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This opinion is nonprecedential except as provided by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
A25-1141

State of Minnesota,
Respondent,

vs.

Alex Brody Nettestad,
Appellant.

Filed July 27, 2026
Affirmed in part, reversed in part, and remanded
Ross, Judge

Otter Tail County District Court
File No. 56-CR-23-558

Keith Ellison, Attorney General, Timothy C. Rank, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Jesson ,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
ROSS, Judge
A jury found Alex Nettestad guilty on three counts of first -degree criminal sexual
conduct for penile-vaginal penetration, penile -oral penetration, and sexual penetration of a
minor based on his alleged repeated assaults on his seven-year-old half-sister. In this
appeal, we must decide whether the district court acted within its discretion by redacting
only Nettestad’s name from portions of the victim’s medical records in which medical
personnel “confirmed” “[c]hild sexual abuse” and by excluding a witness whose testimony
would have conflicted with the victim’s statement about whether she had visited Nettestad
in college after the abuse. We must also decide whether statements t he prosecutor made
during closing argument constituted reversible misconduct and whether the district court
erred by sentencing Nettestad on two of the counts when one was a n included offense of
the other. We hold that the district court’s improper failure to redact the prejudicial
opinions from the victim’s medical records did not affect the guilty verdict , and the other
trial-error arguments fail. But we also hold that one of the assault offenses is a n included
offense of another. We therefore affirm in part, reverse in part, and remand for
resentencing.
FACTS
The state charged Alex Nettestad with three counts of first -degree criminal sexual
conduct in violation of Minnesota Statutes section 609.342, subdivisions 1(a) and 1(h)(iii)
(2014). The complaint followed a report alleging that Nettestad had assaulted his half-sister
in November 2015 when she was seven years old and that he committed multiple acts of
3
sexual penetration over an extended period. We will refer to his half-sister as “Lerna,” a
name we have randomly chosen to protect her privacy.
Both the state and Nettestad sought to admit into evidence Lerna’s medical records
from three appointments in December 2015 and January 2016. A sexual assault nurse
evaluator (SANE) wrote the second report and indicated Lerna’s “Final Diagnoses” as
“Child sexual abuse, confirmed, initial encounter.” The report includes a progress note
from Dr. Scott Stephens stating that he “personally reviewed the case with the nurse who
completed the exam” and “agree[s] with all of the findings as expressed in the [nurse’s]
written note .” The final report states multiple times that another healthcare provider
referred Lerna for further treatment over “concerns of sexual abuse.”
Nettestad moved the district court in limine to redact any “references to ‘sexual
abuse,’ ‘sexual assault’ or other such sexual behavior” and prohibit any medical witnesses
from testifying that Lerna “was sexually abused.” The district court denied Nettestad’s
motion regarding the medical witnesses’ opinions.
Nettestad disclosed that he intended to call his ex -girlfriend as a witness to testify
that Lerna visited him after he moved to Fargo , impeaching Lerna’s statements in a 2022
forensic interview that she feared Nettestad. The state successfully moved the district court
in limine to prohibit this testimony on the ground that the witness lacked personal
knowledge of Lerna’s relationship with Nettestad.
The state prosecuted the case at trial on the theory that Nettestad sexually assaulted
Lerna, who was 16 years old at the time of trial, in an episode of penile-vaginal and penile-
oral penetration first in late 2015 when she was seven years old . The state emphasized that
4
Lerna’s medical records corroborated the assault. It maintained that the abuse continued
until 2017 when Nettestad moved to attend college in Fargo. Nettestad defended on the
theory that he never sexually assaulted Lerna and that her medical history explains her
vaginal injuries.
Lerna testified that Nettestad sexually assaulted her at their grandparents’ ho me in
late 2015 by orally and vaginally penetrating her with his penis. She then told her mother
that she was experiencing vaginal pain, and her mother took her to a series of medical
appointments. Lerna testified that Nettestad continued assaulting her on weekends when
she would visit her grandparents’ home and that the assaults continued until he moved
away to attend college. She said that she later told a friend about the abuse in Snapchat
messages, which the state introduced into evidence. The state also introduced September
2022 text messages in which this friend told Lerna’s mother about Lerna’s allegations.
Lerna testified that she then came forward with her allegations.
Lerna stated on cross -examination that , after the assault, she was “[s]ometimes”
scared of Nettestad. Bu t the district court sustained the state’s objection to Nettestad ’s
questioning her about visiting him after he moved away while she was still a young child
unless he established that, at the time, Lerna was capable of traveling to Fargo by herself.
The district court said that Nettestad could ask another witness, including Lerna’s mother,
to establish that foundation for this line of questioning.
The state also introduced a video recording between Lerna and a child-protection
investigator in which Lerna describe d Nettestad’s sexual abuse. And the case manager
5
testified to a January 2024 meeting during which Lerna alleged that Nettestad assaulted her
more than once.
The state introduced the medical records through Emily Kalina, the nurse
practitioner who treated Lerna in December 2015. Kalina testified that she observed an
abrasion and bruising on Lerna’s labia minora and vulva and scratches on her back and
neck. The state showed the jury photographs of Lerna’s vagina that the SANE nurse took
during two of the appointments, and Kalina testified that these photo graphs d epicted the
injuries that she observed. Kalina also testified that a “wet prep” showed the presence of
clue cells indicat ing bacterial vaginosis, the greatest risk factor for which is sexual
intercourse. On cross -examination, Kalina testified that Lerna’s mother reported seeing
Lerna scratch her vagina but that bruising to the labia minora “usually” results instead from
force. She clarified that it is possible but highly unlikely that a prepubescent girl could
contract bacterial vaginosis without sexual contact.
Nettestad testified and flatly denied having engaged in any sexual contact with
Lerna. The defense introduced expert testimony of Dr. Kendra Thornton, a SANE nurse
and nursing professor. Dr. Thornton testified that prepubescent females may experience
bacterial vaginosis without sexual contact. She also testified that bruising outside the
vagina in a young girl can be caused by itching or holding herself to avoid urinating. Dr.
Thornton acknowledged on cross-examination that she is “a professional witness” who is
paid $325 hourly to testify or review case records. And she also acknowledged that she
sought out literature on bacterial vaginosis that would support Nettestad’s trial theory .
6
The state’s closing argument focused on witness credibility. The prosecutor argued
that Lerna must be a credible witness because coming forward with her allegations was
humiliating. The prosecutor emphasized that Lerna had to describe to investigators and the
jury “[a] private matter involving private parts of her body. She had to come here, tell you
what happened . . . . Her vagina, her seven-year-old vagina put on display.” The prosecutor
attacked Dr. Thornton’s credibility as partial:
She’s a professional witness. She’s paid $325 an hour to come
in and testify, however you want . . . . For $325 an hour, she
will testify inconsistently with medical records that she
provided her client . . . . $325 an hour does magical things for
people, even though they’ve got medical research and medical
records that they provide in front of them.
The prosecutor made similar remarks in his rebuttal, reiterating that “the $325 and a flight
from Texas to Minnesota has [Dr. Thornton] saying different” from her literature and that
Lerna’s “vagina is now on display for the world. Her seven-year-old vagina.”
The jury found Nettestad guilty on all three counts. The district court sentenced him
to serve 172 months in prison on count one and 180 months on count three , to be served
concurrently. The district court did not adjudicate Nettestad guilty on count two.
Nettestad appeals.
DECISION
Nettestad raises four arguments challenging his conviction. He maintains that the
district court abused its discretion by admitting expert testimony opining that Lerna was
sexually assaulted and denying him the right to present a complete defense by prohibiting
a witness and cross -examination questions that may have impeached Lerna ’s statement
7
about fearing Nettestad . He also contends that the prosecutor’s remarks about Lerna’s
“seven-year-old vagina” and his expert witness constituted misconduct. And he contends
that the district court erred by convicting him of both counts one and three even though
count three is a lesser-included offense of count one. We address each argument in turn.
I
Nettestad convincingly argues that the district court abused its discretion by refusing
to redact from the medical records the SANE nurse and doctor’s conclusions that Lerna
was sexually abused . We review a district court’s decision to admit expert testimony for
an abuse of discretion, which occurs when its decision rested on an incorrect understanding
of the law or was contrary to the record and logic. State v. Garland, 942 N.W.2d 732, 742
(Minn. 2020). The evidence should have been redacted.
We believe that, without redaction, the evidence speaks to the ultimate legal issue.
Caselaw prohibits expert testimony on the ultimate legal issue of whether a sexual assault
occurred and demonstrates an abuse of discretion in this case. State v. Saldana, 324 N.W.2d
227, 231 (Minn. 1982) . The supreme court has held that the admission of an expert’s
opinion that “a rape in fact occurred” was erroneous because this “ was a legal conclusion
which was of no use to the jury.” Id. at 230–31. And it has “reaffirm[ed] [the] decision in
Saldana . . . that prohibits expert testimony about . . . the ultimate question of whether the
complainant was sexually assaulted. ” State v. Obeta, 796 N.W.2d 282, 294 (Minn. 2011).
The district court violated this holding by admitting the portions of Lerna’s medical records
that document medical experts’ opinion that she was the victim of “[c]hild sexual abuse”
or required certain forms of care because she was sexually abused.
8
We are unpersuaded by the state’s counterargument that Saldana stands only for the
narrow proposition that experts are prohibited only from testifying about “rape trauma
syndrome.” It is true that Saldana held that testimony on this “syndrome” is unreliable and
therefore inadmissible, but it additionally held that expert testimony on whether an assault
occurred concerns “a legal conclusion” that is therefore inadmissible. 324 N.W.2d at 229–
31. It is also true that the Obeta court cautioned that Saldana’s first holding had been
“misapplied” to exclude expert testimony on the behaviors typical of sexual -assault
survivors that, in contrast to “rape trauma syndrome,” would assist the jury by dispelling
misconceptions about sexual assault. 796 N.W.2d at 287, 290–91. It is clear to us that Obeta
endorsed Saldana’s alternative holding prohibiting expert testimony on “ the ultimate
question of whether the complainant was sexually assaulted.” Id . at 294. The district court
improperly failed to redact the evidence to comport with this prohibition.
But in this case, the district court ’s abuse of discretion by admitting the evidence
does not result in reversal. We will not reverse a conviction over erroneously admitted
evidence unless there is a “reasonable possibility” that this evidence “significantly affected
the verdict.” State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011) (quotation omitted) .
Four factors guide our analysis: (1) the state’s manner of presenting the evidence;
(2) whether the state used it in closing ; (3) whether the defendant effectively countered it ;
and (4) whether it was highly persuasive. State v. Ferguson, 581 N.W.2d 824, 833 (Minn.
1998). Strong evidence of the defendant’s guilt can also undermine the offending
evidence’s persuasiveness. State v. Bigbear, 10 N.W.3d 48, 54–55, 59 (Minn. 2024). Based
on these factors, we conclude that admitting the evidence does not require reversing.
9
The first factor favors upholding the conviction because the state made only passing
references to the opinions in its case in chief : once in its opening statement, twice in its
closing argument, and once in its examination of Kalina. The second factor similarly
weighs against reversing given these limited references and the state’s focus on Lerna’s
testimony and credibility. See id. at 59 (explaining that this factor weighs against reversing
when the state makes only brief references to the offending evidence in closing and focuses
on other elements of its case ). And the third factor also weighs against reversing because
Nettestad successfully relied on his own expert, who offered a reasoned, opposing medical
opinion to the jury. And for reasons we discuss below, we are not convinced to reach a
different conclusion based on Nettestad ’s contention that his expert’s testimony was
rendered ineffective because the state improperly disparaged it during its closing argument.
The fourth factor favors reversing because the medical stature of these witnesses
tends to gloss their l egal opinions with legitimacy. See Saldana, 324 N.W.2d at 231. But
this was counterbalanced with the state’s strong evidence of Nettestad’s guilt, including
Lerna’s testimony, the corroborating Snapchat messages, the forensic interview, and the
other, properly admitted information in the medical records. See State v. Juarez , 572
N.W.2d 286, 292–93 (Minn. 1997) (explaining that the persuasive value of erroneously
admitted evidence was undermined in a child -sexual-assault case where the child -victims
testified consistently at trial with their earlier statements to investigators and other adults).
And the impact of erroneously admitted testimony can be undermined when properly
admitted testimony establishes the same facts. State v. Smith, 940 N.W.2d 497, 506 (Minn.
2020). Kalina’s testimony provided independent and persuasive evidence that Lerna’s
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injuries resulted from a sexual assault rather than the causes proffered by Nettestad’s expert
witness. On balance, we conclude that no reasonable probability exists that th e improper
expert testimony substantially affected the jury’s verdict . We therefore decline to reverse
on this ground.
II
Nettestad less persuasively argues that the district court denied him his right to
present a complete defense by barring witness testimony and a line of cross -examination
that would have impeached Lerna’s statements that she was afraid of Nettestad after the
assault. The Due Process Clause of the United States Constitution and article I, section 7
of the Minnesota Constitution guarantee every criminal defendant the right to present a
complete defense. State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992). This includes the
“rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf.”
Chambers v. Mississippi , 410 U.S. 284, 294 (1973). And these rights generally entitle
defendants to impeach the credibility of the state’s witnesses. See State v. Crims , 540
N.W.2d 860, 865 (Minn. App. 1995), rev. denied (Minn. Jan. 23, 1996). We have carefully
considered Nettestad ’s argument and hold that the district court did not violate his rights.
The district court did not deny Nettestad a defense because it gave him sufficient
opportunity to present the impeachment evidence with proper foundation. Our reading of
the district court’s recounting the bench conference following the state’s objection to the
Fargo-visit issue convinces us that the district court did not foreclose Nettestad’s line of
questioning. It instead required Nettestad to make an offer of proof to establish that Lerna,
who was only a young child at that time and unlikely to travel to Fargo on her own,
11
participated meaningfully in the decision to visit him. The district court even suggested
that Nettestad could lay the foundation by examin ing Lerna’s mother, who was also a
witness in the trial. Nettestad did not avail himself of the opportunity. Because the district
court did not restrict Nettestad from presenting the defense, his argument fails.
III
Nettestad argues that the prosecutor engaged in misconduct during his closing
argument by capitalizing on juror sympathy for Lerna, punishing him for exercising his
trial right, and disparaging his expert witness to prejudicial effect. We review unobjected -
to prosecutorial error under a modified plain- error test. State v. Ramey , 721 N.W.2d 294,
302 (Minn. 2006). The defendant must prove that a prosecutor’s conduct was erroneous
and plain. Id. The state must then prove that this error did not affect the defendant’s
substantial rights. Id. If it cannot do so, a new trial is warranted only if necessary to preserve
judicial integrity and fairness. Id. Neither of N ettestad’s charges of misconduct supports
reversing.
Nettestad argues that the state’s repeated references to Lerna’s “seven -year-old
vagina” inappropriately capitalized on juror sympathy for a young sexual -assault victim
and encouraged the jury to punish him for going to trial. Prosecutors may not persuade the
jury using emotional appeals. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). This is
especially so in sexual-assault cases, where prejudice is most likely given the nature of the
alleged offense . State v. McN eil, 658 N.W.2d 228, 234 (Minn. App. 2003). Nor can
prosecutors encourage the jury to punish the defendant for demanding a trial . Id. at 235.
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The prosecutor’s remarks here came very close to the line and are saved, barely, only by
the context.
We see little probative value in reminding the jury about the fact of the victim’s
“seven-year-old vagina.” But prosecutors may argue for the credibility of witnesses so long
as they do not personally endorse their credibility. State v. Martin, 773 N.W.2d 89, 106
(Minn. 2009). We believe that the prosecutor’s comments were permissible in the context
of his entire argument as support for Lerna’s credibility. Lerna testified to Nettestad’s
sexual abuse, and the jury saw photographic records documenting the abuse. Emphasizing
the youth of her genitalia both undermines the likelihood that vaginal injuries had some
legitimate cause and emphasizes that Lerna was willing to be subjected to potentially
humiliating, invasive inspection by reporting her pain. See State v. Ture, 353 N.W.2d 502,
516 (Minn. 1984) (explaining that a prosecutor may identify circumstances corroborating
witness testimony when arguing for credibility). This distinguishes this case from McNeil,
which Nettestad argues is apposite, because that prosecutor’s inflammatory remarks that a
jury could not give the witness “back her virginity” but could “give her justice” and attacks
upon the defendant for putting her on the stand were unmoored from any legitimate
argument arising from the facts of that case. 658 N.W.2d at 235–36. Nettestad ’s counsel
referenced Lerna’s vagina extensively in closing arguments, demonstrating its centrality
and diluting any stirred passions. Again, this is a close call, but we conclude that the
challenged remarks were not prosecutorial error.
Nor were the prosecutor’s attacks on Dr. Thornton, which were grounded in her
testimony, impermissible. Prosecutors may argue against a defense witness’s credibility so
13
long as they do not disparage her character. State v. Bailey , 677 N.W.2d 380, 403–04
(Minn. 2004). They may argue that a witness is testifying for pay if the prosecutor has
grounds for the argument. State v. Schnagl, 907 N.W.2d 188, 203 (Minn. App. 2017), rev.
denied (Minn. Feb. 28, 2018). The statements that Nettestad ’s expert is a “professional
witness” who conducted c onfirmatory research for $325 an hour and who would testify
inconsistently with medical literature for payment are characterizations that, although
harsh, are factually consistent with the witness’s cr oss-examination. Dr. Thornton agreed
that she was a “professional witness,” admitted to accepting $325 hourly, and
acknowledged having sought out literature favorable to the defense . The prosecutor’s
argumentative attacks are not misconduct.
IV
Nettestad argues that the district court erred by convicting him of both counts one
and three because they encompass the same criminal sexual conduct in a single act . The
state rightly concedes the point. See Minn. Stat. § 609.04, subd . 1 (2014) (permitting
prosecution “of either the crime charged or an included offense, but not both” ). Because
the state explicitly incorporated the criminal act constituting count one into count three as
its “first incident ,” the district court should not have adjudicated (or, consequently,
sentenced) Nettestad on it as a lesser -included offense. We remand for it to vacate the
improper conviction and resentence Nettestad , leaving the guilty verdict intact .
Affirmed in part, reversed in part, and remanded.