State of Minnesota v. Nathan A Wabasha

This opinion is nonprecedential except as provided by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
A25-1097

State of Minnesota,
Respondent,

vs.

Nathan A Wabasha,
Appellant.

Filed August 24, 2026
Affirmed in part, reversed in part, and remanded
Reilly, Judge*

Redwood County District Court
File No. 64-CR-23-446, 64-CR-23-906

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

Shannon M. Ness, Redwood County Attorney, Redwood Falls, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal- Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ede, Presiding Judge; Worke, Judge; and Reilly, 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NONPRECEDENTIAL OPINION
REILLY, Judge
In this direct appeal following the district court’s final judgment of conviction for
seven counts of first-degree criminal sexual conduct and one count of third-degree criminal
sexual conduct, appellant argues that the district court (1) abused its discretion by admitting
the victim’s recorded forensic interviews under Minnesota Rule of Evidence 807; and
(2) erred by entering multiple convictions for first-degree criminal sexual conduct, which
were included offenses of his conviction for committing multiple acts over an extended
period of time. We affirm appellant’s convictions of third-degree criminal sexual conduct
and first-degree criminal sexual conduct (multiple acts over time), but we reverse and
remand for the district court to vacate appellant’s convictions for counts one through six,
which were included in the offense of committing multiple acts over an extended period of
time.
FACTS
In June 2023, when she was no longer living with her father and mother, M.W. told
her school social worker that she had been sexually assaulted by her father, appellant
Nathan A Wabasha. As a mandated reporter, the social worker informed social services of
the allegations. M.W. then participated in a CornerHouse- style forensic interview at
Child’s Place.
1 During the interview, M.W. disclosed that, after seeing Wabasha at a local

1 “CornerHouse is a private independent agency that interviews victims of alleged child
abuse who are referred from child protection and law enforcement.” State v. Goldenstein,
505 N.W.2d 332, 337 (Minn. App. 1993), rev. denied (Minn. Oct. 19, 1993).

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powwow, she went to her uncle’s house where Wabasha was living to get money from
Wabasha. According to M.W., Wabasha pushed her down on a bed, pulled her pants down,
kissed her from her ankles to her waist, and reached under her bra and touched her breasts.
Respondent State of Minnesota charged Wabasha on July 7, 2023, with fourth-
degree criminal sexual conduct in file number 64- CR-23-446. M.W. subsequently
participated in a second forensic interview at Child’s Place in October 2023. During that
interview, M.W. disclosed that Wabasha began sexually abusing her when she was five
years old and recalled several specific instances of abuse when she was between the ages
of five and ten years old. According to M.W., the abuse was “routine,” and included or al
sex and vaginal penetration. M.W. also stated that Wabasha sometimes made her watch
pornography, including child pornography, and recalled an incident when Wabasha
inserted a pink sex toy shaped like a penis in her vagina. Finally, M.W. alleged that the
last incident of abuse occurred after the powwow in June 2023, when Wabasha put his
penis in her vagina when they were in her uncle’s basement.
After the October 2023 forensic interview, the state charged Wabasha with seven
counts of first-degree criminal sexual conduct in file number 64-CR-23-906. The state also
amended the complaint in file number 64 -CR-23-446 to third-degree criminal sexual
conduct. The two files were later joined for trial.
At trial, the state called M.W. as its first witness. At the beginning of her testimony,
M.W., who was almost 18 years old at the time of trial, repeatedly stated that she wanted
“to go home,” and that she did not want to testify. But when she gained her composure,
M.W. testified that she grew up on the Lower Sioux Indian Reservation where she lived

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with Wabasha and her mother. M.W. testified that, in June 2023, after going to a powwow,
she met Wabasha at her uncle’s house to “get money” from Wabasha but claimed that she
could not remember what happened next. The prosecutor then asked M.W. about a
statement she made during the forensic interviews, to which defense counsel objected
because the interviews had not been admitted into evidence. After a lengthy sidebar, in
which the prosecutor acknowledged that it “took [M.W.] an hour” to get to the stand, the
district court determined that it would allow the prosecutor to ask M.W. “leading
questions.”
When the prosecutor resumed examining M.W., she claimed that she could not
remember many of the details of the sexual abuse she had described in her forensic
interviews. But through leading questions, M.W. was able to testify to several times when
Wabasha had sexual contact with her, including penetration. Although M.W. sometimes
claimed that she could not remember details, she agreed that she told the forensic
interviewer more details about the sexual abuse. And M.W. admitted that the abuse was
“routine,” that Wabasha made her watch pornography, including child pornography, and
inserted a “pink shaped penis inside” of her.
During the forensic interviewer’s testimony, the state sought to admit the forensic
interviews. Over Wabasha’s objection, the district court admitted the forensic interviews
under Minnesota Rule of Evidence 807. The interviews, which total almost three hours,
were then played for the jury.
Wabasha testified in his defense and denied sexually abusing M.W. The jury found
Wabasha guilty as charged. The district court entered convictions on all eight counts in

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both district court files and imposed a presumptive 201-month prison sentence for count
seven of the complaint in file number 64-CR-23-906, and a concurrent presumptive prison
sentence of 59 months for the third-degree offense charged in file number 64- CR-23-446.
This appeal follows.
DECISION
I. The district court did not abuse its discretion in admitting the forensic
interviews under Minnesota Rule of Evidence 807.

Wabasha argues that the district court abused its discretion by admitting M.W.’s
Child’s Place interviews under Minnesota Rule of Evidence 807. Such a ruling is reviewed
for an abuse of discretion. See State v. Fravel, 34 N.W.3d 309, 319 (Minn. 2026). “A
district court abuses its discretion when its decision is based on an erroneous view of the
law or is against logic and the facts in the record.” Id. (quotation omitted). To obtain
reversal based on an objected-to evidentiary error that does not implicate a constitutional
right, an appellant “must prove that there is a reasonable possibility that the wrongfully
admitted evidence significantly affected the verdict.” State v. Peltier, 874 N.W.2d 792,
802 (Minn. 2016) (quotation omitted).
Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Minn. R. Evid. 801(c). A hearsay statement “is not admissible” unless it fits into an
exception to the hearsay rule. Minn. R. Evid. 802. There are many enumerated exceptions
to the rule against hearsay. See, e.g., Minn. R. Evid. 801(d), 803-804. And, if a statement

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is not covered under a specific hearsay exception, it still may be admitted under the
“residual exception” found in Minnesota Rule of Evidence 807.
Wabasha argues that the “forensic interviews were inadmissible under the residual
exception to the hearsay rule” and the erroneous admission of the “forensic interviews was
prejudicial and requires a new trial.” We disagree. The residual exception to the hearsay
rule states:
A statement not specifically covered by Rule 803 or 804
but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.

Minn. R. Evid. 807.
To determine whether to admit a hearsay statement under rule 807, the district court
conducts a two-step analysis. State v. Hallmark, 927 N.W.2d 281, 292 (Minn. 2019).
“First, the district court must look at the totality of the circumstances to determine whether
the hearsay statement has circumstantial guarantees of trustworthiness.” Id. (quotations
omitted). Second, it must determine whether requirements (A) through (C) listed in rule
807 are met. Id. at 293. If the district court evaluates some, but not all, aspects of rule 807,
appellate courts may independently review the record to determine whether the statement
at issue is admissible under the rule. See id. at 294-97.
Wabasha argues that the forensic interviews were inadmissible under the residual-
hearsay exception because (A) “M.W.’s forensic interviews lacked circumstantial

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guarantees of trustworthiness”; and (B) “[t]he enumerated requirements of Minn. R. Evid.
807 were not met.” We address these arguments in turn.
A. Circumstantial Guarantees of Trustworthiness
When determining whether a statement has circumstantial guarantees of
trustworthiness, courts generally consider four factors, known as the Ortlepp factors.
Id. at 292-93; see also State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). These factors
are whether (1) there is a Confrontation Clause issue, (2) “the statement is recorded,
removing any real dispute about what the declarant said,” (3) “the statement is against the
declarant’s penal interest,” and (4) the statement is consistent with other evidence “pointing
strongly toward” guilt. Hallmark, 927 N.W.2d at 293; see also Ortlepp, 363 N.W.2d at 44.
But, as the supreme court has explained, since Ortlepp, “the Ortlepp factors are not
exclusive and merely represent an application of the totality of the circumstances approach
to satisfy the equivalent circumstantial guarantees of the trustworthiness element of the
residual hearsay exception.” Hallmark, 927 N.W.2d at 293 (internal quotations and
citation omitted).
Since deciding Ortlepp, the supreme court has noted additional relevant factors,
including whether the statement was made voluntarily; whether it was made under oath
and subject to cross-examination; the declarant’s motivation for making the statement,
relationship to the parties in the litigation, and personal knowledge of the statement;
whether the declarant recanted; whether there is corroborating evidence; and the
declarant’s reputation for honesty. State v. Vangrevenhof, 941 N.W.2d 730, 736 (Minn.

8
2020) (explaining that the Ortlepp factors are nonexclusive and are merely meant to
represent the totality of the circumstances).
And in State v. Ahmed, this court identified relevant factors for evaluating the
trustworthiness of statements by children about abuse:
In child-abuse cases, these circumstances include whether the
statement was spontaneous, whether the questioner had a
preconceived idea of what the child should say, whether the
statement was in response to leading questions, whether the
child had any apparent motive to fabricate, whether the
statements are of the type one would expect a child of that age
to fabricate, whether the statement remained consistent over
time, and the mental state of the child at the time of the
statements.

782 N.W.2d 253, 260 (Minn. App. 2010). This court considered these factors in
determining that the district court did not abuse its discretion in admitting testimony from
a three-year-old victim’s grandmother that the victim told her that the defendant caused his
injuries. Id. at 260-61.
In the second forensic interview, M.W. disclosed that, when she was five years old,
Wabasha put his fingers in her vagina while she was lying next to Wabasha on a couch in
their living room. M.W. also recalled two incidents in her parents’ bedroom when she was
about six years old when Wabasha put his penis in her vagina and was going “like up and
down.” In addition, M.W. recalled two incidents when she was about eight years old; in
one incident, Wabasha put his penis in her vagina and then pulled it out, spit on his penis,
and showed her how to move her hands up and down on it. And M.W. claimed that, in the
other incident, Wabasha put his penis in her mouth and told her “to act like it’s a sucker
and don’t bite.” M.W. further recalled an incident when she was about ten years old, when

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Wabasha put his penis in her vagina when she was sleeping in the same bed with her parents
and her mother was asleep. Finally, M.W. recalled an incident with a sex toy, and alleged
that the last incident of abuse occurred after the powwow in June 2023, when Wabasha put
his penis in her vagina when they were in her uncle’s basement.
In determining that the forensic interviews were admissible under the residual-
hearsay exception, the district court found that the statements were recorded and made to
a trained professional. The district court also found that “the initial disclosures were
spontaneous and were to open-ended questions.” In addition, the district court found that
the statements were made to a professional who “was uncertain of the specifics of the
allegations, only that they were general in the nature of sexual assault or sexual touching.”
And the district court found that there were “no inconsistencies of what was disclosed,”
that M.W.’s “basic story remain[ed] unchanged,” and that there was “nothing about
[M.W.’s] mental state, which from the stand and in the video that gives the Court pause
that the [s]tatements . . . were not reliable.”
Wabasha argues that the district court erred in admitting the forensic interviews
because it “narrowly focus[ed ] on the Ahmed factors to the exclusion of other, more
relevant factors regarding circumstantial guarantees of trustworthiness.” To support his
position, Wabasha points out that Ahmed, and the cases the court relied on in that case,
involved out-of-court-statements made in an uncontrolled environment. Wabasha asserts
that, in contrast, the statements here “involved a controlled forensic interview by a
professional trained in specific protocols for interviewing children.” Wabasha argues that,
because the statements here were made in a controlled environment, the factors set forth in

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Ahmed “have little bearing on whether an out-of-court statement is trustworthy.” Wabasha
contends that the district court, instead, should have focused on the facts that the
“interviews were unsworn, uncontested, uncorroborated by physical evidence, and
inconsistent with M.W.’s trial testimony.”2
Wabasha’s argument is unpersuasive. Wabasha cites no authority stating that the
factors set out in Ahmed are not relevant for times when the statements were made in a
controlled environment. And not all factors have to be met in order to find that a statement
is sufficiently trustworthy under the totality-of-the-circumstances test. See, e.g., Hallmark,
927 N.W.2d at 293. Rather, the supreme court has emphasized that the totality-of-the -
circumstances test “requires a careful balancing of all relevant circumstances surrounding
the making of the statement,” and the court must “look[] to all relevant factors bearing on
trustworthiness.” Id. 292-93 (emphasis added and quotation omitted).
Based on our review of all the relevant factors, we discern no abuse of discretion in
the district court’s determination that M.W.’s statements in the forensic interviews have
circumstantial guarantees of trustworthiness. As for the Ortlepp factors, there is no
Confrontation Clause issue because M.W. testified at trial and was subject to cross-

2 The state argues that Wabasha’s argument is not properly before this court because he did
not make this specific “argument in the district court.” Indeed, appellate courts generally
consider only issues that were presented to and considered by the district court.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But as Wabasha points out in his reply
brief, “his legal theory has remained the same [throughout this case]: M.W.’s forensic
interviews were not admissible under” rule 807. And although Wabasha’s argument on
appeal may be more specific, forfeiture does not apply when a party “has simply refined
[their] arguments” on appeal. State v. Woolridge Carter, 9 N.W.3d 839, 842 n.3 (Minn.
2024). We therefore conclude that Wabasha’s arguments are properly before us.

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examination. Nor is there any dispute as to what M.W. said because her statements were
recorded. Although the statements were not against M.W.’s penal interests, the statements
were consistent with other evidence pointing strongly toward guilt. This evidence
consisted of M.W.’s reluctant testimony of multiple instances of sexual abuse. And
M.W.’s testimony tended to be corroborated by multiple witnesses and evidence, including
evidence that a sex toy described by M.W. was found at Wabasha’s house. As a result, the
Ortlepp factors support the trustworthiness of M.W.’s statements in the forensic interviews.
Similarly, other factors discussed by the supreme court favor the trustworthiness of
the statements. See Vangrevenhof, 941 N.W.2d at 736. These factors include: (1) the
voluntariness of M.W.’s statements; (2) M.W. was subject to cross- examination, despite
defense counsel’s understandable decision not to vigorously cross-examine M.W.;
(3) M.W. was Wabasha’s daughter, who testified that she loved her father and showed
reluctance to testify against him, but testified that she just wanted the abuse to stop;
(4) despite appellant’s claim to the contrary, M.W. did not recant her statements, but
claimed that she did not remember making some of the statements; and (5) a lack of
evidence in the record establishing M.W.’s character for untruthfulness and dishonesty.
Finally, as we addressed above, the district court evaluated the Ahmed factors, which
this court stated were particularly relevant to child sexual-abuse cases. See Ahmed, 782
N.W.2d at 260. In considering these factors, the district court emphasized that the
individual who conducted the forensic interviews was an experienced professional who
was trained in the CornerHouse style of interviews. And the district court found that the
interviewer followed CornerHouse protocol by using drawings and conducting multiple,

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recorded, “child led,” interviews. Although there may be factors that weigh against the
trustworthiness of the challenged statements, such as the fact that the interviews were
unsworn and uncontested, not all factors must be met in order to find that a statement is
sufficiently trustworthy under the totality-of- the-circumstances test. See, e.g., Hallmark,
927 N.W.2d at 293.
In sum, the district court made thoughtful, detailed findings consistent with the facts
in the record. It also considered a multitude of factors established by caselaw. Under these
circumstances, Wabasha has not shown that the district court abused its discretion in
determining that M.W.’s statements in the forensic interview s had circumstantial
guarantees of trustworthiness.
B. Enumerated Requirements of Rule 807
Wabasha also contends that the “enumerated requirements of Minn. R. Evid. 807
are not met.” These requirements are that (1) “the statement is offered as evidence of a
material fact,” (2) “the statement is more probative on the point for which it is offered than
any other evidence” procurable “through reasonable efforts” by the proponent, and (3) the
general purpose behind the Minnesota Rules of Evidence and the interests of justice are
served by the admission of the statement into evidence. Minn. R. Evid. 807.
The district court found that the statements were offered as “a material fact,” are
“more probative than other possible evidence,” and are “consistent” with “M.W.’s
testimony.” And the district court found that the admission of the interviews would serve
the interests of justice.

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Wabasha “agrees that M.W.’s forensic interviews were evidence of facts material
to the case.” But Wabasha argues that the second enumerated requirement of rule 807 was
not satisfied because “the interviews were not the most probative: M.W.’s testimony was.”
Wabasha’s argument is unpersuasive because, as the state points out, Wabasha’s
contention “ignores the fact that the standard is not simply whether the forensic interviews
were the ‘most probative’ evidence but rather whether the statements are more probative
than any other evidence procurable through reasonable efforts by the State.” Although
M.W.’s testimony would generally be more probative of whether she was sexually abused,
when the state called her to testify, she was unable or unwilling to recall many details she
provided in the forensic interview s. Under these circumstances, the probative value of
M.W.’s testimony was diminished. Thus, the forensic interviews were the most probative
evidence procurable through reasonable efforts by the state.
Wabasha further argues that the third enumerated requirement of rule 807 was not
met because “the majority of the state’s evidence against [him] did not come from M.W.’s
live testimony; instead, it came from nearly three hours of forensic interviews, the
credibility of which could not be effectively challenged.” But because M.W. testified at
trial and was subject to cross-examination, Wabasha had the opportunity to challenge her
credibility. The supreme court has also stated that the general purpose of the third
enumerated requirement of rule 807 “is to secure fairness and to promote the growth and
development of the law of evidence to the end that the truth may be ascertained and the
proceedings justly determined.” Vangrevenhof, 941 N.W.2d at 739 (quotation omitted).
The admission of the forensic interviews satisfied this purpose because, when testifying in

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front of her father, M.W. expressed reluctance to testify and claimed she could not
remember details of the sexual abuse. Under these circumstances the third enumerated
requirement of rule 807 is satisfied. Wabasha has thus not shown that the district court
abused its discretion in admitting the forensic interviews under rule 807.
II. The district court erred by enter ing convictions on all seven first-degree
criminal-sexual-conduct offenses.

Wabasha argues that the district violated Minn. Stat. § 609.04, subd. 1 (2024), by
entering convictions on all seven first -degree criminal-sexual-conduct offenses of which
he was found guilty. This argument presents a legal question that we review de novo.
State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
An offender “may be convicted of either the crime charged or an included offense,
but not both.” Minn. Stat. § 609.04, subd. 1. An included offense is, among other things,
“a crime [that is] necessarily proved if the crime charged were proved.” Id., subd. 1(4).
Thus, a district court cannot enter judgments of conviction for “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).
Wabasha was charged with seven first- degree criminal-sexual-conduct offenses
between January 2012 and June 2023. Counts one through six alleged first-degree criminal
sexual conduct—penetration-victim under the age of 16-significant relationship and count
seven alleged first-degree criminal sexual conduct—penetration- victim under the age of
16-significant relationship-multiple acts over time. All six individual-acts offenses were
alleged to have been committed during the same time frame alleged by the multiple-acts-

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over-time offense. After the jury found Wabasha guilty as charged, the district court
entered convictions on all seven first-degree criminal-sexual conduct offenses. But the
district court sentenced Wabasha only on count seven.
Wabasha argues that, because counts one through six are included in count seven,
which involved “multiple acts over an extended period of time,” counts one through six
should be vacated. The state “agrees” that counts one through six should be vacated.
Indeed, count seven was based on proof that, over an extended period, Wabasha engaged
in multiple acts of sexual penetration or sexual contact with a victim under 16 years old
while he was in a position of authority. See Minn. Stat. § 609.342, subd. 1(h)(iii) (2010).
Counts one through six are included offenses because they are based on proof that Wabasha
engaged in at least one act of the same conduct during the same time frame that supports
the conviction under count seven. See Minn. Stat. § 609.342, subd. 1(g) (2010). Because
counts one through six consist of the same acts that comprise the multiple-acts count, we
agree that they are included offenses of count seven, and the district court erred in entering
convictions on counts one through six. See Folley, 438 N.W.2d at 373 (holding that the
defendant was improperly convicted of two counts of first-degree criminal sexual conduct
“based on the same evidence and the same acts, all of which occurred before complainant
turned 13”). Accordingly, we leave the jury’s verdicts intact, but we reverse and remand
in part for the district court to vacate Wabasha’s convictions for counts one through six.
See id. (remanding for the district court to vacate one of two convictions of criminal sexual
conduct when both were based on the same evidence of the same acts).
Affirmed in part, reversed in part, and remanded.