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This opinion is nonprecedential except as provided by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
A20-0541

State of Minnesota,
Respondent,

vs.

Andre Joseph Shafer,
Appellant.

Filed March 22, 2021
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Anoka County District Court
File No. 02-CR-18-4507

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kell ey, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson , Presiding Judge; Hooten , Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
On appeal, appellant argues that his convictions of first- and second-degree criminal
sexual conduct must be reversed because the district court erred by admitting testimony
from a detective. Appellant contends that the detective was not qualified as an expert and

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that the detective’s testimony about the disclosure patterns of child sexual abuse victims
lacked foundational reliability. Alternatively, appellant argues that he is entitled to a new
sentencing hearing because the conduct of the district court judge at sentencing would
cause an objective, unbiased layperson to question her impartiality. Finally, appellant
argues that the district court erred by entering judgment of conviction for count two
because it is the same offense as count one and by ent ering judgment of conviction for
count three because it is included in the conviction for count one. Appellant asks us to
vacate those convictions. We affirm in part, reverse in part, and remand.
FACTS
Background
In July 2018, the state charged appellant Andre Joseph Shafer with three counts of
criminal sexual conduct against a minor child (the minor child) for multiple acts occurring
from November 2013, when the minor child was approximately eight years old, until April
2018, when she was 12 years old.
During the time period of the charged offenses, Shafer and S .R., the mother of the
minor child, had an on-again, off-again romantic relationship. When Shafer started dating
S.R. in 2013, S.R. and the minor child lived with S.R.’s mother. In January 2014, S.R. and
the minor child moved in with Shafer and Shafer’s mother. Also living there were Shafer’s
sister and his daughter from a previous relationship (Shafer’s daughter). In September
2014, Shafer, S.R., and the minor child moved into a house together. Shafer and S.R. then
had a biological child, who was born in October 2015. In February 2017, Shafer moved
out of the house he and S.R. had been living in together and moved back into his mother’s

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house. In May 2017, Shafer and S.R. ended their romantic relationship but continued to
co-parent their biological child.
In July 2018, the mother of Shafer’s daughter told S.R. that Shafer’s daughter had
accused Shafer of asking her on three separate occasions to wash his back while he was in
the shower. Lat er that afternoon, S.R. asked the minor child, “I’m being told that
something happened to [Shafer’s daughter]. Did anything happen to you?” The minor
child told S.R. that Shafer would “corner [her] in the bathroom” and “make [her] touch
him.”
The next da y, the minor child gave a statement to Detective Maggie Titus at the
Anoka County Sheriff’s Office. During the interview, the minor child stated that Shafer
had asked her to help wash him while he was in the shower, forced her to rub his penis,
made her put his penis in her mouth, made her sit on his stomach as he pushed his penis
against her vagina, attempted to penetrate her vagina with his penis, and felt her private
parts underneath her pants and underwear.
Based on the minor child’s allegations, the s tate charged Shafer with first -degree
criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2018) (count
one), first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a)
(count two), and second -degree crimin al sexual conduct in violation of Minn. Stat.
§ 609.343, subd. 1(h)(iii) (2018) (count three).
At a pre -trial hearing, the district court heard arguments on Shafer’s motion to
exclude the state’s expert witness, Detective Jeffrey Schoeberl of the Anoka Cou nty
Sheriff’s Office, from testifying about “the process of disclosure and factors that may

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influence an adolescent [sexual assault] victim’s decision to disclose or not.” The district
court denied Shafer’s motion, ruling that the state had met its burden to establish Detective
Schoeberl as a qualified expert.
At the seven-day jury trial, Detective Titus, Detective Schoeberl, the minor child,
S.R., S.R.’s mother, Shafer’s daughter , and the mother of Shafer’s daughter testified on
behalf of the state. Shafer’s aunt, mother, friend, sister, and neighbor testified on behalf of
the defense, and Shafer testified in his own defense.
The minor child’s testimony
The minor child testified that Shafer began abusing her in Nov ember 2013 and
abused her for the last time in April 2018. During her testimony, the minor child described
in detail the many times that Shafer abused her during that time period. She testified that
Shafer asked her “to wash his back or to help him wash up” while he was in the shower;
forced her to rub his penis while he was in the shower, lying in the bathtub, or lying on the
bathroom floor on multiple occasions; made her rub his penis with lotion multiple times;
“made [her] put his penis in [her] mouth” once; attempted to penetrate her vagina with his
penis in the bathtub 15 to 20 times; and “attempted to rape” her in the shower three times.
The minor child also testified that Shafer would threaten her while he abused her, telling
her that if she did not comply, he would kill her, her friends, his daughter, and her mother.
The minor child testified that she did not disclose the sexual abuse initially because
she was eight years old and “didn’t feel like it was a big deal,” because Shafer told her not
to tell anyone, and because her mo ther seemed “really happy” dating Shafer. The minor
child said that she did not disclose the abuse later because it had become “routine for a

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really long time” and “just seem[ed] like normal.” The minor child also said that she was
scared to say anything because she feared that Shafer would retaliate against her and she
still believed her mo ther was happy dating Shafer. The minor child said that, when she
told her mother and Detective Titus about the abuse, she did not tell them everything
because she did not remember it all at the time; she also testified that she has been recalling
more details since her initial disclosure.
Testimony from S.R., S.R.’s mother, Detective Titus, and Shafer’s daughter
S.R. and S.R.’s m other te stified about the minor child’s disclosure to them.
Detective Titus testified generally about the protocol for conducting a forensic interview
of a child. A recording of the minor child’s interview with Detective Titus was received
into evidence and played for the jury. Shafer’s daughter testified as a Spreigl witness that
Shafer had called her into the bathroom while he was showering and asked her to wash his
back three times, but that she had walked out of the bathroom without responding to him
each time.
Detective Schoeberl’s testimony
Detective Schoeberl testified as an expert witness about “ how children disclose”
abuse, emphasizing that he was testifying based on his training and experience about the
way children disclose abuse. He explained that a forensic interviewer does not expect to
learn everything about a child’ s experience in the initial interview. Detective Schoeberl
testified that he would not expect a forensic interview to elicit “all of the information from
the child,” particularly in cases involving multiple acts over a period of time. He described
disclosure as a process in which children are constantly “evaluating their environment and

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how people around them are affected by the information that they’re sharing.” According
to Detective Schoeberl, if children feel supported “ they may start to begin to share more
about those experiences, whether it’s . . . a different occurrence or more details about that
occurrence.” If children perceive negative feedback from a disclosure, they may stop or
reduce the amount of information they share. Detective Schoeberl testified that late -
elementary/early-middle-school-aged children understand that the information they
disclose “is going to have a large impact on their home environment” and therefore might
not disclose abu se because they do not want to “ruin” their family. Delayed disclosure,
according to Detective Schoeberl, can be attributed to a variety of factors, including a lack
of physical safety or emotional support, a lack of understanding that the abuse is wrong,
abnormal, or unusual, and feelings of love and care for the perpetrator despite the abuse.
Defense witnesses’ testimony
Each defense witness testified that they never saw anything inappropriate between
Shafer and the minor child, or between Shafer and his other children.
Shafer’s testimony
Shafer denied the minor child’s allegations. He described being “heartbroken” and
“speechless” when he heard these allegations, characterizing the minor child as “my kid”
and their relationship as “great.” Shafer testified that he loved the minor child and his other
children, describing them as his “life.” Shafer admitted that one time he asked his daughter
to wash his back because he had been changing the oil in his mom’ s truck when the oil
spilled and splashed all over him, but he said that he was wearing basketball shorts while

7
in the shower. Shafer also acknowledged that he had a 2017 felony conviction for
interference with privacy.
Verdict and sentencing
The jury found Shafer guilty on all three counts and also returned guilty special
verdicts for 24 aggravating sentencing factors. At sentencing, the district court denied
Shafer’s motion for a downward dispositional or durational departure and granted the
state’s motion for a double upward durational departure, citing as aggravating factors “the
multiple acts of penetration, multiple forms of penetration, as well as the fact that several
of these acts occurred in [the minor child’s] zone of privacy.” The district court sentenced
Shafer to 312 months in prison on count one. Shafer appeals.
DECISION
Shafer raises three issues on appeal. First, Shafer contends that the district court
abused its discretion by allowing Detective Schoeberl to present expert witness testimony
regarding the disclosure patterns of child sexual abuse victims. Second, Shafer asserts that
the district court judge violated the Minnesota Code of Judicial Conduct by exhibiting
judicial bias at sentencing, entitling him to a new sentencing hearing. Third, Shafer claims
that his convictions for counts two and three must be vacated because the district court
erred by convicting him of three counts of criminal sexual conduct arising from the same
act.

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I. The district court did not abuse its discretion by admitting Detective
Schoeberl’s expert witness testimony regarding the disclosure patterns of child
sexual abuse victims.

We review a district court’s decision to admit expert testimony for an abuse of
discretion. State v. Thao, 875 N.W.2d 834, 840 (Minn. 2016). A defendant claiming that
the district court erred in admitting evidence must demonstrate both abuse of discretion
and resulting prejudice. State v. Stewart , 643 N.W.2d 281, 292 (Minn. 2002). Expert
opinion testimony is generally admissible if the witness is qualified as an expert, the
expert’s testimony is helpful to the jury, the expert’s opinion has “foundational reliability,”
and the testimony meets the Frye-Mack standard of admissibility if it is applicable—which
it is not in this case. Minn. R. Evid. 702. Shafer does not dispute that Detective Schoeberl’s
testimony was helpful to the jury, but he challenges the detective’s qualifications to testify
about “the reasons why adolescents disclose sexual abuse in the manner that they do,” and
the foundational reliability of his opinion on the same subject. We address each argument
in turn.
Expert qualifications
Shafer argues the state failed to meet its burden of showing that Detective Schoeberl
has any education, training, or experience to qualify him as an expert to testify about the
factors that affect an adolescent’s methods of disclosing sexual abuse. An expert witness
is one who is qualified by “knowledge, skill, experience, training or education” to testify
about and provide an opinion regarding “scientific, technical or other specialized
knowledge.” Minn. R. Evid. 702. While an expert’s qualifications are not required to stem
solely from formal training, their qualifications must be based on some “knowledge, skill,

9
or experience that would provide the background necessary for a meaningful opinion on
the subject.” Minn. R. Evid. 702 1977 comm. cmt.
In an order allowing Detective Schoeberl to present expert testimony, the district
court noted that it was “satis fied that Detective Schoeberl ha[d] the requisite education,
training and experience to qualify as an expert witness as to the disclosure of sexual abuse
by children and adolescents.” The district court also determined that “the [s]tate ha[d] met
its burden and established Detective Schoeberl as [a] qualified expert.”
The record supports this determination. At a pre -trial hearing, both the state and
defense counsel questioned Detective Schoeberl regarding his qualifications to offer expert
testimony regarding the process of disclosure and factors that may influence an adolescent
victim’s decision to disclose or not disclose sexual abuse. Detective Schoeberl testified
that he has undergraduate degrees in psychology and sociology and a master’s degree in
social work. He also described his work history, detailing his experience working with
homeless, runaway, delinquent, and emotionally disturbed juveniles, both before and after
he became a licensed police officer. Detective Schoeberl testified that he work ed as a
“child care counselor” in three of those jobs and had daily interactions with children who
had experienced physical and sexual abuse. He stated that he was aware that some children
disclosed abuse while he worked at the Children Residential Treatment Center, and that he
“help[ed] write some of the treatment plans” for those children. However, he admitted that
he was not a “therapist” for the children and that he did not have any certifications in
counseling or therapy.

10
Detective Schoeberl testified that he joined the Anoka County Sheriff’s Office in
2006 as a detective and in 2011 became the special victims’ coordinator focusing on
investigating physical and sexual abuse of children. He explained that he has been trained
in the cognitive graph ris k assessment, a structured child forensic interview format, and
that this training also addressed the “scientific basis” behind forensic interviewing
methods. He also stated that he had attended both basic and advanced CornerHouse
courses regarding the “m ethods and science behind forensic interviewing” of children.
When asked, “[D]id what you learn concern the process of disclosure that children and
adolescents go through?,” Detective Schoeberl replied, “Yes, we received some instruction
in that.” Detect ive Schoeberl also testified that since becoming a detective, he had
investigated more than 600 cases of physical and/or sexual abuse of a child, conducted
more than 400 forensic interviews of children, and observed others conducting forensic
interviews of children more than 600 times.
The record supports the district court’s determination that Detective Schoeberl is an
experienced investigator with extensive training and experience conducting forensic
interviews of sexually-abused children. Given that it is well-established that we must apply
a deferential standard to the district court’s evidentiary rulings, we conclude that the district
court did not abuse its discretion by concluding that Detective Schoeberl was qualified as
an expert.
Foundational reliability
The proponent of expert opinion testimony bears the burden of showing that the
testimony has foundational reliability. Doe v. Archdiocese of St. Paul , 817 N.W.2d 150,

11
164 (Minn. 2012). When analyzing whether an expert’s opinion has foundational
reliability, a court must consider the purpose for which the testimony is being offered, the
reliability of the underlying theory, and the reliability of the evidence in the particular case.
Id. at 167-69.
At the pre-trial hearing, defense counsel had the following exchange with Detective
Schoeberl:
Q: [Y]ou talked about children victim disclosure. What is the
science that you’re basing that off of?

A: Again, it’s the two trainings primarily on cognitive g raph
risk assessment and CornerHouse.

. . . .

Q: Okay. In terms of the proffered opinions . . . the process for
disclosing and the factors influencing a victim disclosing, what
are those opinions essentially based on?

A: So I’ll speak specifically about the CornerHouse model.
That is scientific — scientifically based. A lot of the training is
— a lot of the research is cited in the bibliography of that
training and so they constructed the protocol for CornerHouse
training based upon that research.

Q: Okay. And what’s the reliability of it?

A: I’m not going to be — I’m not an academician. I’m a
practitioner. I know that the CornerHouse is relied on statewide
and nationally and is regarded as kind of the leaders in the field.

. . . .

Q: And are there any, you know, white papers or, you know,
articles that you would point somebody to if they asked you,
you know, what is — you know, what is the process and how
do kids disclose assault or sexual assault?

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A: I would typically go to the back of my bibliography of my
protocol for CornerHouse which lists many of the research
articles that has based it off of. Again, I don’t —

Q: Okay. Have you read those articles?

A: I have not, but I ’ve attended the trainings that they ’ve
created the protocol based upon those articles.

When asked if his opinion was based on “anything that may have been peer reviewed or
anything from the academic setting,” Detective Schoeberl responded that it was based in
part on his CornerHouse training and in part on his personal experience working with
children who have been abused.
Shafer contends that the state failed to meet its burden of showing that Detective
Schoeberl’s testimony had foundational reliability because Detective Schoeberl did not
“explain the scientific basis” for the training he received from CornerHouse. However,
“the district court has wide latitude in determining whether there is sufficient foundation
upon which an expert may state an opinion,” Marquardt v. Schaffhausen , 941 N. W.2d
715, 719 (Minn. 2020) (quotation omitted), and Shafer’s argument against Detective
Schoeberl’s testimony also faces strong opposition in case law.
The issue of the admissibility of expert testimony to aid the jury in understanding
counterintuitive behaviors of children and adolescent victims and their reporting of sexual
abuse is now well recognized in Minnesota and left to the discretion of the trial court. See
State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987); State v. Myers, 359 N.W.2d 604, 610
(Minn. 1984); State v. Sandberg , 406 N.W.2d 506, 511 (Minn. 1987). In Hall, the
Minnesota Supreme Court affirmed the district court’s decision to permit expert testimony

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regarding why adolescents may delay reporting sex abuse, announcing that “expert
testimony as to the reporting conduct of [adolescent sexual -assault] victims . . . is
admissible in the proper exercise of discretion by the [district] court.” 406 N.W.2d at 505.
And in State v. Reyes, we affirmed the district court’s decision to allow expert testimony
on common characteristics of sexual -abuse victims. 890 N.W.2d 406, 412 –413 (Minn.
App. 2017).
Although the district court did not specifically c omment on the foundational
reliability of Detective Schoeberl’s testimony, the district court impliedly found it to be
foundationally reliable by admitting it into evidence. The record supports this
determination. Detective Schoeberl testified about his extensive educational and practical
experience working with victims of child sexual abuse, as well as his training in cognitive
graph risk assessment trainings and CornerHouse interview methods about how children
disclose abuse, establishing a foundation for his testimony regarding the disclosure patterns
of adolescent sex-abuse victims.
Determining the sufficiency of foundation “demand[s] a case by case analysis that
is best left to the trial judge familiar with the setting of the case.” Marquardt, 941 N.W.2d
at 719 (quotation omitted). Here, the district court, which was familiar with the case,
determined that the foundational reliability of Detective Schoeberl’s testimony was
sufficient. Even if we would reach a different conclusion with respect to the sufficiency of
the foundation, we will not reverse the district court’s decision absent a clear abuse of its
broad discretion. Williams v. Wadsworth, 503 N.W.2d 120, 123 (Minn. 1993). Based on
the record and the law, we conclude that the district court did not abuse its discretion in

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concluding that the state had met its burden of showing that Detective Schoeberl’s
testimony had foundational reliability.
Because the district court did not abuse its discretion by concluding that Detective
Schoeberl was qualified to testify as an expert and that his opinion had “foundational
reliability,” the district court acted within its discretion by admitting his testimony about
the factors that affect a child’s methods of disclosure.
II. The district court did not exhibit judicial bias that would entitle Shafer to a
new sentencing hearing.

The Sixth Amendment of the United States Constitution guarantees criminal
defendants the right to be tried by an impartial jury. U.S. Const. amend. VI; see also Minn.
Const. art. 1, § 6. Although the right to a trial before an impartial judge is not specifically
enumerated in the Constitution, this principle has long been recognized by the United
States Supreme Court. Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101 (1986); see also
Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004). Impartiality requires the absence of
“actual bias against the defendant or interest in the outcome of his particul ar case.” State
v. Munt, 831 N.W.2d 569, 580 (Minn. 2013) (quot ation omitted). “O pinions formed by
the judge on the basis of facts introduced or events occurring in the course of current
proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” State v. Adell, 755 N.W.2d 767, 775 (Minn. App. 2008) (quotation omitted),
review denied (Minn. Nov. 25, 2008).

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Shafer argues that the district court judge exhibited judicial bias during the
sentencing hearing by interrupting his counsel, chastising his supporters, and referencing
information outside of the record. We review de novo whether a defendant’s right to an
impartial judge was violated. State v. Dorsey, 701 N.W.2d 238, 249 (Minn. 2005). We
presume that the district court judge “will set aside collateral knowledge and approach
cases with a neut ral and objective disposition.” Id. at 248–49 (quotation omitted). T he
party alleging bias has the burden to present evidence sufficient to overcome this
presumption. See McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998).
At the sentencing hearing, defense counsel argued that if the district court doubted
Shafer’s guilt, it could impose a durational or dispositional departure on the basis of
substantial a nd compelling offender or offense -based characteristics. After the district
court judge asked whether defense counsel had authority for that argument, defense counsel
admitted there was none. However, defense counsel continued on to argue that it was “just
plain logic that if the [district court] harbors doubts about the defendant’s guilt, that that is
a basis, based on offender or offender -based characteristics, to depart.” Defense counsel
then stated that “the jury did not fully believe [the minor ch ild’s] account, finding in their
Blakely verdict that [Shafer] committed only a fraction of the number of acts that she
alleged.” The district court judge responded that defense counsel’s statement was “not an
accurate representation of [the special verdi ct] at all” and that the jury “made no such
finding and you know that.” Defense counsel rephrased his explanation, stating that the
jury “did not believe that the [s]tate met its burden beyond a reasonable doubt that even a
fraction of the acts that were alleged had been committed.”

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Defense counsel continued, arguing that Shafer would be under strict s upervision
while on probation, thereby protecting the public. The district court judge asked, “Wasn’t
he on probation at the time of these offenses?” Defense counsel responded that he was.
Once defense counsel concluded his argument, Shafer addressed the district court. Shafer
stated that he was placed on probation as part of another case and characterized a child
protection home study as clearing him because “they didn’t find any evidence of the kids
being in any harm .” The district court judge responded, “[T]hat’s not the conclusion . It
was a risk, but go ahead.”
The district court judge then addressed the defense motion and advocate letters that
spoke to S hafer’s good character and attested to the supporters’ belief in Shafer’ s
innocence. She noted, “I read every letter and I read every word in every letter . . . it’s
rendered me speechless which rarely happens.” The district court judge told the authors of
the letters who asserted that certain evidence was not considered, “people, you have no
idea what you’re talking about. You were not here for the trial.” The district court judge
expressed gladness that the minor child was not present at sentencing “to be told she’s a
frickin’ liar,” but said that “at the same time she needs to hear that the jury believed her
and I believed her.” As to Shafer’s supporters, who had suggested his conviction was based
solely on the minor child’s forensic interview, the district court judge called their assertion
“absurd” and “poppycock.” In response to Shafer’s supporters who had asserted that
Shafer was not “the type” to commit this crime, the district court judge described specific
examples of four men who had appeared before her after being charged with cr iminal
sexual conduct to reach her conclusion that “there is no type.”

17
The district court judge stated that she had yet to see “a victim testify in such a
composed and impactful way as [the minor child and Shafer’s daughter] did.” She then
read all of the jury’s findings regarding Shafer’s guilt and the aggravating factors on the
special verdict forms for the record. After reading the special verdict findings, the district
court judge referred to thos e findings as “the reasons we’re here” and pointed out that
Shafer, during his testimony at trial, “offered explanations that the jury did not believe.”
Before sentencing Shafer, the district court judge expressed a serious commitment to seeing
that a fai r trial is held, that everyone is heard, and that all factors are considered when
making sentencing decisions.
Shafer argues that the district court judge’s remarks would cause an objective
observer to reasonably question her impartiality. Shafer also con tends that it is not clear
from the record how the district court judge knew anything about the conclusion reached
following the child protection investigation because “[n]o such evidence was introduced at
Shafer’s trial or at sentencing.” This court has held that comments by a district court judge
may establish bias warranting reversal of a sentencing departure only if the district court
judge both makes inappropriate remarks and fails to articulate the fin dings justifying the
departure. State v. Simmons, 646 N.W.2d 564, 569–70 (Minn. App. 2002).
Most of the judge’s comments at the sentencing hearing , which Shafer found
objectionable, were related to her response to Shafer’s supporters, who had submitted
letters questioning his guilt and claiming that he was not the type of person to be a sex
offender. In her strongly worded defense of the jury verdict and the fairness of the
proceeding, the judge may have unnecessarily referenced her knowledge of a child

18
protection case involving Shafer a nd offered detailed descriptions of other sex off enders
who had appeared before her to support her contention that there was no typical type of sex
offender. But, after the judge had responded to the unfounded claims of Shafer’s innocence
and the unfairness of the jury verdict, she then turned to the issues presented in the
sentencing hearing by reading the special verdict forms. Because the district court judge
articulated jury findings sufficient to justify the sentence, and because the record
demonstrates that the district court judge relied on the jury findings regarding Shafer’s guilt
and numerous aggravating factors supporting an upward durational departure, Shafer has
failed to overcome the presumption that he was improperly sentenced. Accordingly, we
find that the district court judge did not exhibit judicial bias that would entitle Shafer to a
new sentencing hearing.
III. The district court erred by convicting Shafer of three counts of criminal sexual
conduct arising from the same act.

Shafer argues in the alternative t hat his convictions for counts two and three must
be vacated because the district court erred by convicting him of three 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. “ A crime necessarily proved i f the
crime charged were proved ” is one type of “included offense.” Id., subd. 1(4).
Furthermore, “section 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 (Mi nn. 2013) (quotation omitted). “Whether

19
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 N.W.2d 725, 731 (Minn. App. 2001). To
determine whether offenses arise from a single behavioral incident, a court considers such
factors as “time and place . . . [and] whether the segment of conduct involved was
motivated by an effort to obtain a single criminal objective.” State v. Bertsch, 707 N.W.2d
660, 664 (Minn. 2006) (quotation omitted). When many acts over a period of time are
collectively charged, the focus is on the time segment alleged in the criminal complaint.
State v. Suhon, 742 N.W.2d 16, 24 (Minn. App. 2007).
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 may “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).
Shafer’s charges for counts one, two, and three were part of the same behav ioral
incident, as each count was based on the same course of conduct occurring “[o]n or about
July 20, 2013 – April 1, 2018,” the time period alleged in the amended criminal complaint.
Count one charges first -degree criminal sexual conduct involving a single act of sexual
penetration. Count two charges first-degree criminal sexual conduct involving a single act

20
of sexual contact. And count three charges second -degree criminal sexual conduct
involving multiple acts of sexual contact over an extended period of time. The prosecutor
did not break the period of abuse into three segments when charging Shafer with these
three crimes. The jury found appellant guilty of counts one, two and three, and the district
court entered convictions for all three offenses. Counts one and two are the same offense—
first-degree criminal sexual conduct. And second -degree criminal sexual conduct is a
lesser included 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 all three offenses in violation of Minn.
Stat. § 609.04, subd. 1, we reverse on this issue and remand to the district court to vacate
appellant’s adjudication of guilt on counts two and three while leaving the jury’s finding
of guilt on those counts intact.
Affirmed in part, reversed in part, and remanded.