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This opinion is nonprecedential except as provided by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
A22-1235

State of Minnesota,
Respondent,

vs.

Kyle Allen Mueller,
Appellant.

Filed September 5, 2023
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Morrison County District Court
File No. 49-CR-21-487

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, Angela Larsen, Student Attorney, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bjorkman , Judge; and
Hooten, 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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant argues that (1) he is entitled to a new trial because the district court
committed reversible error by admitting the victim’s out-of-court testimonial statement in
violation of appellant’s confrontation rights and (2) his conviction of first-degree criminal
sexual conduct must be reversed for insufficient evidence because he was not in a position
of authority over the victim, who was the teenage daughter of his neighbor. We affirm in
part, reverse in part, and remand.
FACTS
In April 2021, C.D. was brought to the Morrison County Sherriff’s Office for a
Cornerhouse Forensic Sexual Abuse Interview (Cornerhouse interview) after her father
learned that she had been texting appellant Kyle Allen Mueller, her 40-year -old neighbor.
C.D., who has a traumatic-brain injury and an emotional-behavior disorder, was 15 years
old at the time.
In the Cornerhouse interview, C.D. told a Morrison County Child Protection
Specialist that appellant had bought her a phone and a tablet and that she had been
communicating with appellant every day over FaceTime. While on FaceTime, appellant
would ask C.D. to call him “daddy,” show her his genitals, and masturbate. He would then
make her show her body to him and make her touch her genitals by threatening to harm her
friends, family, and her dog. In January 2021, C.D.’s father was in the hospital, and her
neighbor V.C. was watching her. One night, V.C. left the home for a couple of hours, and
appellant came over uninvited. While at C.D.’s house, appellant touched her breasts and
3
vagina over her clothes, and appellant then digitally penetrated her vagina and touched her
breasts under her shirt.
In April 2021, respondent State of Minnesota charged appellant with one count of
first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(b) (2020) ,
alleging sexual penetration of a victim while the victim was at least 13 years of age and
less than 16 years of age by a perpetrator who is in a position of authority and more t han
48 months older than the victim , and with two counts of third-degree criminal sexual
conduct under Minn. Stat. § 609.344, subd. 1(b), (c) (2020).
In May 2022, the case was tried to a jury. Before trial, the state moved to admit the
video recording of C.D.’s Cornerhouse interview. The district court concluded that the
recording possessed sufficient guarantees of trustworthiness and would be admissible
depending on how C.D. testified and “what information is provided during cross-
examination.”
At trial, C.D., C.D.’s father, and the child protection specialist testified. During
direct examination, C.D. identified appellant by pointing at him, and when asked if she told
the truth during the Cornerhouse interview, she nodded her head yes. On cross-
examination, C.D. answered many of appellant’s counsel’s questions. She testified that
her father was in the hospital in January 2021, and that V.C. had been staying with her.
She identified appellant as the man who came over that night by pointing at him. She also
answered questions about talking to law enforcement.
Right after cross- examining C.D., and after the district court excused the jury,
appellant’s counsel objected to the district court receiving the video of the Cornerhouse
4
interview or testimony about what C.D. reported. Appellant’s counsel argued that
appellant was not able to cross-examine C.D. The district court concluded that “she did
point, and the jury will have to decide what that means.” During the child protection
specialist’s testimony, the district court played the Cornerhouse interview for the jury. In
his closing argument, appellant’s counsel argued that “[C.D.] did not really provide any
answers to questions. . . . She did not provide any specific information about what
happened. She barely answered any questions at all” and that “[w]hat we do know is that
apart from that interview in 2021, no information was presented to you that would support
a conclusion that sexual . . . contact occurred.”
The jury found appellant guilty of all charges. The district court convicted appellant
of first-degree criminal sexual conduct and sentenced him to 172 months in prison and 10
years of conditional release. The district court did not adjudicate the two third-degree
criminal sexual conduct charges because they were lesser included offenses of the first-
degree criminal sexual conduct.
This appeal follows.
DECISION
I. The introduction of C.D.’s recorded Cornerhouse interview did not violate
appellant’s Confrontation Clause rights.

Appellant contends that the admission of C.D.’s recorded Cornerhouse interview
violated his constitutional right to confront his accuser. Appellant’s argument is not
persuasive. The Confrontation Clause ensures that a criminal defendant “shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; Minn.
5
Const. art. 1, § 6. “The Confrontation Clause prohibits the ‘admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-examination.’” State v. Holliday, 745
N.W.2d 556, 565 (Minn. 2008) (quoting Crawford v. Washington, 541 U.S. 36, 53 -54
(2004)). The Confrontation Clause also guarantees “an adequate opportunity to cross-
examine adverse witnesses.” United States v. Owens, 484 U.S. 554, 557 (1988).
“The Confrontation Clause is satisfied by a declarant’s appearance at trial for cross-
examination.” Holliday, 745 N.W.2d at 568. “[T]he Confrontation Clause guarantees only
‘an opportunity for effective cross-examination, not cross- examination that is effective in
whatever way, and to whatever extent, the defense might wish.’” State v. Gilleylen, ___
N.W.2d ___, ___, 2023 WL 4611400, at *6 (Minn. July 19, 2023) (emphasis in original)
(quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987)). While evidentiary rulings are
within the district court’s discretion, whether the admission of evidence violates a
defendant’s rights under the Confrontation Clause is a question of law that is reviewed de
novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
Appellant asserts that he did not have an opportunity to cross -examine C.D. about
her statement. 1 Appellant cites Holliday, asserting that “[i]ts broad language that mere
‘appearance’ at trial satisfies the constitutional right to an opportunity for effective cross-
examination does not control the outcome in this case.” In Holliday, the state called a

1 Appellant contends that the recorded statement was testimonial, but we need not decide
whether the statement was testimonial because C.D. appeared at trial and was subject to
cross-examination.
6
witness to testify as to statements that he gave to police and county attorneys after
witnessing a murder. 745 N.W.2d at 561. The witness viewed reports detailing his
statements and claimed that he did not remember the discussions. Id. The reports were
read into the record. Id. The supreme court rejected Holliday’s assertion that the admission
of the witness’s prior statements violated the Confrontation Clause because the witness’s
memory loss precluded his ability to cross-examine the witness. Id. at 565. The court
determined that the witness did not need to defend or explain their prior statement and
concluded that “[t]he Confrontation Clause is satisfied by a declarant’s appearance at trial
for cross-examination.” Id. at 568.
Appellant attempts to distinguish Holliday from this case, arguing that Holliday is
expressly confined to the inability to cross-examine a witness due to a loss of memory.
However, we need not decide whether Holliday is confined to a witness’s loss of memory
because, unlike in Holliday, C.D. did respond to appellant’s cross-examination questions.
The following is the entirety of C.D.’s cross-examination testimony:
Q: [C.D.], my name is David Buchin. I’m an attorney. I just
have some questions that I need to ask you. When—in January
of 2021 was there—there was a time period that your dad was
in the hospital; is that right?
A: Yes.
Q: And who was staying with you?
A: [V.C.]
Q: And who is [V.C.]?
A: Our neighbor.
Q: Was she with you all the time when you were home?
A: For the most part.
Q: How long would she have been gone?
A: I don’t remember.
Q: Did anybody else come to the house?
A: (No response.)
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Q: Do you know if anybody else came to the house?
A: (Nods head in the affirmative.)
Q: Who?
A: (Pointing.)
Q: I need you to say a name.
A: (No response.)
Q: Okay. Let me try this. In April of 2021 you were brought
to talk to law enforcement; is that right?
A: Yes.
Q: How many times did you talk to people with law
enforcement?
A: I don’t remember.
Q: The things that you talked about had happened a few months
earlier, though, right?
A: (No response).
Q: Have you— since April of 2021, have you talked to anybody
about coming to court?
A: (Nods head in the affirmative.)
Q: You need to answer out loud.
A: Yes.
Q: Who have you talked to?
A: Her.
Q: Okay. How many times?
A: Like—I think like 10 or more maybe.
Q: Okay. So I want to get back to that night in—in January of
2021. Do you remember if [V.C.] was there?
A: What time was it?
Q: I don’t know. Do you remember what time it was?
A: I think like 10 or 11.
Q: At night?
A: Uh-huh.
Q: Okay. Was [V.C.] there then?
A: Huh-uh.
Q: How long had she been gone?
A: I think it was like for an hour or something.
Q: Who was there when [V.C.] got back?
A: (Pointing.)
Q: I need you to say— say your answers.
A: (No response.)

Although C.D. was reluctant to answer some questions, she did answer the majority of
appellant’s counsel’s questions. The jury therefore had the opportunity to observe C.D.’s
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demeanor under cross- examination. See Delaware v. Fensterer, 47 4 U.S. 15, 20 (1985)
(“[T]he assurances of reliability our cases have found in the right of cross-examination are
fully satisfied in cases such as this one . . . : the factfinder can observe the witness’
demeanor under cross- examination, and the witness is testifying under oath and in the
presence of the accused .”). And defense counsel used C.D.’s reluctance to answer
questions to argue in closing that there was insufficient proof that sexual contact occurred.
Appellant also argues that “Holliday cannot be squared with the Sixth Amendment
. . . in the context of a child witness who physically appears at trial but does not answer
questions on direct or cross about the specific acts of the offense, and the [s]tate uses the
child’s out-of-court testimonial statement to prove the charged conduct.” We disagree. In
Holliday, the court expressly rejected a reading of Crawford that required a witness to
answer questions on cross about the specific acts of the offense. See Holliday, 745 N.W.2d
at 565-66 (stating that an interpretation of Crawford that requires a declarant actually
defend or explain the statement ignores that the Court “focuses on presence and ability to
act without requiring that the record show the declarant actually did defend or explain the
statement” and is contrary to the Court’s assertion that “when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use
of his prior testimonial statements” (quotations omitted)). And defense counsel did not ask
any questions on cross-examination about the specific acts of the offense.
Appellant’s dissatisfaction with C.D.’s testimony does not equate to denial of his
constitutional right of confrontation. See Gilleylen, 2023 WL 4611400, at *6 (“[T]he
Confrontation Clause guarantees only an opportunity for effective cross-examination, not
9
cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish.” (emphasis in original) (quotation omitted)). Thus, the admission of C.D.’s
recorded Cornerhouse interview did not violate appellant’s right to confrontation.
II. The evidence was insufficient to prove that appellant was in a position of
authority over C.D.

Appellant contends that the state failed to prove beyond a reasonable doubt that he
was in a “position of authority” over C.D. We agree. The state must prove every element
of an offense beyond a reasonable doubt in a criminal case. State v. Hage, 595 N.W.2d
200, 204 (Minn. 1999). Whether a defendant’s conduct meets the definition of a particular
offense presents a question of statutory interpretation that is reviewed de novo. See State
v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). The first step in statutory interpretation is
to determine whether the statute is ambiguous. State v. Thonesavanh, 904 N.W.2d 432,
435 (Minn. 2017). “If a statute is unambiguous, then we must apply the statute’s plain
meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). Appellate courts “may
conclude that [a law] is ambiguous even though neither party argues that it is.” State v.
Vasko, 889 N.W.2d 551, 556 (Minn. 2017).
Appellant was convicted of first-degree criminal sexual conduct in violation of
Minn. Stat. § 609.342, subd. 1(b). A person is guilty of first-degree criminal sexual conduct
under this subdivision if they “engage[] in sexual penetration with another person, or in
sexual contact with a person under 13 years of age,” and if “the complainant is at least 13
years of age but less than 16 years of age and the actor is more than 48 months older than
the complainant and in a current or recent position of authority over the complainant.”
10
“Current or recent position of authority” includes but is not
limited to any person who is a parent or acting in the place of
a parent and charged with or assumes any of a parent’s rights,
duties or responsibilities to a child, or a person who is charged
with or assumes any duty or responsibility for the health,
welfare, or supervision of a child, either independently or
through another, no matter how brief, at the time of or within
120 days immediately preceding the act.

Minn. Stat. § 609.341, subd. 10 (2020). The statute “does not contain an exclusive list of
persons in a position of authority.” State v. Larson, 520 N.W.2d 456, 461 (Minn. App.
1994), rev. denied (Minn. Oct. 14, 1994). Given that the statute is unambiguous we apply
its plain meaning. State v. Loveless, 987 N.W.2d 224, 250 (Minn. 2023).
Thus, at trial, the state needed to prove beyond a reasonable doubt that appellant
“act[ed] in the place of a parent and [was] charged with or assume[d] any of a parent’s
rights, duties or responsibilities to [C.D.]” or that appellant was “charged with or assum[ed]
any duty or responsibility for the health, welfare, or supervision of [ C.D.]” Minn. Stat.
§ 609.341, subd. 10. Appellate courts have generally determined that the evidence was
sufficient for the jury to conclude that the defendant was in a position of authority where
the victim had been in the care of that defendant at one point. See State v. Bird, 292 N.W.2d
3, 4 (Minn. 1980) (uncle cared for his niece); State v. Rucker, 752 N.W.2d 538, 546 (Minn.
App. 2008) (defendant co-facilitated an after-school program that the victim attended), rev.
denied (Minn. Sept. 23, 2008). These courts have also found the evidence sufficient where
the defendant was the victim’s employer, teacher, or coach. See State v. Hall, 406 N.W.2d
503, 504 (Minn. 1987) (victim babysat defendant’s children); State v. Fero, 747 N.W.2d
596, 597 (Minn. App. 2008) (defendant was the victim’s direct supervisor at work), rev.
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denied (Minn. Jul. 15, 2008); State v. DeLong, No. C5-00-810, 2001 WL 243254, at *1
(Minn. App. Mar. 13, 2001) (defendant was the victim’s coach and her friend’s father);
State v. Pannier, No. C9-98-2283, 1999 WL 1216327, at *4 (Minn. App. Dec. 21, 1999)
(stating that “[t]eachers hold a position of authority over their students”).
Having concluded that a position of authority requires proof that appellant was
acting in the place of C.D.’s parent or was charged with or assumed any of the rights,
duties, or responsibilities for the health, welfare, or supervision of C.D., this court next
considers whether the state presented sufficient evidence to prove that appellant was in a
position of authority. See Vasko, 889 N.W.2d at 558 (“Having determined what the
ordinance prohibits, we now consider whether the [s]tate presented sufficient evidence to
prove that Vasko violated [it].”). When evaluating a claim of insufficient evidence, this
court reviews the record “to determine whether the evidence and reasonable inferences
drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow
the jury to reach its verdict.” Hayes, 826 N.W.2d at 805 (quotation omitted). This court
assumes “that the jury believed the [s]tate’s witnesses and disbelieved any evidence to the
contrary.” Id.
Appellant contends that he was not a “parent, relative, coach, employer, caregiver,
teacher or babysitter to C.D.,” nor did he “provide C.D. with food or transportation.” We
agree.
The state points to several pieces of evidence that it asserts supports the conviction.
The state contends that appellant “‘assumed’ certain roles that parents do,” such as giving
C.D. a phone and a tablet, making C.D. call him every day, and requesting that C.D. call
12
him “daddy.” The state asserts that this evidence makes this case similar to Larson, 520
N.W.2d at 461. In Larson, we concluded that the defendant was in a position of authority
over the victim where the defendant was ten years older than the victim, the victim’s
parents left appellant alone with her, the victim described the defendant as her “favorite
uncle, and he acted as her “confidante.” 520 N.W.2d at 459, 461.
The state’s argument is not persuasive. This case is distinguishable from Larson .
Unlike in Larson, where the parents left the victim alone with Larson, as far as C.D.’s
father knew, appellant had never been left alone with C.D. before the night in early 2021.
Appellant did not “assume” a parent’s rights, duties or responsibilities by asking C.D. to
call him, “daddy” as part of the ongoing abuse over FaceTime. See Minn. Stat. § 609.341,
subd. 10. He did not make her check in to monitor her welfare or health or safety; instead,
on these video calls, he would masturbate and tell C.D. that he would harm her loved ones
if she did not do the same. The state is trying to import grooming behavior as an element
of the crime, but it is an aggravating factor. See Taylor v. State, 670 N.W.2d 584, 589
(Minn. 2003) (stating that “the defendant’s position of authority. . . [was an] inappropriate
bas[is] for departure where those facts were already taken into account by the legislature
in determining the degree of seriousness of the offense”); State v. Yaritz, 791 N.W.2d 138,
146 (Minn. App. 2010) (“A defendant’s high degree of planning is a recognized
aggravating factor.”), rev. denied (Minn. Feb. 23, 2011).
Second, the state contends that appellant was a friend of C.D.’s father and the two
would socialize two to three times a week. But the state does not explain how, as C.D.’s
father’s friend, appellant “assume[d] any of a parent’s rights, duties or responsibilities to a
13
child” or was “charged or assum[ed] with any duty or responsibility for the health, welfare,
or supervision of [C.D.].” See Minn. Stat. § 609.341, subd. 10 (emphasis added). And in
State v. Luna, in the context of sentencing, our supreme court considered whether the
“defendant had been in some sort of position of authority over the victim by virtue of his
friendship with the victim’s mother.” 320 N.W.2d 87, 89 (Minn. 1982). The court noted
that “the evidence did not establish that defendant was in a position of authority over
complainant.” Id.
Third, the state contends that the evidence was sufficient to prove that appellant was
in a position of authority because appellant was 40 years old and C.D. was 15 years old,
but this is a separate element of the offense. See Minn. Stat. § 609.342, subd. 1(b) (stating
“the complainant is at least 13 years of age but less than 16 years of age and the actor is
more than 48 months older than the complainant”).
Fourth, the state contends that C.D. had a disability that impacted her ability to
comprehend and made her compliant and agreeable. Appellant contends that C.D.’s
“disability cannot be used to prove [appellant] was in a position of authority.” We agree.
The statute does not focus on the victim’s perception of the defendant; it focuse s on the
actions of the defendant. The statutory definition of “position of authority” uses phrases
such as “acting in the place of a parent,” “charged with or assumes” the duties of a parent,
and “a person who is charged with or assumes any duty or responsibility for the health,
welfare, or supervision of a child.” Minn. Stat. § 609.341, subd. 10 (emphases added).
Thus, C.D.’s disability does not prove that appellant was in a position of authority.
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Lastly, the state contends that appellant asserted authority over C.D. on the night of
the assault by “stepping in and taking over for the cognitively impaired 15-year -old C.D.,
who is compliant and agreeable.” C.D. had let V.C.’s dogs out, and appellant told her to
bring the dogs in, and she brought them in. Appellant asserts that his instructions to C.D.
to bring the dogs inside did not amount to being in a position of authority because he went
“uninvited and unannounced to C.D.’s house” and had not been “explicitly or implicitly
tasked with assuming responsibility for her supervision or care.” This is not similar to the
cases in which this court has concluded that the evidence was sufficient to prove a position
of authority because the victim had been placed in the defendant’s care.
We are more than aware of the serious facts and circumstances of this case.
Appellant raped a mentally and emotionally challenged minor who was the daughter of a
neighbor. Still, we are obligated to follow the law. There is no evidence in the record that
appellant was acting in the place of C.D.’s parent or was charged with or assumed any of
the rights, duties, or responsibilities for the health, welfare, or supervision of C.D. The
“evidence and reasonable inferences drawn therefrom” we re insufficient to prove the
crime. Hayes, 826 N.W.2d at 805 (quotation omitted). We therefore reverse appellant’s
conviction of first-degree criminal sexual conduct and remand with instructions to formally
adjudicate one of the unadjudicated third- degree criminal sexual conduct convictions and
impose a sentence. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (“If the
adjudicated conviction is later vacated for a reason not relevant to the remaining
unadjudicated conviction(s), one of the remaining unadjudicated convictions can then be
15
formally adjudicated and sentence imposed, with credit, of course, given for time already
served on the vacated sentence.”).2
Affirmed in part, reversed in part, and remanded.

2 The district court sentenced appellant to 172 months in prison, which was at the highest
end of the presumptive sentence range for first-degree criminal sexual conduct with a
criminal history score of 0. Minn. Sent’g Guidelines 4.B (2020). The jury also found
appellant guilty of two counts of third- degree criminal sexual conduct under Minn. Stat.
§§ 609.344, subd. 1(b), (c). The presumptive sentence range for third-degree criminal
sexual conduct under section 609.344, subd.1(c) with the same score is 41 to 57 months in
prison. Minn. Sent’g Guidelines 4.B (2020). The presumptive sentence for third-degree
criminal sexual conduct under section 609.344, subd.1(b) with the same score is a stayed
36-month sentence. Minn. Sent’g Guidelines 4.B (2020). Minn. Stat. § 609.035 (2022)
“contemplates that a defendant will be punished for the most serious of the offenses arising
out of a single behavioral incident because imposing up to the maximum punishment for
the most serious offense will include punishment for all offenses.” State v. Kebaso, 713
N.W.2d 317, 322 (Minn. 2006) (quotations omitted).