appellant
purported to assess J.M. by telling her that she suffered from a sex addiction, and that he
purported to provide c ounseling and therapeutic services to her. The fact that the record is
void of appellant affirmatively claiming to have professional credentials or using the word
“professional” to describe his treatment of J.M. did not preclude the jury, on this record, from
reasonably concluding that he purported to provide professional treatment. We conclude that
there was sufficient evidence presented to the jury to support appellant’s four third -degree
criminal sexual conduct (psychotherapist-deception) convictions.
II. The prosecutor committed misconduct, but it was harmless error.
“The prosecutor is an officer of the court charged with the affirmative obligation to
achieve justice and fair adjudication, not merely convictions.” State v. Fields, 730 N.W.2d
777, 782 (Minn. 2007). Acts that “have the effect of materially undermining the fairness of a
trial” may constitute prosecutorial misconduct. Id. A prosecutor may not intentionally elicit,
or try to elicit, inadmissible evidence at trial. State v. Harris, 521 N.W.2d 348, 354 (Minn.
1994). The “asking of improper questions” will only be excused “where they are brief, not
repeated, and unlikely to have had a substantial effect on the jury.” Id. at 354 n.9 (citing State
v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987)). “Minnesota law is crystal clear . . . [that] the
state has an absolute duty to prepare its witnesses to ensure that they are aware of the limits
of permissible testimony.” State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). The

12
state must prepar e its witnesses so that they “will not blurt out anything that might be
inadmissible and prejudicial.” State v. Carlson , 264 N.W.2d 639, 641 (Minn. 1978). A
violation of a district court order is also misconduct. Fields, 730 N.W.2d at 782.
There are t wo harmless -error standards of review for objected -to prosecutorial
misconduct, taken from State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).4
The harmless-error test for “unusually serious” misconduct requires an analysis of whether
the misconduct was “harmless beyond a reasonable doubt.” State v. Nissalke , 801 N.W.2d
82, 105 (Minn. 2011) (quotation omitted). The harmless -error test for less serious
prosecutorial misconduct requires an analysis of “whether the misconduct likely played a
substantial part in influencing the jury to convict.” Id. (quotation omitted). An error is
harmless beyond a reasonable doubt “only if the verdict rendered was surely unattributable to
the error.” Id. at 105 -06 (quotation omitted). A new trial will only be granted based on
objected-to prosecutorial misconduct if the misconduct, “viewed in the light of the whole
record, appears to be inexcusable and so serious and prejudicial that the defendant’s right to
a fair trial was denied.” State v. Palubicki , 700 N.W.2d 476, 489 (Minn. 2005) (quotation
omitted).
Appellant argues that the prosecutor committed misconduct by failing to adequately
prepare the bailiff and by asking open -ended questions that elicited testimony that violated

4 The supreme court has questioned whether this two-tier approach is still viable, but has not
yet ruled on the issue. See State v. Whitson, 876 N.W.2d 297, 304 n.2 (Minn. 2016); State v.
McDaniel, 777 N.W.2d 739, 749 (Minn. 2010); see also State v. Carridine, 812 N.W.2d 130,
146 (Minn. 2012) (applying standard for unusually serious misconduct without deciding the
continued application of the Caron test).

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the district court’s order. Appellant asserts that the standard for unusually serious
prosecutorial misconduct applies here because the misconduct was deliberate and violated the
court’s order. Appellant claims that the bailiff ’s testimony that appellant made a statement
that sounded like a confession is inherently prejudicial and requires reversal of his convictions
and remand for a new trial. Appellant asserts that the bailiff’s testimony was particularly
harmful because appellant did no t testify at trial and because the most “damning evidence
against a defendant is a confession,” so the district court’s curative instruction could not
effectively mitigate its prejudicial effect.
Appellant also argues that testimony by law enforcement professionals can be
particularly impactful, so the district court’s curative instruction could not have ensured that
the bailiff’s statement did not affect the verdict. Appellant cites to State v. Hogetvedt , 623
N.W.2d 909, 915-16 (Minn. App. 2001), review denied (Minn. May 29, 2001), to support his
claim that a n officer’s testimony may unduly influence a jury and require a new trial. In
Hogetvedt, in violation of a court order, the prosecutor elicited testimony from an officer that
the officer believed that the defendant was guilty of the charged offense. Id. at 915.
Hogetvedt was granted a new trial. Id. at 916. Although the circumstances here have some
similarities to Hogetvedt, this case is distinguishable. First, Hogetvedt involved significant
conflicting testimony and a recanting victim, neither of which are present on this record. Id.
at 911-12. Second, here the bailiff did not testify that she believed appellant was guilty, rather
she testified that he made a statement to her that sounded like a confession.
Appellant asks this court to reverse his convictions on counts 1 -4 and to remand for a
new trial. He also asks this court to reverse and remand on count 5, arguing that because there

14
was no context given for the bailiff ’s improper tes timony, the jury could have reasonably
interpreted it as relating to all five charges.
The state asserts that the prosecutor did not intentionally elicit the improper testimony,
and that the bailiff was instructed not to testify about her interpretation of appellant’s
statement. The state argues that any misconduct committed was not “unusually serious,” and
that appellant did not demonstrate that the bailiff’s testimony “likely played a substantial part
in influencing the jury to convict.” See Caron, 300 Minn. at 128, 218 N.W.2d at 200. The
state argues that the improper testimony did not substantially influence the jury’s verdict and
concludes that, even if the standard for unusually serious misconduct applied, eliciting the
bailiff’s statement was harmless error because of its minimal impact and because of the strong
evidence of appellant’s guilt.
This record does not support the conclusion that the prosecutor intentionally elicited
the improper testimony, but she did violate the district court’s order a nd also failed to
adequately prepare the bailiff. The prosecutor informed the bailiff before the court’s ruling
that she would not be asked to testify about her interpretation of appellant’s statement, but she
was not informed that the testimony was excluded by court order. The prosecutor then
unintentionally elicited the improper testimony by asking open -ended question s of the ill -
prepared witness.
The prosecutor commit ted misconduct. But, even if this court agr ees with appellant
that the misconduct was “unusually serious,” the error was harmless beyond a reasonable
doubt. Appellant’s trial spanned six days, the bailiff ’s testimony was brief, the offending
testimony was one sentence, the district court twice ins tructed the jury to disregard the

15
offending testimony, and the prosecutor did not reference the bailiff’s testimony or appellant’s
statement in her closing argument. After reviewing the entire record, which contains
significant evidence of appellant’s gui lt and numerous other incriminating statements
attributed to him, we conclude that the five guilty verdicts were surely unattributable to the
error caused by the prosecutor’s misconduct.
Although the prosecutor should have better prepared the bailiff, and likely should have
structured her direct examination differently, the prosecutorial misconduct here was not so
serious or prejudicial so as to materially undermine the fairness of appellant’s trial. The error
here was harmless beyond a reasonable doubt, and appellant is not entitled to reversal of his
convictions or to a new trial.
Affirmed.