Paul Omol Arkangelo Uchodu, petitioner, Appellant,

This opinion will be unpublished and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
A17-0140

Paul Omol Arkangelo Uchodu, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 5, 2017
Affirmed
Reyes, Judge

Mower County District Court
File No. 50-CR-13-2328

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Kristen Nelson, Mower County Attorney, Sc ott K. Springer, Assistant County Attorney,
Austin, Minnesota (for respondent)

Considered and decided by Reyes, Presid ing Judge; Jesson, Judge; and Toussaint,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, 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
REYES, Judge
Appellant challenges his conviction of firs t-degree criminal sexual conduct in this
postconviction appeal, arguing that the state presented insufficient evidence to sustain his
conviction and that the inve stigating police officer impermissibly vouched against
appellant’s credibility in his testimony. We affirm.
FACTS
In October 2013, respondent State of Minnesota charged appellant Paul O. Uchodu
with one count of first-degree criminal sexua l conduct occurring between June 1, 2010,
and February 24, 2013, in violation of Minn. Stat. § 609.342, subd. 1(a) (2012) (victim
under 13 years old), and one count of first-degree crimin al sexual conduct occurring
between February 25, 2013, and September 30, 2013, in violation of Minn. Stat. § 609.342,
subd. 1(h)(iii) (2012) (significant relationship and multiple acts with victim under 16 years
old).
At appellant’s jury trial on May 27-29, 2014, the state presented testimony from the
victim, E.M., who was 14 years old at the time of trial, her mother, M.O., and the
investigating police officer. M.O. testified that E.M. is her oldest daughter and that she has
three other children ages six, four, and one. Appellant is M.O.’s cousin who, in 2010,
encouraged M.O. to move to Minnesota. When M.O. first moved to Minnesota with E.M.
and her other children, they moved into appellant’s apartment and stayed for approximately
a month before moving into their own apar tment. Over the years, appellant would
frequently visit M.O. at her home by himself or with his children.
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E.M. testified that appellant first touched her inapprop riately in 2010 when her
family was living with appellant in Minnesota. In that incide nt, M.O. had left E.M. with
appellant and his children. E.M. stated that she was sitting on the couch next to appellant
and watching a movie with the other children. Appellant began touching E.M.’s legs and
breasts under her clothes while the other child ren were not paying attention. E.M. also
testified that appellant committed multiple ac ts of sexual penetration between 2010 and
2013.
The investigating police officer testified about his initial interview with E.M. and
the state introduced a video recording of the interview as evidence. In response to the
state’s question about a ppellant’s reaction when confronted with E.M.’s allegations, the
investigating police officer testified that he “felt [appellant’s] response was somewhat
deceptive and evasive” and that appellant denied the allegations.
On the third day of trial, the jury return ed a verdict of not gu ilty on count one and
guilty on count two. The district court sentenced appella nt to 144 months in prison.
Appellant filed a postconviction petition, seekin g reversal of his convi ction, arguing that
the state failed to present su fficient evidence w ith respect to count two and that the
investigating police officer im permissibly vouched against a ppellant’s credibility. The
postconviction court denied appellant’s petition, and this appeal follows.

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D E C I S I O N
I. The postconviction court di d not abuse its discretion by denying appellant’s
postconviction petition because sufficient evidence supports his conviction.
Appellant argues that the state failed to prove beyond a reasonable doubt that he
committed the alleged offense within the time period specified in th e complaint and that
E.M.’s testimony was not sufficiently credible to sustain the conviction. We disagree.
A. The jury did not need to find that specific acts of sexual penetration
occurred on specific dates when E.M. was under the age of 16.
In a criminal prosecution, the state is re quired “to prove each element of the crime
charged beyond a reasonable doubt.” State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1988).
A defendant may be convicted of first-degree criminal sexual conduct if: (1) the defendant
engages in sexual penetration with the vi ctim; (2) the defendant has a significant
relationship with the victim; (3) the victim is under 16 years old at the time of the
penetration; and (4) the abuse involves multip le acts committed over an extended period
of time. Minn. Stat. § 609.342, subd. 1(h)(iii). Generally, in cases charging criminal sexual
conduct based on multiple acts over an extended period of time, specific dates need not be
charged or proved. See, e.g. , State v. Becker , 351 N.W.2d 923, 927 (Minn. 1984)
(concluding that defendant may be convicted of sexual abuse if prosecution proves that
abuse occurred within reasonable period of time, and specific dates of abuse need not be
proven); State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992), (“[S]pecific dates need
not be charged or proven in a sexual abuse case.”), aff’d, 499 N.W.2d 31 (Minn. 1993).
“When reviewing the sufficiency of the evidence leading to a conviction, we view
the evidence in the light most favorable to the verdict and assume that the factfinder
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disbelieved any testimony conflicting with that verdict.” State v. Hayes, 831 N.W.2d 546,
552 (Minn. 2013) (quotation omitted). “We 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) (quotation omitted).
In this matter, the complaint alleged wrongful conduct that occurred between June
1, 2010, and February 24, 2013, with respect to count one and between February 25, 2013,
and September 30, 2013, with respect to count two, of which appellant was convicted. In
denying appellant postconviction relief, the postconviction co urt determined that proving
the “multiple acts” element under count two is not limited to the specified charging period.
The postconviction court determined that the reco rd in this case coul d lead a jury to the
reasonable conclusion th at appellant committed multiple ac ts of sexual pe netration with
E.M. over an extended period of time when she was under the age of 16.
The record supports the postconviction court’s determination. E.M. testified about
an incident that occurred after her one-year-o ld sister was born where appellant anally
penetrated her. E.M. also testified about an incident that occurred in September 2013,
where appellant again took her to a bedroom in her home, while her mother was not home,
and anally penetrated her. The record also includes an incident where appellant vaginally
penetrated E.M., the timing of which is unclear.
All of these acts occurred before E.M. wa s 16 years old, becaus e she was only 14
years old at the time of trial. Because count two only requires that the state prove “multiple
acts committed over an extended period of time,” without specific dates, the evidence at
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trial did not need to demonstrate that the acts occurred between February 25, 2013, and
September 30, 2013. Minn. Stat. § 609.342, subd. 1(h)(iii); see also Becker, 351 N.W.2d
at 927. Based on this evidence, the jury could reasonably conclude that appellant engaged
in multiple acts of sexual conduct against E.M. over an extended period of time under count
two. Accordingly, the postconviction court did not abuse its discretion in determining that
the state did not need to prove specific sexual acts on specific dates.
B. The postconviction court did not abuse its discretion by determining that
E.M.’s testimony supports appellant’s conviction.
Appellant also argues that the evidence is insufficient because E.M.’s testimony was
inconsistent and uncorroborate d. “Inconsistencies or conf licts between one witness and
another do not necessarily constitute false testimony or serve as a basis for reversal.” State
v. Mems , 708 N.W.2d 526, 531 (Minn. 2006). In addition, we have long held that a
defendant’s conviction can be based on “the uncorroborated testimony of a single credible
witness.” State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). And we assume the jury
believed all the evidence favor able to the verdict. State v. Fox , 868 N.W.2d 206, 223
(Minn. 2015).
Based on E.M.’s testimony alone, the jury could reasonably find appellant guilty.
E.M.’s testimony implicated appellant in ma ny inappropriate sexual acts against E.M.
E.M.’s mother also testified on behalf of the state, which added further context to E.M.’s
testimony. Therefore, the postconviction court did not abuse its discretion when it denied
appellant’s postconviction petition because the record supports the jury’s finding of guilt.
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II. Appellant is not entitled to reversal be cause, even if the investigating police
officer’s testimony constituted improper vouching, such testimony did not
affect appellant’s substantial rights.
Appellant next argues that the postconv iction court abused its discretion by
determining that testimony elicited by the state from the investigating police officer during
trial was not plain error that affected appellant’s substantial rights. We are not persuaded.
“[V]ouching . . . occurs when the govern ment implies a guarantee of a witness’s
truthfulness, refers to facts outside the reco rd, or expresses a personal opinion as to a
witness’s credibility.” State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003) (quotation
omitted). A witness may not vouch for or against the credibility of another witness because
it usurps the jury’s authority to determine the credibility of that witness. State v. Ferguson,
581 N.W.2d 824, 835 (Minn. 1998). The cha llenged testimony here is the investigating
police officer’s statement that he believed appellant was be ing “somewhat deceptive and
evasive” when he confronted appellant with the allegations.
Appellant did not object to the testimony at trial. Therefore, we review the alleged
error to admit the test imony for plain error. State v. Strommen , 648 N.W.2d 681, 686
(Minn. 2002). Under the plain-error standard, an appellant must show (1) error, (2) that is
plain, (3) and that affected the appellant’s substantial rights. State v. Matthews , 800
N.W.2d 629, 634 (Minn. 2011). Once an ap pellant establishes these three elements, “we
will correct the error only if the error seriously affects the fairness, integrity, or the public
reputation of judicial proceedings.” Id. But if the appellant fails to meet any of these three
elements, we need not address the other elements. Montanaro v. State, 802 N.W.2d 726,
732 (Minn. 2011).
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Even if we were to assume error that is plain, appellant cannot show that the plain
error affected his substantial rights. “An e rror affects substantial rights if there is a
reasonable likelihood that it substa ntially affects the verdict.” State v. Robertson , 884
N.W.2d 864, 876 (Minn. 2016 ). Appellant bears the heavy burden of proving prejudice.
State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). When considering whether an error
affected a defendant’s substantial rights, we consider “the strength of the evidence against
the defendant, the pervasiven ess of the improper suggesti ons, and whether the defendant
had an opportunity to (or made efforts to) rebut the improper suggestions.” State v. Mosley,
853 N.W.2d 789, 803 (Minn. 2014) (quotations omitted).
Appellant asserts that, because the c onviction rests on E.M.’s uncorroborated
testimony and the state did not present any physical or medical evidence against appellant,
the strength of the evidence supporting the conviction is weak. Despite the lack of physical
evidence, E.M.’s testimony was consistent, a nd she described at least three different
occasions where appellant committed unlawful sexual acts against her. Additionally, while
E.M.’s testimony was largely uncorroborated, it was consistent with her interview with the
investigating police officer.
The evidence against appellant was strong, the challenged testimony was the result
of a single question that was not repeated or referenced by the state in its closing argument,
and appellant had the opportunity to cross-examine the investigating police officer on the
challenged testimony, which his attorney did effectively. Further, the district court
instructed the jury that it is the sole judge of credibility, diminishing any possible negative
impact from the challenged testimony. See State v. Forcier , 420 N.W.2d 884, 885 n.1
9
(Minn. 1988) (noting courts presume juries follow instructions they are given). Appellant
fails to demonstrate that any alleged error affe cted his substantial rights. Therefore, the
postconviction court’s determination that appe llant was not entitled to reversal was well
within its discretion.
Affirmed.