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This opinion will be unpublished and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
A17-1180

State of Minnesota,
Respondent,

vs.

Robert Howard Nordquist,
Appellant.

Filed August 6, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-15-30628

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and deci ded by Halbrooks, Presiding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his convictions and se ntences for two counts of first-degree
criminal sexual conduct. Appellant argues that his convictions must be reversed because

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he was denied his constitutional right to present a defense when the district court excluded
evidence of the complainant’s (C.N.) prior false allegations of sexual abuse, and his federal
and state constitutional rights were violated when the district court denied his motion for a
mistrial based on the state’s failure to disclose an email sent to a county attorney by a
family member of a potential witness. Appellant also argues that he cannot receive separate
convictions and sentences for both first-degr ee criminal-sexual-conduct charges because
the jury instructions overlapped the time periods for both charges. Alternatively, he argues
that the district court erred in departing fro m the presumptive sentences based on a zone-
of-privacy finding erroneously altered by the district court after it made an initial finding.
Because the district court did not abuse its discretion in excluding evidence of C.N.’s prior
false allegations, appellant was not prejudiced by the state’s failure to disclose the email,
and because the district court properly adjudicated and sentenced appellant on both counts,
we affirm.
FACTS
Appellant Robert Howard Nordquist was charged with two counts of first-degree
criminal sexual conduct pursuan t to Minn. Stat. § 609.342, subds. 1(a) (2006), (h)(iii)
(2012).1 Count one listed the offense date as February 1, 2007. The charge description for
count one alleged that the conduct underlying the offense occurred on that date through
January 31, 2013. The offense date for count two was listed as February 1, 2013, with the
charge description alleging that the conduct had occurred from that date through January

1 Appellant was initially charged with tw o counts of second-degree criminal sexual
conduct, but the complaint was later amended.

3
1, 2015. The complaint alleged that appella nt began abusing C.N. when she was seven
years old. The state alleged that multiple instances of a buse occurred until C.N. stopped
staying at appellant’s home when she was fourteen years old.
Prior to trial, defense counsel sought perm ission from the district court to introduce
evidence concerning C.N.’s previous report of her cousin inappropriately touching her as
evidence of a prior false accusation of sexual abuse. The district court denied the motion,
concluding that any probative value was outweighed by the danger of unfair prejudice.
In her CornerHouse interview conducted on May 13, 2015, C.N. told the interviewer
about a number of friends to whom she had disclosed appellant’s abuse, one of whom was
C.H. Prior to trial, the state served C.H. and another one of C.N.’s friends with subpoenas
while they were at school, and a concerned family member of C.H. later emailed Hennepin
County Attorney Mike Freeman, stating that C.H. denied C.N. ever having told a group of
friends about appellant’s abuse. The state did not inform defense counsel about this email
until a week later, after trial had already started. At trial, C.N. testified that she told a group
of friends, including C.H., about appellant’s abuse during a gathering in the choir room at
school a few days before the CornerHouse inte rview. Two of the friends to whom C.N.
disclosed this information testified at trial that C.N. had told them about the sexual abuse;
one friend testified that C.H. was present during the choir-r oom disclosure, and the other
friend testified that C.H. may have been pres ent, but she did not remember. C.H. did not
testify at trial. After learning about the email, defense counsel moved for a mistrial, arguing
that the state’s failure to disclose the email was a Brady violation, and th e district court
denied the motion.

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The state filed a Blakely notice, indicating it would seek an upward departure
through a bifurcated trial process. It originally cited three aggravating factors but withdrew
two and sought to prove that the offense wa s committed in C.N.’s zone of privacy.
Appellant stipulated that the a ggravating factor be found by the district court and waived
his right to have a jury determine the existence of that factor.
The district court’s jury in structions for count one inst ructed jurors to determine
whether appellant’s act “took place on or abou t February 1, 2007 through January 31,
2013.” For count two, the instructions asked the jurors to find that appellant’s act “took
place on or about February 1, 2007 through January 31, 20 15,” encompassing the same
time frame as count one. The jury found appe llant guilty of both counts of first-degree
criminal sexual conduct. The district court found that the offenses occurred in C.N.’s
home, which it later amended to find that the offenses occurred in the victim’s bedroom.
The presentence-investigation report recommended a presumptive sentence of 144
months for count one, using a criminal-histo ry score of zero, and 216 months for count
two, using a criminal-history score of three and presuming the counts would be sentenced
using the Hernandez method. The district court entere d convictions for both counts. It
followed the presentence-investigation report’s recommendations and sentenced appellant
concurrently to 144 months on count one an d 216 months on count two, finding that the
Hernandez method applied. The district court also provided an alternative rationale for its
sentence stating that an upward departure to a 216-month concurrent sentence was justified
for both counts because the offenses occurred in the victim’s zone of privacy.
This appeal followed.

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D E C I S I O N
I. The district court did not abuse its di scretion in excluding evidence concerning
C.N.’s prior sexual conduct.

We first address appellant’s argument that the district court abused its discretion in
excluding evidence regarding C.N.’s alleged prior false allegation of sexual abuse.
At a pretrial hearing on the admissibility of the evidence, C.N. testified that at a
Thanksgiving family gathering, her cousin t ouched her butt and then later sat behind her
on a chair and straddled her. She said he whispered “over and over” in her ear “you’re my
b-tch.” She stated that this encounter lasted for about a minute. C.N. further testified that
she told her mother about the cousin’s conduct later that night when they got home. C.N.
testified that she also told her therapist, L.G., about the incide nt. C.N. said she told L.G.
that her cousin had touched her vagina when they were little kids, but not at Thanksgiving.
C.N. further testified that L.G. called child-p rotection services in her presence and told
them that C.N.’s cousin had t ouched her vagina “in the past.” C.N. testified that she told
her mother that, at Thanksgiving, her cousin touched her upper-thigh area but not her
vagina. C.N. testified that she stopped se eing L.G because she had “twisted” what C.N.
had told her. C.N. testified that she was not accusing her cousin of touching her vagina at
Thanksgiving.
C.N.’s mother testified at the pretrial hearing that after the Thanksgiving incident,
C.N. told her that her cousin had put his hand on her hip or thigh and whispered in her ear
that day. She further testified that C.N. had never accused her cous in of touching her
vagina at Thanksgiving and that C.N. denied that she had to ld L.G. that her cousin had

6
done so. C.N.’s mother said that she was around C.N. and the cousin at the Thanksgiving
event, and she believed it was not possible that the cousin could have straddled C.N. for
“an entire minute’ without her seeing it, nor di d she believe that the cousin whispered in
C.N.’s ear for an entire minute without her seeing it.
L.G. also testified at the hearing. She te stified that C.N. told her that her cousin
reached under the table and touched C.N.’s vagi na and that the cousin told C.N. that she
was his “b-tch” during this encounter. L.G. stated that C.N. told her that she had told her
mother what happened. She further testified that C.N. was present at the time that she
called child protection. L.G. testified that C.N. did not correct what she was saying on the
phone to child protection.
Defense counsel argued that the testimony established a reasonable probability that
C.N. had raised a false alle gation of sexual abuse against her cousin. He argued that
appellant’s defense theory was that C.N. was fabricating the allegations against appellant
and that false allegations against her cousin went toward C.N.’s credibility. The state
argued that appellant failed to establish that C.N.’s allegations were false, that this evidence
was evidence of C.N.’s past sexual history ba rred by the rape-shield statute, and that the
evidence had little probative value.
The district court ruled the evidence pertaining to C.N.’s claims of sexual abuse by
her cousin inadmissible. It found that the defense did not meet its burden of proving that
the accusation was made or that it was false. It credited C.N .’s testimony that she denied
her cousin touched her vagina, as well as her mother’s testimony that the touching involved
the hip or upper-thigh area. It found that L.G. “got things conflated” concerning C.N.’s

7
claims and that her testimony was less credible than the testimonies of C.N. and her mother.
It further concluded that any probative valu e of the evidence was outweighed by unfair
prejudice and confusion of the issues.
“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). “A
violation of a criminal defendant’s constitutional rights necessitates a new trial unless the
violation was harmless beyond a reasonable doubt.” State v. Wenthe , 865 N.W.2d 293,
306 (Minn. 2015) (quotation omitted).
Minnesota’s rape-shield laws prevent the admission of a complainant’s previous
sexual conduct, including prior allegations of sexual abuse. State v. Kowbow, 466 N.W.2d
747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). However, this evidence
may be admitted where “it is constitutionall y required by the defenda nt’s right to due
process, his right to confront his accuser, or his right to offer evidence in his own defense.”
Id. Minnesota Rule of Evidence 412 provides that evidence of a complainant’s past sexual
conduct shall “be admissible only if the probative value of the evidence is not substantially
outweighed by its inflammatory or prejudicia l nature and only” when consent of the
complainant is a defense in the case or the prosecution’s case “includes evidence of semen,
pregnancy or disease at the time of the inci dent. . . to show the source of the semen,
pregnancy or disease.”

8
False accusations of sexual abuse may be admitted to show that the complainant had
made previous false accusations and as evidence of the complainant’s credibility. State v.
Goldenstein, 505 N.W.2d 332, 34 0 (Minn. App. 1993), review denied (Minn. Oct. 19,
1993). “[P]rior accusations of rape are releva nt only to the victim’s propensity to be
truthful if there has been a determination that the prior accusations were indeed fabricated.
Id.
Here, the two exceptions to Minn. R. Evid. 412 are not applicable. Defense counsel
sought to offer evidence concerning C.N.’s claims about her cousin’s conduct to show that
C.N. had previously made a false accusation of sexual abuse against a family member. The
district court found that the defense did not meet its burden to prove that the accusation
was actually made or that it was false. It credited C.N.’s testimony in which she denied
that her cousin touched her vagina as well as her mother’s testimony that the touching
involved the hip or upper thigh area. It found that L.G., who testified that C.N. told her
that her cousin had touched her vagina, “got things conflated” and that L.G.’s testimony
was less credible than those of C.N. and C.N.’s mother. It also concluded that any
probative value of the evidence was outweighe d by unfair prejudice and confusion of the
issues.
The district court did not a buse its discretion by excluding the evidence of C.N.’s
prior sexual conduct. The district court made credibility determinations based on testimony
at the pretrial hearing. “The credibility of witnesses and the wei ght to be given their
testimony are determinations to be made by the factfinder.” State v. Dickerson , 481
N.W.2d 840, 843 (Minn. 1992) (quotation omitte d). Further, the district court was well

9
within its discretion in concluding that the probative value of the evidence surrounding the
Thanksgiving incident was “outweighed by unfair prejudice, c onfusion of the issues, and
getting into collateral matters.” The admissi on of C.N.’s statements about her cousin’s
behavior would likely have led to the jury being presented with a large amount of
conflicting testimony regarding the Thanksgi ving incident in a ddition to evidence
regarding appellant’s conduct, th e focus of the criminal trial. The district court did not
abuse its discretion in concl uding that the admission of this evidence would cause
confusion of the issues and force the jury to focus on a collateral matter.
Even if we were to conclude that the district court abused its discretion in excluding
evidence of C.N.’s prior sexual contact, which we do not, any error was harmless beyond
a reasonable doubt. “Constitutional error does not result in a reversal of a conviction if the
verdict actually rendered was surely unattributable to the error.” Wenthe, 865 N.W.2d at
308. Evidence regarding a false accusation of sexual abuse from C.N. goes towards C.N.’s
credibility, as appellant argues. However, the jury was given ample evidence with which
to assess her credibility. It was presented with evidence regarding C.N.’s history of drug
and alcohol abuse and mental-health treatment. It was further presented with evidence that
C.N. gave different accounts of appellant’s abuse to different people at different times. The
jury had an opportunity to find that C.N. was not a credible witness. It did not do so. We
see no reasonable possibility that the verdict might have been different following the
admission of this evidence.

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II. Appellant was not prejudi ced by the state’s failure to disclose evidence about
its communication from a concerned family member of C.H.

We next address appellant’s argument that the district court erred in denying his
motion for a mistrial based on the state’s fa ilure to disclose an email from a concerned
family member of a potential w itness. Appellant also argues that he is entitled to a new
trial in the interests of justice.
On the first day of trial, the state prosecutor indicated to defense counsel that he had
not been able to contact C.H. and that he had previously sent a deputy to serve her with a
subpoena. The prosecutor told defense counsel that C.H.’s parents were obstructing access
to C.H. and were upset about the subpoena. The prosecutor informed defense counsel that
he had a conversation with C.H.’s mother but had not spoken with C.H. directly and would
not call C.H. as a witness because he had not be en able to talk to her. C.H.’s name again
came up days later because one of the jurors indicated to the district court that he knew
someone by that name. The prosecutor said that he did not intend to call C.H. as a witness,
because he attempted to contact C.H. to no avail and “she has di savowed any knowledge
of this and her parents basically didn’t want me to talk to her because of that.”
The state then disclosed to defense counsel that one of C.H.’s relatives had emailed
Mike Freeman three days before the trial started. The email indicated that the relative was
upset about C.H. being served with a subpoena at school. The email also stated that C.H.
had ended her association with C.N. many months prior and that C.H. denied that C.N. told
her and a group of friends about appellant’s abuse. The email further stated that “[C.H.] is
not a material witness because she would not s upport the claims of [C.N.] in this case.”

11
The state provided the email to defense counsel that day, a week after the state received it.
After receiving this email, defense counsel attempted to contact C.H. and did not receive a
response.
Defense counsel moved for a mistrial, arguing that the state’s failure to disclose the
email was a Brady violation. The district court de nied the motion for a mistrial. It
concluded that the email had no impeachm ent value because the only information it
contained was hearsay, and it was not a statement from the witness that she had never heard
C.N. accuse appellant of abuse. It noted that defense counsel knew about C.H. from C.N.’s
CornerHouse interview and could have made its own attempts to contact C.H. along with
the other witnesses that C.N. knew from school. It concluded that there was no prejudice
to appellant as a result of the late disclosu re because nothing was preventing the defense
from contacting C.H. and attempting to bring her in as part of its case.
“Whether a discovery violation occurred is an issue of law which this court reviews
de novo.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). But we review a district
court’s decision to impose discovery sanc tions for an abuse of discretion. Id. The
reviewing court should not order a new trial to remedy a discovery violation unless there
is a reasonable probability that the evidence would have affected the outcome of the trial.
State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).
Under Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 11 94 (1963), intentional or
unintentional suppression of evidence by the stat e, of material evidence favorable to the
defendant, violates the constitutional guarantee of due process. Walen v. State, 777 N.W.2d
213, 216 (Minn. 2010). The three elements of a Brady violation are:

12
(1) the evidence must be favorable to the defendant because it
would have been either exculp atory or impeaching; (2) the
evidence must have been suppressed by the prosecution,
intentionally or otherwise; a nd (3) the evidence must be
material—in other words, the ab sence of the evidence must
have caused prejudice to the defendant. Id.

Minnesota law requires the state to disclose “[m]aterial or information in the prosecutor’s
possession and control that tends to negate or reduce the defendant’s guilt.” Minn. R. Crim.
P. 9.01, subd. 1(6). Minnesot a appellate courts have “follo wed a harmless error analysis
for undisclosed evidence, not granting a new trial where the evidence could not in any
reasonable likelihood have affected the judgment of the ju ry” when determining whether
the nondisclosure of evidence viol ates the Minnesota Constitution. State v. Hunt, 615
N.W.2d 294, 299 (Minn. 2000).
Here, the evidence contained in the ema il from a concerned family member of
C.H.—that she would deny that C.N. told he r or a group of frie nds about appellant’s
abuse—is evidence that is favorable to appellant. For the first prong of Brady to be
satisfied, “the evidence must be favorable to the defend ant because it would have been
either exculpator y or impeaching.” Walen , 777 N.W.2d at 216. While the statement
contained in the email that C.H. denied that C.N. told her and a group of friends about
appellant’s abuse was inadmissible as hearsay at trial, it would no netheless have been
useful to defense counsel as a line of inquiry during cross-examination of C.N. and C.N.’s
two friends who testified at tria l that C.N. told them about appellant’s abuse. The email
would have put defense counsel on notice that there may be evidence to further develop.
The first prong of Brady is satisfied.

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To satisfy the second Brady prong, “evidence must have been suppressed by the
prosecution, intentionally or otherwise.” Id. The state was in possession of the email three
days before trial started. Defense counsel did not receive the email until a week later, after
the state first acknowledged that one of C.H.’s family memb ers had informed them C.H.
denied having knowledge of appellant’s conduct. The prosecutor told the district court that
he “decided not to disclose the inner workings of the subpoena process” and chose not to
disclose the email because he concluded that the email “was someone stepping in for a
family member and trying to have them released from the subpoena” rather than evidence
he was required to disclose. Regardless of the state’s reasoning behind its decision not to
disclose the email to defense counsel, it failed to disclose evidence with exculpatory value
to defense counsel for a week after it was received. The second Brady prong is satisfied.
The third Brady prong is satisfied if “the evidence [is] material—in other words, the
absence of the evid ence must have caused prejudice to the defendant.” Id. To make a
materiality determination, we “consider[] the effect the undisclosed evidence would have
had in the context of the whole trial record.” Id. Here, defense couns el was already on
notice that C.H. might have information re garding appellant’s abuse, because C.N.
identified C.H. as someone to whom she had disclosed th e abuse in her CornerHouse
interview. While the state received the em ail on March 17, the email was disclosed to
defense counsel on March 24, wh ich gave defense counsel an opportunity to attempt to
contact C.H. and time to issue its own subpoe na. Defense counsel did attempt to contact
C.H. and her family and received no response at the time it moved fo r a mistrial. To our
view, it is unlikely that havi ng the email a week earlier would have increased defense

14
counsel’s chances of receiving a response from C.H. and her family. And, the record
suggests the district court offered defense counsel an opportunity to request a continuance
after it denied defense counsel’s motion for a new trial. No continuance was requested.
Further, although the evidence in the email may have provided some impeachment
value, defense counsel nonetheless had a signi ficant opportunity to impeach the state’s
witnesses. See State v. Miller, 754 N.W.2d 686, 706 (Minn. 2008) (concluding that, despite
the state’s failure to disclose impeachment evidence, the defendant was not prejudiced by
the nondisclosure when the wi tness was otherwise “successfully impeached at trial”).
Although the state’s case here did rest larg ely on C.N.’s testimony, her credibility was
successfully impeached at trial. Defense counsel used mu ltiple opportunities to impeach
C.N. regarding how she disclosed the sexual a buse, her drug and alcohol issues, and her
mental-health issues. The evidence contained in the email only went towards whether C.N.
disclosed the abuse at one point to a group of friends in the choir room at school. This case
is distinguishable from Hunt, on which appellant relies, where the supreme court ruled that
a suppressed competency exam that went towa rds a witness’s ability to “accurately and
honestly relate facts” was material evidence because the state’s case “rested largely” on the
testimony of that witness. 615 N.W.2d at 301. Here, th e information contained in the
email could have been used to impeach C.N. on whether she disclosed appellant’s abuse to
C.H. and others in the choir room but did not refl ect on C.N.’s ability to “accurately and
honestly relate facts” the way a competency exam would. Id.
Appellant also argues that the information that C.H. would deny C.N.’s disclosure
to friends about the abuse could also have b een used to impeach C.N.’s two friends who

15
testified that C.N. told them about the abuse in the choir room at school. Defense counsel
also had an opportunity to impeach these tw o witnesses regarding their ability to clearly
recall events and one’s failure to disclose the choir-room conversation to law enforcement.
Because appellant had an opportunity to contact C.H. and had a significant
opportunity to successfully im peach witnesses without the in formation contained in the
email, we conclude that the third Brady prong is not satisfied here, and appellant’s federal
due-process rights were not violated.
We further conclude that appellant is not entitled to a new trial under the Minnesota
Constitution. Appellate courts apply a harmless-error analysis to undisclosed evidence and
only grant a new trial where there is a re asonable likelihood the evidence could have
affected the judgment of the jury. Hunt, 615 N.W.2d at 299. We acknowledge that the
state violated Minn. R. Crim. P. 9.01, subd . 1(6), by withholding evidence which would
have put defense counsel on notice that further development of evidence may be necessary
and went toward the credibility of C.N. and the other witnesses. See Minn. R. Crim. P.
9.01, subd. 1(6) (providing the state is required to disclose evidence that “tends to negate
or reduce the defendant’s guilt”). However, as we did under the third prong of Brady, we
conclude that appellant suffered no prejudice as a result of this nondisclosure, and there is
not a reasonable likelihood that the evidence could have affected the judgment of the jury.2

2 Appellant also argues that he is entitled to a new trial in the interests of justice. However,
“[t]he function of the court of appeals is limi ted to identifying erro rs and then correcting
them.” Sefkow v. Sefkow, 427 N.W.2d 203, 2019 (Minn. 1988). Accordingly, we do not
have the authority to grant relief without a finding of prejudicial error.

16
Because appellant suffered no prejudice under Brady or Minnesota law we conclude
that the district court did not abuse its di scretion in denying a ppellant’s motion for a
mistrial.
III. The district court properly adjudicated and sentenced appellant on both counts
of criminal sexual conduct.

We next address appellant’s arguments that he was improperly adjudicated and
sentenced on both counts in violation of Minn. Stat. § 609.04 (2016) and Minn. Stat.
§ 609.035 (2016), because count two, as submitted to the jury and described by the state in
its closing arguments, encompassed the same time frame as count one.
The state’s amended complaint charged appe llant with two counts of first-degree
criminal sexual conduct over two distinct time periods. Count one covered the time period
of February 1, 2007 through January 31, 20 13. Count two covered the time period of
February 1, 2013 through January 31, 2015. The time period for count two began on C.N.’s
13th birthday. Later, the jury was presen ted with a time frame for count two which
overlapped and extended two years later than the time frame for count one.
The jury found appellant guilty of both counts. The state sought to prove that the
offense occurred in the C.N.’s zone of privacy, an aggravating factor, and the district court
found that the state proved that both coun ts occurred in C.N.’s home. However, at
sentencing, the district court amended its findi ng to specify that the zone of privacy in
which appellant sexually penetr ated C.N. was her bedroom, after recognizing that it was
not sufficient that the offense occurred in C.N.’s home for a zone-of-privacy finding
because appellant resided in the same household as C.N.

17
A defendant may not receive multiple convic tions for “the same offense or of one
offense and a lesser included offense on the basis of the same conduct” under Minn. Stat.
§ 609.04, subd.1. State v. Holmes, 778 N.W.2d 336, 340 (Minn. 2010). “The statute bars
a court from entering two convictions for one act simply because a defendant’s single act
violated multiple provisions of a statute.” State v. Spears, 560 N.W.2d 723, 726 (Minn.
App. 1997) (quotation omitted), review denied (Minn. May 28, 1997). Additionally, an
offender may not receive multiple senten ces for crimes occurring during a single
behavioral incident. Minn. Stat. § 609.035. “When a single behavioral incident results in
the violation of multiple criminal statutes, the offender may be punished only for the most
severe offense.” State v. Suhon , 742 N.W.2d 16, 24 (Minn. App. 2007), review denied
(Minn. Feb. 19, 2008). To determine whether multiple offenses arose from only a single
behavioral incident, a court must consider whether the offenses arose from a “continuous
and uninterrupted course of conduct;” “occurred at substantially the same time and place;”
and “manifested an indivisible state of mind, or were motivated by a single criminal
objective.” Id.
Minnesota Statute Section 609.04 does not bar separate convictions for counts one
and two. Count one requires a single incident of sexual penetration or contact with a person
under the age of 13, with the actor being gr eater than 36 months older. Minn. Stat.
§ 609.342, subd.1(a). Count tw o requires multiple instances of sexual penetration over
time, with a complainant under the age of 16 and the actor having a significant relationship
with the complainant. Minn. Stat. § 609.342, subd.1(h)( iii). The evidence in this case
covers incidents of sexual abuse spanning both the time period of count one and the

18
extended time period covered by count two. The jury was presented with evidence
regarding appellant’s sexual conduct toward C.N. before she reached the age of 13, which
was required for count one, as well as multip le instances of abus e occurring after C.N.
turned 13, which was only applicable to count two. This case is distinguishable from State
v. Spears, where the defendant was co nvicted of six offenses fo r only three separate acts
of criminal sexual conduct, 560 N.W.2d at 72 6 (stating that Minn. Stat. § 609.04, subd.1,
“bars a court from entering two convictions for one act simply because a defendant’s single
act violated multiple provisions of a statute.”), review denied (Minn. May 28, 1997), and
State v. Folley , where a defendant was convicted of criminal sexual conduct toward a
complainant when she was under the age of 13 and when she was under the age of 16 based
on “the same evidence and the same acts” occurring before the complainant turned 13, 438
N.W.2d 372, 373. (Minn. 1989). Here, the jury did not inevitably rely on the same evidence
in finding both counts proven. Accordingly, appellant may be convicted of both counts.
Minnesota Statute Section 609.035 also does not prohibit appellant from being
sentenced for counts one and tw o. Multiple acts of sexual ab use, occurring on a regular
basis, over an extended period of time do not constitute a single behavioral incident. Suhon,
742 N.W.2d at 24 (concluding that, where days passed between incidents of sexual abuse,
and where the incidents occurred in “many di fferent rooms and at different times,” the
incidents did not combine to form a continuous course of conduct). Here, C.N. testified
that appellant digitally penetrated her over a five-year period between the ages of eight and
13 and penetrated her with his penis when sh e was between the ages of 13 and 14. C.N.
testified that the abuse occurred at various intervals and occurred in appellant’s bedroom

19
and once in C.N.’s bedroom. Even though the time period charged for count two includes
the time period charged for count one, the jury was presented with evidence of incidents
occurring outside of the time period for count one, when C.N. was over the age of 13. The
jury found at least one incident occurred befo re CN turned 13 in order to find appellant
guilty of count one. Under Suhon, the incidents occurring afte r C.N. turned 13 do not
combine with any incident occurring before C.N. turned 13 to form a continuous course of
conduct.
The district court did not err in enteri ng separate convictions and sentences for
counts one and two. The district court correctly applied the Hernandez method3 to sentence
appellant using a criminal-history score of zero in calculating his presumptive sentence for
count one and a score of thr ee in calculating his presumptiv e sentence for count two.
Appellant also argues that the alternate ra tionale provided by the district court for
appellant’s sentences—that appellant committed the crime in the comp lainant’s zone of
privacy, supporting an upward departure on both counts—is erroneous. Because we affirm

3 Pursuant to State v. Hernandez , 311 N.W.2d 478 (Minn. 1981), when a defendant is
sentenced for multiple convictions on the same day for separate offenses not part of a single
behavioral incident, it is pr oper for the district court to include an earlier-sentenced
conviction when calculating the appropriate criminal-history score for a later-sentenced
conviction. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

20
appellant’s separate convictions and sentences for both counts one and two, we need not
reach appellant’s arguments on the district court’s alternative-sentencing rationale.4
Affirmed.

4Appellant raises a number of pro se issues in this a ppeal. Appellant’s arguments
concerning the Thanksgiving incident and the email from C.N.’s family member are
adequately addressed by the prin cipal briefs. We conclude, after careful review of the
record, that the additional ev identiary and trial-management issues appellant raises
concerning other allegedly false reports of sexual abuse from C.N., the disclosure of C.N.’s
medical records, his right to a speedy trial and the district court’s courtroom management,
and extraneous matters heard by jurors are without merit or inadequately briefed. See State
v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006 ) (providing that an assignment of
error in a brief not supported by argument or au thority is waived (unless prejudicial error
is obvious on mere inspection)), aff’d 728 N.W.2d 243 (Minn. 2007). Evidentiary and
trial-management rulings are within the disc retion of the district court and will not be
reversed absent an abuse of discretion. State v. Reese, 692 N.W.2d 736, 742 (Minn. 2005);
State v. Lindsey, 632 N.W.2d 652, 657 (Minn. 2001). Appellant asks that we consider the
20 letters testifying to his character that were submitted in the record. However, credibility
determinations are the province of the district court. State v. Dickerson, 481 N.W.2d 840,
843 (Minn. 1992). Appellant also raises a challenge concerning the jury-selection process.
We decline to review appellant’s jury-sel ection argument because we have not been
provided with a transcript of the jury-selection proceedings. State v. Heithecker , 395
N.W.2d 382, 382 (Minn. App. 1986) (providing that we may decline to review an issue
when an appellant does not fulfill his responsibility to provide us with a transcript).