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This opinion is nonprecedential except as provided by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
A23-0235

State of Minnesota,
Respondent,

vs.

Matthew Lee Rote,
Appellant.

Filed March 18, 2024
Affirmed in part, reversed in part, and remanded
Ross, Judge

Pine County District Court
File No. 58-CR-20-264

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

Reese Frederickson, Pine County Attorney, Lauren R. Dwyer, Assistant County Attorney,
Pine City, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larkin , Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
An eight-year-old boy told his mother that his adult brother, appellant Matthew
Rote, sexually abused him. Police investigated and the state charged Rote with two counts
of first-degree criminal sexual conduct and one count of incest. The boy testified at trial
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about Rote’s abuse, and the jury found Rote guilty as charged. Rote argues on appeal from
his convictions that the district court failed to properly determine the boy’s competency to
testify. He also argues that one of the counts of criminal sexual conduct is a lesser-included
offense of the other and that the district court improperly imposed a lifetime conditional-
release term. We hold that the district court did not plainly err by allowing the boy to testify.
But we also hold that the district court convicted and sentenced Rote both for one crime
(multiple acts of specific sexual conduct) and a lesser-included offense of that crime (a
single act of that same conduct), so his conviction and sentence on the second charged
crime cannot stand. And we also hold that Rote’s convictions of criminal sexual conduct
and incest resulted from the same act, so his incest conviction cannot stand. We therefore
affirm in part, reverse in part, and remand.
FACTS
An eight-year-old boy, whom we will call Owen in the interest of his privacy, told
his mother, “Matthew has had sex with me.” Owen demonstrated what he meant by making
“thrust moves with his hips.” Matthew Rote, then 21 years old, is Owen’s brother. Owen
said that Rote’s sexual assaults began when Owen was five years old and continued for
years while Rote was living at home and after he moved out. Owen’s mother relayed
Owen’s disclosure to an investigator in the Pine County Sheriff’s Office.
The state charged Rote in a multi-count criminal complaint, but only three counts
regarding Owen survived to trial and are relevant in this appeal. The numbering of the
counts changed from the amended complaint to the jury’s verdict on those three counts:
count I, first-degree criminal sexual conduct based on Minnesota Statutes section 609.342,
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subdivision 1(h)(iii) (2014) (multiple acts of sexual penetration of a child under 16 years
of age over an extended period by an actor significantly related to the child); count II, first-
degree criminal sexual conduct based on Minnesota Statutes section 609.342, subdivision
1(g) (20 14) ( an act of sexual penetration of a child under 16 years of age by an actor
significantly related to the child); and count III, incest based on Minnesota Statutes section
609.365 (2014) (sexual intercourse with a related person).
Owen testified at Rote’s trial after the district court briefly examined Owen for
competency sua sponte. The district court so examined Owen, who by the time of trial was
11 years old, by asking him if he knew how to spell his name, how old he was, and when
his birthday was. Owen correctly spelled his name and gave his age as 11, but he said he
did not know his birthday, adding that he knew it was during the summer. The district court
also asked Owen his favorite sports team, and Owen named the Minnesota Vikings. The
district court asked Owen if he knew the difference between right and wrong and the
difference between the truth and a lie. Owen answered that he did . He then incorrectly
answered that the statement, “[T]he Vikings have won a Super Bowl,” was true. And he
correctly answered that the statement, “[I]t’s snowing out[side] right now,” was a lie. After
the district court questioned Owen, it asked Rote if he had any objections to the questioning
or if Owen should be asked any additional questions, and Rote, represented by counsel,
said no. Rote at no point before, during, or after trial challenged or raised any questions
about Owen’s competency.
Owen struggled to testify with details when asked about the alleged sexual abuse,
often looking down or responding to questions by nodding. He testified that the abuse
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started when he was five years old. He also answered questions posed by Rote’s counsel,
including questions about his hobbies, whether he had been on an airplane, the layout of
his home, and when the abuse occurred. Asked if he had ever been in trouble , Owen
recounted his having smashed the window of a truck in a junkyard and getting in trouble
with his parents.
The jury found Rote guilty on all three counts, and the district court convicted him
accordingly. It sentenced Rote to serve concurrent prison terms of 144 months and 153
months, respectively, on counts I and II, first-degree criminal sexual conduct, followed by
conditional release for his lifetime. The district court did not sentence Rote on count III,
incest.
Rote appeals.
DECISION
Rote raises three challenges to his convictions. He argues first that the district court
erred by allowing Owen to testify without thoroughly evaluating Owen’s competency. He
argues second that one of the offenses of criminal sexual conduct is a lesser-included
offense of the other. And he argues third that the district court improperly imposed a
lifetime term of conditional release. His lesser-included- offense and conditional-release
contentions prevail.
I
Rote argues unpersuasively that the district court inappropriately found Owen
competent to testify at trial. Rote did not challenge Owen’s competency to testify, object
to the district court’s method of testing Owen’s competency, or object to Owen’s testimony
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on grounds of incompetency. We review unobjected-to alleged errors only for plain error.
State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). To prevail under this standard, Rote
must show that an error occurred, that the error was plain, and that the error affected his
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Rote does not
establish that the district court plainly erred.
Rote argues that the district court did not adequately and reliably test Owen’s
competency with sufficiently thorough questioning. But the record does not indicate that
the district court was obligated to test Owen’s competence. Even a child under the age of
ten is presumed competent, and that presumption stands “unless the court finds that the
child lacks the capacity to remember or to relate [facts truthfully].” Minn. Stat. § 595.02,
subd. 1(n) (2022). Owen was 11 years old when he testified at Rote’s trial, excluding him
from the statutory reference to possible concerns about a younger child’s capacity to
remember facts and truthfully relate them. Because the district court was not obligated to
test Owen’s competency based on his age and because Rote identifies no behavior that
would have raised reasonable doubts about his competency, we see little merit in Rote’s
argument that we must reverse his conviction based on the notion that the district court
tested Owen’s competency inadequately.
Rote argues that once the district court chose to test Owen’s competency, it was
obligated to do so in a more exacting fashion than it did. Any theoretical merit to Rote’s
argument rests on the maxim that, when the district court “is in doubt as to [a testifying]
child’s competency, it is best to err on the side of determining the child to be competent.”
State v. Lanam, 459 N.W.2d 656, 660 (Minn. 1990). And one might infer from the district
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court’s sua sponte decision to test Owen’s competency that the district court had some
doubt about it. Even so, Rote’s challenge to the substance of the district court’s
examination does not support his contention that the district court’s examination was
infirm.
Rote argues specifically that the district court’s competency examination was
facially deficient because the district court was obligated to test Owen by asking about
more than one event or one fact. He rests this argument on one facet of grammar; he points
to the plural construction of the word “facts” in the district court’s duty to determine
whether the witness has “the capacity to remember or to relate [facts truthfully].” Minn.
Stat. § 595.02, subd. 1(n). He buttresses the argument by quoting lines from cases that refer
to the district court’s competency testing also using a plural term , such as “whether the
child has the ability to relate events truthfully,” State v. Munt, 831 N.W.2d 569, 585 (Minn.
2013) (emphasis added), and whether he or she “could adequately relate facts regarding
events,” State v. Brovold, 477 N.W.2d 775, 779 (Minn. App. 1991) (emphasis added), rev.
denied (Minn. Jan. 17, 1992). Rote’s grammatical argument is flawed. His cited authority
defines only the district court’s objective to determine whether the witness can recall and
relate events and facts; neither the statute nor caselaw dictates the means by which the court
should meet the objective, which we believe to be a matter of the district court’s discretion.
Rote does not explain why a district court cannot infer a witness’s competence to recall
multiple facts and relate multiple events based on the witness’s demonstration that he can
recall and relate a single fact or event. Although a district court might choose a longer line
of questions and ask about multiple facts—and it should do so if necessary to resolve any
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doubts about the witness’s competency—we see no error in the district court’s choice not
to test Owen by questioning him further than it did.
Rote’s failure to identify any error defeats his plain-error challenge. But we add that,
even if the district court had committed a plain error by asking Owen too few questions,
Rote has also failed to meet his burden to show that the error affected his substantial rights.
He does not contend, for example, that additional questioning would have led the district
court to find Owen incompetent. And the record belies the notion. Owen’s answers to the
prosecutor’s and defense counsel’s questions at trial on various topics were responsive and
congruent, and they suggest that he was attempting to reply carefully. This corroborates
the district court’s finding that Owen was competent to testify. Owen’s reluctance to
provide details when he was asked specifically about the alleged acts of abuse does not
suggest a different result. It is not uncommon, even for adult witnesses, to struggle at trial
when questioned about traumatizing sexual assaults, and incompetence is not generally the
suspected cause of their reluctance or hesitation.
Rote’s competency argument fails. He has neither identified an error nor shown that
any plain error affected his substantial rights.
II
Rote next argues that his conviction of one of the counts of first-degree criminal
sexual conduct must be reversed because it is a lesser-included offense of the other. The
state concedes that Rote is correct. We review de novo whether an offense is a lesser-
included offense of another. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012). Our de novo
review supports Rote’s argument and the state’s concession. An offender “may be
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convicted of either the crime charged or an included offense, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2014). An included offense is, among other things, “a crime [that is]
necessarily proved if the crime charged were proved.” Id., subd. 1(4). One of the charged
crimes was first-degree criminal sexual conduct as alleged in count I. Conviction for this
offense is premised on proof that, over an extended period, Rote engaged in multiple acts
of sexual penetration or sexual contact with a victim under 16 years old. See Minn. Stat.
§ 609.342, subd. 1(h)(iii). The included offense was first-degree criminal sexual conduct
as alleged in count II. Rote’s conviction for this offense is premised on proof that he
engaged in at least one act of the same conduct that supports the conviction under count I.
See Minn. Stat. § 609.342, subd. 1(g). The jury found Rote guilty on both counts. Because
count II was necessarily proved when count I was proved, count II is a lesser-included
offense of count I. The district court erred by convicting and sentencing Rote for both
offenses. We therefore reverse the conviction on count II, leaving the jury’s guilty verdict
intact, and remand for the district court to vacate that conviction and amend Rote’s
sentence.
III
Rote argues too that the district court erred by imposing a lifetime conditional-
release term rather than a ten-year term because he does not have a prior sex-offense
conviction under Minnesota Statutes section 609.3455 (2014). The state does not contest
Rote’s sentencing argument, and it adds that the district court also improperly convicted
Rote of incest, acknowledging that the guilty verdict for Rote’s criminal sexual conduct
and incest arose from the same criminal behavior. See Minn. Stat. § 609.035, subd. 1 (2014)
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(“[I]f a person’s conduct constitutes more than one offense . . . , the person may be punished
for only one of the offenses and a conviction . . . .”). The state’s concessions are well
supported by the law. We therefore reverse both the incest conviction and the lifetime term
of conditional release.
IV
For the reasons we have discussed, we affirm Rote’s conviction of first-degree
criminal sexual conduct based on his multiple acts of abuse against a child, under
Minnesota Statutes section 609.342, subdivision 1(h)(iii). We reverse his conviction of
first-degree criminal sexual conduct based on a single act of abuse against a child, under
section 609.342, subdivision 1(g). We reverse his conviction of incest, under section
609.365. We remand for the district court to amend the warrant of commitment and to
amend the sentence.
1
Affirmed in part, reversed in part, and remanded.

1 We add that we have uncovered errors that the parties did not identify in the district court
or on appeal only to clarify that we have caref ully considered them sua sponte in the
interests of justice and that we have determined that they do not affect our analysis or the
outcome. The jury verdict and warrant of commitment both identify as count I the crime
(Minn. Stat. § 609.342, subd. 1(h)(iii)) that the jury instructions instead describe as count
II. And the jury verdict and warrant of commitment identify as count II the crime (Minn.
Stat. § 609.342, subd. 1(g)) that the jury instructions instead describe as count I, including
additional elements not necessary for that crime. Because the verdict of guilty on all counts
demonstrates that the jury found that Rote’s conduct met every element of each crime
regardless of the misnumbering, we are certain that the errors did not prejudice Rote in any
way. Because the errors are harmless, they warrant no further discussion.