State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2042

State of Minnesota,
Respondent,

vs.

Antoine Martez Eubanks,
Appellant.

Filed February 1, 2021
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-17-24151

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal from a judgment of conviction of second-degree criminal sexual
conduct, appellant argues that the district court abused its discretion by denying his motion
for in camera review of a child-protection case file, and by denying his motion for mistrial

2
after a state’s witness vouched for the credibility of the complainant. Appellant also argues
that he is entitled to be resentenced in accordance with recent amendments to the sentencing
guidelines. Because the district court misapplied the law in determining whether to gran t
in camera review of the child-protection records, we remand that issue to the district court
to determine whether Eubanks should have been granted access to the records and, if so,
whether a new trial should be granted. We affirm the district court’s denial of a mistrial as
being within its discretion. Finally, we reverse the sentence and remand for resentencing
in accordance with amendments made to the sentencing guidelines in the event no new trial
is ordered.
FACTS
Between 1995 and 2009, appellant Antoine Martez Eubanks and L.C. were involved
in an on -again, off -again relationship , and had three daughters . Eubanks and L.C.
reconnected in the summer of 2017, which led to Eubanks spending time with L.C. and the
children. During th at summer, Eubanks spent the night at L.C.’s house on several
occasions. When Eubanks spent the night, he slept either on the couch in the living area
or in the bedroom of one of his daughters (the child). The child’s room has a full-size bed
and a couch. When Eubanks spent the night in the child’s room, L.C. expected him to sleep
on the couch. But according to the child, Eubanks slept in bed with her.
On the night of July 18, 2017, Eubanks spent the night at L.C.’s house. That
evening, the child, who was 12 years old at the time, went to bed before Eubanks. She
later woke up when Eubanks got in her bed beside her and began rubbing her back.
Eubanks continued to rub her back and the child noticed that his hand “started to get lower

3
and lower.” His hand went under her clothing and “closer to [her] vagina.” He eventually
placed his hand on her vagina and made a “rubbing motion” for 15-30 seconds. The child
“started to move a lot” and Eubanks stopped. This happened at approximately 3:30 a.m.
When L.C. got up to get ready for work, the child went to tell her what happened.
The child was tearing up and unable to speak, so she used her mother’s phone to type out
what had occurred. The child’s stepfather then attempted to take her to a medical center to
be examined, but staff at the first two medical centers were unable to perform a forensic
examination at those locations. She was ultimately examined that evening at Hennepin
County Medical Center by a forensic nurse examiner (the nurse examiner). The child told
the nurse examiner that she woke up early that morning when Eubanks got in her bed and
began rubbing her back , and that Eubanks then “rubbed [the child’s] genital area.” The
nurse examiner collected DNA swabs from the child’s perineal area and sent the swabs to
the Minnesota Bureau of Criminal Apprehension (BCA) for testing. The swabs did not
contain enough information for a full DNA comparison, but testing did reveal the presence
of m ale DNA. On July 27, the child was interviewed by a forensic interview er at
CornerHouse. During the interview , the child again stated that Eubanks had touched her
vaginal area.
Respondent State of Minnesota charged Eubanks with one count of second -degree
criminal sexual conduct. Prior to trial, Eubanks moved for the district court to conduct an
in camera review of child-protection records related to the child. The district court denied
the motion. Following trial, t he jury found appellant guilty of se cond-degree criminal
sexual conduct and the lesser-included offense of attempted second-degree criminal sexual

4
conduct. The district court sentenced Eubanks to 48 months in prison, stayed execution of
sentence, and placed Eubanks on probation for five years. Eubanks now appeals.
DECISION
I. The district court misapplied the law in its denial of Eubanks’s motion for
in camera review.

Eubanks’s first argument is that the district court erred when it denied his motion
for in camera review of a child -protection case file involving the child. Both the United
States and Minnesota Constitutions require that criminal defendants have a meaningful
opportunity to present a complete defense. U.S. Const. amend. XIV; Minn. Const. art. 1,
§ 7. Criminal defendants are thus accorded “a broad right to discovery in order to prepare
and present a defense.” State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012). This right,
however, is not unlimited. See State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009) (“A
defendant’s right to present a complete defense is not absolute.”) . Here, it is undisputed
by the parties that the records at issue are confidential.1 In such cases, the court must strike
a balance between a criminal defendant’s right to obtain evidence that ma y be helpful to
his defense and an individual’s interest in having her “confidences kept.” State v. Paradee,
403 N.W.2d 640, 642 (Minn. 1987).
In striking this balance, the court may review the confidential records in came ra to
determine their relevance, but in camera review is a “discovery option,” not a right. State
v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992). A defendant is only entitled to an in camera

1 The statutory protections cited by the district court include the Minnesota Government
Data Practices Act, Minn. Stat. §§ 13.01-.90 (2018), and Minn. Stat. §§ 260C.171, 595.02
(2018).

5
review of confidential information after f irst making “some plausible showing that the
information sought would be both material and favorable to his defense. ” Id. (quotations
omitted). The request must be “reasonably specific.” State v. Lynch, 443 N.W.2d 848, 852
(Minn. App. 1989), review denied (Minn. Sept. 15, 1989). Evidence is only material if
there is a “reasonable probability” that disclosure would lead t o a different result at trial.
State v. Wildenberg, 573 N.W.2d 692, 697 (Minn. 1998) (quotation omitted).
We review a district court’s decision on the release and use of protected records for
an abuse of discretion. Hokanson, 821 N.W.2d at 349. “A district court abuses its
discretion when its decision is based on an erroneous view of the law . . . .” State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
Eubanks moved for in camera review of a child-protection file. The child-protection
case involved the child and was opened after the sexual assault at issue here. In the motion,
he asserted as his basis that “the records will contain information about credibility and
motive to fabricate, and should contain reports of interviews with the child and her mother,
both witnesses in the criminal case.”
At the motion hearing, Eubanks’s counsel explained that the defense was interested
in “other statements of the child, other statements of [L.C.] about these allegations.” He
further explained that there was a “history in juvenile court” between Eubanks and L.C.
related to their o lder children, and that Eubanks was “of the op inion that there’s been
manipulation by [L.C.] of the children against him” that would speak to her bias as a
witness. He ultimately requested that the district court conduct an in camera review of the
records “to find out if there are prior statements re garding these allegations or any other

6
information that would relate to the credibility or motive to fabricate either on the child’s
part or [L.C.’s] part.” Eubanks argues that these assertions were reasonably specific and
met the burden of making a plaus ible showing that the records contained information that
was both material and favorable to his defense.
The district court denied the motion for in camera review. In doing so , the district
court found that the request was “non -descript,” “vague at best,” and offered only “vague
generalities and speculation” in support of the m otion. The district court noted that
Eubanks asserts that he “knows the files will contain information about credibility, and/or
motive to fabricate.” The district court went on to state:
While [this] is a confident assertion, it is broad and without
support. Furthermore, Mr. Eubanks states there should be
reports of interviews with [the child] and her mother. The use
of the word “should” implies Mr. Eubanks does not know this
to be the case, and even if he were to know, he does not expand
further as to how [h]e knows this, and why they are material
and favorable to his defense.

The district court concluded that Eubanks failed to make out a “plausible showing that any
of the requested documents contain information tha t is material and favorable to his
defense” and, as such, the request “appears to be a fishing expedition, without sufficient
support to justify in camera review.”
We conclude that the district court misapplied the law in requiring proof by Eubanks
that he knows the file will contain material and favorable evidence. The legal standard to
obtain in camera review requires only a “plausible showing.” Hummel, 483 N.W.2d at 72.
We note that this is a case that involved very little physical evidence and hinged on the
credibility of the child and the mother. Here, Eubanks identified a specific juvenile court

7
file involving the child. The child -protection file was only opened after the report of the
sexual assault involved in the criminal case. Depending on the stage of the child-protection
proceedings and what had been filed with the court in that case, Eubanks may not have
been in a position to know with certainty whether the file would contain statements by the
child or mother that would be “mat erial and favorable” to his defense. And the legal
standard does not require such a level of certainty as the threshold for obtaining in camera
review. State v. Burrell, 697 N.W.2d 579, 604-05 (Minn. 2005).
We remand this issue to the district court to ascertain whether an in camera review
is warranted under the proper legal standard and, if so, to review the file to determine if
there are any records relating to statements made by the child or mother that are material
and favorable to the defense. If a review is conducted and the district court concludes that
some records should have been provided to Eubanks the court can then evaluate whether a
new trial must be granted.
II. The district court did not abuse its discretion by denying the motion for a
mistrial.

Eubanks’s second argument on appeal is that the district court erred by denying his
motion for a mistrial . He contends that a witness called by the state, the person who
conducted a forensic interview of the child at CornerHouse (the interviewer) ,
impermissibly vouched for the child’s credibility. Vouching testimony, where a witness
testifies that he or she believes the victim is telling the truth, is generally inadmissible.
State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998). Judging credibility is wit hin the
province of the jury. State v. McCray, 753 N.W.2d 746, 754 (Minn. 2008).

8
We review a district court’s denial of a motion for a mistrial for an abuse of
discretion. State v. Griffin , 887 N.W.2d 257, 262 (Minn. 2016) . “A mistrial should be
granted only if there is a reasonable probability, in light of the entirety of the trial including
the mitigating effects of a curative instruction, that the outcome of the trial would have
been different had the incident resulting in the motion not occurred.” Id. The district court
is in the best position to determine if a mistrial is warranted, or if an alternate remedy is
appropriate. Id.
At trial, the state called the interviewer as a witness. The interviewer testified about
her report of the interview. During defense counsel’s cross-examination of the interviewer,
the following exchange occurred:
Q: And then in this particular case you—you wrote there’s
a heading for interview information, you put some information
in there; is that correct?
A: That’s correct.
Q: And in that section you wrote that although cooperative
[the child ] seemed evasive and guarded during inquiry
regarding the top of a—topic of concern; is that right?
A: Yes.
Q: Okay. And then you referenced that as indicating at
times she would just say that she couldn’t remember; is that
right?
A: Yes.
Q: So—And this report would have been written up shortly
after the interview, is that what you do?
A. Within a week or so generally.
Q. Okay. And it was your —I mean, it was your opinion
that based on your experience you saw some signs of her being
evasive?
A: Well, after looking back sometimes I’ve done several
other interviews before I get to the report, and after looking at
the tape yesterday when I was preparing and again today I
don’t think it was so much—I think we could characterize it as
evasive, I think it—she was just very—having a very difficult

9
time. And so if we want to frame it as evasive, it was just very
difficult as we could see at a number of points during the
interview. It was just difficult for her to tell what happened,
and it did not appear to me that she was trying to lie about it
or—or maybe make things up, that did not appear, it just
appeared that the circumstances of her—of her—

Defense counsel objected to the answer as nonresponsive. The district court
immediately instructed the jury as follows:
And, Members of the Jury, it’s always kind of
dangerous, and no offense to the witness, but it would be wrong
for someone to try to put their take on whether or not someone
is lying or not. That’s not really what this is about. The issue
is whether or not you, based upon all the evidence you have
and looking at not only the witnesses but documentary
evidence and anything else, if you find a witness credible.

So please don’t let that kind of opinion dictate that. I
think the witness was just trying to explain what she might
have meant by the word “evasive.” So I’ll direct that you
disregard that last kind of lengthy explanation there once it got
past kind of dealing with just evasiveness.

After the jury left for the day, the district court judge, defense counsel, and
prosecutor discussed the interviewer’s statement. The district court judge stated that he
“wish[ed] she hadn’t” said what she did, but noted that he thought that they “dealt with it
effectively” and adjourned the proceedings.
When the trial reconvened, defense counsel moved for a mistrial. Defense counsel
argued that Eubanks was entitled to a new trial because the interviewer testified as an expert
witness and impermissibly vouched for the child’s testimony. The district court denied the
motion. The district court observed that the interviewer’s answer was a “very unfortunate
use of words, however, it was in direct response to a defense question about the use of the

10
word ‘evasive’ and her explanation of what she meant by that” and found “that the answer
was responsive to the question.” The district court also noted that it had promptly
instructed the jury to disregard the sta tement and that it believed that the jury could and
would do so. The district court ultimately concluded that “given the curative instruction in
the immediate moment and the context of her very brief statement I don’t find that it’s
overly prejudicial to the defense” and denied the motion.
Eubanks argues that a mistrial was warranted and that he is entitled to a new trial
because there is a reasonable probability that the outcome would have been different had
the interviewer not vouched for the child’s credibility. He contends that the prejudicial
nature of the comment was “not effectively reduced by curative measures” and that the
instructions “failed to specifically tell the jury to disregard [the interviewer’s] vouching
testimony.” Finally, Eubanks claims that because the interviewer testified as an expert the
jury likely gave great weight to her testimony, and that the case against him was not strong.
We are not persuaded. As noted above, the district court is in the best position to
determine if a mistrial is warranted or if an alternate remedy is appropriate. Griffin, 887
N.W.2d at 262. In denying the motion, the district court thoroughly analyzed the potential
prejudice that may result from the interviewer’s testimony. The district court observed that
it immediately instructed the jury to disregard the statement, that the statement was brief,
and that the district court did not believe that it would be difficult for the jurors to disregard
the statement. “Cautionary instructions given by the trial court relating to allegations of
misconduct are a significant factor favoring denial of a motion for a mistrial.” State v.
Robinson, 604 N.W.2d 355, 361 (Minn. 2000) (quotation omitted). And we presume that

11
the jury follows the district court’s instructions. State v. Hall, 764 N.W.2d 837, 845 (Minn.
2009); see also State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005) (noting that when
a district court orders a jury to disregard a statement, we presume that the jury followed
that instruction). Here, the district court immediately and clearly explained that it was
improper for one witness to vouch for the credibility of another and that credibility was
ultimately a question for the jurors to decide based on all the evidence presented.
We also agree with the district court that the context of the statement is relevant in
this case. The statement was in response to repeated questions from defense counsel about
the interviewer’s use of the term “evasive” in her report. In emphasizing the interviewer’s
use of the term “evasive,” it appears that defense counsel was trying to suggest that the
child was not being truthful during the interview. The interviewer’s response was thus in
direct response to defense counsel’s question, rather than t he result of the prosecutor
attempting to elicit improper testimony. And the prosecutor did not repeat the vouching
testimony.
Given the context and brief nature of the remark, and the immediate and thorough
curative instruction to the jury to disregard the statement, we conclude that there is not a
reasonable likelihood that the outcome would have been different if the interviewer had
not made the improper statement. The district court therefore did not abuse its discretion
by denying the motion for a mistrial and we affirm the district court’s ruling on this issue.
III. Eubanks is entitled to be resentenced.
Eubanks argues that he is entitled to be resentenced because amendments to the
sentencing guidelines have reduced his criminal-history score. The proper calculation of a

12
defendant’s criminal-history score is a question of law that we review de novo. State v.
Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
Eubanks was sentenced in September 2019 to 48 months in prison, with execution
of the sentence stayed for five years. This was the presumptive sentence for second-degree
criminal sexual conduct based on a criminal-history score of one. Minn. Sent. Guidelines
4.B (2018). Eubanks was assigned one custody -status point based on a 2015 gross -
misdemeanor level conviction of driving while impaired (DWI) and one-half of a felony
point for a 2006 conviction of theft. Eubanks was sentenced to 365 days in jail, with 335
days stayed, and placed on probation for four years for the DWI conviction.
In 2019, the Minnesota Sentencing Guidelines Commission amended how custody-
status points are assigned. Prior to the amendments , an offender received a full custody -
status point if the offender committed a new offense while on probation. Minn. Sent.
Guidelines 2.B.2.a.(1)-(3) (Supp. 2017). Following the 2019 rev isions, an offender now
typically receives only one-half of a custody -status point for an offense committed while
on probation.2 See Minn. Sent. Guidelines 2.B.2.a.(1)-(3) (Supp. 2019).
Under the amelioration doctrine, an amendment to a statute applies to an offense
committed before the effective date of the amendment if “(1) there is no statement by the
Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration
doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been

2 There are certain circumstances under which an offender may still receive a full custody-
status point for an offense committed while on probation, Minn. Sent. Guidelines 2.B.2.a
(Supp. 2019), but those circumstances do not apply to this case.

13
entered as of the date the amendment takes effect.” State v. Kirby, 899 N.W.2d 485, 490
(Minn. 2017). In State v. Robinette , this court concluded that the amelioration doctrine
applied to the 2019 amendments to the sentencing gu idelines that changed how custody -
status points are assigned because there was no statement that clearly established that the
legislature intended to abrogate the amelioration doctrine. 944 N.W.2d 242, 249-50 (Minn.
App. 2020), review granted (Minn. June 30, 2020). Because Eubanks’s conviction was
not final when the amendment became effective, he is entitled to be resentenced if the
amendment results in a lower criminal -history score and therefore lower presumptive
sentence.
Eubanks maintains that he is entitled to be resentenced because , under the 2019
amendments, his criminal -history score would be zero , and the presumptive sentence
would be 36 months instead of 48 months. Minn. Sent. Guidelines 4.B (Supp. 2019). We
agree.
Under the sentencing guidelines, “[a]n offender’s criminal history score is the sum
of points from eligible: (1) prior felonies; (2) custody status at the time of the offense;
(3) prior misdemeanors and gross misdemeanors; and (4) prior juvenile adjudications.”
Minn. Sent. Guidelines 2.B (Supp. 2019). With respect to criminal-history points assigned
for prior felony convictions, the sentencing guidelines provide that “[t]he felony point total
is the sum of the felony weights. If the sum of the weights results in a partial point, the
point value must be rounded down to the nearest whole number.” Minn. Sent. Guidelines
2.B.1.i. Since Eubanks has only one-half of a felony point, with rounding down, his total
felony points are zero. With the recent amendments to the sentencing guidelines, he is left

14
with only one-half of a custody point, which is also rounded down. This leaves him with
a criminal history score of zero and, since his criminal -history score and presumptive
sentence are lower under the 2019 amendments, he is entitled to be resentenced pursuant
to the amelioration doctrine. We therefore reverse and remand for resentencing in the event
no new trial is granted with respect to the child-protection records review issue.
Affirmed in part, reversed in part, and remanded.