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This opinion is nonprecedential except as provided by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
A22-0529

State of Minnesota,
Respondent,

vs.

Cha NMN Yang,
Appellant.

Filed May 22, 2023
Affirmed
Bjorkman, Judge

Lyon County District Court
File No. 42-CR-20-885

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

Rick Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney, Marshall,
Minnesota (for respondent)

Barry S. Edwards, Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for
appellant)

Considered and decided by Bjorkman, Presiding Judge; Frisch, Judge; and Cleary,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his conviction and sentence for third-degree criminal sexual
conduct, arguing that (1) his jury-trial waiver was invalid, (2) the evidence was insufficient
to convict him, (3) the district court abused its discretion by admitting expert witness
testimony, and (4) the district court abused its discretion by denying his motion for a
sentencing departure. We affirm.
FACTS
In August 2020, P.V. reported to police that appellant Cha Yang sexually assaulted
her sometime between September 2008 and December 2009. During that period of time,
P.V. and her siblings often visited and stayed overnight with their sister S.V., who lived in
an apartment with Yang. One night, P.V. and her siblings slept on the floor next to the bed
S.V. and Yang shared. P.V. was sleeping closest to the bed; Yang was sleeping on the side
of the bed closest to her. In the “middle of the night,” P.V. woke up to feel Yang’s hand
on her stomach underneath her shirt. Yang then moved his hand beneath her underwear
and put a finger inside her vagina. P.V. was scared, “froze up,” and pretended to be asleep,
even when Yang shook her. P.V. could tell it was Yang because the hand that touched her
reached down from the bed, where he was lying. When Yang stopped touching her, P.V.
switched spots with one of her siblings on the floor to be farther away from Yang.
P.V. was afraid to tell her family what happened, but in July 2020, one of P.V.’s
sisters told her that she had been “touched inappropriately” by someone. This disclosure
prompted P.V. to tell S.V. what Yang had done years earlier. After telling other siblings
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and her parents, P.V. confronted Yang. He denied sexually assaulting her but told her that
he remembered “touching [P.V.] in [her] legs and [her] stomach.” P.V. then reported the
assault to the police, and respondent State of Minnesota charged Yang with one count each
of first-, second-, third-, fourth-, and fifth-degree criminal sexual conduct. All counts
related to the single incident involving P.V., who was under age 16 at the time of the
offense.
The case was initially scheduled for trial in October 2021. The state filed a pretrial
motion to admit the testimony of Erica Staab-Absher, the executive director of a domestic-
violence and sexual-assault advocacy organization, as an expert on “counterintuitive victim
behaviors, trauma-informed victim behavior and delayed reporting in cases of sexual
assault.” The state included a copy of Staab-Absher’s curriculum vitae (CV) detailing her
25 years of experience in the field, a summa ry of her proposed testimony, and several
articles addressing the topics about which she would testify. Yang did not object. The
district court granted the motion “provided the State establishes appropriate qualifications
of the witness and the witness’ testimony is limited.”
During the final pretrial hearing, Yang expressed his desire to proceed with a bench
trial. The district court explained to Yang that he had a right to a jury trial, asked Yang if
he understood that right, and confirmed that Yang wanted to waive it. Yang stated that he
had not been threatened or pressured, and that he was freely and voluntarily waiving his
right to a jury trial.

One day before trial was set to begin, the state requested a continuance. The
prosecutor explained that in meeting with P.V. to prepare for trial, she learned that P.V.
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told two friends about the incident prior to reporting it to her family and the police in 2020,
and that P.V. had not previously disclosed this to the police. Yang did not object, and the
district court granted the state’s request.
In November 2021, the case proceeded to a bench trial. T he state presented
testimony from P.V., S.V., the first police officer who interviewed P.V., the two people to
whom P.V. previously disclosed the incident (friend 1 and friend 2), two of P.V.’s other
siblings, and Staab- Absher. P.V. and the officer testified consistent with the facts as
described above.
S.V. testified that she did not “remember personally” the night of the incident. But
she spoke with Yang about the incident after P.V. disclosed it to her. Yang responded that
he remembered one time that P.V. “might be talking about” when “the kids were all asleep
on the floor” and “during the night he had turned and his hand landed on [P.V.’s] stomach
. . . but he took his hand off right away and that nothing happened.” S.V. explained that it
“was hard for [her] to figure out what [she] believed really happened.” But she
acknowledged that she told P.V. and one of their brothers that Yang confessed he “had his
hand in [P.V.’s] pants” but that “it was just an accident.” This brother confirmed that S.V.
told him about Yang’s confession.
Friend 1 testified that P.V. was her best friend during middle school. Sometime
within approximately two years of the incident, P.V. asked friend 1 if she had ever been
“touched sexually.” P.V. did not initially say “outright” that this had happened to her, but
later gave friend 1 a note that said “something like, do you remember what I was trying to
5
tell you and then something like it had happened to me.” Friend 1 recalled “something in
the note that said that [P.V.] didn’t want [her] to say anything, so [she] didn’t.”
Friend 2 testified that she and P.V. were friends in high school. At some time during
those years, P.V. “opened up” to her about “being assaulted.” Friend 2 “could see it was
really hard for [P.V.] to talk about it.” But eventually P.V. “said that she was touched in
places that she didn’t like” and the person who touched her was “her relative . . . Cha
[Yang].” Friend 2 was “very shocked” because she knew Yang. She acknowledged that
she could not remember anything when the police first contacted her. But she then
“checked in on” P.V. via text message, and the police helped to “kind of refresh [her]
memory.” Friend 2 maintained that she was merely confused when first contacted and that
her testimony was “based on [her] own independent recollection.”
Staab-Absher was the state’s final witness. She testified about her knowledge,
skills, experience, training, and education related to sexual-assault victim behavior. When
the prosecutor asked the district court to certify Staab-Absher as an expert witness, Yang’s
counsel responded with a series of foundational questions. Yang’s counsel specifically
challenged Staab-Absher’s qualifications to testify about neurobiology because she “is not
actually a PhD or a doctor and has limited general knowledge of this stuff.” The district
court overruled Yang’s foundational objecti on, noting that Staab-Absher’s CV and her
testimony established that she was qualified to testify as an expert in “counterintuitive
victim behaviors, trauma informed victim behavior and delayed reporting in cases of sexual
assault.” She testified generally about these topics without referring to P.V. or the specific
facts of this case.
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Yang testified in his own defense. He corroborated P.V.’s testimony about the
siblings’ sleeping arrangements in the apartment and said that he remembered the night in
question. He stated that “one night [he] turned and [his] hand land[ed] on somebody’s
stomach and then [he] moved it right away and then [he] looked and then it was [P.V.]
sleeping there.” Yang explained that he “just turned the wrong way in sleeping,” felt
“kinda weird,” and “just didn’t want something like that to ever happen again.”
The district court found Yang guilty of third -, fourth-, and fifth-degree criminal
sexual conduct. It ordered a psychosexual evaluation and a presentence investigation
(PSI), which recommended a 48-month guidelines sentence. Yang submitted an alternative
PSI and moved for a downward dispositional or durational departure.
At the beginning of the sentencing hearing, the district court stated that it had
reviewed all of the parties’ submissions, including numerous letters provided on Yang’s
behalf and the victim’s impact statement. Counsel each had two opportunities to present
oral arguments. Yang also addressed the court, maintaining his innocence but apologizing
for “accidentally turning over and touching her stomach.” After pausing to further consider
the arguments, the district court denied Yang’s departure motion. It convicted him of the
third-degree offense and imposed a presumptive 48-month prison sentence.
Yang appeals.
DECISION
Yang argues that his conviction must be reversed because his jury-trial waiver was
invalid, the evidence was insufficient, and expert testimony regarding delayed reporting of
sexual abuse was improperly admitted. He also contends that the district court abused its
7
discretion by denying his motion for dispositional and durational departures. None of
Yang’s arguments persuades us to reverse.
I. Yang validly waived his right to a jury trial.
The United States and Minnesota Constitutions guarantee a criminal defendant the
right to a jury trial. U.S. Const. art. III, § 2, cl. 3, amend. VI; Minn. Const. art. 1, § 6. A
defendant may waive this right so long as their waiver is knowing, intelligent, and
voluntary. Brady v. United States, 397 U.S. 742, 748 (1970); State v. Little , 851 N.W.2d
878, 882 (Minn. 2014).
Whether a defendant ’s waiver meets these requirements depends on the
circumstances of the case, including the defendant’s background, experience, and conduct.
Little, 851 N.W.2d at 882. A defendant must personally waive this right “in writing or on
the record in open court, after being advised by the court of the right to trial by jury, and
after having an opportunity to consult with counsel.” Minn. R. Crim. P. 26.01,
subd. 1(2)(a). We review de novo whether a jury-trial waiver is valid. State v. Kuhlmann,
806 N.W.2d 844, 848-49 (Minn. 2011).
During the final pretrial hearing, the di strict court questioned Yang about his
expressed intention to waive his right to a jury:
COURT: So, the first thing that we talked about in this case is
the fact that you, Mr. Yang, have discussed with your attorney
your right to have a jury trial and in discussions with your
attorney you have determined that you would prefer to waive
your right to a jury and instead have a trial to the court. That
means, we would not have a jury of twelve people that would
decide your case and instead after presentation of the evidence,
I would make a decision as to, your guilt or innocence with
regard to these charges. So, I just first want to confirm with
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you, Mr. Yang, that this is a topic that you have discussed with
your attorney. Is that right?
YANG: Yes, Your Honor.

COURT: Okay, and do you feel you’ve had adequate time to
discuss this issue with your attorney?
YANG: Yes, Your Honor.

COURT: And I’m assuming that you and your attorney have
weighed the pros and cons of going through your trial both with
a jury and—and to the court?
YANG: Yes.

COURT: Okay, and at this time then, is it your decision to
waive your right to a jury trial and instead have a court trial?
YANG: Yes, Your Honor.

After Yang’s attorney and the prosecutor both declined the district court’s invitation
to make a further record of Yang’s waiver, the district court continued:
COURT: Okay. Well, let me, let me just follow up a little bit
more here, Mr. Yang. Did anybody threaten you or pressure
you into making this decision?
YANG: No.

COURT: Are you making this decision to waive your trial,
waive your jury trial, freely and voluntarily?
YANG: Yes, Your Honor.

COURT: Okay. All right, then I find that the defendant is
making a knowing, voluntary and intelligent waiver of his right
to a jury trial . . . .

Yang first argues that this colloquy was inadequate because the district court’s
questions were “suggestive, if not coercive,” and his responses were “mere rote affirmation
of what the authority in the black robe had just said.” Because of this, he contends that his
waiver was not knowing, voluntary, and intelligent. Yang cites no authority that supports
his contention, and the record defeats it.
9
A district court must ensure that a defendant is adequately informed of his jury-trial
rights, and the nature and extent of the inquiry into a defendant ’s decision to waive a jury
trial may vary with the circumstances of the case. State v. Ross, 472 N.W.2d 651, 653-54
(Minn. 1991). But a district court need not make an exhaustive inquiry into why a
defendant waived their right to a jury. Id. at 654. The critical question is “whether the
defendant understands the basic elements of a jury trial.” Id.
Here, Yang was informed that by waiving his jury-trial right he “would not have a
jury of twelve people that would decide [his] case and instead after presentation of the
evidence [the district court] would make a decision as to [his] guilt or innocence with
regard to these charges.” Yang confirmed that he had discussed his right to a jury trial with
his lawyer, who apparently concluded it was not necessary to make an additional record as
to Yang’s waiver. But the district court did so on its own volition, ensuring that Yang did
not feel pressure to waive his jury-trial right and made his decision freely and voluntarily.
We see nothing suggestive—let alone coercive—in the district court’s discussion with
Yang. And to the extent Yang suggests that a district court must use open-ended questions
to establish a valid waiver, Minnesota law imposes no such requirement.
Yang next contends that even if his waiver was constitutionally sound,
developments that occurred during the nine weeks leading up to the trial rendered it invalid.
Citing Little, Yang asserts that “the issues had changed considerably,” requiring a renewed
waiver. We are not persuaded.
In Little, the appellant was charged with third- and fourth-degree criminal sexual
conduct and waived his right to a jury trial. 851 N.W.2d at 880- 81. Thereafter, the state
10
amended the complaint to include a charge of first-degree criminal sexual conduct and the
case proceeded to a court trial. Id. at 881. In reversing Little’s conviction, our supreme
court held that jury-trial waivers only apply to “issues formed at the time of the waiver and
not to issues added after the waiver.” Id. at 882. Accordingly, “when the State amends the
complaint after a defendant’s jury -trial waiver, the district court must obtain a renewed
waiver of the defendant’s right to a jury trial on the newly added charge.” Id. at 883.
Unlike in Little, Yang did not face amended charges after waiving his right to a jury
trial. Moreover, Yang does not identify what issues purportedly changed in the period
between his waiver and the trial. Instead, he asserts the late addition of P.V.’s friends as
witnesses to “contemporaneous disclosure completely changed the trial strategy .”
(Emphasis added.) But he cites no authority to support his suggestion that a decision to
change trial strategy, if that indeed occurred, is equivalent to a change in the issues for trial.
On this record, we conclude that Yang’s jury-trial waiver was valid.
II. Sufficient evidence supports Yang’s conviction.
When considering a sufficiency-of-the-evidence challenge, we carefully review the
record to determine “whether the evidence, when viewed in a light most favorable to the
conviction, was sufficient to permit the [fact -finder] to reach t he verdict which [it] did.”
State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted). We assume that the
fact-finder believed the state’s witnesses and did not credit any evidence to the contrary.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). And we will not overturn a conviction
if the fact -finder could have reasonably found the defendant guilty, giving due regard to
11
the presumption of innocence and the burden of proof beyond a reasonable doubt. State v.
Griffin, 887 N.W.2d 257, 263 (Minn. 2016).
To support a conviction for third-degree criminal sexual conduct, the state needed
to prove that Yang (1) “engage[d] in sexual penetration with another person” and (2) knew
or had reason to know “that the [person was] mentally impaired, mentally incapacitated, or
physically helpless.” Minn. Stat. § 609.344, subd. 1(d) (2008). “Sexual penetration”
includes “any intrusion however slight into the genital or anal openings.” Minn. Stat.
§ 609.341, subd. 12 (2008). Importantly, “the testimony of a victim [of sexual assault]
need not be corroborated.” Minn. Stat. § 609.347, subd. 1 (2008); see also State v.
Foreman, 680 N.W.2d 536, 539 (Minn. 2004) (stating that a conviction for sexual assault
can rest on the uncorroborated testimony of a single credible witness).
Yang challenges only the first element, arguing that the state did not prove he
digitally penetrated P.V. He questions the veracity of P.V.’s account and those of her two
friends because their testimony was incomplete or too vague to support a determination of
guilt. He suggests— without evidence—that someone else may have digitally penetrated
P.V. He concedes that “[t]here is no evidence in this case that conflicted with the verdict”
but contends this is so because “th ere were no specific facts to rebut.” And he maintains
that the district court drew unreasonable inferences from the evidence. 1

1 Yang’s brief states that the direct-evidence standard governs our sufficiency review. But
he cites Griffin, 887 N.W.2d at 263, which involved a sufficiency-of-the-evidence review
of circumstantial evidence. Because Yang did not argue for the circumstantial -evidence
standard of review and direct evidence supports the verdict, we do not analyze whether the
evidence supports a rational hypothesis other than guilt. Horst, 880 N.W.2d at 39-40.
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Contrary to his bald assertions, direct evidence—most notably, P.V.’s testimony—
supports Yang’s conviction. As the finder of fact, the district court evaluated P.V.’s
testimony and determined it was credible. See State v. Reichenberger, 182 N.W.2d 692,
695 (Minn. 1970) (stating that it is the duty of the fact -finder, not an appellate court, to
weigh the credibility of witnesses). Because the evidence, when viewed in favor of the
verdict, shows that Yang digitally penetrated P.V., and Yang makes no other sufficiency
challenge, we conclude that sufficient evidence supports the determination of guilt.
III. The district court did not abuse its discretion by admitting expert testimony.
An expert is a person who is qualified by “knowledge, skill, experience, training or
education” to testify about and provide an opinion on “scientific, technical, or other
specialized knowledge.” Minn. R. Evid. 702. Whether a witness is “sufficiently qualified
as an expert in a given subject area to justify testimony in the form of an opinion” is
discretionary with the district court; qualification is not solely determined by formal
training but includes “knowledge, skill, or experience that would provide the background
necessary for a meaningful opinion on the subject.” Minn. R. Evid. 702 1977 comm. cmt.
We review the admission of expert testimony for an abuse of discretion. State v.
Sandberg, 406 N.W.2d 506, 511 (Minn. 1987) (quotation omitted); see also State v. Hall,
406 N.W.2d 503, 505 (Minn. 1987) (holding that in cases of child sexual assault, “expert
testimony as to the reporting conduct of such victims and as to continued contact by the
adolescent with the assailant is admissible in the proper exercise of discretion” by the
district court).
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Yang argues that the district court abused its discretion because Staab-Absher was
not qualified to offer expert testimony as to counterintuitive victim behavior, trauma-
informed victim behavior, and delayed reporting in sexual-assault cases. And he asserts
that she improperly vouched for P.V.’s credibility. Both arguments are unavailing.
First, the record reveals that Staab-Absher has worked with victims of sexual assault
for 25 years. For the past 14 years, she has been the executive director of a domestic-
violence and sexual-assault advocacy organization while continuing to provide direct
services to sexual-assault victims. Prior to that, Staab-Absher served as a national sexual-
assault trainer, statewide coordinator of sexual-assault support and advocacy programs, a
sexual-violence-prevention community educator, and a support group leader for victims of
sexual assault. She has completed more than 500 hours of training and provided more than
200 trainings to others on the topic of sexual assault. On this record, we discern no abuse
of discretion by the district court in permitting Staa b-Absher to testify regarding how
victims respond to trauma and delayed reporting in sexual-assault cases.
Second, while an expert may not testify directly or indirectly regarding her opinion
about the credibility of a sexual-assault victim, State v. Wembley, 712 N.W.2d 783, 791 -
92 (Minn. App. 2006), aff’d, 728 N.W.2d 243 (Minn. 2007), the record shows Staab-
Absher did not do so. Her testimony did not reference P.V., directly or indirectly. Indeed,
the state’s pretrial motion states that “[s]pecifics of the case were not discussed” with
Staab-Absher. Yang’s effort to persuade us otherwise —premised solely on the order in
which the district court recited its findings of fact—falls short. The fact that the court made
findings regarding various aspects of Staab-Absher’s testimony immediately before
14
finding P.V. was a credible witness does not in and of itself suggest improper vouching.
Absent support in the record, Yang’s vouching argument fails.
IV. The district court did not abuse its discretion by imposing the presumptive
sentence.
A district court must impose a sentence within the Minnesota Sentencing Guidelines
presumptive range unless it finds substantial and compelling circumstances to depart.
Minn. Sent’g Guidelines II.D (2008); State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).
A district court may grant a downward dispositional departure when a defendant is
“particularly amenable to individualized treatment in a probationary setting.” State v. Trog,
323 N.W.2d 28, 31 (Minn. 1982). Mere amenability is not sufficient; “requiring a
defendant to be particularly amenable to probation . . . distinguishes the defendant from
most others and . . . presents the substantial and compelling circumstances that are
necessary to justify a departure.” State v. Soto, 855 N.W.2d 303, 308-09 (Minn. 2014)
(quotation omitted). In determining whether a defendant is particularly amenable to
probation, district courts consider “the defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family.” Trog,
323 N.W.2d at 31.
A district court may grant a durational departure based on factors that reflect “the
seriousness of the offense, not the characteristics of the offender.” State v. Solberg, 882
N.W.2d 618, 623 (Minn. 2016) (emphasis omitted). “A downward durational departure is
justified only if the defendant’s conduct was significantly less serious than that typically
involved in the commission of the offense.” Id. at 624 (quotation omitted).
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Even if substantial and compelling circumstances exist, a district court is not
required to depart from the presumptive sentence. Wells v. State, 839 N.W.2d 775, 781
(Minn. App. 2013), rev. denied (Minn. Feb. 18, 2014). We will not disturb the district
court’s exercise of discretion in imposing “a p resumptive guidelines sentence when the
record shows that the sentencing court carefully evaluated all the testimony and
information presented before making a determination.” State v. Johnson, 831 N.W.2d 917,
925 (Minn. App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013). Indeed,
we will only reverse a district court’s refusal to depart from the guidelines in “rare” cases.
State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018) (quoting State v. Kindem,
313 N.W.2d 6, 7 (Minn. 1981)).
Yang asserts that the district court abused its discretion by denying a dispositional
departure because he was a “perfect probationer” between the time of the incident and
when P.V. reported it, demonstrating his “amenability to probation.” And he contends that
the court abused its discretion by denying a durational departure because his conduct was
less serious than that typically associated with third-degree criminal sexual conduct.
Neither argument persuades us to reverse.
During the sentencing hearing, the district court stated that it had reviewed both
PSIs, the sentencing worksheet, the psychosexual evaluation, correspondence from more
than 20 of Yang’s family members, friends, and acquaintances, and the parties’ other
written submissions. The district court acknowledged that Yang’s familial support and
lack of a criminal record are factors that “weigh in [Yang’s] favor.” But it also noted
Yang’s lack of remorse or responsibility, and that his letters of support made no reference
16
to the criminal sexual conduct of which he was found guilty. The district court ultimately
concluded, “While there are some factors that weigh in [Yang’s] favor, others weigh
heavily against defining that [Yang] is particularly amenable to probation, such that the
court is willing to find that they constitute substantial and compelling reasons to depart
. . . .” The record reflects the district court’s careful and thoughtful consideration of Yang’s
motion and the competing departure factors. We see no abuse of discretion by the district
court in denying a dispositional departure.
As to his requested durational departure, Yang points out that the offense involved
a single incident of short duration that happened more than a decade ago. The district court
considered these same arguments, acknowledging that they weighed in Yang’s favor, but
declined to depart. Yang provides no authority for his argument that his conduct was
significantly less serious than that typically involved in third-degree criminal sexual
conduct, or that the fact it was a “single incident” warrants a shorter sentence. The
legislature did not distinguish between offenders who commit single and multiple
incidents. See Minn. Stat. § 609.344, subd. 1(d) (establishing third-degree criminal sexual
conduct as a crime that requires only “penetration,” not multiple incidents of penetration).
And, as the district court observed, the fact the sexual assault may have been brief and
occurred years ago does not change its “lifelong” and “significant impact on the victim.”
In sum, the district court acted well within its discretion when it considered all of
the sentencing information before it, found no substantial and compelling reasons to depart,
and imposed a presumptive sentence.
Affirmed.