This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0125

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                   Kelly Bruce Goggleye,
                                         Appellant

                                 Filed January 11, 2016
                    Affirmed in part, reversed in part, and remanded
                                      Worke, Judge

                               St. Louis County District Court
                                File No. 69DU-CR-14-1811

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St.
Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

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

         Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his first-degree criminal-sexual-conduct convictions, arguing

that: (1) the evidence insufficiently supports his convictions, (2) he was denied a fair trial
due to improper vouching testimony, and (3) he was improperly convicted of three counts

of first-degree criminal sexual conduct based on the same criminal act against the same

complainant. We affirm in part, reverse in part by vacating judgment of conviction as to

all but one count, and remand for resentencing.

                                        FACTS

      A.H. dated appellant Kelly Bruce Goggleye from August 2006 through February

2009. A.H. has two children, M.H. and R.C. M.H. turned four years old in late August

2006. In February 2013, Ashley Skadsem, a mental-health practitioner, began working

with A.H. and her children. During a therapy session on June 7, 2013, M.H. disclosed

that Goggleye raped her. Skadsem described M.H.’s demeanor as “sad, scared, confused,

[and] apologetic.”

      On June 14, 2013, Mary Ness, a social worker, interviewed M.H. M.H. stated that

Goggleye raped her in a brown house with white poles when she was four or five years

old. M.H. stated that Goggleye approached her when A.H. was gone, took off his

clothes, and explained that sex was “for people to basically put their penis and vagina

together” and that sex “was okay for [her] to do.” Goggleye attempted to have sex with

M.H. until she told him to “please stop” because it hurt. M.H. thought the incident

occurred in a bedroom, but she could not remember the exact room or what she was

wearing.

      M.H. accurately identified a penis and a vagina on two drawings. M.H. stated that

Goggleye’s penis looked like the boy’s penis in the drawing, “only bigger and hairier.”

Additionally, M.H. stated that Goggleye’s penis was pointed “kind of up.” M.H. stated


                                            2
that Goggleye raped her multiple times, in different locations, but she was afraid to tell

A.H. because she did not want to cause more stress. M.H. thought that sperm came out

of Goggleye’s penis, and she described what it felt like. When asked what happened

after Goggleye ejaculated, M.H. said that she “jump[ed] or move[d] away [be]cause [she]

didn’t like it.” M.H. stated that Goggleye might have touched her butt with his penis and

his hands.

      M.H. also received therapy from psychotherapist Alex Ross. M.H. told Ross that

Goggleye took her clothes off and had sex with her. M.H. stated that Goggleye put gel

on her vagina and put his finger in her vagina. M.H. also told Ross that Goggleye “would

rub his penis between her buttocks and then make her lie on top of him and his sperm

would come.”

      On June 4, 2014, the state charged Goggleye with three counts of first-degree

criminal sexual conduct.1    A jury trial began on August 5, 2014.       The jury heard

testimony from M.H., A.H., Skadsem, Ness, Ross, and Goggleye. M.H. testified that

Goggleye sexually abused her multiple times from the ages of three to seven and that

Goggleye used his hands and penis to touch her vagina, butt, and breasts. M.H. could not

specify how many times the incidents occurred but agreed that it happened more than 20

times. M.H. stated that the abuse occurred at Goggleye’s house, her house, and her old

1
  Count one: 

, subd. 1(a) (2006) (sexual penetration where
complainant under 13 years old and actor more than 36 months older); count two: 

, subd. 1(g) (2006) (significant relationship to the complainant and
complainant under 16 years of age at the time of sexual penetration); and count three:

, subd. 1(h)(iii) (2006) (significant relationship to complainant who
was under 16 years of age at the time of sexual penetration and multiple acts of sexual
abuse committed over an extended period of time).

                                            3
apartment. M.H. did not remember specific dates, but she remembered incidents. When

asked whether Goggleye touched her vagina with his penis, M.H. stated that he did and

that it happened more than 20 times.

       The jury watched the recorded interview that took place between M.H. and Ness.

The prosecutor asked Ness to describe M.H.’s demeanor during the interview. After

Ness replied that she thought that M.H. was “trying her hardest to remember what she

could and to be honest,” defense counsel objected. The district court sustained the

objection and instructed the jury to disregard Ness’s answer. On August 8, 2014, the jury

found Goggleye guilty as charged. On October 24, 2014, the district court sentenced

Goggleye to a presumptive guidelines sentence of 360 months in prison. Although the

district court entered convictions on each count, the court stated that the 360-month

sentence was for count one. On the order and warrant of commitment, the district court

entered convictions on each count. This appeal follows.

                                       DECISION

Statutory Interpretation

       Before deciding whether the evidence sufficiently supports Goggleye’s

convictions, we must determine whether 

, subd. 1(g), (h)(iii)

(2006), requires sexual penetration or sexual contact.

                     A person who engages in sexual penetration with
              another person, or in sexual contact with a person under 13
              years of age as defined in section 609.341, subdivision 11,
              paragraph (c), is guilty of criminal sexual conduct in the first
              degree if any of the following circumstances exists:
                     ....



                                             4
                             (g) the actor has a significant relationship to the
              complainant and the complainant was under 16 years of age
              at the time of the sexual penetration.
                             (h) the actor has a significant relationship to the
              complainant, the complainant was under 16 years of age at
              the time of the sexual penetration, and:
                      ....
                                    (iii) the sexual abuse involved multiple
              acts committed over an extended period of time.

, subd. 1(g), (h)(iii) (emphasis added). Sexual contact with a person

under 13 is “the intentional touching of the complainant’s bare genitals or anal opening

by the actor’s bare genitals or anal opening with sexual or aggressive intent or the

touching by the complainant’s bare genitals or anal opening of the actor’s . . . bare

genitals or anal opening with sexual or aggressive intent.” 

, subd.

11(c) (2006). The jury instruction guides include sexual penetration as an element of

paragraphs (g) and (h)(iii) but do not include “sexual contact with a person under 13.” 10

Minnesota Practice, CRIMJIG 12.09, 12.11 (2006).

       Goggleye argues that the district court should follow the jury instruction guides

that require penetration as an element of each offense. The district court stated that the

statute was ambiguous, and the legislature intended to include “sexual contact with a

person under 13” as a part of paragraphs (g) and (h)(iii). The parties did not brief this

issue, but failure to brief an issue does not prevent this court from considering the district

court’s ruling. See Minn. R. Crim. P. 28.02, subd. 11 (stating that on appeal this court

may review any ruling of the district court, “as the interests of justice may require”).

       Questions of statutory interpretation are reviewed de novo. State v. Nodes, 

 (Minn. 2015).         “If a statute is susceptible to only one reasonable


                                              5
interpretation, we interpret the statute according to its plain meaning.” 

 If the statute’s

language is ambiguous, we look to other indicia to ascertain legislative intent. Dupey v.

State, 

 (Minn. 2015).              “The object of all interpretation and

construction of laws is to ascertain and effectuate the intention of the legislature.” 

 (2014). Courts may assume that “the legislature does not intend a result

that is absurd, impossible of execution, or unreasonable.” 

(1) (2014).

       Section 609.342, subdivision 1 is susceptible to more than one reasonable

interpretation. On one hand, paragraphs (g) and (h)(iii) could be interpreted to include

“sexual contact with a person under 13” because the overarching language in subdivision

1 appears to apply to paragraphs (a) through (h). See 

, subd. 1. On

the other hand, paragraphs (g) and (h)(iii) specifically mention sexual penetration but do

not mention sexual contact with a person under 13. See 

 subd. 1(g), (h)(iii). Thus,

both paragraphs could be interpreted to require sexual penetration.

       Adopting the latter interpretation, however, leads to absurd and unreasonable

results. Under this interpretation, Goggleye could be convicted of first-degree criminal

sexual conduct under section 609.342, subdivision 1(a) if, on one occasion, he engaged in

sexual contact with a person under 13 years of age. However, if he committed such

conduct on numerous occasions and had a significant relationship to the complainant, his

offenses would not fall under the scope of section 609.342, subdivision 1(g) or (h)(iii).

Thus, the district court did not err in its interpretation of section 609.342.




                                               6
Sufficiency of the evidence

      Goggleye argues that the evidence does not support his convictions.           When

reviewing a claim of insufficient evidence, we review the record to determine whether the

evidence, when viewed in a light most favorable to the verdict, is sufficient to allow the

jury to reach the verdict that it did. State v. Webb, 

 (Minn. 1989).

We “assume that the jury believed the state’s witnesses and disbelieved contrary

evidence.” Dale v. State, 

 (Minn. 1995). “This is especially true

whe[n] resolution of the case depends on conflicting testimony, because weighing the

credibility of witnesses is the exclusive function of the jury.” State v. Pieschke, 

 (Minn. 1980). The verdict shall not be disturbed if the jury, acting with

due regard for the presumption of innocence and the requirement of proof beyond a

reasonable doubt, could reasonably conclude that the defendant was guilty of the charged

offense. Bernhardt v. State, 

, 476–77 (Minn. 2004).

      Goggleye argues that the evidence was insufficient because there was a significant

delay in reporting, M.H. could not remember specific details, M.H. had a source of sexual

knowledge independent from Goggleye, and Goggleye denied the abuse. We are not

persuaded because these claims go to the weight of the evidence and witness credibility.

On appeal, we do not reweigh the evidence or assess witness credibility. See State v.

Johnson, 

 (Minn. 1997) (“The credibility of individual witnesses

and the weight to be given to each witness’ testimony are issues for the jury to

determine.”).




                                            7
       Additionally, M.H. agreed that Goggleye touched her vagina with his penis more

than 20 times, and she stated that he put his finger inside her vagina. The incidents

occurred when M.H. was less than 13 years old. Goggleye had a significant relationship

with M.H. because he dated A.H. for over two years, regularly slept at A.H.’s house, and

supervised M.H. while A.H. was absent. See 

, subd. 15(3) (2006)

(defining significant relationship as a situation in which the actor is “an adult who jointly

resides intermittently or regularly in the same dwelling as the complainant”). Further,

Ness, Skadsem, and Ross provided testimony supporting M.H.’s accusations. Thus, the

evidence sufficiently supports Goggleye’s convictions because the jury could reasonably

conclude that he was guilty of the charged offenses. Bernhardt, 684 N.W.2d at 476–77.

       Goggleye also argues that the evidence was insufficient due to a lack of

corroborating evidence. A conviction can rest upon the testimony of a single credible

witness. Johnson, 

; see 

, subd. 1 (2006) (stating

that a first-degree criminal-sexual-conduct prosecution does not require corroboration of

the victim’s testimony). “Corroboration of an allegation of sexual abuse of a child is

required only if the evidence otherwise adduced is insufficient to sustain [a] conviction.”

State v. Myers, 

 (Minn. 1984).

       Goggleye concedes that a conviction may rest on the testimony of a single credible

witness, but citing State v. Foreman, he argues that reversal is required when reasons

exist to question the victim’s credibility and the state failed to present corroborating

evidence. See 

 (Minn. 2004). In Foreman, the appellant relied on

three cases that resulted in reversal. 

 But the supreme court was not persuaded by


                                             8
those cases and explained how they were distinguishable from Foreman’s case. 

Likewise, we are not persuaded by Goggleye’s reliance on the cases examined in

Foreman.

      In State v. Huss, the three-year-old alleged victim provided the only direct

evidence, which was inconsistent with prior statements and facts. 

, 290–

92 (Minn. 1993). Additionally, the supreme court recognized that the repeated use of a

highly suggestive book on sexual abuse and its accompanying audio tape may have led

the child to imagine the abuse. 

. In State v. Langteau, the alleged victim

provided the only significant evidence, but his actions were “unexplained,” and nothing

linked the defendant to the crime. 

, 77 (Minn. 1978). Finally, in State v.

Gluff, the supreme court criticized an identification lineup procedure, stating that

testimony about the defendant’s identification “clearly lacked probative value.” 

, 

 (1969). Additionally, the supreme court recognized

the lack of evidence to corroborate the defendant’s involvement in the crime. 

,

.

      Unlike these cases, M.H. was 11 years old when she testified; she was never

exposed to highly suggestive material; her testimony, for the most part, was consistent

with her prior statements; and her actions were not “unexplained” because multiple

witnesses testified that M.H. behaved in a manner consistent with characteristics of

children who have been sexually abused. Lastly, this case did not involve a questionable

lineup procedure.




                                           9
       Moreover, corroborating evidence is not necessary here because the evidence

sufficiently supports Goggleye’s convictions. See Myers, 

. But even

if corroborating evidence were necessary, M.H.’s claims were corroborated by her out-of-

court statements, Goggleye’s opportunity to commit the crimes, and the testimony of the

state’s other witnesses. See State v. Ross, 

 (Minn. App. 1990)

(concluding that a child’s testimony was corroborated by her out-of-court statements,

defendant’s opportunity to commit the crime, and the consistency of the child’s

descriptions), review denied (Minn. Apr. 13, 1990); see also Myers, 

-

08 (recognizing that a child’s testimony was supported by testimony of the child’s

mother, a social worker, and a psychologist).        Therefore, the evidence sufficiently

supports Goggleye’s convictions.

Vouching

       Goggleye also argues that he was denied a fair trial when Ness “indirectly

vouched” for the truthfulness of M.H.’s testimony. Our standard of review depends on

whether Goggleye objected to Ness’s testimony. See State v. Meldrum, 

 (Minn. App. 2006) (stating that absent objection at district court, an appellate court

reviews for plain error), review denied (Minn. Jan. 24, 2007). Once the district court

rules on the admissibility of evidence, “a party need not renew an objection or offer of

proof to preserve a claim of error.” Minn. R. Evid. 103(a). But “evidentiary objections

should be renewed at trial when an in limine or other evidentiary ruling is not definitive

but rather provisional or unclear, or when the context at trial differs materially from that




                                            10
at the time of the former ruling.” State v. Word, 

 (Minn. App.

2008).

         Here, Goggleye did not object to Ness’s statements during trial, but he filed a

motion in limine requesting the district court to prohibit the state from eliciting vouching

testimony from its witnesses. The district court addressed Goggleye’s motion, but its

ruling focused on a recording of Goggleye’s interrogation with law enforcement

discussing Goggleye’s past misconduct rather than potential statements from Ness. The

district court stated:

                      With respect to the defense motion in limine on the
               vouching issue, I have had a chance to review the entire
               interrogation of Mr. Goggleye and also review the case law
               that was cited by the [s]tate. At this point the [c]ourt does
               believe with the redactions that [the state] represented
               yesterday that [it] was going to be making, that there is no
               vouching issue by playing that recording.
               ....

               Again I would ask counsel to meet and confer before that
               final redacted version is introduced to the jury and if there is
               anything else in particular that we need to take up, we’ll do
               that at that time.
                       So my denial of the motion in limine . . . was limited
               only to the vouching issue.

It is unclear whether the district court’s ruling applied strictly to statements made by law

enforcement in the recording or to all of the state’s witnesses. Goggleye did not attempt

to clarify the district court’s ruling, and he did not object to Ness’s statements at trial.

Thus, we review for plain error.

          To constitute plain error, Goggleye must demonstrate (1) an error, (2) that was

plain, and (3) that affected his substantial rights. State v. Griller, 

, 740


                                             11
(Minn. 1998). A witness may not vouch for the credibility of another witness. State v.

Ferguson, 

 (Minn. 1998). Experts may testify to the characteristics

commonly displayed by children who have been sexually abused, but testimony as to the

child’s truthfulness is inadmissible because “the expert’s status may lend an unwarranted

stamp of scientific legitimacy to the allegations.” State v. Vick, 

(Minn. 2001) (quotation omitted).

       Goggleye argues that Ness “indirectly” vouched for M.H. on three occasions.

First, when she stated: “Disclosure is [most] often . . . a process and . . . children will

disclose things, will be able and willing to tell certain things at certain times.” The

second alleged instance of vouching occurred when Ness stated:

                      That’s a very–very common response and there is–
              there are so many unknowns for a child then to end, and I
              think that the–even the process of memory of abuse survivors
              is–abuse victims is it can be patchy, and I feel that she had
              incomplete memories regarding some things and in other
              situations I feel like she remembered but wasn’t in a place to
              be able to say that as completely as she might.

Finally, Goggleye argues that Ness vouched for M.H. when she stated that she would not

be surprised by a child telling additional facts in subsequent interviews.

       Admission of Ness’s statements does not constitute plain error. First, Goggleye

failed to show error because Ness’s statements do not constitute “vouching.” Ness’s

comments related to characteristics of abused children and the characteristics displayed

by M.H. Courts have long upheld the admission of expert testimony regarding the typical

characteristics of children who were sexually abused.        See, e.g., State v. Hall, 

 (Minn. 1987) (holding that admission of expert testimony regarding


                                             12
reporting conduct of an adolescent sexual-assault victim is within the discretion of the

district court). The supreme court has stated that “[b]ackground data providing a relevant

insight into the puzzling aspects of the child’s conduct and demeanor which the jury

could not otherwise bring to its evaluation of her credibility is helpful and appropriate”

in child sexual-abuse cases. Myers, 

. Thus, Goggleye failed to show

error because Ness did not vouch for M.H.’s truthfulness.

       Second, even if Goggleye established error, the error did not affect Goggleye’s

substantial rights. An error affects substantial rights “if the error was prejudicial and

affected the outcome of the case.” Griller, 

. Ness’s statements are not

prejudicial because the statements constitute a small portion of her testimony. See State

v. Soukup, 

 (Minn. App. 1985) (concluding that a defendant was not

entitled to a new trial, in part, because the expert’s testimony was only a small part of the

state’s evidence), review denied (Minn. Dec. 30, 1985).

       Additionally, the jury watched a video of M.H.’s accusations that provided an

independent basis to judge her credibility. See State v. Wembley, 

(Minn. App. 2006) (holding that an expert violated the rule against vouching but did not

cause unfair prejudice because a video-taped interview provided the jury with an

independent basis of knowledge), aff’d 

 (Minn. 2007). Thus, Ness’s

statements did not affect Goggleye’s substantial rights.

       Goggleye next argues that he was denied a fair trial when Ness “directly vouched”

for M.H.’s truthfulness. At trial, the state asked Ness to describe M.H.’s demeanor

during an interview. Ness replied that M.H. “was trying her hardest to remember what


                                             13
she could and to be honest.” The district court sustained Goggleye’s objection to this

testimony and instructed the jury to disregard Ness’s response.

       To determine whether this evidence affected the fairness of Goggleye’s trial, we

consider the manner in which the evidence was presented. Ferguson, 

.

“When an error implicates a constitutional right, we will award a new trial unless the

error is harmless beyond a reasonable doubt.” State v. Davis, 

(Minn. 2012). An error is harmless beyond a reasonable doubt if the verdict was surely

unattributable to the error. 

       Ness’s statement constitutes harmless error for the following reasons.       First,

Ness’s statement constitutes a small portion of her testimony and the additional testimony

presented at trial. See Soukup, 

 (concluding that a defendant was not

entitled to a new trial, in part, because the expert’s testimony was a small part of the

state’s evidence). Second, the video of M.H.’s interview provided an independent basis

to judge credibility. See Wembley, 

 (holding that there was no unfair

prejudice because a video-taped interview provided the jury with an independent basis of

knowledge).

       Additionally, the state did not intentionally elicit Ness’s testimony because it

asked Ness to describe M.H.’s demeanor, not her truthfulness. “[U]nintended responses

under unplanned circumstances ordinarily do not require a new trial.” State v. Hagen,

 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). Finally,

the district court told the jurors to disregard Ness’s statement. Thus, Ness’s statement

was harmless and did not deny Goggleye a fair trial.


                                            14
Sentencing

       Finally, Goggleye argues that the district court improperly entered judgments on

three counts of first-degree criminal sexual conduct because his convictions are based on

the same act against the same complainant. A guilty verdict alone does not constitute a

conviction. Spann v. State, 

 (Minn. 2007). A “conviction” occurs

when a guilty verdict is accepted and recorded by the district court. 

,

subd. 5(2) (2006). “[W]hen the defendant is convicted on more than one charge for the

same act . . . the [district] court [is] to adjudicate formally and impose sentence on one

count only.” State v. Pflepsen, 

 (Minn. 1999) (quotation omitted).

The official judgment of conviction may serve as conclusive evidence of whether an

offense was formally adjudicated.        

.     Here, the order and warrant of

commitment states that the district court convicted, and thus adjudicated Goggleye on all

three counts.

       “Upon prosecution for a crime, the actor may be convicted of either the crime

charged or an included offense, but not both.” 

, subd. 1 (2006). An

“included offense” is “[a] crime necessarily proved if the crime charged were proved.”

 subd. 1(4). When determining whether an offense is an included offense, this court

looks to the elements of the offense, not the facts of the particular case. State v. Bertsch,

 (Minn. 2006). The protections of section 609.04, however, do not

apply if the offenses constitute separate criminal acts. 

       The state charged Goggleye with three counts of first-degree criminal sexual

conduct for acts that occurred between August 1, 2006, and February 1, 2009. Count two


                                             15
involved a single act that occurred during the same period as the multiple acts in count

three. Thus, the district court erred by entering a conviction for count two because proof

of multiple acts under section 609.342, subdivision 1(h)(iii) necessarily includes proof of

a single act under section 609.342, subdivision 1(g), if the single act occurred during the

same time period as the multiple acts.

       Count three does not necessarily include count one because satisfying the elements

of count three does not necessarily satisfy the elements of count one. See 

, subd. 1 (listing requirements for an included offense). For example, the state

could successfully prove that Goggleye had sexual contact with a complainant under 13,

Goggleye had a significant relationship to the complainant, and the sexual abuse involved

multiple acts committed over an extended period of time. But count one also requires

that Goggleye was more than 36 months older than the complainant.                    

, subd. 1(a). Thus, count one is not an included offense of count three.

       Section 609.04 also prohibits 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, 

(Minn. 1989). In Folley, a jury found Folley guilty of violating 

,

subd. 1(a), 1(h)(v) for engaging in multiple acts of sexual penetration with the

complainant over an extended period of time. 

. The district court sentenced

Folley to concurrent 43-month prison terms. 

 The supreme court held that one

conviction should be vacated because “both convictions were based on the same evidence

and the same acts, all of which occurred before [the] complainant turned 13.” 

 Here,


                                            16
count one and count three were based on the same evidence and the same acts and the

acts occurred before M.H. turned 13. Thus, counts one and three are based on the same

unitary course of conduct. Accordingly, we remand to the district court to vacate the

judgment of conviction for counts one and two.

      Affirmed in part, reversed in part, and remanded.




                                          17