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This opinion is nonprecedential except as provided by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
A22-0070

State of Minnesota,
Respondent,

vs.

Trever Joseph Palodichuk,
Appellant.

Filed December 19, 2022
Affirmed in part, reversed in part, and remanded
Gaïtas, Judge

Anoka County District Court
File No. 02-CR-19-5135

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Gaïtas, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Trever Joseph Palodichuk appeals his conviction for first-degree criminal
sexual conduct following a jury trial, arguing that respondent State of Minnesota failed to
prove he used coercion in committing the offense, his trial counsel provided ineffective
2
assistance, the district court erroneously excluded evidence, and, in a pro se supplemental
brief, that the prosecutor and trial judge committed misconduct. Because the state’s
evidence was sufficient to establish beyond a reasonable doubt that Palodichuk committed
first-degree criminal sexual conduct, and Palodichuk’s other challenges to the conviction
fail, we affirm in part. But because the district court erroneously entered convictions for
three lesser-included offenses, we reverse and remand to vacate those convictions and
correct the warrant of commitment.
FACTS
On Thanksgiving night in 2018, 18-year-old H.Y. reported that Palodichuk sexually
assaulted her. Palodichuk and H.Y. lived in the same apartment complex. H.Y., who has
high-functioning autism, lived in an apartment with her parents. Palodichuk, who is ten
years older than H.Y., shared an apartment in the complex with his then-girlfriend E.H.
According to H.Y.’s family and friends, H.Y. is very independent, but due to her
autism, she has difficulty with interpersonal conflict. In stressful situations, H.Y. shuts
down and becomes withdrawn.
H.Y. considered E.H. and Palodichuk to be her friends, and she often spent time at
their apartment baking and watching movies. Unbeknownst to H.Y., E.H. and Palodichuk
were having problems in their relationship.
On Thanksgiving night, H.Y. went to E.H. and Palodichuk’s apartment to eat pie
that she had baked earlier with E.H. Palodichuk was there, but E.H. was at work for the
evening. H.Y. decided to stay at the apartment until E.H. returned from her shift. Because
3
H.Y.’s phone battery was low, she asked Palodichuk to plug her phone into his charger,
which he did. H.Y. and Palodichuk watched movies on the couch.
According to H.Y., as they watched a movie, Palodichuk began rubbing her back.
H.Y. later testified that she “froze.” She somehow “ended up on [her] side.” H.Y. noticed
that she was no longer wearing her pants and underwear , which had been removed and
were on the floor, but she did not remember how she came to be undressed. She recalled
that Palodichuk was “going up and down” and his privates were touching her butt.
After this incident, H.Y. immediately got dressed, located her phone, and returned
to her parents’ apartment. She noticed that Palodichuk had turned her phone off.
Once H.Y. arrived home, she initiated a text-message exchange with a friend. After
some texts, they continued the discussion using a social media platform. In one message
to the friend, H.Y. stated, “[s]omething happened to me and I don’t know what to do.”
When the friend inquired about what had happened, H.Y. responded with the letter “R.”
Over the course of additional messages, H.Y. confirmed that she meant that Palodichuk
had “raped” her. The friend immediately contacted H.Y.’s mother, who then called the
police.
H.Y. told the police that she did not remember much of the incident. She reported
that Palodichuk was rubbing her back and then she “blacked out.” H.Y. said that she had
trouble remembering what happened. S he recalled noticing that she was on her side and
her pants and underwear were on the floor.
Following her statement to the police, H.Y. went to the hospital for a sexual assault
examination. H.Y. relayed the same story about the incident to the sexual assault nurse
4
examiner who performed the examination. During the physical exam, the nurse noted that
H.Y. had tenderness in her vaginal area. The nurse swabbed H.Y.’s vagina, cervix, and
rectum for evidence of sexual assault.
At the Midwest Regional Forensic Laboratory (MRFL), the swabs were examined
for DNA and serology. The rectal swab contained one sperm cell, and the cervical swab
contained three sperm cells. A Y-STR DNA analysis 1 of these sperm cells could not
exclude Palodichuk or his male relatives from contributing to the male DNA profile in all
tested samples.
In August 2019, the state filed a complaint charging Palodichuk with first-degree
criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) ( 2018), alleging that
Palodichuk had used force or coercion to sexually penetrate H.Y. Palodichuk was arrested
in connection with the complaint and remained in custody until his trial.
Motions, Delays, and Defense Expert Report
Following his arrest, Palodichuk retained private counsel. Between October 2019
and February 2021, Palodichuk’s trial counsel filed numerous motions, including motions
to compel discovery and suppress evidence. Some of trial counsel’s motions were
incorrectly filed, which resulted in several continuances. Through his trial counsel,
Palodichuk initially waived his rights to a speedy trial and to contest certain issues at an

1 At Palodichuk’s trial, a forensic analyst explained that Y-STR testing is a type of DNA
analysis conducted on the male “Y” chromosome to isolate a male DNA profile from a
mixture of DNA that is predominately female. It is frequently used in sexual assault
forensic analysis for women because there is typically a low amount of male DNA
compared to the high amount of female DNA in the samples.
5
omnibus hearing. But then he demanded a speedy trial and asked to litigate pretrial issues
that he had previously waived. At a hearing in April 2021, the district court expressed
concern about the delay in commencing Palodichuk’s trial and largely attributed the delay
to defense counsel’s conduct. Noting that Palodichuk had requested a speedy trial, the
district court scheduled the trial for June 14, 2021, and confirmed that it would prioritize
the trial on that date.
On June 1, 2021—just two weeks before trial —Palodichuk’s trial counsel provided
written notice that he intended to call a forensic expert. The notice was accompanied by
the curriculum vitae of Dr. Karl Reich and a copy of MRFL’s DNA report that contained
several comments purportedly made by Dr. Reich. Following the notice, the state moved
to exclude any testimony from Dr. Reich at trial, arguing that Palodichuk’s untimely expert
disclosure violated the Minnesota Rules of Criminal Procedure and prejudiced the state’s
ability to prepare for trial.
The district court found that Palodichuk’s expert disclosure was “shockingly
deficient” and “frankly, unprofessional.” It noted that Palodichuk’s counsel had ample
time to retain an expert and to provide adequate notice and that defense counsel’s failure
to properly disclose Dr. Reich’s testimony violated rule 9.02 of the Minnesota Rules of
Criminal Procedure. See Minn. R. Crim. P. 9.02, subd. 1(2)(b) (outlining the requirements
for expert-witness disclosures, including the requirement to provide an expert’s report or a
written summary of the expert’s anticipated testimony). Due to the deficient disclosure,
the district court limited the scope of Dr. Reich’s testimony to his interpretation of MRFL’s
DNA analysis.
6
Trial, Sentencing, and Posttrial Motion
At Palodichuk’s seven -day trial, the state called nine witnesses, including H.Y.,
H.Y.’s mother, H.Y.’s friend, Palodichuk’s ex-girlfriend E.H., police officers, the nurse
examiner, and forensic analysts. After the state rested its case, both parties agreed to have
the jury instructed on the lesser-included offenses of second, third, and fourth-degree
criminal sexual conduct. Palodichuk waived his right to testify and called one expert
witness, Dr. Reich. Following the testimony, Palodichuk also waived his constitutional
right to a jury determination on the sexual-contact element of second-degree and fourth-
degree criminal sexual conduct, and stipulated that he engaged in sexual contact with H.Y.
In closing argument, his counsel argued that H.Y. had consented to the sexual activity.
The jury found Palodichuk guilty of first-degree criminal sexual conduct and the
lesser-included offenses of second-, third-, and fourth- degree criminal sexual conduct.
Following the verdicts, the district court entered judgments of conviction for all four
offenses and sentenced Palodichuk to 255 months in prison for the first-degree conviction.
After sentencing, Palodichuk fired his trial counsel. A public defender then filed a
motion for a new trial on Palodichuk’s behalf. Palodichuk’s motion included an affidavit
from Dr. Reich detailing the trial testimony he would have provided if the district court
had not limited the scope of his testimony. The district court denied the motion. Then,
represented by an appellate public defender, Palodichuk filed a direct appeal to this court.
7
DECISION
I. The testimony of H.Y., in conjunction with other corroborating evidence, was
sufficient to prove beyond a reasonable doubt that Palodichuk used coercion
to sexually penetrate H.Y.

Palodichuk argues that the trial evidence was insufficient to prove an element of
first-degree criminal sexual conduct—that he used coercion to sexually penetrate H.Y.
After careful review of the record, we conclude that the testimony of H.Y., in conjunction
with other corroborating evidence, proved the element of coercion beyond a reasonable
doubt.
In a criminal trial, the state must prove every element of a charged crime beyond a
reasonable doubt to obtain a conviction. State v. Culver, 941 N.W.2d 134, 142 (Minn.
2020). To convict Palodichuk of first-degree criminal sexual conduct, the state was
required to prove that he used force or coercion to sexually penetrate H.Y. See Minn. Stat.
§ 609.342, subd. 1(e)(i). Because there was no evidence of force, the district court granted
the state’s request to limit the jury instruction to the element of coercion.
Coercion is defined as
the use by the actor of words or circumstances that cause the
complainant reasonably to fear that the actor will inflict bodily
harm upon the complainant . . . or the use by the actor of
confinement, or superior size or strength, against the
complainant that causes the complainant to submit to sexual
penetration or contact against the complainant’s will. Proof of
coercion does not require proof of a specific act or threat.

Minn. Stat. § 609.341, subd. 14 (2018).
Palodichuk contends that the state’s evidence of coercion was insufficient. To
evaluate the sufficiency of the evidence on appeal, the appellate court examines the record
8
to “determine whether the facts and the legitimate inferences drawn from them would
permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was co nvicted.” State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016) (quotation omitted). “The evidence must be viewed in the light most
favorable to the verdict, and it must be assumed that the fact-finder, disbelieved any
evidence that conflicted with the verdict.” Id. The verdict will not be overturned if the
jury could have found the appellant guilty of the charged offense. Id.
When the contested element is supported by direct evidence, appellate review is
limited to “a ‘painstaking analysis of the record to determine whether the evidence, when
viewed in the light most favorable to the conviction, [is] sufficient to permit the jurors to
reach the verdict which they did.’” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016)
(quoting State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)). “[D]irect evidence is
evidence that is based on personal knowledge or observation and that, if true, proves a fact
without inference or presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017)
(quotation omitted). Here, the state’s evidence of coercion largely came from H.Y.’s
testimony from her personal knowledge, which was direct evidence. Accordingly, we
scrutinize the record to determine whether H.Y.’s testimony and the state’s other evidence
of coercion— viewed in the light most favorable to the conviction —was sufficient to
support the jury’s guilty verdict.
We conclude that it was. H.Y.’s trial testimony shows that Palodichuk used
coercion to sexually assault her. A guilty verdict may be based on the testimony of a single
credible witness, State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004), because
9
“[c]orroboration is not required in criminal sexual conduct cases,” State v. Wright, 679
N.W.2d 186, 190 (Minn. App. 2004), rev. denied (Minn. June 29, 2004). H.Y. testified
that she was 18 years old at the time of the incident and that she has autism. Palodichuk is
ten years older than H.Y., and H.Y. believed that he was five inches taller than she. H.Y.
was alone with Palodichuk in his apartment, and it was late at night. Palodichuk initiated
the sexual contact, and H.Y. did not reciprocate. Instead, she testified that she “froze”
when Palodichuk touched her back because the contact was unwanted. Palodichuk’s
advances made H.Y. feel “weird.” H.Y. “blacked out” during some of the incident. After
the sexual encounter, H.Y. left the apartment and went home, although she had planned to
stay later. She realized that Palodichuk had turned off her phone. H.Y. felt “scared.”
Given H.Y.’s testimony, a jury could reasonably conclude that Palodichuk caused H.Y. to
reasonably fear bodily harm or that Palodichuk used confinement and his superior strength
to sexually penetrate H.Y.
Moreover, other evidence corroborated H.Y.’s testimony about the coercive
circumstances. After the incident, H.Y. immediately texted her friend that “something
happened” and then confirmed she had been raped. And H.Y. was consistent in describing
the incident to her mother, the police, and the nurse examiner.
The trial evidence, viewed in the light most favorable to the verdict, supports the
jury’s determination that Palodichuk used coercion to sexually penetrate H.Y. We
therefore reject his challenge to the sufficiency of the evidence underlying his conviction
for first-degree criminal sexual conduct.
10
II. Trial counsel’s late and inaccurate expert -witness disclosures did not violate
Palodichuk’s constitutional right to the effective assistance of counsel because
there is no reasonable probability that the expert’s testimony would have
changed the jury’s verdicts.

Palodichuk argues that his trial counsel violated his constitutiona l right to the
effective assistance of counsel. He contends that trial counsel’s failure to provide sufficient
notice of the DNA expert’s testimony, which caused the district court to exclude some of
that testimony, was deficient performance. And he asserts that trial counsel was deficient
in failing to move for admission of the expert’s opinions under Minnesota Rule of Evidence
412—a “rape shield” rule. Palodichuk argues that his defense was hampered by his
inability to present the excluded evidence. Although we reject Palodichuk’s argument that
the attorney should have moved to admit clearly inadmissible evidence under rule 412, we
agree that trial counsel’s insufficient notice of the expert-witness testimony was deficient
performance. However, because Palodichuk cannot show any prejudice stemming from
the attorney’s deficient performance, his ineffective-assistance-of-counsel claim fails.
Under the federal and state constitutions, a criminal defendant is entitled to the
assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. This right means
“the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970) (emphasis added). The threshold for assessing any ineffective-assistance-
of-counsel claim is “whether counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim that counsel
11
was ineffective, a defendant must show that (1) counsel was deficient and (2) the deficient
performance prejudiced the defense. Id. at 687.
“Generally, an ineffective assistance of counsel claim should be raised in a
postconviction petition for relief” because a postconviction evidentiary hearing provides
the district court with additional facts regarding an attorney’s decisions. State v. Gustafson,
610 N.W.2d 314, 321 (Minn. 2000). However, “[w]hen a claim of ineffective assistance
of trial counsel can be determined on the basis of the trial record, the claim must be brought
on direct appeal.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
When, as here, an ineffective-assistance-of -counsel claim is raised in a direct
appeal, we examine the claim under the two- prong test set forth in Strickland. State v.
Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017) (citing Andersen, 830 N.W.2d at
10). “Application of the Strickland test involves a mixed question of law and fact, which
we review de novo.” State v. Mouelle , 922 N.W.2d 706, 715 (Minn. 2019). “If a claim
fails to satisfy one of the Strickland requirements, we need not consider the other
requirement.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
A. Trial counsel’s untimely and inadequate disclosure of expert testimony,
which was objectively unreasonable, was deficient performance.

Palodichuk argues that his trial counsel’s performance was deficient in two ways.
First, he contends that his trial counsel failed to provide timely and sufficient notice of the
proffered testimony of Dr. Reich, the defense’s DNA expert. Dr. Reich planned to testify
about deficiencies in the MRFL report and to offer his opinion that the DNA evidence
contained multiple male profiles. Second, Palodichuk argues that his trial counsel failed
12
to follow the procedures required by the Minnesota Rules of Evidence for admitting
Dr. Reich’s testimony suggesting that H.Y. had a sexual encounter with Palodichuk and
another male. We conclude that trial counsel was deficient in the first instance, but not the
second.
When evaluating claims of ineffective assistance of counsel, “there is a strong
presumption that counsel’s performance was reasonable.” Andersen, 830 N.W.2d at 10.
“Counsel acts within that objective standard of reasonableness when the attorney provides
the client with the representation by an attorney exercising the customary skills and
diligence that a reasonably competent attorney would perform under similar
circumstances.” State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009) (quotation omitted).
We first consider trial counsel’s expert-witness disclosures. Under the Minnesota
Rules of Criminal Procedure, for any expert who will testify to results or reports that the
expert did not create, defense counsel must provide a “written summary of the subject
matter . . . along with any findings, opinions, or conclusions the expert will give, [and] the
basis for them.” Minn. R. Crim. P. 9.02, subd. 1(2)(b). Exclusion of evidence is a possible
sanction for noncompliance with discovery requirements. See State v. Lindsey, 284
N.W.2d 368, 373 (Minn. 1979). Reasonable trial counsel must understand that the failure
to comply with discovery requirements could result in the exclusion of evidence. See id.
(“The imposition of sanctions for violations of discovery rules and orders is a matter
particularly suited to the judgment and discretion of the trial court.”).
We agree with Palodichuk that his trial counsel’s performance in failing to properly
disclose the expert opinions of Dr. Reich was objectively unreasonable. As the district
13
court determined, trial counsel’s initial disclosure, which consisted of a marked-up report
disclosed by the state, violated rule 9.02, subdivision 1(2)(b). And, when the district court
gave trial counsel a second opportunity to comply with the rule, trial counsel’s subsequent
disclosure was also noncompliant and ethically questionable. T rial counsel personally
drafted the second submission, which purported to be a summary of Dr. Reich’s opinions.
But at a hearing outside of the jury’s presence, Dr. Reich testified that he was never asked
to write a report, was not consulted in connection with the report that trial counsel
submitted, and that the submitted report did not accurately reflect his opinions. The district
court found trial counsel’s notice “shockingly deficient” and “frankly, unprofessional,” and
consequently, limited Dr. Reich’s testimony to his interpretation of MRFL’s DNA analysis
while excluding any testimony about the manual manipulation of data not in evidence, the
reliability of gene mapping software, and the possibility of third-party male contributors to
the DNA evidence. Trial counsel’s conduct in disclosing the opinions of Dr. Reich was
objectively unreasonable, and therefore constitutionally deficient.
On the other hand, we disagree with Palodichuk that his trial counsel’s failure to
move for the admission of evidence regarding H.Y.’s alleged prior sexual conduct was
deficient performance. In a criminal-sexual- conduct case, Minnesota law precludes the
defense from admitting or referencing a victim’s prior sexual conduct except under very
limited circumstances. See Minn. R. Evid. 412(1) (limiting evidence of previous sexual
conduct to evidence showing a common scheme or plan of similar sexual conduct, evidence
of the victim’s previous sexual conduct with the accused, or evidence to show the source
of semen, pregnancy, or disease); see also Minn. Stat. § 609.347, subd. 3 (Supp. 2021)
14
(providing the same limitations on such evidence). To seek admission of such evidence,
defense counsel must file a pretrial motion “setting out with particularity the offer of proof
of the evidence that the accused intends to offer.” Minn. R. Evid. 412(2).
Here, the record contains no evidence suggesting that H.Y.’s alleged sexual history
would have been admissible under the narrow exceptions delineated under Minnesota law.
Thus, trial counsel’s failure to seek admission of such evidence was not deficient
performance.
B. Palodichuk cannot establish that trial counsel’s deficient performance
was prejudicial because the excluded expert testimony would not have
changed the outcome of the trial.

Although we conclude that trial counsel was deficient in disclosing proffered expert
testimony, Palodichuk’s ineffective-assistance-of-counsel claim ultimately fails because he
cannot establish that the attorney’s deficient performance prejudiced his defense. Under
the second prong of Strickland, Palodichuk must establish “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings would
have been different.” Strickland, 466 U.S. at 694. “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome of the case.” Swaney v.
State, 882 N.W.2d 207, 217 (Minn. 2016) (quoting Strickland, 466 U. S. at 694). No such
probability exists here.
Palodichuk argues that the introduction of expert testimony about an alternative
possible source of male DNA would undermine the state’s evidence of penetration by
offering another explanation for the forensic evidence. But Dr. Reich’s testimony would
not have changed the outcome of the trial. Dr. Reich agreed that Palodichuk’s DNA profile
15
could not be excluded as a contributing source of DNA. And Palodichuk stipulated to
having sexual contact with H.Y. and argued that the contact was consensual, rendering his
proffered DNA evidence inadmissible and irrelevant to any of the issues at trial.
Palodichuk cannot establish that, but for his attorney’s deficient performance, he
would have prevailed at trial. Thus, his ineffective-assistance-of-counsel claim fails under
the second prong of Strickland.
III. Palodichuk was not prejudiced by the district court’s trial rulings that he
challenges on appeal.

Palodichuk argues that the district court abused its discretion when it prohibited his
trial counsel from arguing that H.Y.’s testimony required corroboration, asserting or
suggesting that H.Y. failed to resist the sexual encounter, and conceding the date and
location of the offenses in closing argument without Palodichuk’s consent. He contends
that these errors, which were preserved with objections, deprived him of his constitutional
rights to present a complete defense and to the effective assistance of counsel. We conclude
that, even if the district court erred in its rulings, the errors were harmless beyond a
reasonable doubt and do not require reversal of Palodichuk’s conviction.
The appellate court reviews a district court’s evidentiary decisions and restrictions
on the scope of closing argument for an abuse of discretion, even when a defendant alleges
that the district court’s errors violated constitutional rights. State v. Zumberge, 888 N.W.2d
688, 694 (Minn. 2017); State v. Caldwell, 815 N.W.2d 512, 516 (Minn. App. 2012). If a
district court abused its discretion, the appellate court will reverse any resulting conviction
unless the error was harmless beyond a reasonable doubt. State v. Sterling, 834 N.W.2d
16
162, 171 (Minn. 2013). “An error is harmless beyond a reasonable doubt if the jury’s
verdict was surely unattributable to the error.” Id.
Assuming without deciding that the district court’s rulings were erroneous,
Palodichuk cannot show that any of these alleged errors were prejudicial.
First, as noted, the state presented ample evidence corroborating H.Y.’s testimony.
Given this corroborating evidence, any argument that the state failed to corroborate H.Y.’s
testimony would have had little impact on the jury’s decision.
Second, Palodichuk’s trial counsel was unimpeded by any error in the district
court’s ban on questions, arguments, or inferences that H.Y. did not resist the sexual
encounter. In closing argument, trial counsel argued about H.Y’s lack of resistance:
I mean, to say that she froze and that’s why she couldn’t
do anything, is—it’s ridiculous. . . . Clearly it was a long time.
Tell me, folks, how can—that’s not consent? It has to be.

. . . Did she ever say no? Stop? She is an adult. At any
time, she could have said, “Stop. No. I’m uncomfortable.”. . .
And so, if there is no testimony, then you have to look at her
actions and what she said.

. . . And if there was rubbing and petting where, you
know, where she should have said no, she didn’t.
. . . .
. . . She would not have allowed him to do any of this or
she would have probably said something.
. . . .
. . . She never said, “Oh, my God. What are you doing
to me? Get off get [off] of me. Get away from me.” She never
said that, nor did she run away.
. . . .
And at all of these times, she could have said no. If she
could have said no, she could have turned around and she could
have walked out.

17
Third, we are confident that trial counsel’s inability to concede the date and location
of the offense without first obtaining Palodichuk’s permission (which Palodichuk refused
to give) had no effect on the outcome of the case. Although Palodichuk now contends that
conceding these uncontested elements would have helped his attorney build credibility with
the jury, the defense conceded a far more significant fact (with Palodichuk’s consent)—
that Palodichuk had sexual contact with H.Y. Given this concession, the benefit of also
conceding the date and location of the offense would have been negligible, at best.
In sum, even if the district court erred in its rulings, Palodichuk’s conviction was
surely unattributable to any error. Because any error was harmless beyond a reasonable
doubt, Palodichuk is not entitled to a new trial.
IV. The record contains no evidence of prosecutorial or judicial misconduct.

In a pro se supplemental brief, Palodichuk identifies multiple evidentiary and
procedural issues that he contends demonstrate both prosecutorial and judicial misconduct.
We reject these claims.
Palodichuk’s allegations of prosecutorial misconduct primarily concern the
admissibility of the state’s evidence. We note that Palodichuk failed to object to most of
the rulings he now asks us to address. See Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996) (“[An appellate court] will not decide issues which were not raised before the district
court.”). And to the extent that he preserved his allegations of error, we see no abuse of
discretion in the district court’s decisions to allow the evidence now challenged. See
Zumberge, 888 N.W.2d at 694 (stating that an appellate court reviews evidentiary rulings
18
for abuse of discretion). Additionally, based on our review of the record, we see no
prosecutorial misconduct.
Likewise, we reject Palodichuk’s allegations of judicial misconduct. Palodichuk
argues that the district court judge displayed bias because several evidentiary rulings did
not favor his case. There is a presumption that a judge properly discharges judicial duties.
McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998). And an adverse ruling alone does
not constitute judicial bias. State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006). Judicial
bias must be proved considering the record as a whole. Hannon v. State, 752 N.W.2d 518,
522 (Minn. 2008). After carefully reviewing the record as a whole, we find that there is no
support for Palodichuk’s judicial misconduct claims.
V. The district court erred when it entered judgments of conviction for three
lesser-included offenses.

Palodichuk argues, and the state concedes, that the district court erred by entering a
conviction for each of the three lesser-included offenses. We agree. A criminal defendant
“may be convicted of either the crime charged or an included offense, but not both.” Minn.
Stat. § 609.04, subd. 1 (2018). Minnesota Statutes define an included offense as “a lesser
degree of the same crime.” Minn. Stat. § 609.04, subd. 1(1). When a criminal defendant
is “convicted on more than one charge for the same act,” the proper procedure is for the
district court to “adjudicate formally and impose sentence on one count only.” State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). We review this question of law de novo.
Spann v. State, 740 N.W.2d 570, 572 (Minn. 2007).
19
The jury found Palodichuk guilty of first-degree criminal sexual conduct in violation
of section 609.342, subdivision 1(e)(i). And the jury found him guilty of three lesser-
included offenses—second-, third-, and fourth-degree criminal sexual conduct. At
sentencing, the district court entered a conviction and sentenced Palodichuk for the first -
degree charge. However, the court also entered conviction s for the lesser-included
offenses, which was error. We reverse and remand to the district court to vacate the
judgments of conviction for the three lesser-included offenses, while leaving the findings
of guilt for these offenses intact, and to correct the warrant of commitment. 2
Affirmed in part, reversed in part, and remanded.

2 Respondent points out that, after Palodichuk filed his appeal, the district court attempted
to vacate the lesser -included-offense convictions by filing an amended sentencing order
and warrant of commitment. The register of actions confirms that the district court filed
an amended sentencing order on June 16, 2022. However, because an appeal had already
been filed, the district court did not have authority to vacate the convictions when it filed
the amended sentencing order. See Minn. R. Civ. App. P. 108.01, subd. 2 (stating that “the
filing of a timely and proper appeal suspends the trial court’s authority to make any order
that affects the order or judgment appealed from”).