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This opinion is nonprecedential except as provided by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
A20-1005

State of Minnesota,
Respondent,

vs.

Adam Lee Bush,
Appellant.

Filed July 12, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Becker County District Court
File No. 03-CR-18-1074

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathyrn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from final judgment s of conviction for first-degree criminal
sexual conduct, appellant Adam Lee Bush argue s that his convictions must be reversed
because (1) respondent State of Minnesota elicited improper vouching testimony that
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impacted his substantial rights, (2) the district court deprived him of his right to counsel
when it denied him a continuance to obtain new counsel, and (3) the district court should
have granted his request for an instruction on a lesser-included offense of second-degree
criminal sexual conduct. Alte rnatively, Bush argues—and the state agrees—that, under
Minn. Stat. § 609.04, subd. 1 (2020), the dist rict court erred by entering convictions and
sentences for two counts of first-degree criminal sexual conduct because the offenses arose
out of the same behavioral incident.
We conclude that, even if the prosec utor plainly erred by eliciting improper
vouching testimony, the error did not affect Bush’s substantial rights. We also conclude
that the district court did not violate Bush’s right to counsel by denying a continuance and
did not err by denying a lesser-included-offense instruction. We agree with the parties that
Bush should be convicted and sentenced for only one count of first-degree criminal sexual
conduct. We therefore affirm in part, reverse in part, and remand for the district court to
correct the warrant of commitment to vaca te one of his criminal-sexual-conduct
convictions.
FACTS
The following facts are drawn from Bush’s pretrial hearing and jury trial. Bush and
his former wife, K.B., were married in 2011, and they had two children together. K.B. has
a daughter from a previous relationship (the child), who also lived with Bush and K.B. In
February 2016, the child and the other two children were placed in non-relative foster care
when Becker County initiated a child-protection case. In December 2016, Bush’s and
K.B.’s parental rights were terminated and all three children were placed in relative foster
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care with their current adoptive parents. Bu sh and K.B. divorced, and Bush moved to
Wisconsin and remarried.
One evening in Apr il 2018, more than two years after being removed from her
mother’s and Bush’s home, the child started crying and ultim ately confided in her then-
foster (and now adoptive) mother that Bush had sexually abused her prior to her removal
from his care. The foster mother reported the child’s disclosure to the county adoption
worker, and the child was br ought to the Red River Child ren’s Advocacy Center for a
forensic interview. The child was nine years old at the time of the interview. The child gave
detailed descriptions of sexual abuse by Bush, which she said took place in the family’s
home while K.B. was at work. The child was between five an d seven years of age at the
time of the abuse.
The Detroit Lakes Police Department investigated. Police confirmed that, when the
child was living with K.B. and Bush, K.B. was working several jobs, including during the
evenings, and that Bush would stay home with the children. The state charged Bush with
two counts of first-degree criminal sexual conduct.
The day before his jury trial began in March 2020, Bush requested a continuance to
obtain new counsel. Bush explained that he was dissatisfied with his counsel’s performance
during pretrial evidentiary motions and that his counsel was not responsive to his phone
calls. Bush’s counsel told the district court that he had “an ethical conflict” and that he did
not feel like he could represent Bush any longer. Upon questioning from the district court,
though, counsel confirmed that Bush was te rminating him, not th at he was voluntarily
withdrawing over an ethical conflict. The district court determined that Bush did not have
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a reasonable basis for dissatisfaction with hi s counsel, that Bush had terminated his
counsel, and that Bush would proceed pro se and that, with the ag reement of Bush, his
attorney would act as standby counsel. The district court denied Bush’s continuance
request.
During the three-day jury trial, the state presented testimony from several witnesses,
including the forensic interviewer, an expert on child sexual abuse, the Detroit Lakes Police
Department investigator, K.B., the child, and the child’s adoptive mother. Bush testified in
his defense.
In her testimony, the child stated that Bush made her “take off [her] clothes and sit
on top of him.” She testified that he touched “[her] lower” and that he made her “put [her]
mouth on his part.” She said that this happened more than once.
When the forensic interviewer testified, th e state elicited testimony about “what sort
of things . . . [she] look[s] for to assess the reliability of [a] ch ild’s statements or
disclosures.” The forensic inte rviewer replied that there are a lot of different factors,
including whether the child is demonstrati ng that they understand the rules of the
interview—that is, that they tell the interviewer when th ey do not know something or
correct the interviewer if the interviewer gets something wrong; the level of detail that the
child provides; whether the child makes spont aneous statements; the sensory information
provided by the child, such as things they felt, heard, or saw; the child’s ability to provide
context; what was happening before, during, and after the incident; the consistency of the
child’s description of events within the interview and with other reports; whether a child is
using her own language; and whether the child displays knowledge when there is no
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explanation why they would have that knowledge. Without objection by Bush, the forensic
interviewer was asked about false reporting and testified that false reporting in a forensic
interview is rare.
The state then introduced in to evidence the child’s videotaped forensic interview as
well as a picture depicting the abuse that the child drew during the interview. The jury
watched the 80-minute interview. Afterwards , the state asked the forensic interviewer—
without objection by Bush—whether she observed the child display any of the credibility-
assessment factors that the interviewer had previously described. In response, the forensic
interviewer thoroughly explained how the child met each factor during the interview.
During cross-examination, defense counsel questioned the forensic interviewer
regarding her knowledge of an y psychological or mental-health problems that the child
might have had at the time of the intervie w. Defense counsel also asked about false
reporting. On redirect examination, the state asked, without objection, “[Defense counsel]
asked you about credibility. In your vast tr aining and experience, were [the child’s]
disclosures credible?” The inte rviewer testified, “Yes, I believe her disclosure was
credible.”
The state’s expert on child sexual abuse testified generally about the characteristics
of child-sexual-abuse cases. Without objection from Bush, the expert was asked about what
her research and experience had shown about false reports of sexual abuse. The expert
stated that “false reports are very rare in childhood sexual abuse cases.”
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In closing argument, the prosecutor stat ed to the jury rega rding the forensic
interviewer’s testimony, “Then on redirect , I asked her the ultimate question: Did you
believe [the child’s] disclosure was credible. She said yes.”
The jury found Bush guilty of both counts of first-degree criminal sexual conduct.
The district court sentenced him to concurrent executed terms of 156 months.
Bush appeals.
DECISION
I. Any elicitation of improper vouching testimony does not warrant a new trial.

Bush argues that he is entitled to a new tr ial because the state improperly elicited
testimony from the forensic interviewer a nd the child-sexual-abuse expert that
impermissibly vouched for the child’s cred ibility. Bush identifies three instances of
improper vouching testimony: (1) the testimony from the forensic interviewer and from the
child-sexual-abuse expert that false reports of sexual abuse are rare, (2) the testimony from
the forensic interviewer that she believed the child’s disclosu re was credible, and (3) the
testimony from the forensic interviewer that the child’s recounting of events during the
interview satisfied the credibility-assessment factors.
As an initial matter, the parties disagree on the standard of review that applies to
this issue. The state argues that the appropriate standard is the plain-error test that applies
to the admission of unobjected-to testimony. Bush argues that the appropriate standard is
the modified plain-error test that applies to unobjected-to prosecutorial misconduct. Bush
frames the issue on appeal as whether the prosecutor im properly elicited plainly
inadmissible testimony, not wh ether the district court erre d by admitting the testimony.
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Because eliciting plainly inadmissible testimony may constitute prosecutorial misconduct,
see State v. Fields , 730 N.W.2d 777, 782 (Minn. 2007), the modified plain-error test
therefore applies, see State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Under the modified plain-error test, the a ppellant bears the burde n of establishing
an error that is plain. Id. An error is plain when it is “clear or obvious,” meaning the error
“contravenes case law, a rule, or a standard of conduct.” State v. Cao , 788 N.W.2d 710,
715 (Minn. 2010). If the appellant establishes pl ain error, “the burden shifts to the [s]tate
to demonstrate that the plain error did not affect the [appellant]’s substantial rights.” State
v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). At this step, the state must show that “there
is no reasonable likelihood that the absence of the misconduct in question would have had
a significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotations
omitted). If the state fails in its burden, a new trial may be ordered if appropriate to ensure
the fairness and integrity of judicial proceedings. Id. at 302-03.
Bush argues that the state improperly elicited vouching testimony. Vouching occurs
when a witness testifies regard ing another witness’s credibility. Van Buren v. State , 556
N.W.2d 548, 551-52 (Minn. 1996). Generally, expert testimony regarding the credibility
of a witness is impermissible. State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984). The
reason is that, for “most crimes, the credib ility of a witness is peculiarly within the
competence of the ju ry, whose common experience a ffords sufficient basis for the
assessment of credibility.” Id. But the nature of sexual abuse of children “places lay jurors
at a disadvantage” because thei r common experience may not be adequate to assess the
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credibility of a child who alleges sexual abuse. Id. at 610. Some expert testimony regarding
a child’s credibility may therefore be appropriate. Id.
We turn to the challenged testimony in this case. Bush argues, and the state
concedes, that the testimony from the forensic examiner and the child-sexual-abuse expert
about the rarity of false reports was plainly in admissible. The parties cite to this court’s
decision in State v. Oslund, which held that the admission of an expert’s testimony that less
than two percent of sexual-abuse allegations are fabricated was harmless error. 469 N.W.2d
489, 496 (Minn. App. 1991), review denied (Minn. July 24, 1991). Next, regarding the
forensic examiner’s testimony that she believe d the child’s disclosure was credible, Bush
argues that this opinion testimony was inadmissible under cases including State v. Miller,
where this court concluded that testimony from a school counse lor that he believed a 12-
year-old child’s report of sexual abuse was inadmissible vouching testimony. 377 N.W.2d
506, 507-08 (Minn. App. 1985). The state counters that the opinion testimony here was not
inadmissible because it refuted defense counsel’s suggestion on cross-examination that the
child’s statements should not be given credence because the interviewer had not ruled out
that the statements were the product of mental-health problems. The state contends that the
testimony was therefore permissible under Myers, where the supreme court concluded that
an expert’s testimony that a child was trut hful was permitted to re but evidence that the
child’s mother did not believe the child for several months. 359 N.W.2d at 611-12. Finally,
regarding the forensic interviewer’s test imony concerning the credibility-assessment
factors, Bush acknowledges that the expert ’s testimony identifying and explaining the
factors was admissible but asserts that the interviewer’s testimony that the child’s interview
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in fact satisfied those factors was plainly inadmissible under this court’s decision in State
v. Morales-Mulato , 744 N.W.2d 679, 690 (Minn. App. 2008), review denied (Minn.
Apr. 29, 2008). The state res ponds that the testimony was admissible to address the
defense’s theme that the child had mental-health issues that cast doubt on the credibility of
her report.
We need not decide whether the prosecu tion plainly erred by eliciting any of the
testimony challenged by Bush if the state has carried its burden of demonstrating that any
error did not affect Bush’s substantial rights. We therefore begin with that question. To
determine whether plainly e rroneous prosecutorial miscon duct affected a defendant’s
substantial rights, appellate courts consider various factors, including “the pervasiveness
of improper suggestions and the strength of evidence against the defendant.” Parker, 901
N.W.2d at 926 (quotations omitted). Appellate courts also consider the mitigating effect of
the district court’s jury instructions. State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App.
1985), review denied (Minn. Oct 11, 1985).
The testimony regarding the low incidence of false reports of sexual abuse was not
pervasive. Although both the forensic inte rviewer and the child-s exual-abuse expert
testified to the issue, thei r testimony was brief and was not repeated during closing
argument.
The forensic interviewer’s testimony that she thought the child ’s disclosures were
credible was even briefer—it was one statem ent at the end of redirect examination.
However, the state repeated the statement duri ng closing argument. Bush argues that this
testimony was unfairly prejudicial, rely ing particularly on our decision in Miller, 377
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N.W.2d 506. In Miller, we held that objected-to testimony from the school counselor, who
was a psychologist, that the child’s report wa s credible and that he believed her was
reversible error. Id. at 509. We reasoned that, because the case turned on the child’s
credibility and there were some inconsistencies in her testimony, the counselor’s opinion,
“as an apparent expert, may well have decided the verdict.” Id. But Miller is distinguishable
from this case. Here, unlike in Miller, the child’s trial testimony was internally consistent
and was consistent with her forensic interv iew. The challenged st atement here was not
likely to have had the same prejudicial effect as the objected-to testimony in Miller.
The forensic interviewer’s testimony that the child met the cred ibility criteria was
more pervasive; it spanned several pages of the trial transcript. Th e testimony was not,
however, repeated during closing argument. Although this testimony was more extensive
than the other challenged testimony, we are persuaded by the state’s argument that that fact
does not demonstrate an effect on Bush’s substantial rights.
The state points to two decisions of this court rejecting the argument that the
admission of this type of testimony was reversible error. In State v. Wembley, we affirmed
the appellant’s conviction for sexual abuse of a child despite the erroneous admission of
expert testimony that the ch ild met the credibility-assessment factors. 712 N.W.2d 783,
792 (Minn. App. 2006), aff’d on other grounds, 728 N.W.2d 243, 245 (Minn. 2007). We
reasoned that the jurors heard admissible testim ony about the factors that the expert used
to assess credibility, watched the interview, and then could judge for themselves whether
the child satisfied the factors. Id. We explained that, “[d]istilled to its essence, [the] expert
testimony provided the jury with very little that the jury could not ascertain independently
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from considering the nonexpert ev idence introduced at trial.” Id. Similarly, in Morales-
Mulato, we affirmed the appellant’s conviction for sexual abuse of a child although an
expert witness testified to the details of the interview that satisfied the expert’s credibility-
assessment factors and gave her opinion that the child had been sexually abused. 744
N.W.2d at 690. We concluded that the verdict was “surely not attributable” to the improper
testimony, again reasoning that the jury, ha ving learned about th e credibility-assessment
factors and having watched the videotaped interview, could “judge for itself” whether the
child’s statements satisfied the factors. Id.
Like in Wembley and Morales-Mulato, here, the jury watched the child’s videotaped
interview. The jury could dete rmine for itself the extent and depth of the content that the
child described. The jury co uld determine whether the ch ild was consistent in her
statements and in her connection of her verbal description of events with the drawing that
she made. The jury could also decide whet her the child provided contextual details
suggesting that she actually experienced the events that she described. Moreover, the jury
could see and hear the child and could assess her affect and body language. The jury was
able to compare all that they saw and heard in the videotaped interview with what they saw
and heard during the child’s trial testimony. As in Wembley and Morales-Mulato, the jury
could decide for itself whether the child’s statements were credible.
In addition, the state’s evidence in this case was strong. The videotaped forensic
interview of the child provided compelling evidence of Bush’s guilt. The child gave a first-
hand account of Bush’s sexual misconduct. The child described in detail the acts that Bush
committed against her and made a drawing showing how Bush would make her sit on top
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of him without her clothes on. The child’s statements during the interview were consistent.
Moreover, the child gave trial testimony that was both internally consistent and consistent
with her forensic interview.
The circumstances surrounding the child’s initial disclosure further strengthened the
state’s case. The child sponta neously disclosed the alleged sexual abuse to her adoptive
mother. The child’s adoptive mother testified that, as part of her foster-parent training, she
was advised on several different occasions to not ask the children questions about any past
sexual abuse and that the child disclosed the sexual abuse unprompted.
The state’s case was also strengthened by the police’s corroboration of the child’s
statements regarding the opportunity that Bush had to sexually abuse the child. When the
child disclosed the abuse, she recalled that it happened while K.B. was working at a
convenience store and that most of the abuse occurred during the night. The police
investigator testified that hi s investigation confirmed that, during the time of the abuse,
K.B. was working at the store and often worked past 10 p.m.
Bush argued to the jury that K.B. “brainwashed” the child to allege sexual abuse as
K.B.’s way of “getting back” at him for se parating from her. But Bush does not point to
any evidence supporting his theory. The child disclosed the abuse more than two years
after it occurred and long after she was no longer living with K.B. or with Bush. By the
time the child disclosed the abuse, Bush wa s remarried and living in Wisconsin. Because
Bush testified, the jury had the opportunity to evaluate hi s credibility, and it rejected his
assertion that the child’s disclosures were prompted by K.B.
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Bush contends that the evidence in this case is not strong because there was no
physical evidence, no witn esses to the abuse, and no contemporaneous reports of
suspicious behavior. It is true that those things are not present in the record. Nevertheless,
based on the child’s trial testimony, her prio r consistent testimony, the spontaneity of the
reporting, the circumstances surrounding her disclosure, and the lack of motive for her to
lie, we conclude that the state’s evidence is strong.
Finally, the district court instructed the jurors that an expert’s opinion is not entitled
to any greater weight than th e testimony of any other witne ss and that they are the sole
judges of whether a witness is to be believed. Taking into account all of the circumstances,
including the extent of the ch allenged testimony, the strength of the state’s evidence, and
the instructions given the jury , we conclude that the state has met its burden of showing
that any plain error in eliciting vouching testimony from the experts did not affect Bush’s
substantial rights.
II. The district court did not deprive Bush of his right to counsel.

Bush argues that the district court vi olated his right to counsel “who was not
operating under a conflict of interest” when it denied his request for a continuance to obtain
new counsel and directed that his counsel would act as standby counsel.
Bush argues that, under United States v. Gonzalez-Lopez, the district court deprived
him of his right to counsel of his choice. 548 U.S. 140, 126 S. Ct. 2557 (2006). But
Gonzalez-Lopez is factually inapposite. In Gonzalez-Lopez, the Supreme Court held that
the district court deprived the defendant of his right to counsel of choice by erroneously
denying his retained out-of-state attorney’s request for admission pro hac vice. Id. at 548
14
U.S. at 144, 126 S. Ct. at 25 61. Here, the district court di d not deprive Bush of counsel;
rather, Bush terminated his counsel. At a pretrial hearing, the district court informed Bush
that it had learned that Bush intended to terminate his couns el and asked him if that was
correct. Bush said it was correct . The district court asked Bush why he no longer wanted
to proceed with his lawyer. Bush replied, “[T]here was things that I wanted him to mention
and put into the report that ha sn’t—he hasn’t did that, so th at is why I was—I don’t feel
comfortable going in with him right now.” The district court asked whether Bush’s
termination was over “differences of strategy on the case,” and Bush agreed that it was.
The district court determined that Bush freely and voluntarily terminated his counsel, and
that determination is supported by the record.
But Bush argues that the district court de prived him of counsel by denying him a
continuance to engage a new lawyer. The right to counsel guaranteed by the United States
and Minnesota Constitutions includes a fair opportunity for a defendant to secure counsel
of their choice. State v. Fagerstrom , 176 N.W.2d 261, 264 (Minn. 1970). But “[a]
defendant may not obtain a continuance by di scharging his counsel for purposes of delay
or by arbitrarily choosing to substitute counsel at the time of trial.” Id. A district court may
properly deny a continuance request “when the defendant has not been diligent in procuring
counsel or in preparing for trial.” State v. Courtney , 696 N.W.2d 73, 82 (Minn. 2005).
Whether to grant a continuance to permit substitution of counsel lies within the discretion
of the district court, whose “decision is to be based on the facts and circumstances
surrounding the request.” Fagerstrom, 176 N.W.2d at 264. An appellant must demonstrate
15
prejudice by the denial of the cont inuance to warrant appellate relief. Courtney, 696
N.W.2d at 81.
We discern no abuse of discretion or prejudi ce here. At Bush’s first appearance in
July 2018, the district court granted his request for a public defender. Two months later,
Bush hired another attorney. A year later, in August 2019, Bush informed the court that he
intended to hire new counsel—his third lawye r. The district court continued the case to
September 25, 2019, and warned Bush that he and his lawyer needed to be ready for trial
at that time. Shortly before the trial date, however, Bush sought a continuance for his new
lawyer to prepare for trial. The district court continued the matter. Trial was ultimately
scheduled for March 10, 2020. On March 9, Bush informed the district court that he wanted
to retain new counsel and requested another continuance. The district court denied the
request.
The right to counsel of a defendant’s choi ce must be balanced against “the public
interest of maintaining an efficient and effective judicial system.” Courtney, 696 N.W.2d
at 82. Bush’s request for a continuance to obtain what would be his fourth lawyer was made
the day before his trial started. In denying Bush’s request, the district court emphasized the
long history of this case. Bush acknowledged to the district court that there had been “many
continuances in the case” during the two years the case had been pending. On this record,
Bush has not shown that he wa s diligent in procuring private counsel. The district court
therefore did not abuse its discretion in denying another continuance.
Nor was Bush prejudiced by the denial. A defendant is prejudiced if the denial of a
continuance materially affected the outcome of the trial. State v. Vance, 254 N.W.2d 353,
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358-59 (Minn. 1977). When a competent attorney represented a defendant who was denied
his choice of counsel, reviewing courts ha ve determined that a defendant was not
prejudiced by not receiving his choice of counsel. See id. at 359 (concluding no prejudice
where attorney thoroughly inves tigated facts and was prepared for trial). Bush does not
challenge the district court’s assessment at th e time that there was “no one more familiar
with the case than [defense couns el] to be able to step in a nd give assistance to Mr. Bush
during the conduct of the trial.” Because Bush had two years to prepare to go to trial, and
he has failed to show that his standby counse l was not prepared to assist him during his
trial, he has not established that he was prejudiced by the denial of the continuance.
Finally, Bush complains that his standby counsel had a conflict of interest. After
Bush informed the district cour t that he wished to terminat e his counsel, his counsel told
the district court that an ethical issue had recently arisen, which he could not discuss
without violating attorney-client privilege. But, following extensive questioning by the
district court and further conve rsation with his lawyer, Bush confirmed that he wished to
have his lawyer act as advisory counsel. Th e district court permitted his counsel to do so.
The district court did not violate Bush’s constitutional right to counsel by permitting Bush
to have his lawyer act as advisory counsel.
III. The district court did not abuse its discretion by denying Bush’s request for a
lesser-included offense instruction.

Bush argues that the district court abused its discretion by denying his request for
an instruction on the lesser-included offens e of second-degree cr iminal sexual conduct,
17
which only requires a showing of sexual contact rather than sexual penetration as required
for first-degree criminal sexual conduct.
We review the denial of a requested lesser-included offense instruction for an abuse
of discretion. State v. Dahlin , 695 N.W.2d 588, 597 (Minn. 2005). When a defendant
requests a lesser-included-offense instruction, the district court must give the instruction if
the lesser offense is included in the charged offense and if the evidence provides a rational
basis to both acquit the defendant of the charged offense and convict the defendant of the
lesser-included offense. Id. at 598; see also Minn. Stat. § 609.04, subd. 1. When deciding
whether to instruct the jury on a lesser-included offense, the district court may not weigh
the evidence or make credibility determinations; instead, it must view the evidence in the
light most favorable to the party requesting the instruction. Dahlin, 695 N.W.2d at 598.
The district court denied Bush’s request for a second-degree instruction because
“the testimony of Mr. Bush . . . did not re ally leave any room fo r admitting a criminal
sexual conduct type case. He basically has denied that the conduct ever existed.” Second-
degree criminal sexual conduct requires sexual contact. Minn. Stat. § 609.343, subd. 1
(2020). Bush consistently denied that any su ch contact occurred. There was therefore no
rational basis to acquit Bush of first-degr ee sexual assault and co nvict him of second-
degree sexual assault. Either Bush was guilty of first-degree sexual conduct based on the
child’s testimony or he was not guilty of any criminal se xual conduct based on his own
testimony. See State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1993) (holding there was
no basis for submitting lesser-inc luded offense instruction wh ere defendant denied any
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sexual contact), review denied (Minn. Dec. 27, 1993). The district court did not abuse its
discretion by denying Bush’s request.
IV. The district court clearly erred by entering two convictions and imposing two
sentences for first-degree sexual assault.

Bush and the state agree that the district court erred by entering convictions and
imposing sentences for both counts of criminal sexual conduct. We, too, agree.
Under Minn. Stat. § 609.04, subd. 1, a person “may be convicted of either the crime
charged or an included offens e, but not both.” The supreme court has interpreted section
609.04 to bar multiple convictions under different sections of the same criminal statute for
acts committed during a single behavioral incident. State v. Jackson, 363 N.W.2d 758, 760
(Minn. 1985). The state has the burden of proving that acts arose out of separate behavioral
incidents in order to sustain multiple convictions. State v. Williams, 608 N.W.2d 837, 841-
42 (Minn. 2000).
Count one alleged multiple acts of sexual pe netration of a child under 16 years of
age over a defined period of tim e, where there is a significant relationship with the child,
in violation of Minn. Stat. § 609.342, s ubd. 1(h)(iii) (2014). Count two alleged sexual
penetration of a child under 13 years of ag e, in violation of Minn. Stat. § 609.342,
subd. 1(a) (2014). The state does not contend that the act underlying count two arose out
of a separate behavioral incident than th e multiple acts underlying count one. Nor would
the record support such a determination. Accordingly, Bush should not have been
convicted of both counts of first-degree crim inal sexual conduct. We therefore reverse in
part and remand for the district court to vacate one of Bush’s convictions (and the
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corresponding sentence) and to correct the wa rrant of commitment, leaving the jury’s
finding of guilt on both offenses intact.
Affirmed in part, reversed in part, and remanded.