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This opinion will be unpublished and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
A17-1976

State of Minnesota,
Respondent,

vs.

Pao Choua Xiong,
Appellant.

Filed November 26, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Ramsey County District Court
File No. 62-CR-17-1995

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

John J. Choi, Ramsey County Atto rney, Peter R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ro denberg, Judge;
and Reilly, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Pao Choua Xiong appeals after he was convicted of first-degree criminal
sexual conduct, arguing that the district court erred by failing to administer an oath to the

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testifying eight-year-old sexual-assault victim and admitting evidence of appellant’s drug
and alcohol use as relationship evidence. Appellant further cl aims that the state failed to
prove that an out-of-state conviction should be used as a felon y point in appellant’s
criminal history score, and that his resulting sentence was err oneous. We affirm in part,
reverse in part, and remand.
FACTS
In March 2017, N.L., the mother of K.X., called police to repo rt that appellant,
K.X.’s father, had sexually assa ulted K.X. N.L. told police th at K.X. was crying and
bleeding from her vagina. Police came to N.L.’s apartment, and K.X. was transported by
ambulance to Children’s Hospital. At the hospital, K.X. told a nurse that she was taking a
shower and that appellant came into the bathroom and lifted her onto a counter. K.X.
stated, “My dad raped me, he tried to rape me.” K.X. said that appellant had his hand over
her mouth and told her not to sa y anything; she told him to sto p. A medical examination
revealed that K.X. had a small, painful, bleeding rupture of the tissue at the entrance to her
vagina.
Later that day, police arrested appellant and he was charged wi th first-degree
criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g) (2016).
Before trial, the district court held a competency hearing to d etermine K.X.’s
competency to testify at trial. At the hearing, the district c ourt asked K.X., among other
things, whether she knew the diffe rence between the truth and a l i e . B a s e d o n K . X . ’ s
responses, the district court concluded that she was competent to testify at trial. Both the
state and appellant’s trial counsel agreed.

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The district court also determined pretrial that it would allow N.L. to testify about
appellant’s history of domestic physical and verbal abuse under M i n n . S t a t . § 6 3 4 . 2 0
(2016). The state also argued that evidence of appellant’s drug and alcohol use should be
admitted during N.L.’s testimony as general relationship evidence because it explained the
context of N.L. and appellant’s r elationship. The district cou rt concluded that it would
allow N.L. to testify about appellant’s chemical use because it was relationship evidence.
At trial, K.X. was the first witness to testify. Before she testified, the district court
told her to speak into the microphone and to “use [her] outdoor voice,” but did not
administer an oath. K.X. testif ied that, on March 19, 2017, sh e had been playing in the
next-door apartment with her cousins. When appellant unexpecte dly arrived at the
apartment building, he told K.X. to go home and to take a shower. K.X. testified that she
went to take a shower, but appellant “put [her] on the counter and then started raping [her].”
K.X. described that appellant was in the bathroom with her whil e she was taking off her
clothes. She testified that appe llant told her to “stay in fro nt of him” and that she asked
appellant, “What are you doing daddy?” K.X. testified that appellant “raped” her and that
she began to bleed. She explained that appellant “put his private parts in [her] private part”
and that appellant had his hand over her mouth.
Two witnesses testified after K.X., and court adjourned for the day. The district
court later realized that K.X. had not been sworn before she te stified. The next day, the
district court notified both app ellant’s counsel and the prosec utor of this omission.
Appellant moved for a mistrial. T he district court denied the mistrial motion. Instead, it
proposed to give a curative instruction to the jury and recalled K.X. to affirm, after an oath

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was administered, that her previous testimony had been true. A ppellant objected to this
process. The district court then explained to the jury that th e court had failed earlier to
administer an oath to K.X., and that it was the court’s error a nd no fault of the lawyers.
K . X . w a s s w o r n a n d s h e t e s t i f i e d t h a t h e r t e s t i m o n y f r o m t h e p re v i o u s d a y h a d b e e n
truthful. The state then proceeded with its remaining case in chief.
Appellant testified in his defense at trial. He admitted that his marriage with N.L.
included “rough times” and that he had struggled with drug and alcohol use. He denied
touching K.X. inappropriately.
The jury found appellant guilty of first-degree criminal sexual conduct. The district
court sentenced appellant to 156 months in prison, using a Wisconsin felony conviction as
a felony point in computing appellant’s criminal history score.
This appeal followed.
D E C I S I O N
I. The district court did not abuse its discretion by denying a ppellant’s motion
for a mistrial after having failed to administer an oath before K.X. testified,
where K.X. was sworn and verified her earlier testimony.

Appellant argues that the distric t court abused its discretion when it denied his
motion for a mistrial after K.X. had testified without first having taken an oath. Appellant
claims that the district court’s remedy of recalling K.X. to af firm that her previous
testimony was truthful was insufficient and prejudicial.
We review the denial of a mistrial motion for an abuse of discr etion. State v.
Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). “A mistrial should not be granted unless
there is a reasonable possibility that the outcome of the trial would be different if the event

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that prompted the motion had not occurred.” State v. Manthey , 711 N.W.2d 498, 506
(Minn. 2006) (quotation omitted). The trial judge is in the be st position to determine
whether the event creates sufficient prejudice to deny the defendant a fair trial such that a
mistrial should be granted. Id.
A witness who testifies at trial is required to take an oath or to affirm her intent to
testify truthfully. Minn. R. Ev id. 603. But district courts h ave flexibility in the oath
administered to child witnesses. When a child testifies, it is sufficient for a district court
to impress upon the child the importance of telling the truth, because “the absence of an
oath [is] not prejudicial given t he child’s recognition of the difference between truth and
falsity.” State v. Ross , 451 N.W.2d 231, 236 (Minn. App. 1990), review denied (Minn.
Apr. 13, 1990).
Similarly, before a child testif ies, courts should determine wh ether the child is
competent. In determining whethe r a child is competent to test ify, a district court must
first determine “whether the child remembers or can relate events truthfully.” State v. Scott,
501 N.W.2d 608, 613 (Minn. 1993). The district court must ask questions of the child to
ascertain whether the child understands the obligation of the o ath and is capable of
narrating the events about which the child will testify. State v. Sime, 669 N.W.2d 922, 926
(Minn. App. 2003).
The circumstances in Ross are similar to those here. In Ross, the district court asked
a four-year-old sexual-assault vi ctim whether she knew the diff erence between the truth
and a lie. Ross, 451 N.W. 2d at 236. The district court found that the child was competent
to testify based on her ability to remember and relate events t ruthfully. Id. at 233. The

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district court did not administer an oath to the child before h er trial testimony. Ross did
not object. On appeal, we concluded that the absence of an oath was not prejudicial because
the child understood the difference between truth and falsity a nd because her testimony
added little to her pretrial statements. Id. at 236.
Here, like in Ross, the district court determined that K.X. knew the difference
between a truth and a lie and the importance of telling the truth before she testified. At the
competency hearing, K.X. testified that if she told a lie, she “would get in trouble.” The
district court asked K.X. if she would tell the truth whenever she was sitting in the witness
chair, and she replied “yes.” The district court also asked, “If you came back to court again,
if you came back here later today or later this week, I might ask you to raise your hand and
to tell the truth. If I did that, would you tell the truth?” K.X. responded “yes.” Appellant
does not challenge K.X.’s competence.
In denying appellant’s mistrial motion, the district court noted that it was “mindful
of the fact that we have a child witness here, a complainant. And declaring a mistrial and
having to try the case over is challenging for any witness but particularly child witnesses.”
The district court decided that, “[o]bviously, she’s got to come back to court today.” The
district court considered the difficulty to K.X. should a mistr ial be declared and a second
trial be needed, and considered the delay that a mistrial would occasion. It concluded that
the process of administering an oath to K.X. and having her verify that her earlier testimony
had been truthful would adequately remedy the earlier error.
The district court gave the jury thorough instructions concerning the mistake and its
correction. It told the jury that it was the court’s own error that the child had not been

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sworn. When K.X. was again calle d as a witness, sworn, and tes tified, she assured the
district court that she knew the difference between a lie and t elling the truth, that she had
promised to tell the truth when she came to court, and that she had been telling the truth
when she testified the previous day. The district court’s prop e r a n d c a r e f u l p r o c e s s
adequately corrected the error.
Appellant also argues that, because K.X.’s testimony was the mo st damaging trial
evidence, her unsworn testimony should be regarded as having had a significant effect on
the verdict. But the failure to give an oath did not compromise the jury’s ability to assess
the credibility of K.X. during her testimony.
Moreover, KX.’s testimony was consistent with previous statements that she made
to her mother, her sister, and medical professionals. The dist rict court had impressed on
K.X. before her testimony the importance of telling the truth. There was also other strong
evidence against appellant. Thi rteen witnesses testified, and, other than appellant’s
testimony, the evidence at trial was consistent with K.X.’s acc ount. Therefore, K.X.’s
unsworn testimony, later verified under oath, did not have a significant effect on the jury’s
verdict. On this record, the district court acted within its d iscretion when it denied
appellant’s mistrial motion.
II. The district court erroneously admitted testimony of appell ant’s drug and
alcohol use at trial as general relationship evidence, but the error was harmless.

Appellant argues that the distric t court erred by allowing N.L. to testify about
appellant’s drug and alcohol use during their marriage. He con tends that his drug and
alcohol use was not relevant and that any probative value this evidence might have had was

8
outweighed by its prejudicial effect. The state argues that evidence of appellant’s drug and
alcohol use was admissible because it was not introduced as Minn. Stat. § 634.20 evidence,
but instead was introduced as general relationship evidence.
We review a district court’s evidentiary rulings for abuse of d iscretion. State v.
McCoy, 682 N.W.2d 153, 161 (Minn. 2004). On appeal, an appellant ha s the burden of
establishing “that the district court abused its discretion in admitting the evidence at issue
. . . , and that [appellant] was prejudiced by its admission.” State v. Peltier, 874 N.W.2d
792, 802 (Minn. 2016).
Here, appellant timely objected t o the admission of his drug an d alcohol use.
Therefore we review for harmless error. Id. Under the harmless-error standard, one “who
alleges an error in the admission of evidence that does not imp licate a constitutional right
must prove that there is a reasonable possibility that the wron gfully admitted evidence
significantly affected the verdict.” Id.
“Evidence of another crime, wrong, or act is not admissible to prove the character
of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Such
evidence may be admissible for another purpose, such as evidence of past abuse or threats
against the victim in order to show a strained relationship. State v. Bauer , 598 N.W.2d
352, 365 (Minn. 1999). Evidence of a defendant’s prior acts ma y be relevant for the
purpose of illuminating the relati onship of defendant and compl ainant and “to place the
incident for which defendant was charged into proper context.” State v. Loving , 775
N.W.2d 872, 880 (Minn. 2009) (quotation omitted).

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Under Minn. Stat. § 634.20, “[e]vidence of domestic conduct by the accused against
the victim of domestic conduct, or against other family or hous ehold members, is
admissible.” Minn. Stat. § 634.20 (2016). But relationship ev idence under Minn. Stat.
§ 634.20 is only “a subtype of general relationship evidence.” State v. Bell, 719 N.W.2d
635, 638 n.4 (Minn. 2006). Outsi de of the Minn. Stat. § 634.20 exception, “Minnesota
caselaw has established a basis for the introduction of relatio nship evidence independent
of Minn. Stat. § 634.20, the Spreigl/rule 404(b) process, or the immediate-episode
doctrine.” State v. Hormann , 805 N.W.2d 883, 890 (Minn. App. 2011), review denied
(Minn. Jan. 17, 2012). Minnesota courts have applied the Spreigl analysis to relationship
evidence by requiring the distri ct court to find by clear and c onvincing evidence that the
defendant committed the prior bad act and that the probative va lue of the prior act
outweighs any unfair prejudice. Id.
The district court concluded, bef ore trial, that this claimed r elationship evidence
would “provide proper context” because “the alleged drug and alcohol use [has] continued
to the present.” At trial, N.L. testified that, “throughout my whole marriage, [appellant
was] abusive. Drinking a lot.” N.L. also testified that appellant used other drugs. While
evidence of appellant’s domestic abuse was properly admitted un der section 634.20, the
evidence of appellant’s drug and alcohol abuse was more prejudicial than it was probative,
and was not relevant to the sex crimes with which appellant was charged, and of which he
was convicted. Instead, the testimony of alcohol and other dru g use was generalized
evidence of appellant’s bad behavior. And appellant’s drug and alcohol use only tended to
explain the strained relationship between N.L. and appellant. It was not relevant to the

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charges relating to crimes committed against K.X. Cf. State v. Anderson, No. A12-1707,
2013 WL 6223399, at *6 (Minn. App. Dec. 2, 2013), review denied, (Minn. Feb. 18, 2014)
(concluding that the defendant’s acts of providing alcohol and cigarettes to a sex-abuse
victim were properly admitted as relationship evidence where it tended to show grooming
behavior). The charges here di d not arise from appellant’s rel ationship with N.L. The
district court abused its discr etion in allowing N.L. to testif y about appellant’s drug and
alcohol use unrelated to the charges.
When determining whether the erroneously admitted evidence significantly affected
the verdict, we consider whether the state presented other evidence on the issue for which
the other-crime evidence was offered, and whether the district court gave a limiting
instruction. State v. Benton , 858 N.W.2d 535, 541 (Minn. 2015). “Other relevant
considerations are whether the State dwelled on the evidence in closing argument and
whether the evidence of guilt was overwhelming.” State v. Riddley, 776 N.W.2d 419, 428
(Minn. 2009).
The district court made efforts to minimize the possible prejudice of this chemical-
use evidence by giving the jury a limiting instruction concerning the permissible use of this
evidence. See Bauer, 598 N.W.2d at 365 (stating that the district court should instruct the
jury regarding the proper use o f relationship evidence). The d istrict court also restricted
testimony about appellant’s drug and alcohol use to generalitie s and prohibited evidence
concerning specific acts or incidents. N.L.’s testimony concer ning appellant’s chemical
use was limited to three sentences during a two-day jury trial. Although appellant briefly

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mentioned his drug and alcohol use during his testimony, N.L.’s testimony on the subject
was isolated and brief.
Moreover, the state provided strong evidence of appellant’s gui lt. At trial, K.X.’s
testimony was corroborated by evidence of vaginal injury, DNA t est results, and the
testimony of multiple witnesses, which included family, medical professionals, and law-
enforcement officers. We conclude that the district court’s error was harmless.
III. The district court abused its discretion when it sentenced a p p e l l a n t u s i n g a
criminal history score that included a criminal history point f or a Wisconsin
felony conviction without having first ascertained that the Wis consin offense
would qualify as a felony conviction in Minnesota.

Appellant argues that the distric t court abused its discretion by including a
Wisconsin felony conviction in his calculated criminal history score, because the state
failed to prove that the Wisconsin conviction would be a felony in Minnesota. The state
concedes that the Presentence Investigation Report (PSI) on which the court and the parties
relied at sentencing does not sa tisfy the burden of proof place d on the state concerning
inclusion of an out-of-state conviction in a defendant’s criminal history score.
“The district court’s determination of a defendant’s criminal-history score will not
be reversed absent an abuse of discretion.” State v. Maley, 714 N.W.2d 708, 711 (Minn.
App. 2006). If a criminal defe ndant does not object to the cal culation of his score at
sentencing, he may still challenge the score on appeal because he “may not waive review
of his criminal history score calculation.” State v. Maurstad, 733 N.W.2d 141, 147 (Minn.
2007).

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“[T]he district court may not use out-of-state convictions to calculate a defendant’s
criminal-history score unless the state lays foundation for the court to do so.” Maley, 714
N.W.2d at 711. “The state . . . has the burden at a sentencing hearing of establishing the
facts necessary to justify consideration of out-of-state convic tions in determining a
defendant’s criminal history score.” State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
The state must establish by a fair preponderance of the evidenc e that the prior conviction
was valid, the defendant was the person involved, and the crime would constitute a felony
in Minnesota.1 State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983). “The designation of
out-of-state convictions as felonies, gross misdemeanors, or mi sdemeanors shall be
governed by the offense defin itions and sentences provided in M innesota law.” State v.
Hahn, 799 N.W.2d 25, 36 (Minn. App. 2011) (quotation omitted), review denied (Minn.
Aug. 24, 2011).
This record lacks adequate evidence to support appellant’s crim inal-history-score
calculation. The district court sentenced appellant to a 156-m onth prison term based on
the PSI recommendation, which included one criminal-history-score point for a Wisconsin
felony conviction. The record indicates that the district court relied on the PSI that included
appellant’s out-of-state conviction and a sentencing worksheet created from that PSI. The
PSI lists the out-of-state conviction, but does not identify the statute under which appellant

1 The Minnesota Supreme Court has rejected the “absolute require ment” that the state
present certified copies of prior convictions, but adopted Minn . R. Evid. 1005 as the
appropriate standard to do cument a conviction. Maley, 714 N.W.2d at 711.
Documentation, official records, and witness testimony relating to the contents of official
records are sufficient to document a conviction. Minn. R. Evid. 1005.

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was convicted. As noted, the state agrees that remand is appropriate to create an adequate
record.
We reverse appellant’s sentence and remand to the district cour t for further
proceedings concerning appellant’s proper criminal history score.
Affirmed in part, reversed in part, and remanded.