In the Matter of the Welfare of: G. V. G., Child.

This opinion is nonprecedential except as provided by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
A23-0034

In the Matter of the Welfare of: G. V. G., Child.

Filed November 6, 2023
Affirmed
Klaphake, Judge *

Hennepin County District Court
File No. 27-JV-21-2725

David E. Suchar, Steven L. Schleicher, Stephanie Laws, Jevon C. Bindman, Clayton J.
Carlson, Maslon L.L.P., Minneapolis, Minnesota (for appellant G.V.G.)

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and
Klaphake, Judge.
NONPRECEDENTIAL OPINION
KLAPHAKE , Judge
Following designation as an extended -jurisdiction-juvenile prosecution, a jury
found appellant guilty of second -degree criminal sexual conduct. The district court
adjudicated appellant delinquent and imposed a 90-month stayed adult sentence. On appeal
from the adjudication and conviction, appellant argues the evidence presented at trial was
insufficient to support the jury’s verdict. In the alternative, appellant argues he is entitled

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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to a new trial because the district court erred when it excluded expert testimony on false
memories, admitted the victim’s forensic interview, and admitted other allegations of
sexual misconduct as relationship evidence. In addition , appellant argues the prosecutor
attempted to elicit inadmissible evidence, and cumulative errors in the proceedings warrant
a new trial. Because the record supports the jury’s verdict, and the district court did not
abuse its discretion in its evidentiary rulings, appellant is not entitled to a new trial and his
conviction is affirmed.
DECISION
I.
Appellant argues the evidence presented at trial was insufficient to support his
conviction because the jury determined the victim was not credible, and the dates of offense
had not been proven beyond a reasonable doubt . When reviewing a sufficiency-of-the-
evidence challenge, this court analyzes the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, is sufficient to sustain sai d conviction.
State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). We assume “the jury believed the
state’s witnesses and disbelieved any evidence to the contrary.” State v. Caldwell , 803
N.W.2d 373, 384 (Minn. 2011) (quotation omitted). A verdict will not be overturned if the
jury, “acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the
charged offense.” Ortega, 813 N.W.2d at 100.

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Credibility of the Victim
Appellant was acquitted on one of the charged counts of second -degree criminal
sexual conduct. Appellant contends this acquittal demonstrates the jury deemed the victim
not credible and, because the state’s case rested largely on the credibility of the victim,
insufficient evidence supported his conviction. Juries, not appellate courts, are tasked with
weighing credibility and it is well- established that “a conviction can rest on the
uncorroborated testimony of a single credible witness.” State v. Foreman, 680 N.W.2d
536, 539 (Minn. 2004) (quoting State v. Hill, 172 N.W.2d 406, 407 ( Minn. 1969)). But
contrary to appellant’s contention, a jury is permitted to believe some parts of a witness’s
testimony and not believe other parts. State v. Landa, 642 N.W.2d 720, 726 (Minn. 2002).
In this case, the victim testified that appellant sexually touched her through three distinct
“games,” each with unique facts, and each of which was charged as a separate count. The
jury was free to believe the testimony of the victim with respect to two of the “games” even
though it found appellant not guilty with respect to one. This is not a basis for reversal.
Dates of Offense
Appellant asserts the evidence presented at trial did not sufficiently establish the
dates of offense because the victim was unable to recall specific acts of sexual touching
occurring on specific dates. Precise offense dates are only essential elements when “the
act done is unlawful during certain seasons, on certain days or at certain hours of the day.”
State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984). “Generally, specific dates need not
be proved in cases charging criminal sexual conduct over an extended period of time. ”
State v. Rucker , 752 N.W.2d 538, 547 (Minn. App. 2008), rev. denied (Minn. Sept. 23,
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2008). At trial, the victim testified the sexual touching “games” occurred on holidays and
at family gatherings beginning when she was 11 years old, and which continued until
December 2019, when she was 14 years old. We conclude this testimony was sufficient to
establish the timeframe of the offense.
II.
Appellant argues that the district court abused its discretion by excluding expert
testimony about false memories. Expert testimony regarding a novel scientific theory is
only admissible if the proponent of the evidence establishes that the underlying scientific
evidence is generally accepted in the relevant scientific community and that the scientific
evidence has foundational reliability. Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d
150, 156 (Minn. 2012) (describing what is commonly referred to as the “Frye-Mack”
standard). Whether a particular principle satisfies general acceptance in the relevant
scientific community is a question of law that we review de novo, but d istrict court
determinations regarding foundational reliability are reviewed for an abuse of discretion .
Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000).
Prior to trial, appellant filed his notice of intent to offer expert testimony regarding
the risk of false memories of criminal sexual conduct in children and young adults, the role
of therapy in the development of false memories, and incremental reporting as an indicator
of false memories. The state responded by filing a motion in limine seeking to prohibit
testimony related to false memories . At trial, the district court determined that , absent a
Frye-Mack hearing to determine whether this kind of evidence was the scientific standard,
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appellant’s expert would not be permitted to summarily testify that it was the scientific
standard.
Appellant contends the district court should have allowed the testimony because the
supreme court implicitly determined the topic of false memories was a proper subject for
expert testimony in Doe 76C. But contrary to appellant’s argument, the supreme court ’s
analysis in Doe 76C was directed to a narrower issue : whether the dis trict court, after
holding a three -day Frye-Mack hearing, abused its discretion in determining that the
theories of repressed and recovered memories lacked foundational reliability based on the
evidence presented. 817 N.W.2d at 169-70. The supreme court did not opine generally on
whether the topics of false, repressed, or recovered memories were proper subjects for
expert testimony. Id. at 169-71.
Appellant faults the state for not requesting a Frye-Mack hearing and the district
court for not conducting a Frye-Mack hearing sua sponte after it determined more
information was needed regarding whether the proposed false memory testimony reflected
the scientific standard. But the Frye-Mack standard places th e burden on the proponent of
the novel scientific evidence —in this case, appellant —to demonstrate acceptance in the
scientific community and foundational reliability before the testimony may be admitted .
See Goeb, 615 N.W.2d at 816. Appellant failed to r equest a Frye -Mack hearing despite
the state’s written challenge to the testimony . As such, we conclude the district court did
not abuse its discretion by excluding expert testimony regarding false memories. 1

1 Even if we concluded the district court should have conducted a Frye -Mack hearing sua
sponte, appellant was not prejudiced as the excluded testimony was within the jury’s abilit y
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III.
Appellant argues the district court imprope rly admitted a recording of the victim’s
forensic interview. First, he argues the district court violated his Sixth Amendment
confrontation right by precluding defense counsel from cross -examining the victim with a
recording of her forensic interview. Second, he argues the district court abused its
discretion by later admitting a recording of the forensic interview as a prior consistent
statement and under the residual hearsay exception.
Confrontation Clause
The Sixth Amendment to the United States Constitution provides, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. “The Confrontation
Clause is satisfied by a declarant ’s appearance at trial for cross-examination. . . .” State v.
Holliday, 745 N.W.2d 556, 568 (Minn. 2008) . While evidentiary rulings are within the
district court’s discretion, whether the admission of evidence vi olates 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).
At trial, appellant ’s counsel attempted to introduce a recording of the forensic
interview during cross-examination of the victim, but the district court declined to admit
the forensic interview at that time having decided the victim was unable to authenticate the

to assess. See State v. Fedor , 628 N.W.2d 164, 172 (Minn. App. 2001); State v.
Erickson, 454 N.W.2d 624, 627-28 (Minn. App. 1990), rev. denied (Minn. May 23, 1990).
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recording. Appellant contends the district court’s decision impeded his ability to
effectively cross-examine the victim, violating his Confrontation Clause rights.
But “the 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 , 993 N.W.2d 266, ___, 2023 WL
4611400, at *6 (Minn. July 19, 2023) (quotation omitted). While a ppellant may have
wished to cross -examine the victim with the recording of the forensic interview, there is
no dispute that the victim appeared at trial and was subject to cross -examination by
appellant’s counsel. That is all the Confrontation Clause demands and as such, appellant’s
Sixth Amendment rights were not violated.
Prior Consistent Statement
Hearsay evidence generally is inadmissible as substantive evidence. Minn. R. Evid.
802; State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999). Hearsay is defined as an out-
of-court statement that is offered to prove the truth of the matter asserted in the statement.
Minn. R. Evid. 801(c); State v. Litzau, 650 N.W.2d 177, 182- 83 (Minn. 2002). But a prior
statement by a witness is admissible non-hearsay if the declarant testifies at trial, is subject
to cross-examination concerning the statement, the statement is reasonably consistent with
the declarant’s testimony, and the statement is helpful to the fact -finder in evaluating the
declarant’s credibility. M inn. R. Evid. 801(d)(1)(B) ; State v. Zulu, 706 N.W.2d 919, 924
(Minn. App. 2005).
Following the victim’s testimony, the state sought to introduce the recorded
interview through another witness who could authenticate it. The district court determined
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the forensic interview was admissible as a prior consistent statement under rule
801(d)(1)(B) and under the residual hearsay exception provided for in rule 807. Appellant
contends the district court improperly concluded the forensic interview was a prior
consistent statement because the district court did not undertake a statement -by-statement
analysis of the forensic interview as required by State v. Bakken. 604 N.W.2d 106, 109-10
(Minn. App. 2000). But this court in Bakken specifically highlighted only “ where
inconsistencies directly affect the elements of the criminal charge, the [r]ule 801(d)(1)(B)
requirement of consistency is not satisfied , and the prior inconsistent s tatements may not
be received as substantive evidence .” Id.
None of appellant’s argued inconsistencies go directly to the elements of the charge.
Appellant points to inconsistency regarding when the victim disclosed the sexual abuse ,
which goes to credibility, and inconsistency related to the specific dates of offense which
are not required elements of a second-degree criminal sexual conduct offense. Because we
conclude that the district court did not abuse its discretion in admitting the recording of the
victim’s forensic interview as a prior consistent statement, we do not reach the issue of
whether the recording was admissible under the residual hearsay exception.
IV.
Appellant argues the district court abused its discretion in admitting allegations of
out-of-state sexual misconduct involving appellant against the victim as relationship
evidence. In a prosecution for criminal sexual conduct , evidence of domestic conduct by
the accused against the victim , commonly known as relationship evidence, is “admissible
unless the probative value is substantially outweighed by the danger of unfair prejudice .”
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Minn. Stat. § 634.20 (2022) ; State v. Matthews , 779 N.W.2d 543, 553 (Minn. 2010).
Relationship evidence has probative value if it “helps to establish the relationship between
the victim and the defendant” or “places the event in context.” State v. Lindsey , 755
N.W.2d 752, 756 (Minn. App. 2008), rev. denied (Minn. Oct. 29, 2008). Relationship
evidence may give rise to unfair prejudice if the evidence “pe rsuades by illegitimat e
means.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted). We review
a district court’s decision to admit relationship evidence for an abuse of discretion. State
v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).
In this case, the district court admitted allegations that appellant sexually penetrated
the victim in Arizona because the evidence would “illuminate the history of the relationship
between [ appellant] and [ the victim] within the context of domestic abuse .” Appellant
contends the Arizona allegations involved more serious conduct which prejudiced
appellant, and the probative value of the evidence was low because the Arizona allegations
occurred after the charged Minnesota conduct. We are not convinced.
As to prejudice, nothing suggests the Arizona allegations were presented to
persuade by illegitimate means. The victim testified in little detail regarding the Arizona
allegations, as shown by the following colloquy:
Q. And while you were in Arizona, did anything happen with
[appellant]?
A. I was sexually assaulted by [appellant].
. . . .
Q. Did that sexual assault involve —did he penetrate you?
A. Yes.

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This court has previously found no abuse of discretion when a district court admitted
relationship evidence more factually detailed than what was presented to the jury in this
case. See State v. Patzold, 917 N.W.2d 798, 805- 06 (Minn. App. 2018). As to probative
value, admissible relationship evidence is not limited to domestic conduct occurring before
the charged offense. As this court has previously noted, the legislature amended the
language of section 634.20 in 2002, from “similar prior conduct” to “s imilar conduct .”
Lindsey, 755 N.W.2d at 756 (finding no abuse of discretion in admitting evidence of
subsequent acts of domestic assault as relationship evidence). As such, w e perceive no
abuse of discretion here.
V.
Appellant argues the prosecutor commit ted misconduct by attempting to elicit
testimony regarding his placement in sex offender therapy contravening the district court’s
pretrial order precluding the state from referring to appellant’s mental illness or diagnosis .
The right to due process of law includes the right to a fair trial . Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005). When a prosecutor intentionally elicits or attempts to elicit
inadmissible evidence, a new trial may be ordered if “the misconduct appears to be
inexcusable and so serious and prejudicial that the defendant’s right to a fair trial is denied.”
State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002). But a new trial is unnecessary if the
misconduct was harmless. State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016).
“Prosecutorial misconduct is harmless beyond a reasonable doubt if the jury’ s verdict was
surely unattributable to the misconduct.” Id. (quotation omitted).
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Appellant specifically challenges the following colloquy between the prosecutor
and appellant’s mother:
Q. All right . . . I just want to ask you a few questions about
May of 2020. And sometime in May of 2020, you learned —
this is the Arizona reporting—that [the victim] reported that
during your family vacation in Arizona, that [appellant]
sexually assaulted her.
A. Yes.
Q. Now, shortly after hearing about that, you put [appellant] in
therapy with a therapist that specializes in sexual offending;
right?
A. We put him with the first available therapist. We didn’t
necessarily— . . .

Having considered this testimony, we conclude it is not necessary to decide whether
the prosecutor committed misconduct , because even assuming misconduct occurred, we
are convinced any misconduct was harmless. The victim directly test ified to appellant’s
multiple acts of sexual touching. The testimony elicited by the prosecutor only established
that appellant had been placed in therapy. Under these circumstances, the jury’s verdict
was surely unattributable to the implication of one question asked over the course of a six-
day jury trial. As such, a new trial is unnecessary.
VI.
Finally, appellant argues the district court’s cumulative errors in evidentiary rulings
warrant a new trial. “Cumulative error exists when the cumulative effe ct of the errors and
indiscretions, none of which alone might have been enough to tip the scales, operate to the
defendant’s prejudice by producing a biased jury.” State v. Penkaty, 708 N.W.2d 185, 200

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(Minn. 2006) (quotations omitted). Because we conclude none of the challenged
evidentiary rulings constitute error, appellant is not entitled to a new trial.
Affirmed.