State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1180

State of Minnesota,
Respondent,

vs.

Rene Mercedes Rivas-Hernandez,
Appellant.

Filed June 17, 2019
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Dakota County District Court
File No. 19HA-CR-17-1860

Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from final judgments of conviction of and sentence for first-
degree criminal sexual conduct, appellant argues that (1) the district court abused its

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discretion by a dmitting the alleged victim’s inconsistent recorded interview as a prior
consistent statement; (2) the district court abused its discretion by admitting expert
testimony that did not assist the jury and impermissibly bolstered the alleged victim’s
credibility; and (3) the warrant of commitment must be corrected to reflect that the district
court only adjudicated one count of first -degree criminal sexual conduct. We affirm in
part, reverse in part, and remand.
FACTS
In May 2014, 22-year-old A.H.-C., her 11-year-old cousin, N.P.R., and N.P.R.’s
mother went to the Burnsville Police Department . A.H.-C. told the police that,
approximately one month earlier, she walked into the bedroom of her father, appellant Rene
Rivas-Hernandez, and found him kneeling on the ground in front of N.P.R., appellant’s
niece, who was sitting on appellant’s bed wearing no pants. A.H.-C. told the police that
she “freaked out” and took N.P.R. out of the room. A.H.-C. said that she asked N.P.R. if
appellant had inappropriately touched her, but initially N.P.R. would not tell her anything.
A.H.-C. stated that N.P.R. eventually disclosed that appellant h ad touched her
inappropriately. N.P.R. confirmed to police that appellant had penetrated her vag ina with
his penis and fingers. A detective tried to interview N.P.R. in a forensic interview room,
but N.P.R. did not disclose anything. Because N.P.R. refused to talk about the incident,
law enforcement placed her case on inactive status.
In January 2017, N.P.R. and her mother returned to the Burnsville Po lice
Department. N.P.R. did not feel comfortable speaking with the male officer who conducted
the interview but indicated, through pointing, that appellant touched her vagina. In March

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2017, Detective Carpenter, a female detective, visited N.P.R.’s home to conduct an
interview. N.P.R. told Detective Carpenter details about appellant’s abuse, including one
incident when appellant came into N.P.R.’s cousin’s bedroom in the morning and touched
N.P.R.’s legs while her cousin slept beside her. N.P.R. told Detective Carpenter that she
decided to report the incident now because doing so might help her brother, who is in jail,
to “get [ ] a visa or something.”1
The state charged appellant with first-degree criminal sexual conduct (penetration),
in violation of Minn. Stat. § 609.342, subd. 1(a) (2016) (count I) ; first -degree criminal
sexual conduct (contact, victim under 13), in violation of Minn. Stat. § 609.342, subd. 1(a)
(2016) (count II), and first-degree criminal sexual cond uct (penetration, victim under 16,
significant relationship, acts committed over an extended period of time ), in violation of
Minn. Stat. § 609.342, subd. 1(h)(iii) (2016) (count III). The state noticed its intent to call
licensed psychologist Mindy Mitnick as an expert witness to testify regarding the behavior
of a child victim of sexual abuse. Appellant moved to exclude Mitnick’s testimony,
arguing that the jury did not need it. The district court permitted Mitnick to testify.
At trial, N.P.R. testified that appellant began touching her at the age of seven. Since
then, appellant had touched the inside and outside of her vagina with his hand and penis
over ten times, but she would try to push him away. Appellant touched his mouth to her
vagina and he used a towel or napkin to wipe off his body. She testified that the touching
sometimes happened in a car or in appellant’s bedroom. After her testimony, the state

1 An immigration attorney testified at trial that the U -Visa grants nonimmigrant status to
victims of criminal sexual conduct, as well as the victim’s immediate family members.

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sought to introduce a recording of N.P.R.’s interview with Detective Carpenter as a prior
consistent statement. Appellant objected, arguing that N.P.R.’s statements in the recording
were inconsistent with her trial testimony. The district court overruled the objection and
played the recording for the jury. Before the close of evidence, the district court permitted
the state to amend the complaint to add a lesser -included count of second-degree criminal
sexual conduct (significant relationship, multiple acts), in violation of Minn. Stat.
§ 609.343.1(h)(iii) (2016) (count IV). The jury found a ppellant guilty on all four counts.
The district court sentenced appellant to 144 mon ths in prison on count I . This appeal
follows.
D E C I S I O N
I. The district court did not abuse its discretion by admitting N.P.R.’s recorded
interview with Detective Carpenter as a prior consistent statement.

Appellant argues that the district court abused its discretion by admitting N.P.R.’s
recorded interview with Detective Carpenter as a prior consistent statement because it
contradicted N.P.R.’s trial testimony in several ways, including discrepancies concerning
the “penetration element of several of the charges.” We disagree.
We review a district court’s evidentiary ruling for an abuse of discretion. State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003). Generally, out-of-court statements offered to
prove the truth of the matter asserted are considered hearsay and are not admissible. Minn.
R. Evid. 802. But a prior statement by a witness is not hearsay if (1) the witness testifies
at trial and is subject to cross -examination concerning the statement; (2) the statement is
helpful to the jury in evaluating the credibility of the witness; and (3) the stateme nt is

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consistent with the witness’ s testimony. Minn. R. Evid. 801(d)(1)(B); see also State v.
Nunn, 561 N.W.2d 902, 908–09 (Minn. 1997). “The trial testimony and the prior statement
need not be verbatim.” State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review
denied (Minn. Feb. 24, 2000); see also In re Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn.
App. 1998) (videotaped statement that was “reasonably consistent” with witness’s trial
testimony admissible under Rule 801(d)(1)(B)).
Appellant ch allenges only the third factor. Here, t he district court compared
N.P.R.’s recorded interview to her trial testimony and found them to be consistent.
Appellant argues that N.P.R’s recorded interview is inconsistent with her trial testimony in
three ways: First, appellant contends that N.P.R. testified at trial that appellant touched her
on the outside and inside of her vagina but in the recorded interview, “N.P.R. said
appellant’s hand never went inside her body.” The record does not support appellant’s
argument. When Detective Carpenter asked N.P.R. whether appellant touched the inside
or outside of her body, N.P.R. responded “both.” Detective Carpenter then asked N.P.R.
whether appellant put his hands inside of her body, and she said “yeah.”
Second, appellant contends that the information N.P.R. provided in the recorded
interview “amounted to a different, less -serious offense than those charged in counts I
through III,” because N.P.R. told Detective Carpenter that appellant “tried to penetrate her,
but she would not let him.” In essence, appellant argues that N.P.R.’s statements in the
recorded interview disprove the penetration element of his offenses. The statute under
which the state charged appellant defines “sexual penetration” as “any i ntrusion however
slight into the genital or anal openings.” Minn. Stat. § 609.341, subd. 12 (2) (2016)

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(emphasis added). In the recorded interview, N.P.R. told Detective Carpenter that
appellant’s penis touched the inside of her body “a lot of times” but that he would try and
“I would just not let him.” Later in the interview, N.P.R. told Detective Carpenter that
appellant’s penis went “sort of” inside of her body for a “short time,” and that “he tried”
but “I would , like tell him not to.” This is “reasonably consistent ” with N.P.R.’s trial
testimony, K.A.S., 585 N.W.2d at 76:
Q: I’m going to ask you a different way, okay? Did
[appellant] put his penis in your vagina?
. . .
A: He would just put the tip, that is pretty much it. I
would push him away.
Q: [N.P.R.], did you say that he would put it in a little
bit?
A: Yes.

N.P.R.’s trial testimony and recorded interview indicate slight penetration by
appellant, which meets the penetration element of the statute.
Third, appellant contends that N. P.R.’s recorded interview contains additional
assertions that she did not testify to at trial , specifically referencing the alleged incident
that occurred in N.P.R.’s cousin’s bedroom. Minor inconsistencies between a victim's
testimony and her previous statements are not ground s for reversal. State v. Beard , 380
N.W.2d 537, 541 (Minn. App. 1986), review denied (Minn. Mar. 3, 1986). In Bakken, this
court held that inconsistencies may become “significant inconsistent statements,” and fail
to satisfy the requirement of consistency under rule 801(d)(1)(B), when they directly affect
the elements of the criminal charge . 604 N.W.2d at 110. Here, although N.P.R.’s
testimony that appellant would enter her cousin’s bedroom and touch her legs is an

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additional assertion missing from her trial testimony, it is a minor inconsistency because it
does not directly affect the elements of the criminal charge. Compare State v. Garden, 404
N.W.2d 912, 914 -16 (Minn. App. 1987) , review denied (Minn. June 25, 19 87) (holding
that when victim’s trial testimony contained more detail than pretrial testimony, expert
witness testimony helpful in providing context).
Even if the jury relied upon N.P.R.’s allegation of the incident in her cousin’s
bedroom, it did not sub stantially influence the jury to convict appellant. State v. Brown,
455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990). The jury heard,
among many other t hings, live testimony from N.P.R., eyewitness testimony from A.H. -
C., and exper t testimony from M itnick, as discussed below . Weighing a witness’s
credibility is for the jury, not a reviewing court. State v. Daniels , 361 N.W.2d 819, 826
(Minn. 1985). The record contained sufficient evidence for the jury to independently
determine N.P.R.’s credibility. The district court did not abuse its discretion by admitting
N.P.R.’s recorded interview as a prior consistent statement.
II. The district court did not abuse its discretion by admitting Mitnick’s expert
testimony.

Appellant argues that the district court abused its discretion by permitting Mitnick
to testify “to a wide arrange [sic] of topics concerning child sexual abuse,” because “the
topics Mitnick testified about did not require specialized understanding” and the testimony
“had the effect of bolstering N.P.R.’s credibility by casting her questionable behavior as
legitimate and scientific.” We disagree.

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We review a district court’s decision to admit expert testimony for an abuse of
discretion. State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). “Reversal is warranted only
when the error su bstantially influences the jury’ s decision.” State v. Chomnarith , 654
N.W.2d 660, 665 (Minn. 2003) (quotation omitted). Expert testimony on a non-scientific
subject is admissib le if (1) the witness is qualified as an expert; (2) the opinion has
foundational reliability; and (3) the testimony is helpful to the jury. State v. Obeta, 796
N.W.2d 282, 289 (Minn. 2011). Here, appellant challenges only the third prong.
Expert testimony is helpful if the opinion is outside the knowledge and experience
of a lay jury and the testimony adds “precision or depth to the jury’s ability to reach
conclusions.” Id. (quotations omitted) . The supreme court has held that the nature of
child sexual abuse places lay jurors at a disadvantage, State v. Meyers, 359 N.W.2d 604,
606 (Minn. 1984), because a jury may not have the necessary background to assess the
credibility of an adolescent victim of sexual abuse. State v. Reyes, 890 N.W.2d 406, 412
(Minn. App. 2017). As such, background information providing relevant insight into the
complicated aspects of a child victim’s conduct and demeanor may be helpful and
appropriate in cases of child sexual abuse. Id.
The supreme court in Hall held that the district court properly admitted expert
testimony concerning the behavioral characteristics commonly exhibited by sexually
abused adolescents, specifically, delayed reporting and continued contact with the abuser.
406 N.W.2d at 504. Here, Mitnick’s testimony consisted of these topics, as well as child
victim-abuser relationship dynamics, and the various factors that might impact how a child
victim discloses the abuse. This testimony assisted the jury in assessing N.P.R.’s

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credibility and in reaching conclusions in light of N.P.R’s delayed reporting and continued
reluctance to disclose details of the abuse. Because the supreme court has held that
background data on the various aspects of a child victim’s behavior is helpful and
appropriate, Meyer, 359 N.W.2d at 609 , appellant’s argument that the jury did not need
this testimony to assist in its determinations lacks merit. The district court did not abuse
its discretion by admitting Mitnick’s testimony.
III. The warrant of commitment must be corrected for counts two through four.

Appellant argues, and respondent agrees, that the warrant of commitment
incorrectly reflects a disposition of “conviction” for counts II through IV. We agree.
Even if the parties agree on an issue, it is the respon sibility of appellate courts to
decide cases in accordance with the law. State v. Hannuksela, 452 N.W.2d 668, 673 n.7
(Minn. 1990). If there is a conflict between an orally pronounced sentence and a warrant
of commitment, the oral sentence controls. State v. Staloch, 643 N.W.2d 329, 331 (Minn.
App. 2002). The district court has the ability to correct a clerical error 2 in the warrant of
commitment at any time. Minn. R. Crim. P. 27.03, subd. 10.
Here, the district court orally pronounced a sentence that “no adjudication would be
entered for counts II-IV,” only for count I. This controls over the warrant of commitment
which reflects that adjudications were entered for all four counts, and this court must
correct this error. We reverse to vacate appellant’s convictions for counts II through IV

2 A clerical error is an error that “cannot reasonably be attributed to the exercise of judicial
consideration or discretion.” State v. Pflepsen , 590 N.W.2d 759, 768 n.4 (Minn. 1999)
(quotation omitted).

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and remand for the formal adjudication to reflect a disposition of no-adjudication-lesser-
included offense for counts II through IV. State v. LaTourelle , 343 N.W.2d 277, 284
(Minn. 1984).
Affirmed in part, reversed in part, and remanded.