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This opinion is nonprecedential except as provided by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
A23-0493

State of Minnesota,
Respondent,

vs.

Jose Alipio Sarmiento Gonzalez,
Appellant.

Filed February 12, 2024
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CR-21-9052

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

Mary F. Moriarty, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Frisch, Judge; and Klaphake,
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NONPRECEDENTIAL OPINION
FRISCH, Judge
In this appeal following a conviction for second-degree criminal sexual conduct,
appellant argues that the district court abused its discretion by admitting expert testimony
relating to delayed reporting by child victims of sexual abuse. We affirm.
FACTS
In May 2021, respondent State of Minnesota charged appellant, 44- year-old Jose
Alipio Sarmiento Gonzalez, with second-degree criminal sexual conduct based on a report
that he sexually abused his girlfriend’s 12-year-old granddaughter, A.O. The following
facts were established at trial.
In about 2015, Gonzalez lived with A.O. and her grandmother, mother, and brothers.
A.O. was about seven years old when Gonzalez moved into the home. When A.O. was
around 11 years old, Gonzalez began touching her inappropriately and did so on five
separate occasions.
The first incident occurred when A.O. was sleeping in her bedroom and awoke to
Gonzalez touching her leg and attempting to lift up her shorts. After she awoke and looked
at Gonzalez, Gonzalez exited her bedroom. A.O. told her grandmother the next day, and
her grandmother told A.O. that she would talk to Gonzalez. Grandmother also told A.O.
not to tell her mother. A.O. nonetheless told her mother, who responded by telling A.O. to
try to stay as far away as possible from Gonzalez. The second incident occurred when
Gonzalez entered A.O.’s bedroom while she slept and began kissing A.O.’s cheek. A.O.
woke up and moved away from Gonzalez, worried that he was “trying to rape” her. The
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next morning, A.O. told her mother about Gonzalez trying to kiss her while she slept. In a
third incident, Gonzalez sat next to A.O. on the couch and was showing her something on
his phone. He then reached his hand down A.O.’s shirt, touching her bare chest. A fourth
incident occurred in Texas, when Gonzalez tried to kiss A.O. and later touched her leg.
During the fifth incident, Gonzalez sat by A.O. at A.O.’s aunt’s home and repeatedly
attempted to put his hand in A.O.’s pants.
A.O.’s mother arranged for A.O. to meet with a therapist to discuss a separate family
conflict. During a session between A.O., the therapist, and mother, the therapist asked
A.O.’s mother whether A.O. had any trauma. A.O. began crying. A.O. told her mother
that Gonzalez had touched her inappropriately on several occasions and described
previously undisclosed instances of abuse. Mother reported the abuse to Hennepin County
Child Protection. In December 2020, a child-protection investigator met with A.O. and
then arranged for A.O. to undergo a forensic interview at CornerHouse. The interview was
conducted in February 2021 by CornerHouse forensic interviewer and employee, Bill
Koncar.
Before trial, the state moved to admit testimony from Koncar regarding “the timing
and manner of disclosure, the regularity of delayed and incremental disclosure, [and]
factors impacting delayed and incremental disclosure.” Over Gonzalez’s objection, the
district court admitted the evidence but instructed the state to notify Koncar that he may
not comment on the instant case or vouch for the credibility of A.O.
Koncar generally testified within those parameters. He provided general testimony
regarding the many ways in which children might disclose abuse. Koncar testified that
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while some children do immediately disclose instances of abuse, immediate disclosure is
atypical. He further testified that many children delay disclosure of abuse or engage in
incremental disclosure, revealing pieces of information about the abuse over a period of
time. Koncar also testified about the reasons why a child might delay disclosure.
At the close of the evidence, the district court instructed the jury on the appropriate
use of expert testimony. The district court stated that an expert’s opinion testimony “is
entitled to neither more nor less consideration by you than any other evidence.” The jury
found Gonzalez guilty of second-degree criminal sexual conduct. The district court
convicted Gonzalez, sentenced him to 36 months’ imprisonment, stayed the sentence for 5
years, and imposed a 10-year period of conditional release.
Gonzalez appeals his conviction.
DECISION
Gonzalez argues on appeal that the district court abused its discretion by permitting
the state’s expert to testify about “delayed reporting of sexual abuse by children” because
the testimony was irrelevant, prejudicial, and unhelpful to the jury. We review a district
court’s decision to admit expert testimony for an abuse of discretion. State v. Garland, 942
N.W.2d 732, 742 (Minn. 2020). The district court did not abuse its discretion in admitting
Koncar’s testimony.
The Minnesota Rules of Evidence provide that a qualified expert’s testimony “in
the form of an opinion” is admissible if such testimony will “assist the trier of fact to
understand the evidence or to determine a fact issue.” Minn. R. Evid. 702. The primary
inquiry is whether “the expert’s testimony will help the trier of fact in evaluating evidence
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or resolving factual iss ues.” State v. DeShay, 669 N.W.2d 878, 884 (Minn. 2003). Even
helpful expert testimony “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Minn. R. Evid. 403; see also DeShay, 669 N.W.2d at 888 (citing
Minn. R. Evid. 403) (“ Even if acceptable under Rule 702, expert testimony should be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.”).
Our caselaw has consistently recognized the value of expert testimony in aiding a
jury in understanding counterintuitive victim behaviors, including why a victim may not
immediately and fully disclose incidents of abuse. In State v. Myers, the supreme court
rejected the notion that jurors would be familiar enough with the behavior of young child
victims of sexual abuse to assess the credibility of a seven-year -old victim. 359 N.W.2d
604, 610 (Minn. 1984). It recognized that “[t]he nature . . . of the sexual abuse of children
places lay jurors at a disadvantage. . . . [T]he common experience of the jury may represent
a less than adequate foundation for assessing the credibility of a young child who
complains of sexual abuse.” Id. We applied this rule to a case involving a 12-year-old
abuse victim. State v. Garden, 404 N.W.2d 912, 915 (Minn. App. 1987), rev. denied
(Minn. June 25, 1987). And the supreme court has extended the Myers rule to cases where
the victim is an adult and consent is a disputed issue. State v. Obeta, 796 N.W.2d 282, 293
(Minn. 2011).
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We apply the same rule here. Although Gonzalez maintains that A.O. engaged in
no counterintuitive behaviors, the record reflects the opposite. A.O. testified that she
immediately disclosed two of the five separate incidents of abuse to her mother. And A.O.
did not tell her mother about three of the five incidents until she was prompted by her
therapist’s question to her mother. Stated differently, A.O. delayed reporting of the abuse
and only incrementally disclosed incidents of abuse. Because Koncar’s testimony about
delayed reporting and incremental disclosure was helpful to the jury to assess A.O.’s
credibility, we see no abuse of discretion by the district court in its evidentiary ruling.
Affirmed.