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This opinion is nonprecedential except as provided by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
A20-0251

State of Minnesota,
Respondent,

vs.

Kenneth Keith Clark,
Appellant.

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

St. Louis County District Court
File No. 69DU-CR-17-1556

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

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Hooten, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this direct appeal from final judgments of conviction for first- and second-degree
criminal sexual conduct, appellant argues that he is entitled to a new trial because the
district court plainly erred by allowing an expert witness to offer her opinion that there was

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an “oral assault,” which impermissibly vouched for the victim’s credibility. Alternatively,
appellant argues that the district court erred by entering convictions for both counts of
criminal sexual conduct because second-degree criminal sexual conduct is a lesser included
offense of first-degree criminal sexual conduct. We affirm in part, reverse in part, and
remand.
FACTS
In 2012, C.W. reported that she was sexually assaulted in Duluth by her cab driver,
appellant Kenneth Clark, after he d rove her home. On the night of the incident, Duluth
Police Officer Brent Mathison responded to a call from C.W.’s residence reporting the
sexual assault. When he arrived at the residence, Officer Mathison spoke to C.W., who
said that her cab driver had sexually assaulted her by forcing her to engage in oral sex in
the front seat of his cab earlier that evening. C.W. told Officer Mathison that the cab driver
had ejaculated, but she believed she had moved her head away before he ejaculated.
Another officer transported C.W. to the hospital, where she was treated by a sexual
assault nurse examiner (nurse) with specialized training in providing medical and forensic
exams to alleged sexual assault victims. The nurse reported that C.W. cried as she
described how Clark pulled the cab around the side of her house and then, while grabbing
her hand, stated “I want you to feel this.” C.W. told the nurse that Clark forced her to touch
his penis with her hand and claimed that there was an “oral event.” C.W. also desc ribed
Clark touching her bare breasts and her back under her bra. When the nurse asked C.W. if
Clark ejaculated, C.W. responded, “I don’t know. I just jumped out of the cab.” In her
report, the nurse checked a box indicating there was “oral copulation.” The nurse then

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collected an oral swab from C.W.’s mouth, which she placed in a sexual assault kit, and
collected a blood sample. During a physical examination, the nurse found that C.W.
reported tenderness to her scalp consistent with her report about C lark grabbing her hair.
C.W. also reported pain to the back of her neck.
That same evening, Officer Mathison contacted the cab company and learned that
Clark was C.W.’s cab driver. Officer Mathison then contacted Clark, who acknowled ged
that he was C.W.’ s driver and agreed to provide a penile swab at a local hospital. Clark
provided the penile swab later that evening.
More than three years later, Duluth Investigator John Barrett was reviewing pending
sexual assault cases after the police department had r eceived a grant to address untested
evidence kits. Investigator Barrett discovered that the Minnesota Bureau of Criminal
Apprehension (BCA) had not tested the oral swab from C.W. or the penile swab from
Clark. He also noticed that C.W.’s sexual assault k it did not have a known DNA sample
from Clark, although labs typically require such samples for comparison to the evidence.
To obtain a known DNA sample, Investigator Barrett contacted Clark, who voluntarily
allowed Barrett to swab his cheek. Barrett pla ced the cheek swab in the station’s secured
evidence room. A few months later, that swab, the penile swab, and the sexual assault kit
were all sent to the BCA for testing.
A BCA forensic scientist tested the DNA samples and found no semen on either the
oral swab from C.W. or the penile swab from Clark. Clark’s penile swab also tested
negative for amylase, which is an enzyme found in saliva. However, testing did reveal a
mixture of DNA from two or more individuals on the penile swab. Although 99.8% of th e

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population could be excluded as contributors to the DNA mixture, C.W. and Clark could
not be excluded.
After the DNA testing, the state charged Clark with (1) first-degree criminal sexual
conduct, penetration using force or coercion causing personal injury, in violation of Minn.
Stat. § 609.342, subd. 1(e)(i) (2016); and (2) second-degree criminal sexual conduct, force
or coercion to accomplish sexual contact causing personal injury, in violation of Minn.
Stat. § 609.343, subd. 1(e)(i) (2016). The centra l issue at Clark’s 2019 trial was whether
Clark coerced C.W. to manipulate his penis, which would have constituted second -degree
criminal sexual conduct, and/or coerced her to engage in oral sex, which would have
constituted first-degree criminal sexual co nduct.
C.W.’s testimony
At trial, C.W. testified as to her recollection of what had occurred seven years
earlier. C.W. said that, on the night of the incident, Clark locked the cab doors and drove
her to an abandoned apartment building located next doo r to C.W.’s residence. C.W.
testified that, after Clark stopped the cab, he took his penis out of his pants, grabbed C.W.’s
hand, and moved her hand so that it was stroking his penis. C.W. also testified that Clark
then grabbed the hair on the back of her head, which was painful, forced her head down to
his penis and forced her to perform oral sex. C.W. said that Clark ejaculated in her mouth.
She also testified that she did not consent to this sexual activity. Finally, C.W. testified
that after Clark unlocked the car door and she exited the cab, she ran home and told her
friend, S.C., who called the police and an ambulance.

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C.W.’s statement to Officer Mathison
Officer Mathison testified that he reviewed a compact disc recording of the
statement he took from C.W. on the night of the incident. The disc was admitted at Clark’s
trial and played for the jury. In the recording, C.W. stated that Clark took her to the side
of the building and grabbed her head , forcing her to engage in oral sex. C.W. also stated
that Clark “did ejaculate, but he pulled my head back before he came in my mouth.”
BCA forensic scientist’s testimony
The BCA scientist testified that Clark’s penile swab te sted negative for semen and
amylase, which is an enzyme found in saliva. The prosecutor asked the BCA scientist
whether amylase would be expected to be present on the penile swab, to which she
responded:
If – so the details – or the information I have for this case was
that there was an oral assault, so that’s why we tested it for the
presence of amylase to check for the presence of saliva. So I
can’t say whether it would be expected to be there, but that’s
the reason we tested it. We do know, however, tha t it is
possible for saliva to still be present on a sample even though
that amylase test is negative. We have seen that on samples in
the lab and we know that it can occur. So just because it was
negative does not mean that saliva wasn’t there.

The scientist testified that s he received information about the case from both the
police and the nurse who took the swabs . She indicated that because she had received
information that “there was an oral assault,” she tested the penile swab “to check for the
presence of saliva.” When describing her testing procedures, she again stated that, “ based
on the facts of the case that there was an oral assault” she tested the DNA from C.W.’s

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blood sample. She also explained that a cheek swab is often the source for obta ining a
known DNA profile.
On cross -examination, defense counsel asked the scientist whether C.W.’s
allegation of oral sex prompted the testing for amylase:
Q: And the reason that testing for amylase was done was
because of the claim of the oral sex?

A: Yes.
Q: Is that right? And that’s also why the oral swab was taken
from [C.W.]: Because of that same oral sex claim?

A: Yes.
Clark’s convictions
The jury found Clark guilty of both counts, and the district court entered convictio ns
on both. Clark appeals.
D E C I S I O N
I. The district court did not plainly err by admitting the opinion and
testimony of the BCA forensic scientist into evidence.

Clark argues that the district court prejudicially erred by admitting into evidence the
scientist’s testimony t hat she (1) received information from the nurse and Duluth police
that there was an oral assault; and (2) based her investigation on information that there was
an oral assault.
When a defendant fails to object to testimony at trial, he generally forfeits a ny right
to appellate relief on the issue. State v. Webster , 894 N.W.2d 782, 786 (Minn. 2017).
However, appellate courts can review such claims pursuant to the plain-error doctrine. Id.

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“The United States Supreme Court has established a three-prong test for plain error.” State
v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error test gives us discretion to
review unobjected-to errors if: (1) there is error, (2) the error is plain, and (3) the error
affects substantial rights.” State v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012). “If the
defendant establishes all three f actors, we consider a fourth: whether the error should be
addressed to ensure fairness and the integrity of the judicial proceedings.” Id. (quotatio n
omitted). Under the third prong, Clark bears the burden of establishing that there is a
reasonable likelihood that the error had a significant effect on the jury’s verdict. State v.
Horst, 880 N.W.2d 24, 38 (Minn. 2016).
Because Clark did not object to the testimony of the forensic scientist at trial, we
review the claim under the plain-error standard. An error is “plain” if it “contravenes case
law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Generally, an alleged trial error is not plain error unless it is “so clear . . . and so prejudicial
to the defendant’s right to a fair trial, that the defendant ’s failure to object -and thereby
present the trial court with an opportunity to avoid prejudice-should not forfeit his right to
a remedy.” State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).
Clark argues that the district court plainly erred by admitting the scientist’s
testimony because the testimony (1) informed the jury that the police officer, sexual assault
nurse examiner, and forensic scientist all believed Clark was guilty of an oral assault; and
(2) impermissibly vouched for the credibility of C.W. by persuading the jury that Clark
had committed first-degree criminal sexual conduct.

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First, Clark argues that the scientist’s testimony that she learned from the police and
the nurse that there was an “oral assault” impermissibly conveyed her own and others’
opinions that Clark was guilty of nonconsensual sexual penetration. Clark contends that
this testimony violated settled la w prohibiting opinion testimony that a defendant has
committed an unlawful act. Clark further argues that the issue of whether he coerced C.W.
to engage in sexual penetration or sexual contact was for the jury to decide.
An expert witness may testify in the form of an opinion only when “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Minn. R. Evid. 702. Expert opinion testimo ny
“is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” Minn. R. Evid. 704. We provided a detailed summary of the admissibility of opinio n
testimony in State v. Patzold:
[U]ltimate conclusion testimony which embraces legal
conclusions or terms of art is not considered helpful to the jury.
The district court may also exclude testimony on the ultimate
issue when the testimony would merely tell the jury what result
to reach. But the supreme court has allowed police officers to
express opinions co ncerning who killed a victim when the
conclusion was factual rather than legal and was offered in
response to leading questions, and the officer avoided legal
terminology. We have also held that a 911 operator’s lay
opinion testimony that the caller was be ing assaulted was
admissible because it was rationally based on her perceptions
and was helpful to the jury.

917 N.W.2d 798, 808 (Minn. App. 2018) (quotations and citations omitted), review denied
(Minn. Nov. 27, 2018).

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Clark cites two cases to support his argument that the scientist’s testimo ny
improperly influenced the jury to believe that Clark was guilty of nonconsensual sexual
penetration. In State v. Saldana, the sole issue for the jury was whether sexual intercour se
that occurred between defendant and the complainant was consensual. 324 N.W.2d 227,
229 (Minn. 1982). A sexual assault counselor testified that she believed the complainant
was the victim of a sexual assault and rape. Id. at 230, n.4. The supreme court found that
opinion evidence was unhelpful and inadmissible because “the jurors were equally capable
of considering the evidence and determining whether a rape occurred.” Id. at 231.
Similarly, in State v. Hogetvedt , a defendant was charged with third-degree assault.
623 N.W.2d 909, 911 (Minn. App. 2001), review denied (Minn. May 29, 2001). At trial,
a police officer testified that he believed the defendant assaulted the complainant. Id. at
914–15. This court held that the police officer’s opinion testimony was inadmissible. Id.
at 915–16.
This case is distinguishable from both Saldana and Hoetvedt. In Saldana, the sexual
assault counselor testified that she believed the complainant was the victim of a sexual
assault and rape. And in Hogetvedt, the police officer testified that he believed the
defendant assaulted the complainant.
In this case, however, the scientist never testified that she believed that C.W. was
forced to perform oral sex by Clark. Rather, she explained that because she received
information that “there was an oral assault,” she tested the penile swab “to check for the
presence of saliva.” She also testified that she tested C.W.’s DNA from her blood sample
“based on the facts of the case that there was an oral assault.” The scientist did not express

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any personal belief that Clark committed an unlawful act, nor did she tell the jury which
result to reach. Additionally, she never testified as to the beliefs of either the police, nurse,
or investigator. Instead, the scientist’s testimony explained her testing process and the
reasons for certain testing, helping the jury to understand and evaluate the evidence. Based
on this record, where the scientist was simply referencing the type of assault that had been
reported to her in order to explain why she chose a particular testing procedure, we
conclude that her testimony was admissible for this purpose.
Second, Clark argues that the scientist’s testimony that she had information from
the police and the nurse that there was an oral assault impermissibly vouched for C.W.’s
credibility, as well as the credibility of the nurse. Clark contends that such testimo ny
violates settled law prohibiting testimony vouching for another’s credibility. Credibility is
an issue for the jury to decide. State v. Koskela , 536 N.W.2d 625, 630 (Minn. 1995).
“[O]ne witness cannot vouch for or against the credibility of another witness.” State v.
Ferguson, 581 N.W.2d 824, 835 (Minn. 1998). “In most cases, even though an expert’s
testimony about the credibility of a witness could provide the jury with useful informatio n,
the possibility that the jury may be unduly influenced by an expert’s opini on mitigates
against admission.” State v. Morales -Mulato, 744 N.W.2d 679, 687 (Minn. App. 2008)
(quotation omitted), review denied (Minn. Apr. 29, 2008).
The central issue we must resolve is whether the scientist’s testimony was actually
“vouching” for C.W.’s credibility. Clark argues that the challenged testimony vouched fo r
C.W.’s credibility because it (1) effectively conveyed to the jury that the police and nurse
believed C.W.’s report that there was an oral assault; and (2) implied that the scientist

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believed the reports of the police and the nurse. However, as already explained, the
scientist did not express any personal belief that Clark committed an oral assault, nor did
she testify that she believed the police’s and nurse’s reports to her. The scientist simply
explained the testing procedures she followed based on t he information she received that
there was an oral assault. As already explained, her testimony was admissible for this
purpose.
Because the scientist’s testimony neither conveyed anyone’s opinion or belief that
Clark was guilty of nonconsensual sexual pe netration nor vouched for C.W.’s credibility,
the district court did not err by admitting her testimony.
II. The district court erred by convicting Clark of two counts of criminal sexual
conduct arising from the same act.

Clark argues in the alternative that his conviction for second-degree criminal sexual
conduct must be vacated because the district court erred by convicting him of two counts
of criminal sexual conduct arising from the same act. The state agrees.
Minn. Stat. § 609.04, subd. 1 (2018), provides that a defendant may not be convicted
of both the crime charged and an included offense. An “included offense” is “a crime
necessarily proved if the crime charged were proved.” Id., subd. 1(4). Further, “s ection
609.04 bars multiple convictions under different sections of a criminal statute for acts
committed during a single behavioral incident.” State v. Chavarria-Cruz, 839 N.W.2d 515,
523 (Minn. 2013) (quotation omitted). “Whether multiple offenses form part of a single
behavioral act is a question of fact,” but where the facts are undisputed, we review de novo
whether the offenses are part of the same behavioral incident. State v. Marchbanks, 632

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N.W.2d 725, 731 (Minn. App. 2001). When a defendant is convicted on more than one
charge for the same act, the district court should “adjudicate formally and impose sentence
on one count only.” State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). We “look
to the official judgment of conviction in the district court file as conclusive evidence of
whether an offense has been formally adjudicated.” Spann v. State, 740 N.W.2d 570, 573
(Minn. 2007) (quotations omitted). Whether the district court erred in adjudicating
multiple convictions is also a question of law, which we review de novo. State v. Ferguson,
729 N.W.2d 604, 618 (Minn. App. 2007), review denied (Minn. June 19, 2007).
Here, Clark’s charges for first- and second-degree criminal sexual conduct were part
of the same behavioral incident, as both crimes were charged following Clark’s sexua l
assault of C.W. The jury found appellant guilty of both first -degree criminal sexual
conduct and second -degree criminal sexual conduct, and the district court entered
convictions for both offenses. Second -degree criminal sexual conduct is a lesser incl uded
offense of first-degree criminal sexual conduct. State v. Kobow , 466 N.W.2d 747, 753
(Minn. App. 1991), review denied (Minn. Apr. 18, 1991). Because the district court
erroneously entered convictions for both offenses , in violation of Minn. Stat. § 6 09.04,
subd. 1, we reverse on this issue and remand to the district court to vacate appellant’s
adjudication of guilt on the second -degree criminal sexual conduct charge, while leaving
the jury’s finding of guilt intact.
Affirmed in part, reversed in part and remanded.