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This opinion is nonprecedential except as provided by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
A23-0680

State of Minnesota,
Respondent,

vs.

William Kenneth Pike,
Appellant.

Filed July 1, 2024
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Isanti County District Court
File No. 30-CR-20-398

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

Jeffrey R. Edblad, Isanti County Attorney, Cambridge, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from appellant’s convictions for first- and second-degree
criminal sexual conduct, appellant raises two issues. First, appellant argues that the
2
prosecuting attorney committed misconduct during the examination of an expert witness
by eliciting inadmissible character evidence. Second, appellant argues that the district court
erred by entering a conviction for second- degree criminal sexual conduct. We first
conclude that, although the prosecuting attorney committed misconduct by eliciting some
inadmissible character evidence, this error did not affect appellant’s substantial rights.
Second, we conclude that the district court erred by entering a conviction for the lesser
included offense of second-degree criminal sexual conduct. Thus, we affirm in part, reverse
in part, and remand.
FACTS
On May 26, 2020, respondent State of Minnesota charged appellant William
Kenneth Pike with two counts of first-degree criminal sexual conduct under Minn. Stat.
§ 609.342, subd. 1(a) ( 2018), and two counts of second- degree criminal sexual conduct
under Minn. Stat. § 609.343, subd. 1(a) (2018). All counts involved Pike’s daughter
(daughter), who was ten years old at the time of the charges. The following summarizes
the evidence received at trial and relevant procedural history.
In June 2018, Pike and his wife Cynthia Pike1 (collectively, the Pikes) began
fostering daughter after Isanti County (the county) removed her from her biological parents
because of neglect. Daughter’s four siblings were also removed; three siblings were placed
with the Pikes while one sibling was placed with grandparents. The Pikes lived on a farm
in Ogilvie with five children: daughter, her three siblings , and another child. In October

1 This opinion will refer to appellant as Pike and to his wife as Cynthia.
3
2019, the Pikes adopted daughter and her three siblings. Daughter suffered from
post-traumatic stress disorder (PTSD) due to “past experiences with her [biological] home
environment” and was in therapy.
One night in November or December 2019, while Cynthia was visiting her sick
father, daughter went to Pike’s bedroom to watch a movie. Daughter fell asleep during the
movie and woke up because Pike “was pulling down” her “[pajama] pants.” Pike then
“used his fingers to penetrate [her] vagina.” Pike told daughter that she “shouldn’t tell
[Cynthia] because she would be fine with it” and threatened to “whip” daughter “if [she]
told anyone.”
“[T]he same night or the next night,” Pike asked daughter to “watch another movie”
in his bedroom, and she agreed because she “thought that something would happen to [her]
if [she] didn’t.” Daughter “woke up again to the same thing happening.” Pike “was pulling
down [her] pants” and “put his fingers in [her] vagina again.” Pike told daughter that “no
one would believe [her] if [she] told anyone.”
In January 2020, daughter harmed herself by cutting her arms while at a friend’s
house. In May 2020, daughter “told [Cynthia] what happened” with Pike. According to
daughter’s testimony, Cynthia was “angry,” seemed like she did not believe daughter, and
said that Pike “could get in a lot of trouble.” Cynthia then informed daughter’s skills worker
about what daughter had said, and the skills worker reported the information to the police.
Based on the alleged sexual abuse, the county removed daughter from the Pikes’ home and
placed her with a second foster family.
4
Before trial, the state moved to admit expert testimony on child sexual abuse and
forensic interviewing. At a hearing on the motion, Pike’s attorney objected only to the
expert “testifying about what the alleged victim specifically is testifying to” and stated that
he did not “have much of an objection” if the expert was “just speaking in generalities.”
The state confirmed that there would not “be any specific testimony from [the expert]
regarding the specific allegations or alleged facts in [the] case.” The district court ruled
that the expert could testify if the state laid foundation and the expert’s testimony provided
“relevant and helpful information to the jury.”
The case proceeded to a jury trial in which the state called, among others, daughter;
daughter’s second foster mother; Cynthia; an investigator; a mental-health worker ;
daughter’s skills worker; the expert; daughter’s therapist; and daughter’s case manager. A
CornerHouse interview of daughter conducted in May 2020 was also played for the jury.
2
Along with facts detailed above, witnesses testified about daughter’s behavior in the
second foster home compared to her behavior in the Pikes’ home. Daughter’s therapist
testified that she started working with daughter in 2019 while daughter lived with the Pikes.
At that time, daughter “was defiant,” argued with the Pikes “a lot,” and “was withdrawn”
and “depressed.” After December 2019, daughter “got more depressed” and “started to
backslide quite a bit.”

2 The state’s expert testified that “CornerHouse is an advocacy center” that provides “a
variety of different services . . . in cases where there have been allegations of possible child
maltreatment.”
5
Daughter’s therapist testified that, once daughter moved to the second foster home,
she “had some struggles at first” but then “progressed really, really quickly.” Daughter’s
skills worker testified that daughter “flourished” at the second foster home and that “[i]t
was like day and night.” Daughter’s case manager testified that when she visited daughter
in the second foster home, daughter seemed “lighter,” like she had “some weight off her
shoulders.”
Daughter’s second foster mother testified that , when daughter first arrived at their
home, she “was very shy and timid” and “very jumpy,” that, “anytime she did something
wrong, [daughter] would cry and hide” and that, “[d]uring the night, [daughter] would
barricade her doors.” She testified that daughter initially “wouldn’t be left alone with” her
second foster father or brother and that, “[i]f they would come into a room,” daughter
“would move to the opposite side of the room.” Daughter’s second foster mother also
testified that, with some prompting, daughter told her “what had happened” with Pike and
that, while recalling the incidents, daughter initially “couldn’t even get through all of it,”
“started physically vomiting,” “couldn’t look at [her second foster mother],” and “said she
was embarrassed.”
Witnesses also testified about daughter’s relationship with Cynthia and her siblings
after daughter reported Pike’s abuse. Daughter’s therapist testified that “ [i]t was very
difficult for” Cynthia “not to express her frustration with the situation” and that daughter’s
siblings “heard a lot of it, so they would call [daughter] names” like “slut” and “whore”
and “tell her that she was destroying the family.” Daughter’s case manager testified that,
after daughter’s allegations against Pike, the county had concerns about Cynthia’s “ability
6
to be a support person” for daughter because she “didn’t believe” daughter and thatdaughter
was “targeted in the home by the other siblings.” Daughter’s skills worker testified that
daughter’s siblings treated daughter differently as “punishment.” A mental-health worker
testified that daughter’s siblings “were allowed to call her names” like “liar” and “lying b-
tch” because Cynthia “believed [daughter] was lying” about the sexual abuse. The
mental-health worker also testified that she believed daughter’s siblings “were coached in
being told to not believe” daughter.3
The state’s expert—a forensic interviewer and trainer at CornerHouse—testified
about children’s inability to protect themselves from sexual abuse, children’s difficultly in
recalling the details of the sexual abuse, coping mechanisms of children subject to sexual
abuse, and the lack of physical evidence in child-sexual -abuse cases. The expert also
testified about some reasons for a child’s delayed disclosure of sexual abuse, such as “a
significant relationship” with the alleged offender, whether the child has been threatened
and instructed not to disclose, and “fear or concern about responses and reactions.”
As relevant to the issue on appeal, the expert testified that, “in situations of child
sexual abuse, grooming or manipulation is a process that an individual utilizes to gain
trust . . . with the purpose of creating a situation where . . . there is increased access and
opportunity for abuse” and “decreased likelihood that [the victim] will actually report or

3 Both the skills worker and mental- health worker testified that the y observed the Pike
family while working with daughter in the home.

7
tell someone.”4 The expert testified that an abuser may manipulate the victim’s family. The
expert stated that “it is not unusual for other children to be present when maltreatment
occurs” and “receive messages about what is happening” and about the victim.
Pike testified in his defense and denied the abuse allegations. Cynthia and one of
the Pikes’ children also testified in Pike’s defense. The jury found Pike guilty of one count
of first-degree criminal sexual conduct and one count of second- degree criminal sexual
conduct and not guilty of the other two counts of first- and second-degree criminal sexual
conduct. The district court sentenced Pike to 172 months in prison for first-degree criminal
sexual conduct. I n the warrant of commitment, the district court entered convictions for
one count of first-degree criminal sexual conduct and one count of second-degree criminal
sexual conduct.
Pike appeals.
DECISION
I. While some unobjected -to character evidence was improperly elicited during
expert testimony, the prosecuting attorney’s misconduct did not affect Pike’s
substantial rights.

Pike argues that the “prosecutor committed prejudicial plain error by eliciting expert
testimony about ‘grooming’ or ‘manipulation’ behavior by child sexual abusers because it
was improper profile evidence.” The state’s brief submitted to this court likewise analyzes

4 The expert testified that “the language has changed within the last few years” and what
was “referred to in the field as ‘grooming’” is now called “manipulation.”
8
the expert’s testimony under the standard for prosecutorial misconduct. Accordingly, we
will assume that the standard for prosecutorial misconduct applies.5
Pike concedes that he failed to object to the alleged error. Appellate courts review a
claim of unobjected-to prosecutorial misconduct under the modified plain-error standard.
State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021). The defendant has the burden to
demonstrate that the prosecuting attorney’s misconduct was error and that it was plain.
State v. Portillo, 998 N.W.2d 242, 248 (Minn. 2023). “If the defendant is successful, the
burden then shifts to the State to demonstrate that the error did not affect the defendant’s
substantial rights.” Id. (quotation omitted). If the state fails to do so, appellate courts
consider “whether the error should be addressed to ensure fairness and the integrity of the
judicial proceedings.” Id. (quotation omitted).

5 We question whether the prosecutorial-misconduct rather than the plain-error standard is
appropriate here. As summarized above, the state moved to admit the expert’s testimony
before trial. During a pretrial hearing, Pike’s attorney made a limited objection to the expert
“testifying about what the alleged victim specifically is testifying to.” The district court
allowed the expert to testify provided that the state laid foundation and the testimony was
“relevant and helpful” to the jury, noting that the expert could not “vouch for the victim’s
testimony.”
On appeal, Pike argues that some of the expert’s testimony was “improper profile
evidence”—an issue that was not raised at any point during pretrial or trial—and does not
claim that the prosecuting attorney elicited testimony beyond the scope of what the district
court had ruled admissible. In State v. Williams, 525 N.W.2d 538, 545 (Minn. 1994), the
supreme court applied the prosecutorial-misconduct standard where, for the first time on
appeal, the appellant argued that the prosecuting attorney elicited testimony “that defendant
fit a so-called ‘drug courier profile.’” Because Pike contends that the expert testimony was
also improper profile evidence and the state does not dispute the application of the
prosecutorial-misconduct standard, we apply this standard in considering the expert’s
testimony.
9
A. Pike has met his burden to demonstrate that some plain error occurred.
“An error is plain if it was clear or obvious,” which generally “is shown if the error
contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006) (quotations omitted). “[A]ttempting to elicit or actually eliciting clearly
inadmissible evidence may constitute misconduct” by a prosecutor. State v. Fields,
730 N.W.2d 777, 782 (Minn. 2007). A prosecuting attorney “has a duty to prepare [their]
witnesses, prior to testifying, to avoid inadmissible or prejudicial statements.” State v.
McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003) (citing State v. Carlson, 264 N.W.2d
639, 641 (Minn. 1978)).
Minnesota Rule of Evidence 702 governs the admissibility of expert testimony and
provides that an expert may give their opinion if their “scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue.” “[E]xpert testimony is admissible under Minn. R. Evid. 702 when it is
helpful to the jury.” State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011). “[E]xpert
testimony is not helpful if the expert opinion is within the knowledge and experience of a
lay jury and the testimony of the expert will not add precision or depth to the jury’s ability
to reach conclusions .” State v. Sontoya, 788 N.W.2d 868, 872 (Minn. 2010) (quotation
omitted).
Generally, “[e]vidence of a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion.” Minn.
R. Evid. 404(a). For example, this court held that evidence of pornographic magazines and
a child’s underwear found in a defendant’s footlocker was inadmissible “to show that
10
[defendant] had a propensity to abuse children sexually.” State v. Miggler, 419 N.W.2d 81,
83, 85 (Minn. App. 1988).
The supreme court has stated that, “in cases where a sexual assault victim is an
adolescent, 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 trial court.” State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). Further,
expert testimony providing “relevant insight into the puzzling aspects of [a] child’s conduct
and demeanor which the jury could not otherwise bring to its evaluation of [a child’s]
credibility is helpful and appropriate in cases of sexual abuse of children.” State v. Myers,
359 N.W.2d 604, 610 (Minn. 1984). In other words, caselaw has condoned the ad mission
of expert testimony to help the jury understand a child-sexual-abuse victim’s behavior. See
Hall, 406 N.W.2d at 505 (determining that expert testimony about a child sexual-assault
victim’s “reporting conduct” and “continued contact” with the abuser was admissible);
Myers, 359 N.W.2d at 609 (concluding that the district court’s admission of expert
testimony describing “the traits and characteristics typically found in sexually abused
children . . . was not erroneous”).
But the supreme court has distinguished between “the admission of expert opinion
testimony bearing on whether sexual abuse has occurred” and expert testimony “on the
issue of who it was who abused the children,” noting that the latter “was objectionable.”
State v. Dana, 422 N.W.2d 246, 250 (Minn. 1988).
Pike’s brief to this court focuses on the admission of expert testimony about an
abuser’s conduct. Pike argues that “the prosecutor plainly erred by introducing [the
11
expert’s] testimony about ‘grooming’ and ‘manipulation’” because testimony “describing
how a typical child sexual abuser acts is not helpful” and constitutes improper character
evidence. The state argues that “the prosecutor’s examination of [the expert] did not
constitute plain error” because her testimony was “helpful to the jury” in understanding
“the characteristics of child sexual abuse victims and the reasons for delayed disclosures
of abuse.” The state also contends that some testimony about how abusers “create
circumstances that decrease the chance” that a victim will report abuse “is inextricably
intertwined with the explanation of how the sexual abuse is able to occur, as well as the
victim’s behaviors.”
Pike argues that the expert’s testimony “enc ouraged the jury to infer from the
‘grooming’ or ‘manipulation’ characteristics that [Pike] is the type of person who would
commit child sexual assault.” Pike relies on “profile” and “syndrome” caselaw. In
Williams, the supreme court reversed Williams’s conviction for first-degree
controlled-substance crime for possessing more than ten grams of cocaine with intent to
sell and remanded for a new trial. 525 N.W.2d at 540, 549. The state offered testimony
about a “‘drug-courier profile’ used by drug investigators at airports, train stations and bus
terminals to help spot drug couriers” and “[t]estimony describing how [Williams’s]
conduct . . . fit the profile.” Id. at 541.
The supreme court determined that the testimony of officers about how “in their
experience most drug couriers behave a certain way” was “clearly and plainly
inadmissible.” Id. at 548. The supreme court observed that “evidence that a defendant has
traits shared by those who in the past have acted as drug couriers seems akin to character
12
evidence.” Id. at 547 (quotation omitted). The supreme court concluded that the
prosecuting attorney committed misconduct “in eliciting the inadmissible evidence that
[Williams] fit a drug courier profile used by the officers” and that this error, combined with
others, deprived Williams of a fair trial. Id. at 549.
For reasons like those explained in Williams, the supreme court in State v. Loebach
rejected expert evidence about “battering parent” syndrome offered during Loebach’s trial
for the third-degree murder of his baby. 310 N.W.2d 58, 59, 64 (Minn. 1981). At trial, an
expert “was asked to state the characteristics of a ‘battering parent.’” Id. at 62. Although
the expert “did not testify that [Loebach] possessed any of these characteristics,” the
“obvious purpose” of other state witnesses’ testimony “was to demonstrate that [Loebach]
fit within the ‘battering parent’ profile.” Id. at 63.
The supreme court applied plain- error review, determining that “the ‘battering
parent’ evidence should not have been admitted.” Id. at 64. The supreme court also
determined that the error “was not prejudicial” because “there was overwhelming evidence
of [Loebach’s] guilt even without the ‘battering parent’ testimony,” which was “only a
small percentage of the evidence.” Id. The supreme court stated that “in future cases the
prosecution will not be permitted to introduce evidence of ‘battering parent’ syndrome”
until “further evidence of the scientific accuracy and reliability of syndrome and profile
diagnoses can be established.” Id.

Here, the district court properly admitted the expert’s testimony about the typical
behaviors of a child-sexual-abuse victim and why a child may delay reporting abuse. The
expert testified that, “in situations of child sexual abuse,” manipulation is a process in
13
which an individual fosters “increased access and opportunity for abuse to occur” and
“decreased likelihood that that [the child victim] will actually report or tell someone.” As
detailed above, the supreme court has recognized that “expert testimony on the typical
behaviors of . . . child- and adolescent-victims of criminal sexual conduct” may be helpful
as such behaviors are “outside the common understanding of most jurors.” Obeta ,
796 N.W.2d at 291. Thus, the expert’s testimony provided helpful context for the jury’s
evaluation of daughter’s demeanor and delayed reporting of the abuse.
The prosecuting attorney plainly erred, however, by eliciting testimony from the
expert about how a typical abuser may manipulate other family members and select
vulnerable children as victims. See Dana, 422 N.W.2d at 250 (stating that expert testimony
relating to who abused the children was objectionable, unlike testimony about whether the
children were abused). The expert testified that, as part of an abuser’s manipulation
process, the victim’s siblings may “receive messages about what is happening.” To be
clear, the expert did not mention Pike or Pike’s family by name or discuss the facts in this
case. Other state witnesses testified, however, that after daughter reported that Pike abused
her, daughter’s siblings “were coached in being told not to believe” daughter and were
“allowed to call her names” like “liar” and “whore.” The prosecuting attorney’s purpose,
therefore, in eliciting expert testimony about a typical abuser’s manipulation of siblings
was to suggest that Pike fit the profile of a sexual abuser of children because he manipulated
daughter’s siblings. See Williams, 525 N.W.2d at 548; Loebach, 310 N.W.2d at 63. This
aspect of the expert’s testimony was inadmissible character evidence.
14
The expert also testified that “part of a manipulation process actually may be the
identification and the selection” of a child victim. The expert stated that vulnerability
influences an abuser’s selection of “a particular child to be targeted” and that “some
children have greater vulnerabilities . . . because of their life circumstances,” including
prior trauma. Three state witnesses testified that daughter suffered from PTSD before she
was abused by Pike. And on cross- examination, the prosecuting attorney asked Pike
whether he knew daughter had PTSD. Pike responded that he did not know “at first” but
that he learned about her PTSD at “some point in 2019.” Because the prosecuting attorney’s
purpose in eliciting the expert’s testimony about the selection of vulnerable victims was to
suggest that Pike fit the profile of an abuser based on his knowledge of daughter’s
preexisting PTSD, this testimony was inadmissible character evidence.
In sum, most of the evidence offered by the state’s expert was properly admitted to
help the jury understand daughter’s behavior, demeanor, and delay in reporting. Pike has
met his burden, however, to show that the prosecuting attorney plainly erred by eliciting
expert testimony about a typical abuser’s manipulation of siblings and selection of
vulnerable victims.6

6 We note that the state argues: “An expert on child sexual abuse cannot fully explain the
counterintuitive behaviors of child sexual abuse victims without at least referring to the
actions and statements of the abuser that are integral to the often-p uzzling behaviors of
child victims.” This is a valid point. We do not imply by our ruling that no expert testimony
may be offered regarding an abuser’s conduct where the evidence is otherwise relevant to
explain the victim’s behavior.
15
B. Prejudice
Under the modified plain-error standard, the state has the burden to show that the
prosecuting attorney’s misconduct did not affect Pike’s substantial rights. Portillo,
998 N.W.2d at 251. Prosecutorial misconduct affects a defendant’s substantial rights “if
there is a reasonable likelihood that the absence of misconduct would have had a significant
effect on the jury’s verdict.” State v. Davis, 735 N.W.2d 674, 681- 82 (Minn. 2007). To
determine “whether there is a reasonable likelihood that the absence of the misconduct
would have had a significant effect on the jury’s verdict,” appellate courts consider (1) “the
strength of the evidence against the defendant,” (2) “the pervasiveness of the improper
suggestions,” and (3) “whether the defendant had an opportunity to (or made efforts to)
rebut the improper suggestions.” Id. at 682.
Pike argues that “the state cannot demonstrate that its introduction of [the]
inadmissible evidence did not affect Pike ’s substantial rights” because this “is not a case
where the evidence of guilt is overwhelming. ” Rather, Pike urges that this was “a close
case in which credibility was the central issue” and that “the jury received improper
evidence bearing on that issue that portrayed Pike as the type of person who would commit
the charged crime.” The state disagrees, arguing that the expert’s testimony about
manipulation was not prejudicial because it “constituted a small percentage of the
evidence,” the prosecuting attorney did not mention manipulation in his closing argument
or rebuttal, and the “evidence against [Pike] was strong.”
We analyze each of the three considerations detailed above. See Davis, 735 N.W.2d
at 682. First, the evidence against Pike was strong. Although the victim’s testimony in a
16
criminal-sexual-conduct case “need not be corroborated,” Minn. Stat. § 609.347, subd. 1
(2022), daughter’s testimony was corroborated. Daughter testified that in November or
December 2019, Pike “used his fingers to penetrate [her] vagina.” Her testimony was
corroborated by her CornerHouse interview in May 2020, during which she stated that Pike
had touched her “crotch” between November and December 2019. See State v. Garrett,
479 N.W.2d 745, 747 (Minn. App. 1992) (determining that a sexual-assault victim’s
testimony was corroborated by her consistent prior statements), rev. denied (Minn.
Mar. 19, 1992).
Daughter’s testimony was also corroborated by the testimony of other witnesses
who described her changed demeanor and behavior following the alleged abuse. See State
v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004) (stating that testimony about a victim’s
“demeanor, emotional condition, and change in behavior after the sexual assault . . . is
strong corroborative evidence”), rev. denied (Minn. June 29, 2004). Daughter’s therapist
testified that daughter “got more depressed” and “started to backslide quite a bit.” Cynthia
testified that daughter harmed herself by cutting her arms at a friend’s house. Daughter’s
second foster mother testified that after being removed from the Pikes’ home, daughter at
first barricaded her door at night and refused to be left alone with her second foster father
or brother. Daughter’s second foster mother also testified that, when daughter tried to tell
her about the sexual-abuse incident, daughter vomited, could not look at her second foster
mother, and was not able to “get through all of it.”
Second, the expert evidence about manipulation was only a small part of the state’s
case. The expert’s testimony about manipulation covered about six of the 60 pages of her
17
testimony. See State v. Cao, 788 N.W.2d 710, 718 (Minn. 2010) (concluding that
prosecutorial misconduct was not prejudicial and noting that “the prosecutor’s statement
was not pervasive” where it “cover[ed] three lines of a 15-page closing argument); Davis,
735 N.W.2d at 682 (determining the prosecuting attorney’s misconduct did not affect the
defendant’s substantial rights where “the prosecutor’s improper suggestions were not
pervasive, covering less than one of the 64 pages of the transcript”). And the expert was
only one of the state’s ten witnesses. But see Obeta, 796 N.W.2d at 289 (recognizing that
“an expert with special knowledge has the potential to influence a jury unduly” (quotation
omitted)).
In addition, the prosecuting attorney mentioned manipulation only briefly in closing
argument. The prosecuting attorney stated that, after daughter disclosed Pike’s sexual
abuse to Cynthia, “instead of being supported, [daughter] was shunned by the family,
including her own siblings because of the manipulation of that.” The prosecutor’s one-time
mention of “manipulation” was vague, brief, and did not reference Pike. See State v.
Jackson, 773 N.W.2d 111, 123 (Minn. 2009) (stating that the prosecuting attorney’s
improper statement in closing argument was “brief” and determining that “any potential
[prosecutorial] misconduct was harmless beyond a reasonable doubt”).
Third, after the expert’s testimony, Pike had the opportunity to rebut any implication
that he engaged in manipulation by cross-examining the expert and the fact witnesses who
testified that daughter’s PTSD predated the sexual abuse and that daughter’s siblings
shunned her after she reported the abuse. When cross-examining the expert, Pike’s attorney
referenced manipulation only once, asking, “Is [manipulation] always present in
18
allegations of sexual assault?” The expert responded, “No.” Pike also chose to testify and
call witnesses in his defense. And his attorney had the opportunity to respond to the
prosecuting attorney’s closing argument.
Thus, the state has met its burden to show that the prosecuting attorney’s misconduct
did not affect Pike’s substantial rights. As a result, we decline to consider the final prong
of the modified plain -error standard —whether the prose cuting attorney’s misconduct
should be addressed to ensure fairness and the integrity of the judicial proceedings. See
Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011) (stating that, if an appellate court
determines “that any one of the [plain-error] requirements is not satisfied, [it] need not
address any of the others”).
II. The district court erred by entering convictions for both first- and
second-degree criminal sexual conduct.

Pike argues that “the district court erred by entering convictions for first-degree
criminal sexual conduct and the lesser-include d offense of second-degree criminal sexual
conduct.” The state agrees that the district court erred by adjudicating Pike guilty of
second-degree criminal sexual conduct.
The jury found Pike guilty of one count of first-degree criminal sexual conduct and
one count of second- degree criminal sexual conduct. At sentencing, the district court
sentenced Pike to 172 months in prison for first-degree criminal sexual conduct. The
19
district court then stated that the jury’s guilty verdict on second- degree criminal sexual
conduct was “recorded and adjudicated” but that there would be “no sentence imposed.”7
While the warrant of commitment indicates that Pike was sentenced only for one
count of first-degree criminal sexual conduct, he was convicted of both first- and
second-degree criminal sexual conduct. Under Minn . Stat. § 609.04, subd . 1 (2018), a
defendant may not be convicted of both the crime charged and “an included offense.” “I f
the lesser offense is a lesser degree of the same crime or a lesser degree of a multi- tier
statutory scheme dealing with a particular subject, then it is an ‘included offense’” under
section 609.04. State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995). The supreme court
has stated that Minn. Stat. § 609.04, subd. 1, precludes a defendant from being “convicted
of two counts of criminal sexual conduct (different sections of the statute or different
subsections) on the basis of the same act or unitary course of conduct.” State v. Folley ,
438 N.W.2d 372, 373 (Minn. 1989). Whether an offense is a lesser included offense of a
charged crime is legal question that appellate courts review de novo. State v. Cox,
820 N.W.2d 540, 552 (Minn. 2012).
A defendant is guilty of first-degree criminal sexual conduct if they “engage[] in
sexual penetration with another person , or in sexual contact with a person under 13 years

7 The district court referred to Minn. Stat. § 609.035, subd. 1 (2018), which provides that,
“if a person’s conduct constitutes more than one offense under the laws of this state, the
person may be punished for only one of the offenses.” This section “generally prohibits
multiple sentences, even concurrent sentences, for two or more offenses that were
committed as part of a single behavioral incident.” State v. Ferguson, 808 N.W.2d 586,
589 (Minn. 2012) (quotation omitted). Pike does not contend that section 609.035 applies
here.
20
of age” and “the complainant is under 13 years of age and the [defendant] is more than 36
months older than the complainant.” Minn. Stat. § 609.342, subd. 1(a). A defendant is
guilty of second- degree criminal sexual conduct if they “engage[] in sexual contact with
another person” and “the complainant is under 13 years of age and the [defendant] is more
than 36 months older than the complainant.” Minn. Stat. § 609.343, subd. 1(a). Thus,
second-degree criminal sexual conduct is a lesser included offense of first-degree criminal
sexual conduct. See State v. Kobow, 466 N.W.2d 747, 751 (Minn. App. 1991) (stating that
second-degree criminal sexual conduct is a lesser included offense of first-degree criminal
sexual conduct), rev. denied (Minn. Apr. 18, 1991).
“[T]he procedure a district court should follow when a defendant is convicted of a
charged offense and a lesser-included offense is to adjudicate formally and impose
sentence on one count only.” Petersen v. State, 937 N.W.2d 136, 140 (Minn. 2019)
(quotation omitted). Thus, we reverse and remand to the district court to vacate Pike’s
conviction for second- degree criminal sexual conduct, leaving in place the jury’s guilty
verdict on this count.
Affirmed in part, reversed in part, and remanded.