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This opinion is nonprecedential except as provided by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
A21-0866

State of Minnesota,
Respondent,

vs.

Jacob Schoonover Collins,
Appellant.

Filed May 31, 2022
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Morrison County District Court
File No. 49-CR-19-679

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

Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Reilly, Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his convictions for first-degree and second-degree criminal
sexual conduct, arguing that th e district court erred by (1) admitting a forensic interview
of the victim without an ap plicable exception to the h earsay rule, and (2) entering a
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judgment of conviction for the included offense of second-degree criminal sexual conduct.
We affirm the district court’s decision to adm it the victim’s forensic interview at trial but
reverse and remand for the district court to vacate appellant’s conviction for the lesser-
included offense of second-degree criminal sexual conduct.
FACTS
In May 2019, respondent State of Minn esota charged appellant Jacob Schoonover
Collins with one count of first-degree crim inal sexual conduct, alleging that Collins
engaged in sexual contact with his five-year-old daughter, G. E. The state later amended
the charges against Collins to include one count of second-degree criminal sexual conduct.
The district court conducted a jury trial. The jury heard testimony from ten witnesses
including then seven-year-old G.E., and a forensic interviewer employed by Midwest
Children’s Resource Center (MCRC). The witn ess list also included G.E.’s other family
members, law enforcement, members of the Minnesota Bureau of Criminal Apprehension
(BCA), and a child protection case manager.
The evidence established that on April 26, 2019, G.E. was at her family home with
Collins, her biological mother, and her cousin. Cousin’s grandmother, C.M., came to pick
up cousin and saw G.E. and Collins alone in Collins’s bedroom. Outside of Collins’s
presence, C.M. asked G.E. what she and Collins were doing al one in the bedroom. After
speaking with G.E., C.M. drove to the police station to file a sexual assault report against
Collins on behalf of G.E. G.E. then went to stay with other family members.
G.E.’s mother and C.M. brought G.E. to the Children’s Ho spital MCRC for a
forensic interview. The interview was videotaped. The interviewer began by asking G.E.
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if she knew why she came to MCRC. Although G. E. stated at first that she did not know
why, G.E. then stated that “m y daddy pulled his shorts down” and “takes his little thingy
and he put it in there.” G.E. told the interviewer that “little thingy” meant the place “that
his pee comes out,” that Collins asked her to dr ink his pee, and that he pulled his shorts
down to reveal his “private” before taking off her clothes. G.E. told the interviewer that
this happened only one time. When asked how her “private parts” felt when this happened
to her, G.E. responded that “[i]t kinda hurted.” The interviewer then conducted a physical
examination which showed some redness and swab bed G.E.’s perineal and rectal areas.
The interviewer sent the swabs to the BCA. The BCA examined the swabs and found no
semen or seminal fluids but did obtain a partial Y-Chromoso mal profile which could not
exclude Collins or any of his paternally related relatives as the source of DNA.
At trial, the prosecution sought to introduce the recording of the forensic interview.
The defense objected based on hearsay. Afte r hearing arguments fro m both parties, the
district court denied the objection and admitted the recording into evidence. Before playing
the recording for the ju ry, the interviewer testified that she had been a pediatric nurse
practitioner for almost five years, that sh e was certified in Child First training, 1 and that
she had conducted around 50 forensic interviews by April 2019. She testified that she asks
children open-ended questions to try and “elicit a narrative summary.” She testified that

1 According to the inte rviewer’s testimony, Child First is a forensic interviewing method
that teaches professionals how to interview children who may have experienced sexual or
physical abuse. The training teaches intervie wers to first build rapport with the child
through sample questions and general conversation before asking the child open-ended
questions, which allows the child to detail their story.
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she does not make credibility dete rminations in her role but tr ies to get the child to say
what happened in their own words. The interv iewer testified that she first established a
rapport with G.E. before asking her what happened. She then showed G.E. an anatomically
correct diagram and asked her to label the diagram with the words she used for the various
body parts. After laying foundation, the prosecution played the forensic interview for the
jury.
The jury found Collins guilty of both counts: first-degr ee criminal sexual conduct
and second-degree criminal sexual conduct. At sentencing, the district court entered a
conviction on both counts.
This appeal follows.
DECISION
I. The district court did not abuse its discretion by admitting the video interview
into evidence.

Collins argues that the district court abused its discretion by admitting G.E.’s
recorded forensic interview because the inte rview constituted inadmissible hearsay. We
review a district court’s evidentiary rulings for an abuse of discretion. State v. Nunn, 561
N.W.2d 902, 906-07 (Minn. 1997). A district court abuses its discretion if its ruling is
“based on an erroneous view of the law or is against logic an d the facts in the record.”
State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). On appeal, the defendant has the
burden of proving both that the district court abused its discretion in admitting the evidence
and that he was thereby prejudiced. Nunn, 561 N.W.2d at 907. “Reversal is warranted
only when the error substantially influences the jury’s decision.” Id.
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A. Minn. Stat. § 595.02, subd. 3
The district court found G.E.’s forensic interview to be admissible under Minn. Stat.
§ 595.02, subd. 3 (2020), which permits the admission of statements describing sexual
conduct by children under the age of ten in certain circumstances. We analyze the
admissibility of a child-victim’s out-of-court statements about sexual abuse pursuant to this
statute by applying the same analysis set forth in Minn. R. Evid. 807.2 State v. Hollander,
590 N.W.2d 341, 346 (Minn. App. 1999). We need not rely on the statute if the evidence
is admissible under Rule 807. Id. (quotation omitted). For that reason, we first consider
whether the forensic interview was admissible as hearsay under Minn. R. Evid. 807.
Hearsay is defined as “a statement, othe r than one made by the declarant while
testifying at the trial or hear ing, offered in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 8 01(c). “Hearsay is not admissibl e except as provided by [the
rules of evidence] or by other rules prescribed by the Supreme Court or by the Legislature.”
Minn. R. Evid. 802. There are several exceptions to the rule against hearsay. Statements
not covered under a specific hearsay-excep tion rule may still be admissible under the
residual exception of rule 807. Statements that have “equivalent circumstantial guarantees
of trustworthiness” to those admissible u nder the specific hearsay exceptions are not
excluded by the hearsay rule if the district court determines that:
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is
offered than any other eviden ce which the proponent can

2 State v. Hollander cites to Minn. R. Evid. 803(24). 590 N.W.2d at 346. But the substance
of rule 803(24) was combined with Minn. R. Evid. 804(b)(5) to create Minn. R. Evid. 807
in the year 2006.
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procure through reasonable e fforts; and (C) the general
purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.

Minn. R. Evid. 807.
In considering the trustworthiness of an out-of-court statement, this court focuses
on the totality of the circumstances:
These circumstances include, but are not limited to, whether
the statements were spontaneous, whether the person talking
with the child had a preconceived idea of what the child should
say, whether the statements were in response to leading or
suggestive questions, whether the child had any apparent
motive to fabricate, and whether the statements are the type of
statements one would expect a child of that age to fabricate.

Hollander, 590 N.W.2d at 346 (quoting State v. Larson , 472 N.W.2d 120, 125 (Minn.
1991)). We may also consider “the mental state of the child at the time the statements were
made and the consistent repetition of the chil d’s statements during the same interview or
conversation.” Id. (quotation omitted).
The district court found that the fore nsic interview had these guarantees of
reliability: the forensic interview occurred less than a day after the allegations, G.E. used
anatomically correct diagrams to describe what Collins did to her, the interviewer asked
nonleading open-ended questions, G.E. had a greater sexual knowledge than what would
be expected of a typical five -year-old child, and G.E.’s statements were consistent
throughout the forensic interview.
Collins argues that G.E.’s statements were not spontaneous because they were only
made after C.M. questioned her. He also co ntends that any statem ents made during the
interview are unreliable because G.E. had only a few hours of sleep before the interview
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which affected her mental state. We disagree. The guarant ees of reliability found by the
district court satisfy the trustworthiness requirement of Minn. R. Evid. 807. After talking
with C.M., G.E. spoke one-on-one with a nurse trained in child-forensic interview
protocols. She asked G.E. no nleading questions to gather information and G.E. provided
consistent statements through out the interview. There is no evidence in the record to
support Collins’s assertion that her mental state was impaired. Thus, the district court did
not abuse its discretion in admitting G.E.’s forensic interview into evidence. And because
the interview is admissible under Rule 807, we need not decide whether the admission
violated Minn. Stat. § 595.02, subd. 3. See Hollander, 590 N.W.2d 346-47.
B. Remaining evidentiary arguments
Collins also argues that G.E.’s statemen ts were not admissible under any other
hearsay rules and that the admission greatly prejudiced him. But Collins cannot meet his
burden to show that the admission of this evid ence was erroneous. As a result, we need
not analyze the prejudice against him, if any. See State v. Stone , 784 N.W.2d 367, 370
(Minn. 2010) (determining that if a distri ct court abuses its discretion in admitting
evidence, the “evidentiary ru ling will not be reversed unless the error substantially
influenced the jury’s verdict”). Because we conclude that the district court did not err in
admitting the forensic interview under Minn. R. Evid. 807, we need not address Collins’s
remaining evidentiary arguments.
II. The district court erred by entering a conviction on both counts.
Collins next argues that the district court erred in entering a conviction for second-
degree criminal sexual conduct, and the st ate concedes that this was error. “Upon
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prosecution for a crime, the actor may be co nvicted of either the crime charged or an
included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2020). An included offense
under the statute includes a “lesser degree of the same crime.” Id.
We conclude that the district court erred when it entered a conviction on both count
one, first-degree criminal sexual conduct, and count two, second-degree criminal sexual
conduct, because count two is a lesser degree charge of the same crime. Both charges arose
out of the same behavioral in cident against victim G.E. A person may only be convicted
of one of the two criminal-sexual-conduct offe nses if the offenses arise out of the same
incident. State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981); see also State v. Beard, 380
N.W.2d 537, 542 (Minn. App. 1986) (applying this prin cipal to vacate a conviction of
criminal sexual conduct), rev. denied (Minn. Mar. 3, 1986). Thus, we remand to the district
court to vacate Collins’s conviction for criminal sexual conduct in the second degree.
Affirmed in part, reversed in part, and remanded.