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This opinion will be unpublished and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
A17-1904

State of Minnesota,
Respondent,

vs.

Duane Griffin Gauna,
Appellant.

Filed November 26, 2018
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-16-24614

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

Michael O. Freeman, Hennepin Coun ty Attorney, Jean Burdorf, Ass istant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella t e Publ i c De f e nde r , J e s s i ca Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke , Presiding Judge; Reilly, Judg e ; a n d J e s s o n ,
Judge.

2
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Duane Griffin Gauna challenges hi s conviction of first-degree c riminal sexual
conduct based on his ongoing sexual abuse of M.W., a young girl who viewed him as her
stepfather. Gauna argues that the district court abused its di scretion by allowing expert
testimony despite a discovery violation by the state and by allowing the prosecutor to argue
facts not in evidence during its closing argument. Additionall y, Gauna contends that the
state committed prosecutorial misconduct during closing argument by distorting the burden
of proof to the jury. Because the district court’s evidentiary rulings were not an abuse of
discretion, and because the prosecutor’s comments during closin g argument were not
misconduct, we affirm.
FACTS
M.W. knew appellant Duane Griffin Gauna her entire life and vie wed him as her
stepfather. Gauna was in a relationship with M.W.’s mother, an d when the relationship
ended, M.W. went to live with Gauna. Gauna subsequently re-mar ried, and M.W. lived
with Gauna, his wife, and seven other children. But in Septemb er 2016, M.W. (age 14 at
the time) messaged her friend that when Gauna was drunk or when she was the only one
home, he would try to touch her, and she was scared to tell people. M.W’s friend convinced
her to talk to a counselor at a youth center, and M.W. told the counselor that Gauna had
been touching her inappropriately. The counselor reported the allegations to the police.
When the police arrived, and at their request, M.W. wrote a bri ef note describing
what happened. She stated that Gauna “touches my private parts, forces me to have sexual

3
intercourse with him, tricks me into letting him get between my legs, eats me out [and]
more.” M.W. also showed police several text messages between her and Gauna. In those
messages, Gauna called M.W. a “scared ass,” told her that he “like[d] [her] nice stomach,”
and asked her “you like the neck thing, right?” M.W.’s responses included statements like
“Enough,” and “I’m just tired of keeping this going . . . it’s hurting me.”
The next day, M.W. told a pediatric nurse practitioner that Gau na had touched her
inappropriately for years, and she disclosed specific instances of sexual abuse, including:
Gauna kissing her, licking her neck and body, licking her “priv ates” (which she clarified
to mean her vagina), touching her butt with his penis, and attempting to put his penis in her
mouth and butt. M.W. told the nurse practitioner that she did not let Gauna put his penis
inside her mouth, vagina, or butt. Based on these statements and the series of text messages
between M.W. and Gauna, the state charged him with first-degree criminal sexual conduct.
Before Gauna’s trial began, the state disclosed as a witness th e pediatric nurse
practitioner who interviewed M.W. One week before Gauna’s trial was scheduled to begin,
the state filed a notice of its intent to offer the expert testimony of the same pediatric nurse
practitioner on four topics common in child sexual abuse cases. Gauna filed a motion to
preclude the expert testimony because the state did not timely disclose its intent to offer
the pediatric nurse practitioner as an expert. Although this motion was discussed with the
judge before trial, the district court’s ruling was reserved.

4
At trial, M.W. testified that Gauna touched her inappropriately approximately once
or twice a week1 beginning when she was ten and continuing until she reported the abuse,
a timespan covering around four years. The abuse started with Gauna touching M.W.’s
breasts and stomach while he told her that she had a nice body and progressed to him
touching her thighs and butt and kissing her on her lips, neck, and chest. The abuse
escalated, and M.W. testified that Gauna’s mouth went to her vagina, that he put his penis
in her mouth, and that she was not sure if Gauna put his penis in her “butt” but she thought
he did because her butt hurt afterwards. M.W. also testified a bout the series of text
messages between her and Gauna, i ndicating that he would ask he r if she was “ready” to
be touched by him again and call her “scared” if she did not want to be bothered with him.
She explained text messages where Gauna told her he liked her neck and “chunky cheeks,”
and explained that her replies to Gauna’s messages indicated sh e was tired of Gauna’s
actions, that he “had a wife” to have sex with, and that his actions were hurting her “on the
inside.”
During trial, the district court offered Gauna a continuance to allow his counsel to
personally interview the pediat ric nurse practitioner before sh e gave expert testimony.
After defense counsel declined the continuance, the district co urt ruled that, although the
state had violated discovery rules, the prosecution could present expert testimony on three

1 When asked how often Gauna touched her inappropriately, M.W. t estified that
“ [ d ] e p e n d i n g o n h o w h e f e l t o r I w o u l d s a y o n c e o r t w i c e a w e e k probably, or
every — every now and then.”

5
designated topics 2 and that additional credibility-re lated testimony may be permi tted,
depending on the defense counsel’s cross-examination of the expert. The defense counsel’s
cross-examination of the expert l argely focused on M.W.’s credi bility given the
discrepancies between M.W.’s testimony and her statements in the interview. The district
court then permitted the expert to testify about an additional credibility-related topic, and
the expert explained that childre n who are victims of abuse oft en do not describe what
happened the same way every time.
During its closing argument, the prosecution focused on M.W.’s credibility,
including the concept of minimization, to explain M.W.’s incons istent disclosures.
Additionally, the prosecutor emphasized that belief in M.W.’s testimony was sufficient to
convict Gauna. Gauna was convicted of first-degree criminal sexual conduct and sentenced
to 160 months in prison. Gauna appeals.
D E C I S I O N
Gauna challenges his conviction on two grounds. First, Gauna a rgues that,
cumulatively, two of the district court’s evidentiary rulings p rejudiced him and require a
new trial. Gauna argues that the expert testimony should have been excluded as a sanction
for the state’s discovery violati on and that the district court erred by allowing the

2 The district court judge perm itted testimony on the components and methodology of a
forensic interview after defense counsel noted he did not have an issue with testimony on
that topic. Additionally, the judge permitted expert testimony on delayed reporting and the
fact that there is no universal demeanor for sexual-assault vic tims because the topics
directly addressed credibility-rela ted issues. Testimony on ch aracteristics of abused
children and grooming behaviors was excluded. The judge determ i n e d t h e i s s u e o f
incremental disclosure could be re-visited depending on the cross-examination.

6
prosecutor to argue facts not in evidence during closing arguments. We review the decision
to impose discovery sanctions for abuse of discretion. State v. Palubicki, 700 N.W.2d 476,
489 (Minn. 2005). Evidentiary r ulings, including rulings about admission of expert
testimony, are also reviewed f or an abuse of discretion. State v. Thao, 875 N.W.2d 834,
840 (Minn. 2016). Gauna finally argues that the prosecutor committed misconduct during
the closing argument by distorting the burden of proof. Becaus e Gauna did not object to
the statements during trial, we review his allegations of prose cutorial misconduct under a
modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
I. The district court’s expert w itness rulings were not an abuse of discretion.
Gauna first alleges that two of the district court’s evidentiar y rulings were errors.
Specifically, Gauna refers to the district court’s rulings permitting expert testimony despite
the state’s discovery violation and allowing the prosecutor to argue facts not in evidence
during the closing argument. Gauna argues that, cumulatively, these errors prejudiced him
and require a new trial. We address each expert witness issue in turn.
While the issue of whether a discovery violation occurred is an issue of law which
this court reviews de novo, we review the decision to impose di scovery sanctions for
violations of discovery rules for abuse of discretion. 3 Palubicki, 700 N.W.2d at 489. “A
court abuses its discretion when it reaches a ‘clearly erroneou s conclusion that is against
logic and the facts on record.’” State v. Vasquez , 912 N.W.2d 642, 648 (Minn. 2018)

3 Neither party contests that th e state’s untimely notice of exp ert testimony violated
discovery rules.

7
(quoting State v. Williams, 842 N.W.2d 308, 313 (Minn. 2014)). The appellant bears the
burden of establishing abuse of d iscretion and resulting prejud ice. State v. Amos ,
658 N.W.2d 201, 203 (Minn. 2003).
When a party fails to comply with a discovery rule or order, th e district court may
choose from a wide set of options. It may “order the party to permit the discovery, grant a
continuance, or enter any order it deems just in the circumstances.” Minn. R. Crim. P. 9.03,
subd. 8 (emphasis added). Gauna argues that the expert testimo ny should have been
excluded entirely as a sanction for the state’s failure to time ly provide the notice and
disclosures required by Minnesota Rules of Criminal Procedure 9 .01. To determine
whether the decision to permit expert testimony despite the dis covery violation was an
abuse of discretion, we turn to the analysis set forth in State v. Lindsey, 284 N.W.2d 368,
373 (Minn. 1979).
In Lindsey, the supreme court identified four fac tors the district court should
consider when determining sanctions for violations of discovery rules and orders: (1) the
reason why disclosure was not made; (2) the extent of prejudice to the opposing party;
(3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant
factors. 284 N.W.2d at 373. The supreme court further noted that preclusion of evidence
is a strong sanction which should not be invoked lightly. Id. at 374.
Although the district court here never explicitly referenced Lindsey, it nonetheless
analyzed the factors. On the issue of why the disclosure was n ot made, the record is not
well developed. But regarding t he second factor, the district court found that the late
disclosure would not prejudice Gauna because he had received some discovery. The court

8
further explained that limiting the scope of the expert testimony obviated any prejudice to
him. Gauna argues that he was prejudiced because he could not adequately prepare for the
expert witness before trial. But someone from Gauna’s counsel’ s office interviewed the
expert before the trial began, and the defense counsel received some discovery about the
expert’s credentials and her opi nions. Gauna also cross-examin ed the expert witness
during trial. Considering the in formation and notice Gauna rec eived, the extent of the
prejudice to him, as the district court noted, was minimal.
Third, Gauna declined the continuance the district court offered him. Gauna argues
that a continuance was not feasible at that point in the trial and that he was denied the
opportunity to consult with his own expert. But, as the supreme court has explained, in the
context of an undisclosed expert witness, “[i]f defendant was i ndeed surprised or
prejudiced, the proper response would have been to move for a c ontinuance.” State v.
Carlson, 328 N.W.2d 690, 695 (Minn. 1982) (footnote omitted); see also State v.
Pietrazewski, 283 N.W.2d 887, 891 (Minn. 1979) (noting that the trial court did not abuse
its discretion in excluding tes timony and identifying defendant ’s failure to request a
continuance a relevant consideration).
Finally, no other factor weighed strongly in favor of precludin g the expert
testimony. See Lindsey, 284 N.W.2d at 373. The district court determined that caselaw
supported the conclusion that t he admitted expert testimony was extremely helpful to the

9
trier of fact, and that the nature and extent of caselaw indica tes that expert testimony on
delayed disclosure should be expected.4
Considering the Lindsey factors as a whole and the high bar required by the
abuse-of-discretion standard, we conclude that the trial court did not abuse its discretion
by admitting the expert testimony. See State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998)
(noting that district “courts hav e broad discretion in imposing sanctions for violations of
the discovery rules”). And while Gauna is correct that discove ry rules must be complied
with to achieve their intended purpose, we note that sanctions are not required by
Minnesota Rules of Criminal Procedure 9.03. Rather, the district court may enter any order
it determines is just. Minn. R. Crim. P. 9.03, subd. 8.
Gauna also contends that once the district court admitted the e xpert testimony, it
abused its discretion by expand ing the topics the expert could testify about after finding
that he had “opened the door” through his cross-examination. See State v. Bailey ,
732 N.W.2d 612, 622 (Minn. 2007) (explaining that “opening the door” occurs when one
party introduces material that allows the other party to respond with otherwise inadmissible
material). The crux of Gauna’s argument is that opening the door requires the introduction
of new evidence, which he did not do. But even if Gauna did no t open the door in the
technical sense of the doctrine, the additional expert testimony was only inadmissible based
on the district court’s own decision to initially exclude it. And the judge noted in her initial
ruling that the issue of incremental disclosure could be re-vis ited based on

4 Further, it appears that Gauna did not genuinely dispute the s ubstance of the expert
testimony, but only argued that he did not receive proper notice.

10
cross-examination. Because of the wide discretion afforded to the district court in making
evidentiary decisions, allowing additional expert testimony aft er cross-examination was
not an abuse of discretion. See Amos , 658 N.W.2d at 203 (noting that rulings on the
admissibility of evidence are with in the discretion of the tria l court and they will not be
reversed absent a “clear abuse of discretion”).
Gauna also argues that the distr ict court abused its discretion by allowing the
prosecutor to argue the topic of minimization to the jury when the judge did not permit
expert testimony on the subject. 5 During its closing argument, the state can present
legitimate arguments and proper inferences that can be drawn from the evidence. State v.
Peltier, 874 N.W.2d 792, 804 (Minn. 2016). But a prosecutor cannot ar gue facts not in
evidence. Id.
Here, the prosecutor offered mini mization as an explanation to the jury for the
differing accounts of abuse offered by M.W. at various times before trial. Specifically, the
prosecutor noted:
So you’re probably thinking, how can I believe something that
she said didn’t happen on one day and then testifies did happen.
Well, again, members of the jury, that fits perfectly within the
context of this case and fits perfectly with your common sense.
It’s called minimization. We do it everyday in every situation
that they talk about that’s bad in our lives.

5 Gauna argues that the judge exp ressly permitted the prosecutor to argue minimization
during closing arguments which is why he characterizes it as an evidentiary ruling rather
than an allegation of prosecutorial misconduct. This is plausi ble from the record, so we
address this issue as an evidentiary ruling.

11
Moreover, the prosecutor offered the jury reasons why M.W. might have minimized what
happened to her during her interview with the pediatric nurse p ractitioner, including that
she was talking about very embarrassing things and was worried about what was going to
happen to the man she viewed as her stepfather.
These statements by the prosecuto r are reasonable inferences ba sed on M.W.’s
testimony. M.W. testified that s he still loved her dad, that s he didn’t want to tell anyone
about what happened because she didn’t want to break up her fam ily or know where she
would go, that she was ready to b e done talking about this stuf f, and that she had been
crying in the hallway and testifying was not easy for her. Min imization was a reasonable
inference from M.W.’s testimony, and the jury could understand the premise by using their
own knowledge. As a result, exp ert testimony explaining the to pic of minimization was
not required. The district court did not abuse its discretion by permitting the prosecutor to
argue the topic of minimization to the jury.
Because none of the district court’s evidentiary rulings consti tuted an abuse of
discretion, none of the rulings individually were errors. Beca use there were no errors,
Gauna was not prejudiced by their cumulative effect. A new trial is not warranted.
II. The prosecutor’s statements d uring closing argument were not misconduct.
Gauna also contends that the p rosecutor committed misconduct am ounting to
prejudicial plain error during cl osing argument by distorting t he burden of proof. Gauna
identified three particular ins tances that he contends constitu te improper shifting of the
burden of proof:

12
“[i]f you believe [M.W.] based on her body language and based
on what she said, then you’re done. This case is over and he’s
guilty,”

“[i]f the state had only called one witness, [M.W.], to testify
and you believed her, that’s enough, that’s enough proof
beyond a reasonable doubt if you believe her. If you believe
her, you’re done, he’s guilty,”

“[i]f you believe [M.W.] when she testified, then you believe
this happened. If you believe that there’s no explanation for
those texts in light of what [M. W.] said, then you believe that
this case happened beyond a reasonable doubt”.

Under the modified plain-error standard of review we use for un -objected to claims of
prosecutorial misconduct, the appellant must first establish (1 ) error and (2) that the error
was plain. Ramey, 721 N.W.2d at 302. Plain error is one that was clear or obvious, which
may be the case if the error “violates case law, a rule, or a standard of conduct.” Id.
6
Gauna is correct that misstating the presumption of innocence or the burden of proof
amounts to misconduct. Id. at 300. When assessing alle ged prosecutorial misconduct
during closing remarks, this court examines the argument as a whole, rather than focusing
on isolated phrases. State v. Graham, 764 N.W.2d 340, 356 (Minn. 2009). And the context
of the closing argument here focused on the credibility of M.W. Both parties agree that
her credibility was the primary issue for the jury to determine. The prosecutor’s comments
explained correctly to the jury that if they believed M.W. and found her credible, that was

6 If the appellant establishes plain error, the burden then shifts to the state to prove that the
error did not affect his substantial rights. Ramey, 721 N.W.2d at 302. If the state fails to
show that the error did not affect substantial rights, then we determine if the error should
be addressed to “ensure fairness and the integrity of judicial proceedings.” State v. Parker,
901 N.W.2d 917, 926 (Minn. 2017).

13
enough to convict Gauna. See Minn. Stat. § 609.347, subd. 1 (2016) (establishing that the
testimony of a victim does not need to be corroborated in certa in cases, including first-
degree criminal sexual conduct ). This still left the prosecuto r with the burden of
convincing the jury that M.W. was credible. When considered in context, the challenged
comments were not misconduct. Because the prosecutor did not commit misconduct, there
was no error.
While Gauna concedes that a jury may convict someone based sole ly on the
testimony of a sexual-assault complainant, he argues that it is not required to do so.
Although Gauna is correct that limited caselaw supports instanc es where testimony of a
complainant, even if believed, will not support a conviction, this case differs factually from
those rare instances. Gauna cites State v. Huss, 506 N.W.2d 290 (Minn. 1993), a case in
which the supreme court found tha t there was insufficient evide nce to support the
defendant’s conviction for crimin a l s e x u a l c o n d u c t w h e r e t h e o nly direct evidence
presented by the state was the testimony of a three-year-old child.7 But in Huss, the only
direct evidence offered by the state was the alleged victim’s t estimony. 506 N.W.2d at
292. That is not the case here. While no corroboration of M.W.’s testimony was required,
the prosecution presented other evidence to support her testimo ny, including a series of
text messages between M.W. and Gauna, text messages between M.W. and her friend, and
testimony from several individuals to whom she disclosed the abuse.

7 Gauna also cites State v. Ani, but while the supreme court recognized that there may be
some instances where uncorroborated testimony of a single witness may be insufficient to
convict, the court found that the witness’s testimony in that c ase was sufficient to convict
the defendant. 257 N.W.2d 699, 700 (Minn. 1977).

14
Because the prosecutor’s stateme nts during closing argument wer e related to
M.W.’s credibility and because the state presented other eviden ce to corroborate M.W.’s
testimony, we conclude that the prosecutor’s statements did not amount to misconduct.
Because there was no prosecutorial misconduct, Gauna has not demonstrated plain error.
Finally, Gauna argues that the a bove-referenced statements are akin to improper
“were-they-lying” questions. See State v. Morton , 701 N.W.2d 225, 235 (Minn. 2005)
(noting that “were-they-lying” questions are improper because t hey can create the
impression that the jury must believe a witness was lying in order to acquit the defendant).
But here, the prosecutor’s state ments focused on the credibilit y of M.W. and made no
mention about the jurors needing to believe that she lied in or der to acquit Gauna. The
prosecutor did not contrast M.W .’s credibility with that of ano ther witness or imply that
one was lying or that one must be believed over the other. The prosecutor’s statements in
this case are not analogous to “were-they-lying” questions.
Accordingly, because the district court did not abuse its discr etion in making its
evidentiary rulings and because no prosecutorial misconduct occurred, we affirm Gauna’s
conviction.
Affirmed.