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This opinion will be unpublished and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
A18-1964

State of Minnesota,
Respondent,

vs.

Jacob Thomas Price,
Appellant.

Filed September 9, 2019
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Blue Earth County District Court
File No. 07-CR-16-3406

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Pat McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Mark D. Nyvold, Fridley, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Smith,
John, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his convictions of third - and fourth -degree criminal sexual
conduct, contending that the prosecut ion engaged in misconduct, that the evidence was
insufficient to sustain the convictions, that the district court abused its discretion in
excluding evidence of consensual sexual contact between appellant and the victim, and that
the district court erred by entering judgments of conviction for both third - and fourth -
degree criminal sexual conduct. We affirm appellant’s conviction of third-degree criminal
sexual conduct. But we reverse in part and remand for the district court to vacate the
judgment of conviction for fourth-degree criminal sexual conduct.
FACTS
Respondent State of Minnesota charged appellant Jacob Thomas Price with third -
and fourth-degree degree criminal sexual conduct based on allegations that he sexually
assaulted B.D. in 2016. Prior to trial, Price moved , under Minn. Stat. § 609.347, subd. 4
(2018), for the admission of evidenc e that he and B.D . previously had consensual sexual
intercourse on one occasion in 2014. The district court denied that motion. The case was
tried to a jury over two days.
At trial, B.D. testified that on the night of June 24, 2016, she drove with A.J. and
D.E. to Mankato to “have a few drinks.” B.D. testified that they arrived in Mankato around
11:30 p.m. and drove to S.K.’s house. S.K., J.D., and Price were at S.K.’s house when
B.D., A.J., and D.E. arrived. B.D. testified that she attended high sc hool with Price and
occasionally had contact with him afterward. B.D., A.J., D.E., S.K., J.D. and Price walked

3

together to a bar in downtown Mankato. B.D. testified that she had two drinks at the bar,
but she admitted that it was possible that she had more. After playing one or two games of
pool, the group headed to several other bars. B.D. testified that “an older man” at one of
the bars “was hitting on [her],” “offering to buy [her] drinks,” and “wouldn’t leave [her]
alone.” B.D. asked Pric e to pretend that he was her boyfriend to deter the man. B.D.
testified that she did not remember walking home or how much alcohol she drank and that
the last thing she remembered was “a bouncer taking [her] drink and saying something
along the lines of ‘that’s enough.’”
B.D. testified that the next thing she remembered was waking up in a bed in the
morning with a lot of pain in her head, stomach, and “pubic area.” B.D. testified that she
was disoriented and felt very intoxicated. B.D. felt the weight and movement of another
body on top of her and asked, “[W]hat are you doing?” The person on top of her did not
respond. B.D. testified that Price was on top of her and that his “pubic area” was in contact
with her intimate parts when she initially woke up. B.D. testified that Price’s penis was
not inside her vagina, but “[i]t was right there, not in [her] , but millimeters” away. B.D.
testified that she tried pushing Price away with her arms but that her “entire body felt like
Jell-O so it didn’t accomplish much.” Price placed his hands on B.D.’s torso and stomach
and moved his head down to her pubic area. B.D. said, “[N]o,” and pushed herself away.
B.D. got off the bed and picked up her clothes and other belongings from the floor. Price
asked B.D. where she was going, and she replied, “[C]igarette,” and left the room.
B.D. testified that she left the house, walked to a building, and called A.J. A.J. met
B.D. there and contacted his brother-in-law, who took them to a hospital. At the hospital,

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B.D. reported that she had been sexually assaulted and a nurse conducted a sexual -assault
exam. B.D. provided a statement to a police officer at the hospital and told him she wanted
to press charges.
B.D. testified that Pr ice sent her messages on June 25 and June 26. On June 25,
Price sent B.D. a message stating, “[B.D.] girl I’m so sorry if you’re mad at me. But I did
NOT rape you. I asked your permission before I ate you out. A cop came here and started
asking questions. Did you find a ride home sa fe?” Price sent B.D. another message on
June 26 stating, “[B.D.] I feel like s --t that this is happening. I don’t understand. Please
talk to me soon.” B.D. had her mother send Price a message on June 27 stating , “Do not
contact me again. If you do I w ill contact the police.” B.D. testified that her mother sent
that message on her behalf because they thought it was necessary.
A.J. testified that he and D.E. walked back to S.K.’s house separately from the others
and that when they arrived at the house, someone told him that B.D. was asking for him.
A.J. went to an upstairs bathroom, saw B.D. over the toilet, and thought she was
intoxicated. A.J. testified that he and Price tried to help B.D. because she “wasn’t really in
control of herself” at the time and “wasn’t able to walk by herself.” A.J. and Price decided
to put B.D. to bed because she was “highly intoxicated” and they did not want to leave her
unattended. A.J. and Price brought B.D. back downstairs and placed her in a be droom.
A.J. testified that he told Price that B.D. was intoxicated and to “make sure that nothing
happens tonight.” A.J. testified that Price said, “I’m not going to f--k her. She’s too f--ed
up.” A.J. testified that when he woke the next morning, Pric e was walking through the
living room . Price seemed panicked , and he was asking where B.D. was. Shortly

5

afterward, B.D. called A.J. B.D. was crying and would not tell A.J. why. A.J. testified
that after he located B.D., he asked if something happened b etween her and Price. A.J.
testified that B.D. told him that she had said, “[N]o.”
D.E. testified that he returned to S.K.’s house with A.J. at around 2:15 a.m. and fell
asleep on a couch at approximately 2:45 a.m. D.E. testified that w hen he woke on the
morning of June 25, Price was asking where B.D. was. D.E. testified that Price told him
that he had helped B.D. up to the bathroom and then they went back to a bedroom and “had
relations.” D.E. testified that Price said he “had ate [B.D.] out.” D.E. further testified that
he believed that Price told him that he had sexual intercourse with B.D.
J.D. testified that B.D. seemed to get more intoxicated as the night went on and that
she was “intoxicated but coherent” when she walked back to S.K.’s house at approximately
2:00 a.m. J.D. further testified that B.D. and Price had engaged in “flirtatious behavior” at
the bars that night and were “very flirtatious” while walking back to S.K.’s house. For
example, Price gave B.D. a piggyback ride. When B.D. returned to S.K.’s house, she
vomited and then drank more alcohol. J.D. testified that she slept in an upstairs bedroom
with S.K. and that Pri ce entered the bedroom twice. Price entered the bedroom the first
time to ask for a phone charger and entered it the second time to ask if J.D. knew where
B.D. was. J.D. asked Price if he had sexual intercourse with B.D. , and Price said that he
had.
S.K. testified that B.D. was intoxicated when she returned to his house and that
people helped her get to the bathroom and into bed. S.K. testified that he stayed in the
upstairs bedroom with J.D. and that when they woke, Price asked them if they knew where

6

B.D. was. Price left the house and looked up and down the street , yelling B.D.’s name.
Price yelled loudly enough that S.K. coul d hear him from the bedroom and was worried
that his neighbors would hear. S.K. testified that Price told him that he had sexual relations
with B.D.
Officer Kevin Waterstreet of the Mankato Department of Public Safety testified that
at approximately 8:25 a.m. on June 25, 2016, he responded to a sexual -assault complaint.
Officer Waterstreet went to Mayo Clinic Health Systems in Mankato and spoke with B.D.
B.D. reported that she remembered being downtown until bar close and then did not
remember any details until approximately 7:00 a.m. when she woke up in a bed and Price
was on top of her . Officer Waterstreet went to S.K.’s house and found Price sleeping.
Officer Waterstreet had trouble waking Price, and Price seemed confused when the officer
began questioning him. After Officer Waterstreet repeated himself numerous times, Price
was coherent and seemed to understand the questions. Officer Waterstreet asked Price four
or five times whether he “hooked up” with B.D. the night before. Price replied that he did
not and that he had “never hooked up with somebody that was otherwise inclined.” Officer
Waterstreet took statements from D.E., S.K., and J.D. Each of them reported that Price
said that he had sexual intercourse w ith B.D. the night before. After taking those
statements, Officer Wa terstreet spoke with Price again, and Price admitted that he had
consensual oral sex and sexual intercourse with B.D.
A Sexual Assault Nurse Examiner ( the SANE nurse) testified that she examined
B.D. on the morning of June 25, 2016. The SANE nurse testified that B.D. indicated that
penetration had occurred but that she was “[u]nsure” whether penetra tion had occurred

7

with a penis. The SANE nurse testified that during the physical exam ination of B.D., she
documented a bloody discharge in B.D.’s vagina near the cervix. B.D. denied having her
period at the time and had no discharge until that morning. When asked what the cause of
a bloody discharge could be, the SANE nurse explained that with “any type of penetration,
. . . especially if there isn’t . . . an arousal where you have a natural lubricant, it can cause
friction which can then cause trauma that you might not be able to note.” The SANE nurse
testified that she took a blood sampl e from B.D. to test for the presence of drugs and
alcohol.
A forensic scientist at the Minnesota Bureau of Criminal Apprehension (BCA)
testified that chemical testing revealed that B.D.’s alcohol concentration was 0.086 plus or
minus 0.004 as of 9:18 a. m. on June 25, 2016. The forensic scientist testified that an
alcohol concentration of 0.08 was considered impaired for the purposes of driving -while-
impaired offenses. He estimated that B.D.’s alcohol concentration at 6:00 a.m. on June 25,
2016, was between 0.11 and 0.16, depending on her burn-off rate.
Price testified in his own defense , stating that he and B.D. had “pleasant”
interactions at the bars and during the walk back to S.K.’s house and that he gave B.D. a
piggyback ride on her request. Price testified that B.D. became sick and he helped her in
the bathroom. After he and B.D. entered the downstairs bedroom and lay down on the bed,
A.J. entered and told him to not “let anything funny happen.” Price said he would not.
Price testified that B.D. woke him and asked if he could walk her to the bathroom again.
According to Price, after B.D. returned from the bathroom, she began rubbing his abdomen
and genitalia , and he asked her if he could perform oral sex. Price testified that B.D.

8

undressed, he performed oral sex on her, and they had sexual intercourse. B.D. told Price
that she wanted to get cigarettes and left the bedroom. Price testified that he then fell
asleep.
Price testified that when he woke up again, B.D. was not in the room, and he went
looking for her. The other people at the house asked what had happened between him and
B.D., and he told them that he and B.D. had sex. Price testified that he fell asleep again,
the police woke him, and he did not remember what he told the police. Price testified that
when S.K. approached him later and explained the situation, he was shocked and
immediately messaged B.D. on Facebook to try to “figure out what was going on.” Price
testified that he went to the police and told them what had happened.
The jury found Price guilty as charged. The district court entered judgments of
conviction on both counts of criminal sexual conduct and sentenced Price to serve a 48-
month prison term for the third-degree criminal-sexual-conduct conviction. Price appeals.
D E C I S I O N
Price presents four grounds for relief. We address them in the order in which they
are set forth in his primary brief.
I.
Price contends that the prosecution engaged in misconduct, arguing that the
“prosecution’s repeated references in jury selection to the complainant in a criminal sexual
conduct case as a victim, and its eliciting from a State witness that the complainant here is
a victim, and using ‘sexual assault’ as if its occurrence should be a ssumed, were plain
errors” that require a new trial.

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Price did not object to th e alleged misconduct. Unobjected-to p rosecutorial
misconduct is reviewed under a modified plain-error standard. State v. Ramey, 721 N.W.2d
294, 297-300 (Minn. 2006); see State v. Parker , 901 N.W.2d 917, 925 -26 (Minn. 2017)
(reiterating the standard). A plain-error claim based on prosecutorial misconduct has three
requirements: (1) the prosecutor’s unobjected -to act must constitute error, (2) the error
must be plain, and (3) the error must affect the defendant’s substantial rights. Ramey, 721
N.W.2d at 302. “An error is plain if it was clear or obvious,” and an error is clear or
obvious if the error “contravenes case law, a rule, or a standard of conduct.” Id. (quotation
omitted). It is misconduct to violate clear or established standards of conduct expressed in
orders by a district court. State v. Fields , 730 N.W.2d 777, 782 (Minn. 2007). The
defendant has the burden of showing error that is plain. Ramey, 721 N.W.2d at 302. If
plain error is established, the burden shifts to the state to show that the error did not affect
the defendant’s substantial rights. Id. If a reviewing court concludes that any prong of the
plain-error analysis is not satisfied, the court need not consider the other prongs. State v.
Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Price argues that the prosecut ion engaged in misconduc t by repeatedly using the
word “‘victim’ to describe as victims complainants in general who allege sexual assault,
and to so describe B.D. in particular. ” Price also argues that the prosecution engaged in
misconduct by using “the phrase ‘sexual assault’ as if it were something to be assumed as
having occurred.” We address each argument in turn.

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Use of “Victim”
Prior to trial, the district court issued an order stating, “If there is an alleged victim,
the attorney for the State shall instruct its witnesses to make all reasonable efforts to use
neutral language and not refer to the alleged victim as ‘victim.’” (Emphasis added.)
Price argues that the state violated the district court’s pretrial order at least three
times as follows. First, B.D. testified that she was given a “victim’s bag” before being
released from the hospital, and the prosecutor asked her, “What’s a victim ’s bag?” B.D.
explained that it was a plastic bag that contained “underwear, socks, a toothbrush, personal
care products, sweat pants and a shirt” and that she received it before being released from
the hospital. Second, Officer Waterstreet testified that he “made sure that the nurse wanted
to go check and make sure the victim wanted to speak to an officer ahead of time .” And
third, the prosecution asked the officer whether “based on your experience have you seen
victims reluctant to report this type of crime,” to which Officer Waterstreet replied, “Yes,
sir.”
We are not persuaded that the state violated the district court’s pretrial order. In her
testimony, B.D. did not refer to herself as a victim; she merely described a bag containing
items that she received from the hospital after her sexual-assault exam. Likewise, the
prosecution’s question to Officer Waterstreet regarding the reluctance of victims to report
sexual assaults referred to victims in general, and not to B.D. in particular. Lastly, although
Officer Waterstreet referred to B.D. as “the victim,” Price does not argue that the
prosecutor intentionally elicited the reference; instead, the statement appears to have been
an inadvertent passing reference. See State v. Haglund, 267 N.W.2d 503, 505 -06 (Minn.

11

1978) (stating that the admission of inadmissible and prejudicial evidence is not reversible
error if the prosecutor did not intentionally elicit the testimony, the statement was merely
a passing reference, and the evidence of guilt was strong).
Price also argues that the district court’s order “implicitly covered other parts of the
trial process that involved the jury, like jury selection,” and that “during jury selection the
jurors continuously heard the pr osecution equating complainant and witness.” We
disagree. The district court’s order is clear and unambiguous : it attempted to prevent the
state’s witnesses from referring to any “alleged victim” in this case as a “victim.” When
language is unambiguous, we generally apply it as written. See, e.g., State v. Petersen, 910
N.W.2d 1, 6 (Minn. 2018) (stating that if the language of a rule of criminal procedure is
plain and unambiguous, appellate courts follow the language of the rule). The complained-
of statements in jury selection do not violate the unambiguous language of the d istrict
court’s pretrial order.1
Moreover, the complained-of jury-selection statements refer to victims in general,
and not to B.D. in particular. For exampl e, one of the prosecutors asked, “What kind of
reaction would you expect from a victim?”, “Do you expect victims to look a certain way?”,
and “[I]s there anybody that still . . . believes that . . . there should be some type of
aggression on a victim’s par t or some type of fighting back?” Because none of the

1 In addition, we question how an alleged violation of an implied condition could constitute
error that is plain. See Fields, 730 N.W.2d at 78 2 (stating that it is misconduct to violate
“clear or established standards of conduct,” including “orders by a district court”).

12

complained-of jury-selection statements referred to B.D. as the victim, they did not violate
the district court’s pretrial order.
Lastly, Price relies on State v. Hall, 764 N.W.2d 837, 845 (Minn. 2009), in support
of his arguments. The supreme court in Hall stated that “[t]here may be a situation in which
the reference to ‘victim’ is so overused that it results in unfair prejudice to a defendant and
therefore constitutes an abuse of the broad discreti on vested in the district court to rule on
evidentiary issues,” but the supreme court decided that Hall was not such a case. 764
N.W.2d at 845. Thus, Price essentially asks us to find plain error based on a case saying
that there could, hypothetically, be a possibility of error in a future case. That is not plain
error. See Ramey , 721 N.W.2d at 302 (“An error is plain if it was clear or obvious.”
(quotation omitted)).
In sum, Price has failed to show that the use of the word “victim” in jury selection
or at trial constitutes error that clearly or obviously violates the district court’s pretrial order
or caselaw. Because Price has failed to establish error that is plain, he is not en titled to
relief under the plain-error standard.
Use of “Sexual Assault”
Price argues that although the district court’s order “did not specifically prohibit the
prosecution from using the phrase ‘sexual assault’ as if it were something to be assumed
as having occurred,” the prosecution nonetheless engaged in misconduct by doing so
“because that usage is akin to calling the complainant a victim, because both usages assume
what the State has the burden to prove.” Price argues that “Hall puts prosecutors on notice
not to use terms in ways that are likely to unfairly prejudice defendants” and that

13

“[b]ecause, as case law recognizes, using ‘victim’ can be prejudicial, it follows that saying
‘sexual assault’ in a way that assumes it occurred is likewise prejudicial, and therefore clear
or obvious misconduct.”
However, as discussed above, Hall does not establish that the us e of the term
“victim” in this case was error. And because Hall does not address whether references to
“sexual assault” could be misconduct, see 764 N.W.2d at 844-45, it does not establish that
such statements in this case are error, much less plain error. Again, Price has not met his
burden to show error that is plain. He therefore is not entitled to relief under the plain -
error standard of review.
II.
Price contends that the evidence was insufficient to sustain his convictions, arguing
that “the prosecution failed to prove B.D. was physically helpless when [he] allegedly
committed penetration and contact in the form of alleged oral sex, because B.D. te stified
she was awake and said ‘no.’” Price concludes, “That, and other factors, permitted one or
more jurors to find penetration and contact proven based on an insufficiently-proven form
of penetration and contact, resulting in guilty verdicts that may be premised on a factual
theory the State did not prove, and requiring them to be vacated for insufficient evidence.”
Price was convicted of third -degree criminal sexual conduct unde r Minn. Stat.
§ 609.344, subd. 1(d) (2014), which provides that “[a] person who engages in sexual
penetration with another person is guilty of criminal sexual conduct in the third degree” if
“the actor knows or has reason to know that the complainant is mentally impaired, mentally
incapacitated, or physically helpless.” Price was also convicted of fourth-degree criminal

14

sexual conduct under Minn. Stat. § 609.345, subd. 1(d) (2014), which provides that “[a]
person who engages in sexual contact with another person is guilty of criminal sexual
conduct in the fourth degree” if “the actor knows or has reason to know that the
complainant is mentally impaired, mentally incapacitated, or physically helpless.”
“‘Physically helpless’ means that a person is (a) aslee p or not conscious, (b) unable to
withhold consent or to withdraw consent because of a physical condition, or (c) unable to
communicate nonconsent and the condition is known or reasonably should have been
known to the actor.” Minn. Stat. § 609.341, subd. 9 (2014).
Ordinarily, when considering a claim of insufficient evidence, this court closely
analyzes the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to allow the jury to reach the ver dict that it did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will not disturb the verdict
if the jury, acting with due regard for the presumption of innocence and the requirement of
proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of
the charged offense. Bernhardt v. State , 684 N.W.2d 465, 476 -77 (Minn. 2004). A
defendant bears a “heavy bu rden” when seeking to reverse a jury verdict based on
insufficient evidence. State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).
Price’s sufficiency challenge is unique. Price notes that “[t]he State presented
evidence that [he] told others at the house he had had sexual intercourse with B.D.” and
that “he testified he had consensual sexual intercourse with B.D.” Price concedes that
“[t]his could ha ve provided the jurors an act other than oral sex on which to premise a
conviction on Counts I (penetration) and II (contact), if they believed B.D. was asleep or

15

otherwise unable to consent to sexual intercourse when it occurred.” In doing so, Price
does not dispute that there was sufficient evidence to support his convictions on the theory
that he engaged in penile penetration with B.D. when she was physically helpless.
However, Price notes that “no way exists to determine that the jurors unanimously
agreed it was penile penetration they relied on to find proven the . . . penetration and . . .
contact elements.” Price argues that because B.D. “testified she was aware [he] was going
to perform oral sex, and [she] said ‘No,’” B.D. was not “physically helpless when t he
alleged oral sex occurred, ” and that the evidence regarding “the alleged oral sex” was
therefore insufficient to support his convictions. Price acknowledges that “[s]ome or even
all jurors could have, as the prosecutor argued in closing, convicted [him] of the third-
degree penetration charge based on penile penetration,” but he hypothesizes that “one or
more also could have convicted [him] . . . based on the oral sex to which B.D. testified, and
which the court instructed on as [a] basis for convicting . . . when it defined cunnilingus as
constituting penetration.” See Minn. Stat. § 609.34 1, subd. 12(1) (2014) (defining
“[s]exual penetration” to include “any of the following acts co mmitted without the
complainant’s consent, except in thos e cases where consent is not a defense[:] . . .
cunnilingus”). For the reasons that follow, Price’s sufficiency argument does not persuade
us to reverse.
The district court instructed the jury that “[c]unnilingus constitutes sexual
penetration if there is any contact between the female genital opening of one person and
the mouth, tongue, or lips of another person.” But the district court also instructed the jury
that it could not find Price guilty unless he “knew or had reason to k now that [B.D.] was

16

physically helple ss” and that “ [a] person is physically helpless if she is: asleep or not
conscious; unable to withhold consent or withdraw consent because of a physical
condition; or una ble to communicate non -consent.” Price maintains that B.D. was not
physically helpless, as defined by statute, when the oral sex occurred. See Minn. Stat.
§ 609.341, subd. 9. Given the district court’s instructions and B.D.’s testimony that she
said, “No,” when Price initiated cunnilingus, we agree with Price that the evidence does
not support a finding that B.D. was physically helpless during any cunnilingus.
However, we presume that jurors follow the district court’s instructions. State v.
Martin, 614 N.W.2d 214, 227 (Minn. 2000). We therefore presume that the jurors followed
all of the district court’s instructions, including the instructions explaining that they could
not find Price guilty unless he knew or had reason to know that B.D. was physically
helpless when the alleged sexual penetration and contact occurred. Under those
instructions—as Price argues —there wa s little basis to find that B.D. was physically
helpless during cunnilingus. Thus, Price’s sufficiency argument asks us to assume that one
or more jurors ignored the distr ict court’s instructions and found him guilty based on
cunnilingus even though the state’s evidence showed that B.D. was not physically helpless
at that time . Price asks us to do so even though the prosecut ion did not expressly argue
that the jury could or should find Price guilty based on cunnilingus.2 We will not do so.
Instead, we presume that each juror followed the district court’s instructions and, in

2 Indeed, Price notes that “the prosecution did not argue oral sex as a basis for penetration
and contact” and complains tha t the prosecution failed to go a step further and “tell the
jurors not to find penetration and contact based on the alleged oral sex.”

17

accordance with those instructions, based his or her finding of guilt on penile penetration
and not on cunnilingus.
Price additionally argues that the state erred in failing to request “an instruction that
the jurors had to be unanimous as to the form of penetration and contact they found proven”
and that the district court plainly erred by not giving such an instruction. Price did not
object to the district court’s failure to give a unanimity instruction. “[B]efore an appellate
court reviews an unobjected -to error, there must be (1) error; (2) that is plain; and (3) the
error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
“If these three prongs are met, the appellate court then assesses whether it should address
the error to ensure fairness and the integrity of the judicial proceedings.” Id. “An error is
plain if it was clear or obvious. ” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)
(quotation omitted).
Price asserts that “a court not requiring unanimity when the State’s evidence permits
the jury to convict on an unproven factual theory is plain error.” He relies on State v.
Wenthe, 865 N.W.2d 293, 299 (Minn. 2015), in support of that argument. But the supreme
court in Wenthe did not conclude that the omission of a specific-unanimity instruction was
plain error. 865 N.W.2d at 299. Instead, the supreme court stated that it “need not decide
. . . whether the district court erred by omitting a specific -unanimity instruction, because
the alleged error did not affect [the defendant’s] substantial rights.” Id. Because Price
does not cite precedential authority supporting his assertion that the district court —or the
state—erred by not giving a unanimity instruction , the alleged error is not plain and not a

18

basis for relief. See Ramey, 721 N.W.2d at 302 (stating that plain error is usual ly shown
if the error contravenes caselaw, a rule, or a standard of conduct).
Given the evidence at trial, the district court’s instructions, and the lack of an express
argument by the prosecutor that the jury should find Price guilty based on cunnilingus, it
is highly improbable that any juror based a finding of guilt on cunnilingus as opposed to
penile penetration. Because Price does not dispute that there was sufficient evidence to
support his convictions on the theory that he engaged in penile penetration with B.D. when
she was physically helpless, Price has not met his heavy burden to show that the evidence
was insufficient to sustain his convictions.
III.
Price contends that “[t]he District Court abused its discretion and denied [him] his
Fifth and Sixth Amendment due process and fair trial rights to present a defense when it
denied his request to present evidence of previous consensual sexual conduct he and B.D.
had” because it was “relevant to showing that B.D. consented to the sexual relations in this
case.”
Minnesota’s rape -shield statute and Minn. R. Evid. 412 provide that, in a
prosecution for acts of criminal sexual conduct, “evidence of the victim’s previous sexual
conduct shall not be admitted nor shall any reference to such conduct be ma de in the
presence of the jury,” unless an enumerated exception applies. Minn. Stat. § 609.347, subd.
3 (2018); Minn. R. Evid. 412(1) ; see Minn. Stat. § 609.347, subd. 4 (providing procedure
for defendant to offer sexual -history evidence) . When the consent of the victim is a
defense, “evidence of the victim’s previous sexual conduct with the accused” may be

19

admissible. Minn. Stat. § 609.347, subd. 3(a)(ii). Sexual -history evidence is also
admissible when “constitutionally required by the defendant’s right to due process, his right
to confront his accusers, or his right to offer evidence in his own defense.” Wenthe, 865
N.W.2d at 306 (quoting State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986)).
However, sexual-history evidence may only be admitted if “the probative value of
the evidence is not substantially outweighed by its inflammatory or prejudicial nature.”
Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1); see Benedict, 397 N.W.2d at 341
(stating that the district court “ought to balance the probative value of [sexual -history]
evidence against its potential for causing unfair prejudice ”). The party seeking to admit
evidence of a victim’s sexual history has the burden to establish that it is admissible. See
State v. Crims , 540 N. W.2d 860, 868 (Minn. App. 1995) (“Unless and until a defendant
shows the victim’s sexual history to be relevant to the facts at bar, this particular form of
character evidence simply is not admissible under the normal rules of evidence.”), review
denied (Minn. App. Jan. 23, 1996).
This court reviews the district court’s evidentiary rulings for a “clear abuse of
discretion.” State v. Bustos , 861 N.W.2d 655, 666 (Minn. 2015). “Under an abuse -of-
discretion standard, [an appellate court] may reverse the distr ict court when the district
court’s ruling is based on an erroneous view of the law or is against logic and the facts in
the record.” Id. (quotation omitted). This court applies the abuse -of-discretion standard
even if a defendant claims that exclusion o f evidence deprived him of his constitutional
right to present a complete defense. State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006).
If a defendant shows that the district court erroneously excluded defense evidence in

20

violation of the defendant’s right to present evidence, this court must determine “whether,
assuming that the damaging potential of the excluded evidence were fully realized, . . . the
error was harmless beyond a reasonable doubt.” State v. Post, 512 N.W.2d 99, 102 (Minn.
1994) (quotation omitted).
In district court, Price moved to admit evidence that he and B.D . had consensual
sexual intercourse on one occasion in the summer of 2014. Price’s motion alleged that he
and B.D. “were at a bonfire together drinking alcohol. They eventually went to bed
together in a fifth wheel camper. While they were in bed, [B.D.] started kissing [him].
Then they each took their own clothes off and engaged in consensual intercourse. ” The
state acknowledged that this incident had occurred.
The parties discussed Price’s motion at a pretrial hearing. The state argued that
“even though [the sexual -history evidence] may be allowed under the rules[,] this
information would still be more prejudicial than it would be probative for the jury” because
it was a single instance of consensual sexual intercourse that occurred two years before the
incident in this case and had “nothing to do with whether [B.D.] consented that evening.”
The district court questioned whether the incident had probative value given that it occurred
two years before the charged incident, and defense counsel responded that “the similarities
between the incident back in ’14 and the incident in 2016 are that alcohol was used. And
our contention is that [Price] removed [B.D.’s] clothing in both incidents.”
The district court denied Price’s request to admit evidence of his past consensual
sexual intercourse with B.D., reasoning as follows:

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Well, be that as it may, there might be similarities but
how is—And I’m taking his affidavit at face v alue here. I do
not understand how a consensual sexual encounter perhaps two
years earlier has any probative value for something that
happened two years later. And that’s the way I see it is that
this happened. I’ll take it [at] face value; I’ll take it as truth
that the alleged victim and the defendant did engage in a
consensual sexual encounter, under the circumstances similar.
Alcohol was involved and whatever other factual similarities
there were. However, it was two years earlier. It would be
like, perhaps I loaned my car to somebody two years ago.
Well, that didn’t carry through two years. So the Court will
deny the request. I do find that it would [have] virtually no
probative value. Certainly would be—could be prejudicial and
the standard has not been met. So the request is denied.

Price argues that because “the circumstances of the consensual sexual intercourse
he and B.D. had in 201 4 were similar to those in 2016 ” and because the district cou rt
accepted them as established, it “had no valid reason for finding that [his] proffered reasons
for admitting the prior sexual conduct did not qualify it for admission.” Price further argues
that “the State never provid[ed] any explanation as to how or why the previous sexual
conduct was inflammatory and prejudicial or would confuse the jurors.”
On the one hand, it was not unreasonable for the district court to reason that despite
the similarities between the incidents, the passage of time reduced the probative value of
the 2014 in cident. A comment to rule 412 notes that the rule previously had a one -year
limitation for admissibility and states, “Obviously, the longer time lapse between the past
conduct and the date of the alleged consent, the less probative the evidence becomes.”
Minn. R. Evid. 412 1989 comm. cmt. And the sup reme court has stated, in the context of
relationship evidence, that although “evidence of prior relations between a defendant and

22

victim may be admissible, probative value diminishes with remoteness from the act.” State
v. Swain, 269 N.W.2d 707, 714 (Minn. 1978) (citation omitted).
On the other hand, Price persuasively argues that absent the information regarding
the 2014 incident, “[t]he jurors did not learn the full nature of the relationship and the
context in which the sexual conduct in this case occur red.” Price asserts that “the
prosecution tried to, and succeeded, in portraying [him] and B.D. as just acquaintances”
and argues that “B.D.’s testimony about the nature of her relationship with [him] strongly,
but erroneously, suggested to the jurors that the sexual conduct in this case was far less
likely to have been consensual than all the relevant facts would indicate.”
Although evidence regarding the 2014 incident could have changed the trial
narrative regarding the relationship between Price and B.D. , Price did not make th at
argument to the district court , and it is difficult to fault the district court for failing to
imagine and consider unidentified reasons why the evidence may have been pro bative. It
is also difficult to fault the district court for not reconsidering the issue, sua sponte, when
the relevance of the evidence became more apparent during trial.
However, we need not decide whether the district court abused its discretion
because, for the reasons that follow, any error in denying Price’s request to admit evidence
of the 2014 incident was harmless beyond a reasonable doubt.
As to that issue,
the reviewing court must be satisfied beyond a reasonable
doubt that if the evidence had been admitted and the damaging
potential of the evidence fully realized, an average jury ( i.e., a
reasonable jury) would have reached the same verdict. Only
then can it be said that the erroneous exclusion of the evidence

23

was harmless. If, on the other hand, there is a reasonable
possibility that the verdict might have been different if the
evidence had been admitted, then the erroneous exclusion of
the evidence is prejudicial.

Post, 512 N.W.2d at 102 (footnote omitted). “The error should be considered in the context
of all of the facts appearing in the record.” State v. Lee, 929 N.W.2d 432, 440 (Minn. 2019)
(quotation omitted). An error may be harmless beyond a reasonable doubt if the evidence
of guilt was “very strong.” See id. at 440-41.
Again, Price testified that he had sexual intercourse with B.D. The evidence that
B.D. was physically helpless when that sexual intercourse occurred was very strong. A.J.,
J.D., and S.K. testif ied that B.D. was intoxicated on the night of the incident , and A.J.
testified that B.D. “wasn’t really in control of herself.” Th at testimony was corroborated
by the BCA forensic scientist’s testimony that B.D.’s alcohol concentration indicated legal
impairment as of 9:18 a.m. the next morning and that it would have been even higher earlier
that morning. A.J. testified that he warned Price, “[M]ake sure that nothing happens
tonight,” because B.D. was so intoxicated and that Price replied, “I’m not going to f--k her.
She’s too f--ed up.” B.D. testified that when she woke up, Price was on top of her and his
penis was “millimeters” away from her vagina. The SANE nurse testified that she
documented a bloody discharge in B.D.’s vagina and that a bloody discharge can be caused
by penetration if there is not arousal at the time of penetration. All of those circumstances
strongly suggest that B.D. was asleep or unconscious when the sexual intercourse occurred
and therefore not able to communicate nonconsent.

24

Moreover, A.J. testified that Price seemed panicked when he asked about B.D. the
next morning, and S.K. testified that Price was yelling loudly and looking up and down the
street for B.D. Officer Waterstreet testified that initially, Price repeatedly denied that he
had sexual contact with B.D. and stated that he has “never hooked up with somebody that
was otherwise inclined.” But after D.E., S.K., and J.D. contradicted Price’s denial , Price
admitted that he had had sexual intercourse with B.D. Price’s i nconsistent statements
regarding whether he had engaged in sexual activity with B.D., as well as his behavior after
B.D. left S.K.’s house, likely undermined his credibility with the jury and its willingness
to believe his version of the events. See State v. Jones, 753 N.W.2d 677, 693 (Minn. 2008)
(noting that defendant’ s “credibility was seriously undermined by the inconsistent
statements he made to police and his admission that he perjured himself in the first trial”).
Lastly, the charges against Price—as well as the jury’s verdict—were based on the
theory that B.D. was incapable of consenting because she was physically helpless.
Evidence that B.D. had consented to sexual activity with Price two years earlier had little
relevance regarding the ultimate issue: whether B.D. was capable of consenting at the time
of the charged offense.
In sum, e ven if the district court erred by excluding evidence regarding the 2014
incident, we are satisfied beyond a reasonable doubt that if the evidence had been admitted
and the damaging potential of the evidence fully realized—that on one occasion two years
earlier B.D. had consensual intercourse with Price—a reasonable jury would have reached
the same verdict given the very strong evid ence that B.D. was physically helpless and

25

unable to consent at the time of the penile penetration in this case. The alleged error
therefore does not provide a basis for relief.
IV.
Price contends that the district court erred by entering judgmen ts of conviction for
both third- and fourth-degree criminal sexual conduct because his “convictions represent
one behavioral incident.”
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but no t both.” Minn. S tat. § 609.04, subd. 1 (201 8). An
“included offense” is defined to include “a lesser degree of the same crime” and “a crime
necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4). “To determine
whether an offense is an included offense falling under this statute, a court examines the
elements of the offense instead of the facts of the particular case. ” State v. Bertsch, 707
N.W.2d 660, 664 (Minn. 2006). “An offense is necessarily included in a greater offense if
it is impossible to commit the greater offense without committing the lesser offense. ” Id.
(quotation omitted). This court reviews whether an offense constitutes a lesser -included
offense de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
When a defendant is convicted of more than one charge for the same act, the district
court should adjudicate formally on one count only. State v. LaTourelle, 343 N.W.2d 277,
284 (Minn. 1984). “The remaining conviction(s) should not be formally adjudicated at
[that] time. If the adjudicated conviction is later vacated for a reason not relevant to the
remaining unadjudicated conviction(s), one of the remaining unadjudicated convictions
can then be formally adjudicated . . . .” Id.

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The state agrees with Price that this court “should remand with instructions to vacate
the judgment of conviction for [fourth-degree criminal sexual conduct].” Caselaw supports
that outcome. See State v. Koonsman, 281 N.W.2d 487, 489-90 (Minn. 1979) (holding that
defendant who “committed only one criminal sexual act” and was found guilty of third-
and fourth-degree criminal sexual conduct could only be convicted of one count of third -
degree criminal sexual conduct). We therefore reverse in part and remand for the district
court to vacate the judgment of conviction for fourth-degree criminal sexual conduct. The
jury’s guilty verdict on that count should remain intact. See State v. Walker, 913 N.W.2d
463, 467-68 (Minn. App. 2018) (reversing and remanding to district court with instructions
to vacate the formal adjudication of lesser -included offense, but not the finding of guilt
regarding that offense).
Affirmed in part, reversed in part, and remanded.