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This opinion is nonprecedential except as provided by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
A20-1086

State of Minnesota,
Respondent,

vs.

Mony Vetsouvanh,
Appellant.

Filed July 19, 2021
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Cottonwood County District Court
File No. 17-CR-18-608

Keith Ellison, Attorney General, Kirsi Poupor e, Assistant Attorney General, St. Paul,
Minnesota; and

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from judgments of conviction for theft by false representation,
appellant Mony Vetsouvanh argues that the district court erred by admitting evidence that
she previously pleaded guilty to theft of unemployment bene fits and that she provided
“kickback” payments to Medicaid recipients. Vetsouvanh also claims the district court

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erred by convicting her of all six felony theft counts. Because the district court did not
commit reversible error by the admission of the contested evid ence, we affirm in part.
However, because three counts fo r which the district court en tered convictions were part
of the same criminal act, we reverse in part, and remand.
FACTS
Respondent State of Minnesota charged Ve tsouvanh with three counts of felony
theft by false representation, in violation of Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (2014),
with reference to Minn. Stat. § 609.52, subd. 3(2) (2014) (relating to thefts of over $5,000)
(counts one through three); and, by amended complaint, with th ree counts of felony theft
by false representation, in violation of Mi nn. Stat. § 609.52, subd. 2(a)(3)(iii), with
reference to Minn. Stat. § 609.52, subd. 3(3)(d)(iv) (2014) (relating to theft of public funds)
(counts four through six). The complaint alleged three criminal acts which occurred during
six-month periods over an 18-month period. As a result, counts one through three and four
through six correlate to the same three criminal acts.
Before trial, the district court gran ted the state’s motio n over Vetsouvanh’s
objection to introduce Spreigl evidence of Vetsouvanh’s 2015 guilty plea to felony theft of
her son’s unemployment bene fits by false representation. 1 The district court separately
denied Vetsouvanh’s motion in limine to prevent the state from introducing evidence of
Medicare “kickback” payments.

1 Because the district court in that matter entered a stay of adjudication, Vetsouvanh was
not convicted of the offense.

3
The following facts are derived from the ju ry trial. Between 2015 and 2016,
Vetsouvanh worked as a Lao medical interp reter for Kim Tong Tr anslation Services
(KTTS). In this capacity, sh e provided interpreter services for Medicaid patients at
hospitals and clinics. An investigator in the Medi caid Fraud Control Unit began
investigating Vetsouvanh after an insurance provider submitte d “credible allegations of
fraud” that “interpreter logs were being submitted and paid out that did not have underlying
medical services.”
The manager of KTTS’s accounting depa rtment testified that KTTS possessed
contracts to provide interprete r services with UCare, Blue Cross, Blue Shield, Health
Partners, and Medica. These insurers are billed by KTTS for services based on the
individual interpreter’s timesheets. KTTS pa ys a portion of the amount billed directly to
the interpreter. Interpreters ar e obligated to track their time spent for servi ces provided.
Interpreters provide a form to a clinic’s front desk staff upon arrival to record that they
appeared with a patient, and staff sign and date the form at the end of the appointment.
Certain clinics have interpreter worksheets, a nd the clinic staff and interpreter must each
sign the worksheets.
The fraud investigator reviewed the insurer’s claims, KTTS’s interpreter claims and
logs, the service-recipient’s medical data , clinic data of medical appointments,
Vetsouvanh’s personal bank account records, and Vetsouvanh’s time records of her outside
employment. The investigation uncovered 802 interpreter logs submitted by Vetsouvanh
which did not correspond to underlying medi cal appointments, and her time records

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indicated that she was working at other employment during some of these times. In total,
Vetsouvanh received $33,617.33 for interpreter services to which she was not entitled.
A clinical director of a clinic at whic h Vetsouvanh provided interpreter services
established that medical appointments appear on a clinic’s electronic medical records. He
stated there is a “zero percent” chance that medical services are provided for which there
is no corresponding documentation or underlying medical appointment.
In sum, the state called seven witnesse s and offered 19 exhi bits during trial.
Vetsouvanh exercised her right to remain si lent and provided no witness testimony. The
jury returned a guilty verdict fo r each of the six counts. At sentencing, the district court
entered convictions for all six counts and imposed sentences for counts one through three.
Vetsouvanh appeals.
DECISION
I. The district court did not commit revers ible error by admitting the contested
evidence.

Vetsouvanh asks us to review two evidentiary rulings. First, we review the district
court’s allowance of Spreigl evidence2 submitted by the state of Vetsouvanh’s prior guilty
plea to felony theft involving the unlawful rece ipt of unemployment benefits in the name
of her deceased son. Second, we review the district court’s ruling allowing the state to
admit evidence of Medicare “kickback” paymen ts consisting of three personal checks
Vetsouvanh wrote to Medicaid recipients whos e personal information she used to submit

2 The admissibility of evidence of other crimes or acts is governed by Minn. R. Evid.
404(b). Such evidence is commonly referred to as “ Spreigl evidence” after the supreme
court’s decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

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interpreter claims to her employer.3 We presume, without so ruling, that admission of both
items of evidence was error but conclude that any such error was harmless.
Because Vetsouvanh objected to the eviden ce, we review her claims for harmless
error. An error is harmless if there is “ no reasonable possibility that it substantially
influence[d] the jury’s decision.” State v. Taylor , 869 N.W.2d 1, 14 (Minn. 2015)
(alteration in original) (quotation omitted). An appellant bears the burden of demonstrating
that they were prejudiced as a result of error. State v. Griffin, 887 N.W.2d 257, 261 (Minn.
2016). When considering whether erroneously admitted evidence significantly influenced
the jury’s verdict, appellate courts consider whether the di strict court gave a limiting
instruction, the prosecutor “dwelled on the ev idence in closing argument[,] and whether
the evidence of guilt was overwhelming.” State v. Riddley, 776 N.W.2d 419, 428 (Minn.
2009).
First, the district court prov ided the jury with a cautionary in struction before the
presentation of Vetsouva nh’s prior guilty plea and repeat ed this instruc tion during final
instructions, using the language of 10 Minnesota Practice, CRIMJIG 2.01, 3.16 (2020).
“[Appellate courts] presume a jury follows a court’s cautionary instruction.” See Riddley,
776 N.W.2d at 428. Vetsouvanh did not object to the district court’s cautionary instruction
during trial.

3 The district court, in addition to finding the evidence relevant, determined that the checks
were “intrinsic and certainly part of the overall scheme.” Vetsouvanh and the state disagree
on how to characterize the “kickback” payments. Vetsouvanh asserts that it is improperly
admitted Spreigl evidence and the state asserts that it is proper immediate-episode
evidence. We do not decide the character of the evidence because we presume error in
admitting the evidence but that such error is harmless.

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Vetsouvanh, relying on State v. Strommen, 648 N.W.2d 681 (Minn. 2002), argues
that the district court’s cautionary instruc tion “exacerbated the po tential” to improperly
influence the jury. Her reliance on Strommen for this proposition is misplaced. Strommen
involved an improper character attack though the defendant had not placed his character in
issue. Strommen, 648 N.W.2d at 687. The district court subsequently gave the Spreigl-
associated limiting instructi on found in CRIMJIG 3.16. Id. Though the supreme court
stated that the “cautionary instruction” given to the jury “exacerbated its prejudicial effect,”
it did so on the basis that a curative, rather than a cautionary, instruction was proper.4 Id.
The district court here properly gave a cautionary instruction to the jury, and we presume
that the jury followed the district court’s instructions. See Griffin, 887 N.W.2d at 262.
Second, the state did not “dwell[] on the evidence” in closing arguments because it
did not discuss either Vetsouvanh’s prior gu ilty plea or the “kickb ack” payments at any
time during its closing or rebuttal arguments.
Third, the evidence of Vetsouvanh’s gu ilt was overwhelming. The state presented
the fraud investigator’s thorough investiga tion of the insurance claims, three clinic
employees stating that their handwriting was forged on Vetsouvanh’s interpreter
worksheets, and evidence that Vetsouvanh was working at other employment during times
she claimed to be working for KTTS as an interpreter. The state presented 802 interpreter

4 Further, in a later-decided Spreigl-evidence case, the supreme court noted, when
comparing the Eighth Circuit Model Instruction and the Minnesota CRIMJIG, “CRIMJIG
3.16 more generally limits the jury’s use of the evidence to determining whether defendant
committed those acts with which the defendant is charged,” and found the Minnesota
instruction the more appropriate. Ture v. State, 681 N.W.2d 9, 18 (Minn. 2004) (quotation
omitted).

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worksheets completed by Vetsouvanh which di d not correspond to underlying medical
appointments. The clinic director testified that there was “zero chance” that the clinic
provides medical services without an underlying medical appointment.
Therefore, assuming the district cour t erred by admitting the evidence of
Vetsouvanh’s prior guilty plea and the Medicare “kickback” payments, there is no
reasonable possibility that the evidence substantially affected the verdict and we affirm.
II. The district court erred by entering six convictions.

“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offens e, but not both.” Minn. Stat. § 609.04, subd. 1 (2020).
“[S]ection 609.04 bars multiple co nvictions under different sec tions 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, this
court reviews 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, appellate courts consider such factors as “time and
place . . . [and] whether the segment of conduc t involved was motivat ed by an effort to
obtain a single criminal objective.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006)
(alteration in original) (quotation omitted).
When a defendant is convicted of more than one charge for the same act, a district
court should “adjudicate formally and impose sentence on one count only.” State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Whether a conviction violates section

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609.04 is a question of law subject to de novo review. State v. Cox, 820 N.W.2d 540, 552
(Minn. 2012).
Vetsouvanh was charged with six felony co unts of theft by false representation.
Counts one through three correlate to three six-month time periods, aggregated over the 18
months of the ongoing offense. Counts four through six repeat the allegations of the first
three counts. The lone difference between counts one through th ree and counts four
through six is that the latter three counts involve the theft of public funds, a factor relating
to sentencing only. See Minn. Stat. § 609.52, subd. 3(3)(d)(iv).
Because Vetsouvanh was convicted for act s committed during the same criminal
act, entering convictions for theft of public fu nds is improper pursuant to section 609.04,
subdivision 1. We, therefore, reverse in part and remand to the district court to vacate
Vetsouvanh’s adjudication of guilt for counts four through six.
Affirmed in part, reversed in part, and remanded.