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This opinion will be unpublished and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
A17-0149

State of Minnesota,
Respondent,

vs.

David Robert Davidson,
Appellant.

Filed March 19, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Anoka County District Court
File No. 02-CR-15-1866

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant David Robert Davidson appeals from his convictions of and sentence for
first-, second-, and fourth-degree criminal sexual conduct. He argues that the district court

2
denied his constitutional right to present a complete defense by excluding expert testimony
and evidence of prior sexual conduct of one of the victims, that the district court erred by
imposing a lifetime rather than ten-year conditi onal-release term for count three, and that
the district court improperly entered judgment s of conviction for both first- and second-
degree criminal sexual conduct involving the same victim. We see no error in the district
court’s evidentiary rulings at trial. But, because the district court improperly entered
judgments of conviction for both first- and second-degree crim inal sexual conduct
involving a single victim and erred by imposing a lifetime rather than ten-year conditional-
release term on count three, we reverse in part and remand with instructions that the district
court vacate the second-deg ree criminal sexual conduc t conviction and resentence
appellant to a ten-year conditional-release term for count three.
FACTS
Appellant was charged with criminal sexual conduct in the first, second, and fourth
degrees under Minn. Stat. §§ 609.342, subd. 1(h)(iii), 609.343, subd. 1(h)(iii), and 609.345,
subd. 1(g)(iii), based on alleged sex offenses against two minors, A.R.H. and B.M.H., with
both of whom appellant has a significant relationship, over a period of multiple years.
In February 2017, B.M. H.’s stepmother discovered on B.M.H.’s phone nude
photographs, which B.M.H. had sent to a classmate through Facebook. B.M.H. was 18 at
the time, but has cognitive deficiencies. She functions at a much y ounger level than her
chronological age. B.M.H.’s stepmother reported the Facebook exchange to law
enforcement. Approximately a month later, while reviewing other messages sent through
B.M.H.’s Facebook account, B.M.H.’s stepmother found an exchange of messages dating

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from November 2013 to February 2014, between B.M.H. and A.R.H., in which A.R.H. told
B.M.H. to tell an adult about how “Dave” ha d touched B.M.H. sexually. After finding
these messages, B.M.H.’s stepmother and fath er spoke to B.M.H. in the company of her
church youth group leaders about whether appellant had been sexually abusing her. During
that conversation, B.M.H. disclosed appellant’s sexual conduct against her.
B.M.H.’s stepmother and father contact ed law enforcement regarding appellant’s
alleged abuse. A.R.H. and B. M.H. both gave videotaped st atements to law enforcement
regarding appellant’s sexual conduct. Appellant was charged with three counts of criminal
sexual conduct. Count one charged criminal sexual conduct in th e first degree; the
complaint alleged that, from September 25, 2003 to September 24, 2011, appellant engaged
in multiple acts of sexual penetration with a person with whom he had a “significant
relationship” and who was “under 16 years of ag e at the time of the sexual penetration.”
Count two charged criminal sexual conduct in the second degree; the complaint alleged
that, during the same extended time period, appellant engaged in sexual contact with a
person with whom he had a “significant relationship” and who was “under 16 years of age
at the time of the sexual contact.” Count three charged criminal sexual conduct in the
fourth degree; the complaint alleged that, from November 19, 2012 to November 18, 2014,
appellant engaged in multiple acts of sexual contact with a person with whom he had a
“significant relationship” and who was “at least 16 but under 18 years of age at the time of
the sexual contact.”
In the complaint’s statement of probable cause, the state identified counts one and
two as related to appellant’s alleged sexual abuse of A.R.H. while she was between the

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ages of eight and sixteen. It identified count three as related to appellant’s alleged sexual
abuse of B.M.H., which began when she was “around sixteen” in 2012.
The state moved pretrial to exclude evid ence of any prior sexual conduct of B.M.H.
or A.R.H. under Minn. R. Evid. 412 and Minn. Stat. § 609.347. Appellant argued that the
admission of nude pictures and correlated Fa cebook messages by B.M.H. were important
evidence for the jury, b ecause appellant’s defense theory was that B.M.H. fabricated the
abuse by appellant in order to avoid trouble for “sexting.” The district court excluded this
evidence. In granting the state’s motion, the district court relied on its reading of State v.
Roberts, 393 N.W.2d 385 (Minn. App. 1986), Minn. R. Evid. 412, and other case law. It
reasoned on the record:
The parties went back and forth trying to make arguments with
regard to the sequence of time, et cetera. I’m not going to do
that. I’m going to read it as broad as possible, and [412] says
. . . “In a prosecution for acts of criminal sexual conduct,
including attempts or any act of criminal sexual predatory
[conduct,] evidence of the vict im’s previous sexual conduct
shall not be admitted, nor shall any reference to such conduct
be made in the presence of the jury.” And then it goes on to
two exceptions that don’t apply. Because of the [Roberts] case,
and because of my broad rule, review, and interpretation of
[412], I am going to grant the State’s motion and exclude that
as well.

The district court, on the state’s mo tion, excluded testimony from Dr. Reitman
regarding his psychosexual evaluation of appellant, and sustained the state’s objections at
trial to three questions directed to Dr. Reitm an regarding the taped interviews of A.R.H.
and B.M.H.

5
In granting the state’s motion to excl ude Dr. Reitman’s testimony about his
assessment that appellant “does not pres ent any symptoms of being an incestuous
pedophile, or any other type of sexual disorder,” the district court determined that the
opinion would not be helpful to the jury in reaching a decision and would unfairly prejudice
the prosecution.
After the state’s case in chief, appellant ca lled Dr. Reitman as his first witness.
There was discussion outside of the heari ng of the jury regarding the scope of
Dr. Reitman’s testimony. The district court asked appellant’s counsel for a description of
the anticipated testimony. Appellant’s counsel explained that Dr. Reitman was going to
testify concerning how the in terviews of A.R.H. and B. M.H. were conducted, his
observations of the demeanor of A.R.H. and B.M.H. during that questioning, and about
forensic interviewing generally. The district court permitted Dr. Reitman to take the stand
for voir dire. The state objected to Dr. Reitm an’s expert testimony, arguing that it was
improper testimony concerning the credibility of other witnesses, a nd that his testimony
about how he would conduct a clinical inte rview differently than a law enforcement
interview would not be helpful to the jury and would be unfairl y prejudicial to the state.
The district court ruled that it would not al low Dr. Reitman to “compare and contrast a
clinical and forensic interview.” It went on to state that, “if he wants to talk about the
interview that was done in this case, that . . . seems to be more fair game, but [a] general
comparison and contrast of the types of inte rviews I don’t believe is relevant nor is it
helpful to the jury.” The district court also reasoned:

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It’s a close call, but I’m going to not exclude Dr. Reitman. I
believe he is qualified as an expe rt generally. . . . From what
he said in voir dire, he doesn’t have fault with the County’s
investigation to that, with regard [to what] he reviewed. . . . I
am willing to give the defendant an opportunity to call the
expert . . . if Dr. Reitman veers much at all from what was put
in his disclosure with regard s to talking ab out interview
techniques employed by police and others . . . I may sustain an
objection with regard to relevance.

The state asked the district court whether its ruling included Dr. Reitman’s observations of
the demeanor of A.R.H. and B.M.H. Appellant’s counsel announced an intention to ask
about the demeanors of each. The district court replied that it could not “rule in the abstract
on that.”
Dr. Reitman began his testimony before the jury, and appellant’s counsel asked him
to “explain the difference between the way you would conduct an interview and [how] the
police would conduct an interview.” The dist rict court sustained the state’s relevance
objection. Appellant’s counsel then asked Dr. Reitman ques tions about whether he had
watched the taped interviews of A.R.H. and B.M.H. He had. When appellant asked
Dr. Reitman separately “what his observations ” of each taped inte rview were, the state
objected to each question based on relevance, and the district court sustained the objections.
No further questions were asked of Dr. Reitman.
The jury found appellant guilty of all th ree counts, and he wa s sentenced to 144
months in prison on counts one and two, and a concurrent 60-month sentence on count
three. The district court also sentenced appellant to a lifetime conditional-release term.
This appeal followed.

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D E C I S I O N
I. The district court’s evidentiary rulings were within its discretion.
Appellant argues that the district court erred in three evidentiary rulings. He argues
that the district court should not have excluded Dr. Reitman’s expert testimony regarding
his psychosexual evaluation of a ppellant; he also argues that the district court erred in
excluding testimony from Dr. Reitman regardin g law-enforcement interview techniques
and the demeanors of A.R.H. and B.M.H. duri ng the interviews. Fi nally, he argues that
the district court erred by excluding particular evidence of B.M.H.’s prior sexual conduct
at trial.
“Evidentiary rulings rest within the sound discretion of the [district] court and will
not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden
of establishing that the [district] court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). When
the district court’s evidentia ry ruling “results in the erroneous exclusion of defense
evidence in violation of the defendant’s constitutional rights, the verdict must be reversed
if “there is a reasonable possibility that th e verdict might have be en different if the
‘evidence had been admitted.’” State v. Graham , 764 N.W.2d 340, 351 (Minn. 2009)
(quoting State v. Post , 512 N.W.2d 99, 102 (Minn. 1994)). Both the United States and
Minnesota Constitutions provide criminal defe ndants the right to pr esent a meaningful
defense; however, such defendants must still “establish the relevance and admissibility of
the evidence.” State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983).

8
Minn. R. Evid. 702 guides the district c ourt in determining the admissibility of
expert testimony. “The basic consideration in admitting expert testimony under Minn. R.
Evid. 702 is whether it will assi st the jury in resolving the factual questions presented.”
State v. Meyers , 359 N.W.2d 604, 609 (Minn. 1984). If the substance of offered expert
testimony “is within the knowledge and experien ce of a lay jury and the testimony of the
expert will not add precision or depth to the jury’s ability to reach conclusions about that
subject which is within that experience, then the testimony does not meet the helpfulness
test.” Id. However, even relevant evidence may be excluded under Minn. R. Evid. 403 if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.
A. The district court acted within its discretion when it excluded
Dr. Reitman’s testimony regarding his psychosexual evaluation of
appellant.

Appellant argues that the district c ourt abused its discretion by excluding
Dr. Reitman’s testimony about his psychose xual evaluation of a ppellant. We have
previously held that expert testimony to the effect that a particular defendant’s “personality
profile was not similar to that of a [sexual offender]” was properly excluded when it “would
not assist the jury in reaching a decision a nd would unfairly prejudice the prosecution.”
Roberts, 393 N.W.2d at 388; see also State v. Fitzgerald , 382 N.W.2d 892, 894 (Minn.
App. 1986) (affirming a district court when it excluded expert witness testimony regarding
“typical traits of pedophiles”), review denied (Minn. Apr. 24, 1986). Appellant argues that
Dr. Reitman’s testimony would have assisted the jury and would ha ve provided relevant
information to assist in resolving conflicts in the testimony.

9
Appellant argues that the Minnesota Supreme Court’s decisions in State v. Obeta,
796 N.W.2d 282 (Minn. 2011) and State v. Hennum, 441 N.W.2d 793 (Minn. 1989) permit
expert-opinion testimony “on typical characteristics of and behaviors of certain witnesses”
as helpful to the jury. However, the expert-opinion testimony excluded by the district court
here is distinguishable from the expe rt-opinion testimony considered in Obeta and
Hennum. Obeta involved expert-opinion evidence re garding typical behavior of sexual-
assault victims. 796 N.W.2d at 294. Hennum addressed evidence of the typical
characteristics of an indivi dual with battered-woman syndro me, and was limited to that
sort of evidence. 441 N.W.2d at 798-99.
Appellant’s proffered expert-opinion testimony—regarding a psychosexual
evaluation by Dr. Reitman determining that appellant does not exhibit symptoms of sexual
deviancy—is comparable to the evidence prohibited in Fitzgerald. There, the district court
excluded expert-opi nion testimony “regarding pedoph ilia to bolster [a defendant’s]
credibility,” which discussed “typical traits of pedophiles and that abnormalities are
apparent in aspects of pedophiles’ lives other than their sexuality.” Fitzgerald, 382 N.W.2d
at 894. In affirming the district court, we emphasized the “general rule that admission of
expert testimony is within the trial court’s discretion” and that no Minnesota case law
“identifie[d] appellant’s proffered testim ony as a type which the trial court has no
discretion to exclude.” Id. at 895.
We are aware of no authority for the proposition that a di strict court must admit a
psychological or psychosexual evaluator’s te stimony that purports to opine that the
defendant is not the sort of person who would do the sort of thing as the state charges, or

10
testimony that outlines “the typical behavior s and characteristics of an incestuous
pedophile” and compares them to those of a defendant. These are precisely the sort of
determinations entrusted to th e district court’s discretion. “The basic consideration in
admitting expert testimony under Minn. R. Evid. 702 is whether it will assist the jury in
resolving the factual questions presented.” Meyers, 359 N.W.2d at 609. The district court
reasoned that Dr. Reitman’s proffered expert -opinion testimony would not have been
helpful to the jury and would have been unfairly prejudicial to the state. We see no abuse
of the district court’s discretion concerning this proffered testimony.
B. The district court acted within its discretion in sustaining the state’s
objections to questions to Dr. Reitman about law-enforcement interview
techniques and his observations of A.R.H. and B.M.H. during their
taped interviews.

Appellant argues that the district cour t abused its discretion in excluding
Dr. Reitman’s testimony about law-enforcement interview techniques and the demeanor of
A.R.H. and B.M.H. during their law-enforcement interviews. The district court sustained
the state’s relevance objections to the quest ions of how Dr. Reitman would conduct an
interview differently than law enforcement and about his “observations” of the law-
enforcement video recordings of A.R.H. and B.M.H. Appellant asked no further or more-
targeted questions about the demeanor of A.R.H. and B.M.H or about how their interviews
were conducted.
On appeal, appellant now appears to argue that the district court erred by excluding
testimony from Dr. Reitman regarding “his obse rvations of the use of leading questions,
the demeanor of the girls during the inte rview process, and a different method of

11
interviewing cognitively-defici ent people such as [B.M.H.].” But, appellant’s counsel
asked no questions of Dr. Reitman about how the interviews were conducted beyond what
he would have done differently. No questions were asked a bout the demeanor of A.R.H.
and B.M.H. during their interv iews. Because the rulings a ppellant purports to challenge
on appeal were never made by the district court, the proposed testimony was not excluded
by the district court. It wasn’t offered.
As to the three relevance objections sustai ned by the district court, the questions
concerned how Dr. Reitman’s interviews are different than law en forcement interviews,
and asked for his broad “observa tions” of the taped interviews . “Generally, evidence is
relevant if in some degree it advances th e inquiry and thus has probative value.” State v.
Harris, 521 N.W.2d 348, 352 (Minn. 1994) (quotation omitted). Appellant fails to identify
why the jury needed to know the difference between a law enforcement interview and one
of Dr. Reitman’s clinical interviews; and we cannot see how knowing that would have
helped the jury. To our view of the record, the district court acted within its discretion.
C. The district court acted within its discretion when it excluded evidence
purporting to address B.M.H.’s prior sexual conduct.

Appellant also contends that the district court abused its discretion by excluding
evidence that B.M.H. was cau ght by her stepmother sending nude pictures and related
messages to a male classmate via Facebook. Appellant claims th at this evidence was
crucial to his defense, because it supported his theory that B.M.H. had falsely accused
appellant of sexual assault to “divert attention from her own misconduct.” He argues that
under the plain language of th e Minn. R. Evid. 412, this wa s not evidence of “previous”

12
sexual conduct; instead, that it was conduct that occurred after the charged offense, not
before it.
Neither Minn. R. Evid. 412 nor Minn. Stat . § 609.347 (2016) su pports appellant’s
argument. Under rule 412, evidence of previous sexual conduct “can be admissible only if
the probative value of the evidence is not substantially outweighed by its inflammatory or
prejudicial nature and only in the following circumstances:” (a) when consent of the victim
is a defense or (b) “to show the source of . . . semen, pregnancy or disease.” Minn. R. Evid.
412(1) (emphasis added). Concerning the meaning of “previous,” case law establishes that
“previous” includes sexual conduct occurring after the actual offense. See State v. Olsen,
824 N.W.2d 334, 340-41 (Minn. App. 2012) (holding that evidence that a victim went to a
medical center for an STD test was not admissible under rule 412), review denied (Minn.
Feb. 27, 2013). Section 609.347 is to the same effe ct. The rule and statute apply to the
proffered sexting evidence.
And neither exception to Minn. R. Evid. 412 applies here. Consent is no issue here.
And the state’s case does not include semen, pregnancy or disease. Accordingly, the
district court did not abuse its discretion when it excluded B.M.H.’s Facebook messages
as prior sexual conduct under Minn. R. Evid. 412 and Minn. Stat. § 609.347.
Appellant further argues that, even if th is evidence is inad missible prior sexual
conduct of B.M.H. under Minn. R. Evid. 412, his constitutional “right to present a full and
complete defense” required that the district court admit the evidence.
We considered whether a defendant’s cons titutional right to offe r evidence in his
own defense demands the admission of prior-sexual-conduct evidence in Olsen. 824

13
N.W.2d at 340. We stated that Minnesota courts have recognized that prior sexual conduct
is admissible “in all cases in which admi ssion 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.” Id. (quotation omitted). However, we also recognized “[t]he
right to present a defense is not unlimited; th e admission of evidence of a witness’s prior
sexual conduct is highly prejudicial and will not survive a rule 403 balancing test unless a
special exception applies.” Id. “One such exception permits admission of any evidence
tending to establish a predisposition to fabricate a charge of rape . . . unless its potential for
unfair prejudice outweighs its probative value.” Id. (quotation omitted).
In Olsen, the victim visited a medical clinic after she was sexually assaulted,
allegedly to find out if an ex-partner gave her a sexually transmitted disease (STD). Id. at
336. The evidence was offere d to show that the victim “had a motive to make false
accusations of sexual abuse to make her appear more sympat hetic, thereby deflecting the
criticism, negative comments, shame and em barrassment that could result from her
admitting she may have contracted an STD.” Id. at 340. We concluded that the proffered
evidence in Olsen did not show a “motive to fabricate” and “[a]ppellant’s theory is purely
speculative and demonstrates no propensity for [the victim ] to lie or be biased or
prejudiced, or harbor ulterior motives.” Id. at 341 (quotation omitted).
Appellant’s theory that B.M.H. had a motive to fabricate, like the theory presented
in Olsen, appears speculative. Evid ence that A.R.H. and B.M.H. had been discussing
appellant’s sexual conduct toward B.M.H. was provided in the form of Facebook messages
that had been exchanged in 2013 and 2014, before B.M.H. was confronted about the nude

14
pictures she sent a classmate. B.M.H.’s stepmother and father brought up the alleged abuse
with B.M.H. while she was at church with her youth leaders a nd not as part of a
confrontation about the nude pictures. In he r interview with law enforcement, B.M.H.
stated that, when she was told by her father and stepmother that they needed to talk to her
youth leader, she “had no idea what it was about. I didn’t know if I did something wrong
in youth group that I wasn’t supposed to or whatever, and it turned out that they found out
that [appellant] was sexually harassing me.” B.M.H. made no mention of appellant’s
abusing her until after her stepmother told her that she had heard about the abuse from
A.R.H., and that her stepmother wanted them to be safe.
Nothing more than speculation supports appellant’s argument that the disclosure of
appellant’s behavior was related to B.M.H.’s sexting with a classmate. Moreover, B.M.H.
is cognitively-impaired, which, to our view, makes it all the more unlikely that she quickly
fabricated the alleged abuse to avoid responsibility for sexting. We see nothing in this
record to support application of a constitutional exception to the rules of evidence because
of some predisposition of B.M.H. to fabricate abuse allegations . The district court acted
within its discretion in excluding evidence of B.M.H.’s sexting.
II. The district court erred when it entered convictions for both first- and second-
degree criminal sexual conduct for the same criminal behavior.

Appellant argues that the district court erred by improperly entering convictions for
both first- and second-degree criminal sexual conduct based on the same conduct during
the same time period, because second-degree criminal sexual conduct is a lesser-included

15
offense of first-degree criminal sexual conduct. The state agrees. We nonetheless carefully
examine the record to determine if the district court erred.
Minn. Stat. § 609.04, subd. 1 (2016) provid es that a defendant may not be convicted
of the crime charged in addition to an include d offense. The statute defines an “included
offense” as “a lesser degree of the same crime.” Id. Pursuant to the terms of Minn. Stat.
§ 609.04, the district court erroneously ente red a conviction for se cond-degree criminal
sexual conduct, a lesser-included offense of the first-degree criminal sexual conduct. State
v. Kobow , 466 N.W.2d 747, 752 (Minn. 1991). Th e district court must vacate that
conviction. State v. French, 400 N.W.2d 111, 114-15 (Minn. App. 1987), review denied
(Minn. Mar. 25, 1987).
III. The district court erred in imposing lifetime conditional release under Minn.
Stat. § 609.3455, subd. 7, and should instead have ordered a ten-year
conditional-release term under Minn. Stat. § 609.3455, subd. 6.

Appellant also argues that the district c ourt erred by sentencing him to a lifetime
conditional-release period for his fourth-degree sexual conduct conviction, because he did
not have a previous sex offe nse to trigger the lifetime co nditional-release period under
Minn. Stat. § 609.3455 (2016); he was simultaneously convicted of both counts. The state
does not dispute appellant’s argument on this issue, but we still carefully review the district
court’s determination below for error. Statutor y interpretation is a question of law that is
subject to de novo review. State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011).
Minn. Stat. § 609.3455 provides for cond itional-release terms for dangerous sex
offenders. Subdivision 6 prov ides for a mandatory ten-year conditional-release term for
first- and fourth-degree cr iminal sexual conduct. Id. Subdivision 7 provides for a

16
mandatory lifetime conditional-release term for offenders who have a prior sex conviction.
Id. The statute defines “prior sex conviction” as occurring “if the offender was convicted
of committing a sex offense before the offender has been convicted of the present offense,
regardless of whether the offender was conv icted for the first offense before the
commission of the present offe nse, and the convictions invo lved separate behavioral
incidents.” Id., subd. 1(g). In State v. Nodes, 863 N.W.2d 77 (Minn. 2015), the supreme
court interpreted the meaning of a prior sex offense conviction under Minn. Stat.
§ 609.3455 when a defendant was convicted of two sex offenses in the same hearing. The
supreme court held that, when a defendant is convicted of two offenses, one after the other,
at a sentencing hearing, the offender has a pr ior sex offense conviction for the purpose of
sentencing the second conviction and no “particular temporal gap” is required, so long as
“one conviction is entered before the second.” Id. at 82.
We have interpreted the s upreme court’s reasoning in Nodes in a number of
unpublished opinions to conclude that, wher e a district court accepts two guilty pleas
“simultaneously,” it is error fo r the district court to impose a lifetime conditional-release
on the defendant under Minn. Stat. § 609.3455. See State v. Ingalls, No. A16-1803, 2017
WL 5560033 (Minn. App. Nov. 20, 2017); State v. Klanderud, No. A15-1897, 2016 WL
6395252 (Minn. App. Oct. 31, 2016), review denied (Minn. Jan. 17, 2017); State v. Rekdal,
No. A14-1364, 2015 WL 7199866 (Minn. App. Nov. 16, 2015).1 The district court entered

1 The supreme court’s decision in Nodes did not explicitly ho ld that entering two
convictions at the same time could never resu lt in a lifetime conditional release. Instead,
it held that when convictions are entered sepa rately, even if by only seconds, Minn. Stat.
§ 609.3455, subd. 7, applies. However, th e legislature has not amended Minn. Stat.

17
appellant’s convictions simultaneously in the same statement on the record. Therefore,
appellant had no “prior sex convictions” when he was se ntenced on count three.
Accordingly, we conclude that the district court erred by sentencing appellant to a lifetime
conditional-release term rather than a ten-year conditional release.
Appellant raises a number of other issues in his pro se brief. Many of these claims
are addressed by the primary briefs in this appeal. Others are claims of error
unaccompanied by reasoned legal argument. “An assignment of error in a brief based on
‘mere assertion’ and not supported by argumen t or authority is waived unless prejudicial
error is obvious on mere inspection.” State v. Wembley, 712 N.W.2d 783, 795 (Minn. App.
2006). Appellant asserts errors in his pro se brief, but fails to provide any argument or
support for them. Further, some of appellant’s allegations are simply incorrect based on
the record.
In sum, we affirm appellant’s convictions for first- and four th-degree criminal
sexual conduct. Because appellant was impr operly convicted of second-degree criminal
sexual conduct and because the district court erred by imposing a lifetime rather than ten-
year conditional release term on count three, we reverse and remand to the district court

§ 609.3455 in light of Nodes and our several unpublis hed opinions interpreting Nodes as
we do here. Because the st ate makes no argument that Nodes does not preclude the
application of Minn. Stat. § 609.3455, subd. 7, in the present circ umstances, we do not
reach this question. However, we remain tr oubled at the notion th at the duration of a
convicted sex offender’s release period can be , or should be, dete rmined by the words
chosen by the district court in a setting where other important considerations, such as prison
sentence, right to appeal, and other issues, are also being addressed.

18
with instructions to vacate the second-degree cr iminal sexual conduct conviction and to
resentence appellant to a ten-year conditional release term for count three.
Affirmed in part, reversed in part, and remanded.