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This opinion will be unpublished and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
A18-1534

State of Minnesota,
Respondent,

vs.

Mario Pedro Moreno,
Appellant.

Filed July 29, 2019
Affirmed
Smith, Tracy M., Judge

Faribault County District Court
File No. 22-CR-16-499

Keith Ellison, Attorney General, Peter Magnuson, Assistant Atto rney General, St. Paul,
Minnesota; and

Kathryn Karjala-Curtis, Faribau lt County Attorney, Blue Earth, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jess on, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from thr ee convictions of first-degree criminal sexual conduct,
appellant argues that (1) his convictions should be reversed because the state failed to prove

2
his guilt beyond a reasonable doubt, (2) the district court erred in denying his motion for a
new trial based on discovery vio lations by the state, and (3) t wo of his three convictions
and sentences should be vacated because they are for the same offense and arose from the
same unitary course of conduct. We affirm.
FACTS
In August 2010, L.C. moved into a house in Wells, Minnesota, wi th her two
daughters, A.P. and R.P. That Oc tober, L.C.’s boyfriend, appellant Mario Pedro Moreno,
moved into the house with them. At the time that Moreno moved in, A.P., the youngest
child, was seven years old.
From 2010 to 2014, Moreno was intermittently employed. He worked construction
full time, but, when he was not working construction, he would sometimes only work at a
local bar eight days a month. L.C., working various full-time shifts, would often leave
A.P. and R.P. in the care of Moreno.
In September 2014, Moreno moved out of the house but maintained a relationship
with L.C. In January 2016, Moreno came to the house, had supper, and spent the night. In
the morning, he became angry that L.C. had been talking with so meone, and she decided
to end the relationship with him. According to L.C., Moreno th en “proceeded to beat the
hell out of [her].” Moreno was eventually convicted of third-d egree assault for this
incident.
In August 2016, A.P. told L.C. that Moreno had “hurt” her. A.P . was not able to
articulate exactly what had happened, but, when L.C. asked her more specific questions,
A.P. answered affirmatively. L.C. asked if Moreno “touched” he r and if he had “raped”

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her, to which A.P. responded, “Y es.” Shocked, L.C. called the police and reported it the
next day. A.P. has since had be havioral difficulties, including trying to harm herself and
expressing a wish to die.
O n S e p t e m b e r 6 , 2 0 1 6 , child-protection specialist Tara Wickelgr en interviewed
A.P. This was Wickelgren’s first interview of this nature, aft er starting at this position in
March 2016 and receiving a five-day CornerHouse 1 training on how to perform forensic
interviews of children. During th e interview, A.P. disclosed “ sexual abuse, vaginal
penetration, and anal penetration,” to Wickelgren. A.P. identi fied her abuser as “Mario,”
her mother’s ex-boyfriend. She told Wickelgren that the abuse had occurred while he lived
with them, from the time she was 7 to when she was 12 years old . A.P. told Wickelgren
that the abuse happened every other day, always at the home. Wickelgren used anatomical
drawings while interviewing A.P. to identify the nature of the abuse. According to
Wickelgren, A.P. did not appear to be manufacturing the story or to have been coached in
any way.
On September 7, 2016, Deputy Mark Purvis interviewed Moreno at the Faribault
County Jail. Moreno indicated confusion about what was going on and what the allegations
were. Deputy Purvis indicated th at there were allegations of s exual assault but did not
mention any specifics about the allegations or identify A.P. or L.C. Deputy Purvis
explained to Moreno that he was facing criminal sexual conduct charges. Moreno

1 CornerHouse is an organization that offers training in forensic interviewing to Minnesota
professionals who respond to rep orts of child abuse, including teachers, child-protection
workers, and law-enforcement officers.

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maintained that he knew nothing of the allegations and said, “I don’t know what [A.P’s]
saying, I don’t know what she’s been coerced to say.”
On September 8, 2016, respondent State of Minnesota charged Mor eno with three
counts of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342,
subd. 1(a) (2014). Count 1 was based on vaginal penetration du ring the period August 1,
2010 to December 31, 2014; count 2 was based on anal penetratio n during the same time
frame; and count 3 was based on compelling fellatio during the same time frame. Moreno
waived his right to a jury trial. A court trial was held from April 25 to 27, 2018.
At trial, A.P., then 14, testified. She stated that, after Mor eno moved into their
house, “[h]e would come up to [her] room, when [she] was sleepi ng, and he would
sometimes do anal and sometimes he would make [her] do oral and other times it would
be vaginal.” A.P. explained that this started when she was seven years old and lasted until
she was twelve. She stated that the sexual abuse occurred on m ore than one occasion,
sometimes in her bedroom and sometimes in the basement. A.P. t estified that she would
sometimes resist Moreno and, when she did, he would get mad, so metimes striking her.
She also testified that, before s he told her mother in 2016, sh e told her friend B.S. about
the sexual abuse. A.P. stated t hat, when Moreno did these thin gs to her, she felt “empty
and numb. Scared.”
A.P.’s friend B.S. also testified. The defense objected to her testimony on the
ground that it was a late disclosure and they did not know what she was going to say. The
district court noted the objection but took the testimony. B.S. stated that, in the summer of
2016, she talked to A.P. about a secret A.P. wanted to share. B.S. testified that A.P. told

5
her “[t]hat Mario would do stuff to her—touched her and had ana l with her.” B.S. stated
that she thought she was “the first person [A.P.] told.”
The state called other witnesses, including Wickelgren, and An.P., a friend of L.C.’s
who also lived in the house fo r a time while Moreno lived there . The state introduced
Wickelgren’s recorded interview of A.P.
Moreno testified on his own behalf. He testified that he firs t met L.C. when he was
young—around 19—and they had been “on and off since then.” He stated that he moved
in with L.C. in late summer 2010. During that time, he was working full time but was laid
off a few months later. He had a night job working at a bar in Mankato, where he worked
from 2010 to 2014. Moreno testified that, in 2013, he was injured and was unable to work
because he had a large leg brace that kept him immobile. He al so testified that the
medication he was on at that time put him to sleep and prevented him from having sex with
anyone. Moreno denied ever having sex with A.P. or touching he r in any inappropriate
way.
The defense also called Hollida Wakefield, a licensed psychologist, to testify. She
explained that there are scientif ically agreed upon methods for interviewing children.
Wakefield stated:
The most important and basic one that . . . underlies all the
others is to go into the interview without what they call
confirmatory bias. To go into th e interview and think of all
possibilities that could have resulted in this child being in t his
interview room at this point and to explore those. One of the
things I find most often in interviews that end up with
unreliable false information is that the interviewer has been
told what happened and seems to be trying to get the child to

6
repeat the allegations on the ta pe rather than exploring all
possibilities.

Having reviewed Wickelgren’s 2016 interview of A.P., Wakefield testified that it suffered
from confirmatory bias and that it was made less reliable becau se ground rules were not
established. She also testified that the use of the anatomical drawings affected the
reliability of A.P.’s statements because “research, specifically on the drawings, indicates
that when they’re used, the information has more error in it, m ore false statements.”
Wakefield testified, “I think it’s implausible that he’s hittin g her, choking her, raping her
every other day from age—almost every day from age 7 to age 12.”
In rebuttal, the state offered the expert testimony of Stefanie Randolph. The defense
had objected to her testimony be cause the state did not provide the defense with a report
about her testimony prior to trial. The district court decided to allow Randolph’s testimony
only as rebuttal to anything testified to by Wakefield. The district court instructed counsel
to limit their questioning to the scope of issues raised by Wakefield’s testimony. Randolph
testified that she is a victim-a ssistant specialist at the Nati onal Child Protection Training
Center and had been a forensic interviewer for seven to eight y ears. She explained that
using anatomical diagrams in an interview with a child can help “come to a common
language” regarding body parts as well as for “clarification pu rposes.” She also testified
that she would not rule out claims of anal penetration or think that that was unusual and
said, “[I]n any interview, we’re going to follow up and ask questions about what the child
has told us.”

7
Following the three-day trial, the district court issued its f indings of fact,
conclusions of law, and verdict. The district court found Moreno guilty of all three counts.
In doing so, the district court found the testimony of A.P. to be more credible than that of
Moreno, stating:
A.P.’s testimony and disclosures to [L.C.] and [B.S.] were not
full of details and there were many responses of “I don’t
remember.” However, A.P. has been consistent in describing
sexual abuse that occurred by Moreno sticking his penis into
her butt and vagina and making her suck on his penis. Had
A.P. been fabricating these allegations, it seems likely that she
would have further embellished them rather than claim that she
could not remember the details o f the abuse. . . . Also tellin g
was A.P.’s physical appearance and body language. She
appeared reluctant to testify. When asked to identify Moreno,
A.P. demonstrated difficulty in directing her eyes towards
Moreno. While these traits do not confirm the veracity of
A.P.’s testimony, they do burnish her credibility and
undermine any claim that A.P. was making up these allegations
i n a n a t t e m p t t o g e t r e v e n g e . T h e [ c ] o u r t f i n d s A . P . w a s
credible when she testified regarding the sexual abuse by
Moreno, when she told [B.S.] about the sexual abuse, when she
disclosed the abuse to [L.C.] and again when she described the
abuse to Wickelgren.

Moreno subsequently moved for a judgment of acquittal or a new trial, arguing that the
state failed to provide proper discovery, that the charges were overly broad, and that the
case against Moreno was based on inconsistent and unreliable cl aims. The district court
denied these motions, convicted Moreno of all three counts, and s e n t e n c e d h i m t o
concurrent 234-, 360-, and 360-month prison terms.
This appeal follows.

8
D E C I S I O N
I. Sufficient evidence supports M oreno’s convictions for criminal sexual assault.

Moreno first argues that his convictions must be reversed because the state did not
prove his guilt beyond a reasonable doubt, primarily arguing that A.P.’s allegations against
him were not credible.
When reviewing a claim of insufficient evidence, we review the record to determine
whether the evidence is suffici ent to allow a fact-finder to re ach its verdict. State v.
Olhausen, 681 N.W.2d 21, 25 (Minn. 2004); see also State v. Palmer , 803 N.W.2d 727,
733 (Minn. 2011) (“[Appellate courts] use the same standard of review in bench trials and
in jury trials in evaluating the sufficiency of the evidence.”). Appellate courts review the
evidence in the light most favorable to the conviction and assu me that the fact-finder
“believed the state’s witnesses and disbelieved any evidence to the contrary.” Olhausen,
681 N.W.2d at 25. The verdict w ill not be disturbed if the fac t-finder “could reasonably
conclude that the defendant was guilty of the charged offense.” Id. at 25-26.
Minn. Stat. § 609.342, subd. 1, provides:
A person who engages in sexual penetration with another
person, or in sexual contact with a person under 13 years of age
as defined in section 609.341, subdivision 11, paragraph (c), is
guilty of criminal sexual conduct in the first degree if any of
the following circumstances exists:
(a) the complainant is under 13 years of age and the
actor is more than 36 months older than the complainant.
Neither mistake as to the complainant’s age nor consent to the
act by the complainant is a defense.

The state therefore needed to prove (1) that Moreno sexually pe netrated or had sexual
contact with A.P., (2) that A.P. was under 13 years old at the time, and (3) that Moreno

9
was more than 36 months older than A.P. at the time. The district court found that “[i]t is
undisputed that A.P., was under 13 years of age during the rele vant time frame and that
Moreno was more than 36 months older.” It went on to find that “Moreno intentionally
penetrated A.P. by inserting his penis into her anal and vagina l opening,” that “Moreno
made A.P. perform fellatio on him,” and that “these acts were d one with sexual intent.”
Most of the district court’s decision was based on the finding that A.P.’s statements were
credible, since this was “a case without physical evidence.”
The supreme court has stated that “a conviction can rest on th e uncorroborated
testimony of a single credible witness.” State v. Hill, 172 N.W.2d 406, 407 (Minn. 1969).
Furthermore, a conviction can be supported by a single witness, even when there are
inconsistencies between her testimony and prior statements. State v. Foreman, 680 N.W.2d
536, 539 (Minn. 2004).
Moreno primarily relies on State v. Huss to argue that A.P.’s testimony was not
sufficient to support his convictions. 506 N.W.2d 290 (Minn. 1993). In Huss, the supreme
court reversed a father’s conviction for sexually assaulting his three-year-old daughter. Id.
at 290. In that case, the supreme court noted that the only direct evidence about the abuse
came from the child herself, and the supreme court described that testimony as “particularly
troublesome.” Id. at 292. The child’s testimony on the stand was unusual, as th e court
explained:
The child was on the stand for almost an hour before she made
any accusation of abuse, and then she said both her mother and
her father had touched her in a bad way. When she was asked
repeatedly on direct examination whether she had any “yucky
secrets,” she answered in the negative. Further she testified

10
that she knew that no one was supposed to touch her private
parts, but that six people had touched her there, including a
playmate. She also called a hug and a touch to her hair “bad
touches.” Although the child had not seen her father for
approximately a year before tria l , s h e t e s t i f i e d t h a t s h e h a d
taken a shower at his house on the day she gave her testimony.
The child was not able to identify appellant in the courtroom,
although he was pointed out to her and she testified that her
father was bald and blind, although appellant is neither.

The supreme court determined that her testimony was not suffici ent to meet the state’s
burden of proof, but only because of “these unusual facts.” Id. at 293.
Moreno identifies seven reasons why A.P.’s testimony is just a s “troublesome” as
that in Huss: (1) A.P. gave different accounts of how often Moreno abused her; (2) she
lived in a small house, and no one saw Moreno act inappropriate ly; (3) she provided no
meaningful details of the abuse; (4) there were no medical find ings to support her claims
that she was vaginally and anally abused hundreds of times; (5) she waited years before
reporting the abuse; (6) the foren sic interview with Wickelgren was problematic; and
(7) A.P. had a motive to falsify allegations against Moreno.
None of these facts rise to the level of the problematic testi mony in Huss. The
supreme court made clear that Huss was an unusual case and that “the standard for
overturning a conviction for insufficiency of the evidence is a high one,” particularly since
an appellate court will not weigh evidence or evaluate the cred ibility of witnesses. Id. at
292. Given that the district court expressly found A.P.’s testimony to be credible, and there
was nothing about her testimony that was drastically inconsistent or troubling, Moreno has
not met the heavy burden necessary to have his guilty verdicts overturned. Sufficient
evidence supports the convictions.

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II. The district court did not err in denying Moreno’s motion f or a new trial based
on alleged discovery violations by the state.

Moreno argues that he is entitle d to a new trial because the s tate made repeated
discovery violations that compromised his right to a fair trial.
“Whether a discovery violation occurred is an issue of law which [we] review[] de
novo.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). We review any sanction
imposed by the district court for a discovery violation for an abuse of discretion. Id.
“Generally, without a showing of prejudice to the defendant, th e state’s violation of a
discovery rule will not result in a new trial.” Id.
Moreno states that the prosecutor made a “pattern of discovery violations,” arguing
that he was not properly given notice of the testimony of Randolph, B.S., An.P., and A.P.
He also takes issue with the fact that he was never given a copy of any police reports from
the North Mankato Police Department, which had been involved in Moreno’s arrest.
With respect to Randolph’s testimony, because Randolph was an expert witness, the
state was required to provide Mor eno with a report of what she was going to testify to.
Minn. R. Crim. P. 9.01, subd. 1(4)(c). This did not happen, so the district court excluded
Randolph from testifying in the state’s case-in-chief. But “[d]isclosure rules do not apply
to rebuttal evidence.” State v. Yang , 627 N.W.2d 666, 677 (Minn. App. 2001), review
denied (Minn. July 24, 2001). The district court therefore did not a buse its discretion by
permitting Randolph to testify in rebuttal. In any event, any discovery violation did not
result in prejudice. Randolph’s testimony was similar to that of Wakefield, in that they
both agreed to certain established practices for interviewing children about potential abuse.

12
The main difference in their opinions concerned the use of anat omical drawings, and it is
unlikely that this divergence affected the verdict.
Regarding the testimony of B.S. and An.P., Moreno argues that h e was not given
the “full substance” of their statements prior to trial. The prosecution is required to disclose
“written or recorded statements, ” “written summaries of oral st atements,” and “the
substance of oral statements” that relate to the case. Minn. R. Crim P. 9.01, subd. 1(2)(a),
(b), (c). The district court found that,
[w]hile the state did not provide the sum and substance of
[B.S’s] potential testimony, it identified her as a confidant o f
the victim regarding the abuse. With respect to [An.P.],
[d]efendant listed her as a potential fact witness on his witness
list. The fact that he was not able to locate her does not
preclude the [s]tate from locating her and calling her to testify
even if it was shortly before the trial began.

Moreno argues that, because the state failed to provide fuller accounts of what B.S.
and An.P. were going to testify to, he is entitled to a new tri al. But he does not allege
prejudice, and it is not evident that any prejudice resulted fr om the inadequate disclosure.
Regarding B.S., the defense knew that she was a “confidant of t he victim regarding the
abuse,” and that description encap sulates what B.S. testified t o, as her testimony was not
lengthy or particularly detailed.
Regarding An.P., the defense did not object to her testimony at trial, so this court
reviews for plain error. See State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001) (explaining
that an appellate court may review unobjected-to error for (1) error, (2) that is plain, and
(3) that affects substantial rights before the appellate court decides whether (4) the error
seriously affected the fairness and integrity of the judicial p roceedings). An.P. testified

13
that, when she was living with L.C. at the house, she noticed i nstances of Moreno going
into the bathroom while A.P. was in the bathtub and closing the door. She testified that
this disturbed her. An.P. also testified that she had general concerns about what was going
on in the house but that she did not feel she could speak candidly to L.C. about them. Even
if allowing this testimony was plain error in light of the pros ecution’s inadequate
disclosure, it did not affect Moreno’s substantial rights, as the district court did not rely on
it when making its decision. The district court expressly stat ed that “[An.P.’s] testimony
was discounted by the [c]ourt in its findings.”
Moreno further argues that the state prosecutor met with A.P. prior to her testimony
but did not furnish the defense with a copy of their conversation. Though the district court
did not rule on it, this was a discovery violation. Because th e conversation was either a
“recorded statement” or an oral statement, the state was requir ed to provide a copy, a
written summary, or “the substance” of the statement. Minn. R. Crim. P. 9.01, subd. 1(2).
But Moreno does not explain how the nondisclosure resulted in p rejudice to him. As the
district court pointed out, “the mechanism for dealing with inc onsistent testimony is [to]
challenge the testimony through confrontation and cross-examination” and Moreno
was afforded that opportunity and questioned A.P. on her
statements regarding the frequency of the abuse. In his
closing, [d]efendant argued that A.P’s testimony was not
credible given the changes from her previous statements.
Given that [d]efendant did a ddress any inconsistencies by
A.P. at trial, any changes in her testimony becomes a
credibility issue.

Moreno also argues that the state failed to disclose case-related information held by
North Mankato police officers, specifically, the names of the officers involved in Moreno’s

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arrest and a related police repor t, in violation of Minn. R. Cr im. P. 9.01, subd. 1a(1)
(extending prosecution’s disclosure obligations to others who participated in investigation
of case). The district court found that the state was unaware of the report and did not
possess it until after the trial, while appellant knew of his interactions with North Mankato
Police yet never sought discovery of the police reports from the state or otherwise pursued
the information. In any event, Moreno does not explain how the a s s e r t e d d i s c o v e r y
violation caused him prejudice or affected the verdict.
Moreno further argues that the p rosecutor committed misconduct by attempting to
introduce, without sufficient notice, evidence that Moreno had mistreated dogs. However,
at trial, when the prosecutor attempted to elicit this information from A.P., the district court
immediately interrupted and refused to allow the testimony. There is no basis in the record
to conclude that this alleged misconduct prejudiced Moreno or affected the verdict.
In sum, Moreno alleges a number of discovery violations by the state, and some of
them indeed occurred. But Moreno fails to point out how they r esulted in prejudice.
Instead, Moreno argues that he is entitled to a new trial pursuant to State v. Kaiser, in which
the supreme court exercised its “supervisory powers” and grante d a new trial because of
prosecutorial discovery violations, even when prejudice was not clear. 486 N.W.2d 384,
387 (Minn. 1992). Not only is Kaiser easily distinguishable from this case, as the
violations in that case were much more obvious and flagrant, but we are an error-correcting
court and it is not our role to exercise a “supervisory power.” See In re Welfare of M.K. ,
805 N.W.2d 856, 865 (Minn. App. 2011) (“[T]his court, as an intermediate-appellate court,

15
does not exercise supervisory powe rs reserved to the supreme co urt.”). Because none of
the discovery violations prejudiced Moreno, he is not entitled to a new trial.
III. The district court properly c onvicted and sentenced Moreno on all three counts
of first-degree criminal sexual conduct.

Moreno finally argues that two of his three convictions and se ntences should be
vacated because “all three convic tions are for the same offense and arose from the same
unitary course of conduct,” citin g both Minn. Stat. § 609.035 ( 2016) and Minn. Stat.
§ 609.04 (2016).
We first address the issue of separate convictions. Minn. Stat . § 609.04, subd. 1,
states: “Upon prosecution for a crime, the actor may be convic ted of either the crime
charged or an included offense, but not both.” An “included of fense” is “[a] crime
necessarily proved if the crime charged were proved.” Id., subd. 1(4). The protections of
section 609.04, however, do not apply if the offenses constitut e separate criminal acts.
State v. Bertsch , 707 N.W.2d 660, 664 (Minn. 2006). “The inquiry into whether two
offenses are separate criminal acts is analogous to an inquiry into whether multiple offenses
constituted a single behavioral incident under Minn. Stat. § 609.035.” Id.
Here, the state charged Moreno w ith three counts of first-degre e criminal sexual
conduct, in violation of Minn. Sta t. § 609.342, subd. 1(a), for offenses that occurred
between 2010 and 2014. In the ch arge descriptions, each count referenced a different
sexual act: count 1, “vaginal intercourse”; count 2, “anal int ercourse”; and count 3,
compelled fellatio. The district court found that Moreno commi tted all three acts during
that time period.

16
In State v. Folley, the supreme court explained, “As we have interpreted Minn. Stat.
§ 609.04 (1988), a defendant may not be convicted of two counts of criminal sexual
conduct (different sections of the statute or different subsections) on the basis of the same
act or unitary course of conduct.” 438 N.W.2d 372, 373 (Minn. 1989) (footnote omitted).
In that case, the defendant was charged with two counts of firs t-degree criminal sexual
conduct, based on two different sections of the statute: one c ount for sexual assault of a
child, in violation of section 6 09.342, subdivision 1(a) (1998) , and a second count for
“multiple acts” of sexual assault of a child “committed over an extended period of time,”
in violation of then section 60 9.342, subdivision 1(h)(v) (1998 ). Id.; see Minn. Stat.
§ 609.342, subd. 1(h)(v). Because the single act forming the b asis for the first count was
among the “multiple acts” over an “extended period of time” for ming the basis for the
second count, the supreme court concluded that “both convictions were based on the same
evidence and the same acts” and vacated one of the convictions. Id.
This case, like Folley, involves multiple acts of sexual assault occurring over a long
period of time. See id. But this case differs from Folley in the crimes charged. In Folley,
the appellant was charged with violating subdivision 1(a) (single act) and 1(h)(v) (multiple
acts over an extended period of time), and the single-act count overlapped with the
multiple-acts count. Here, Moreno was charged with three, non- overlapping, single-act
counts, for violations of Minn. Stat. § 609.342, subd. 1(a). Therefore, the supreme court’s
reasoning in concluding that Folley could not be convicted of b oth counts does not apply
here.

17
Moreno relies on State v. Suhon, 742 N.W.2d 16 (Minn. App. 2007), review denied
(Minn. Feb. 19, 2008), a multiple-sentence case under Minn. Stat. § 609.035, to argue why
this case, in contrast to Suhon, involves a single behavioral incident and thus the same
criminal act under Minn. Stat. § 609.04. In Suhon, the complainant, like A.P., described
multiple acts of sexual conduct o ccurring over several years. 742 N.W.2d at 19. But, in
that case, the complaint specifi ed that each of the three charg ed counts referenced a
different period of time. Id. at 20. Suhon was convicted of three counts and sentenced to
consecutive prison terms. This court affirmed, concluding that the district court did not
clearly err by finding that the abusive acts did not constitute a single behavioral incident
because the acts were separated by time and place, days passed between incidents, and the
acts happened in different rooms although in the same house.
Suhon does not compel a different result here. A.P. described three types of
penetration that occurred in her bedroom or in the basement, and she described the acts as
occurring every other day for four or five years. Unlike in Suhon, all three counts were
charged as having occurred in the same time period. But, because the district court found
that Moreno committed sexual pen etration against A.P. in three different ways, it found
three separate crimes that were not the same act or part of the s a m e u n i t a r y c o u r s e o f
conduct. This finding is support ed by the record, namely A.P.’ s testimony, which the
district court found credible. She testified that the vaginal, anal, and oral penetration
occurred multiple times, in at least two different locations, o ver a period of at least four
years. Thus, the record describ es multiple criminal acts, incl uding the three that resulted

18
in convictions, and, because the convictions are supported by evidence of separate conduct,
they are not prohibited by section 609.04.
As for the separate, concurrent s entences, because the separate -criminal-acts
analysis of Minn. Stat. § 609.04 is analogous to the analysis o f whether the offenses
constituted separate behavioral incidents pursuant to Minn. Sta t. § 609.035, see Bertsch,
707 N.W.2d at 664, the district court properly sentenced Moreno on all three convictions.
Affirmed.