                           This opinion will be unpublished and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
                                       A13-1338

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                    Wilfred Carl Hudson,
                                         Appellant.

                                     Filed July 20, 2015
                                          Affirmed
                                       Hudson, Judge

                                 Clay County District Court
                                  File No. 14-CR-12-3371

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

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

         Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Chutich,

Judge.

                          UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges his convictions of three counts of first-degree criminal sexual

conduct. He argues that Minn. Stat. § 595.02, subd. 4 (2012), which permits child
victims of sexual assault to testify outside of the defendant’s presence, is unconstitutional

because it violates his constitutional right to confront witnesses against him. He also

contends that the district court committed plain error by permitting the state to introduce

evidence vouching for another witness’s credibility, that the district court erred in finding

that his three offenses did not arise out of the same behavioral incident, and that the

district court abused its discretion by denying his petition for postconviction relief. We

affirm.

                                          FACTS

          Appellant Wilfred Carl Hudson and S.F. are married and share parenting

responsibilities for appellant’s daughter, B.W. Approximately one year after they were

married, S.F. and appellant separated; B.W. began to live with S.F. during the week and

with appellant on weekends. B.W. also stayed with appellant after school if S.F. had to

work late.

          In September 2012, a few months after appellant and S.F. separated, B.W. told

S.F. that appellant “hurts [her] down there” and pointed to her vagina. S.F. testified that

B.W. later told her that appellant had put his mouth on her vagina. S.F. reported B.W.’s

allegations to law enforcement officers, who subsequently conducted a forensic interview

and sexual assault examination of B.W. She told the interviewing detective that appellant

had engaged in oral, vaginal, and anal intercourse with her on separate occasions. She

indicated that the abuse occurred in appellant’s bedroom, her bedroom, and the living

room of appellant’s apartment. B.W. was eight years old at that time.




                                             2
         Appellant was arrested and charged with eight counts of first-degree criminal

sexual conduct.1 Prior to trial, the state moved, pursuant to Minn. Stat. § 595.02, subd. 4,

for an order permitting B.W. to testify outside of appellant’s presence and via one-way,

closed-circuit television. The district court granted the order, finding that B.W. would be

traumatized if she was required to testify in appellant’s presence. Appellant, the district

court, and the jury observed B.W.’s testimony from a separate room, and B.W. was

informed that appellant was watching her testimony. Appellant’s counsel was in the

room with B.W. and was allowed to cross-examine her. B.W. testified that appellant

engaged in vaginal intercourse with her in her bedroom and anal intercourse with her in

his bedroom. She also stated that appellant “licked” the “inside” of her vagina on

multiple occasions. She said that appellant told her that if she told her mother, he “would

break [S.F.] into pieces of bones.”

         Appellant testified that he never abused B.W. He stated that S.F. coached B.W. to

falsify allegations against him and that B.W. imitated “whatever [S.F.] [did].”           He

indicated that S.F. had previously threatened to report false child abuse allegations to law

enforcement. The jury found appellant guilty of the first three counts of criminal sexual

conduct and not guilty of the remaining four counts.            The district court imposed

concurrent, respective prison sentences of 172, 201, and 360 months for the three

offenses.

         Appellant filed a notice of appeal, but subsequently stayed that appeal to file a

petition for postconviction relief. In his petition for postconviction relief, he alleged that

1
    Count eight was dismissed before trial.

                                              3
he had located a witness, S.B., who could offer new testimony regarding S.F.’s bias. At

the subsequent evidentiary hearing, S.B. testified that he had been in a relationship with

S.F. while she was married to appellant, and that S.F. asked him and several other people

to kill appellant so that she could obtain an insurance settlement that she believed that

appellant was entitled to receive. He also stated that S.F. believed that obtaining custody

of B.W. would assist her in obtaining the insurance settlement. The district court found

that S.B.’s testimony was not credible and denied the petition for postconviction relief.

We dissolved the stay of appeal and ordered briefing on all postconviction issues. This

appeal follows.

                                     DECISION

                                             I

       Appellant argues that the district court erred by permitting B.W. to testify outside

of his presence via one-way, closed-circuit television.2 A child witness who is a victim in

a criminal sexual conduct case may testify outside the presence of the defendant if the

child is less than 12 years old and the district court finds that the defendant’s presence

“would psychologically traumatize the witness so as to render the witness unavailable to

testify.” Minn. Stat. § 595.02, subd. 4(c). The district court may permit a child to testify

via closed-circuit television only after making an “individualized finding of necessity”

2
  At the outset, the state argues that appellant forfeited this argument because he did not
raise it to the district court and because he did not provide notice to the attorney general
of his constitutional challenge. But appellant argued to the district court that, although
Minnesota law permitted testimony in a room outside the presence of the defendant, the
state and federal confrontation clauses guaranteed him the right to confront witnesses.
And separate notice is not required to the attorney general where, as here, the state is a
party to the litigation. Minn. R. Civ. App. P. 144. Appellant’s argument is not forfeited.

                                             4
and having found “by specific evidence that the particular witness is or would be

psychologically traumatized and that traumatization is substantially caused by the

presence of the defendant.” State v. Conklin, 444 N.W.2d 268, 272, 274 (Minn. 1989).

Here, the district court made detailed findings regarding the evidence that supported its

conclusion that B.S. would be psychologically traumatized if forced to testify in

appellant’s presence.

      Appellant contends, however, that because Minn. Stat. § 595.02, subd. 4, permits

witnesses to testify outside of the defendant’s presence, it violates the Sixth

Amendment’s guarantee that a criminal defendant has the right “to be confronted with the

witnesses against him.” U.S. Const. amend. VI. We review de novo whether a statute is

unconstitutional. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011). We presume that

Minnesota statutes are constitutional and we exercise our authority to declare a statute

unconstitutional with “extreme caution and only when absolutely necessary.” In re

Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

      The United States Supreme Court has previously considered whether the

Confrontation Clause prohibits a child witness in a sexual abuse case from testifying

outside the presence of the defendant by one-way, closed-circuit television. Maryland v.

Craig, 497 U.S. 836, 851–52, 110 S. Ct. 3157, 3166–67 (1990). The Court explained that

though the Confrontation Clause reflected a preference for face-to-face confrontation at

trial, that preference “must occasionally give way to considerations of public policy and

the necessities of the case.”      Id. at 849, 110 S. Ct. at 3165 (quotation omitted).

Accordingly,   the      Court   determined   that   face-to-face   confrontation   was   not


                                              5
constitutionally mandated if (1) the denial of face-to-face confrontation was necessary to

further an important public policy and (2) the reliability of the testimony was assured by

other means. Id. at 850, 110 S. Ct. at 3166. Because the state had a substantial and

important interest in the physical and psychological well-being of child-sexual-abuse

victims, and because testimony via closed-circuit television ensured the reliability of the

child’s testimony by permitting cross examination, testimony under oath, and an

opportunity for the judge, defendant, and jury to assess the child’s demeanor, the Court

concluded that face-to-face confrontation was not required if the district court made a

case-specific finding that such confrontation would cause a child witness trauma from

testifying. Id. at 851–53, 110 S. Ct. at 3166–67.

       Appellant concedes that Minn. Stat. § 595.02, subd. 4, is constitutional under

Craig, but argues that Craig has since been overruled by the Supreme Court’s decision in

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). In Crawford, the Court

rejected the use of “open-ended balancing tests” to determine whether the admission of

out-of-court testimonial statements violated a defendant’s confrontation rights, instead

concluding that such evidence was admissible only when the witness was unavailable and

the defendant had a prior opportunity for cross-examination. Id. at 67–68, 124 S. Ct. at

1373–74. The Court explained that the Confrontation Clause was a procedural guarantee

that required the reliability of evidence “be assessed in a particular manner: by testing in

the crucible of cross-examination.” Id. at 61, 124 S. Ct. at 1370. Appellant asserts that

Crawford’s rejection of open-ended balancing tests to determine the admissibility of




                                             6
evidence under the Confrontation Clause renders the analysis established by Craig

invalid and Minn. Stat. § 595.02, subd. 4, unconstitutional.

       We disagree. The Supreme Court did not expressly state in Crawford that it

intended to overrule Craig. Indeed, the majority opinion does not cite to Craig once, and

the concurring opinion cites to it only for the proposition that cross-examination is a

necessary tool “used to flesh out the truth.” Crawford, 541 U.S. at 74, 124 S. Ct. at 1377

(Rehnquist, C.J., concurring). Rather, the Court explains that it is expressly rejecting the

rationale of its previous decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980).

See id. at 63–64, 124 S. Ct. at 1371 (majority opinion). When the Supreme Court

expressly overrules one case in a decision, we do not assume that it implicitly intended to

overrule a separate decision as well. Carmell v. Texas, 529 U.S. 513, 538, 120 S. Ct.

1620, 1636 (2000); see also United States v. Pack, 65 M.J. 381, 383 (C.A.A.F. 2007)

(stating that “overruling by implication is disfavored”). We also recognize that several

state and federal courts have concluded that Craig remains good law following Crawford

and that the Supreme Court has denied a petition for a writ of certiorari in at least one of

those cases. See Pack, 65 M.J. at 385 (collecting cases), cert denied, 552 U.S. 1313, 128

S. Ct. 1914 (2008). Under these circumstances, we cannot conclude that the Supreme

Court intended for Crawford to overrule Craig.

       Our conclusion is also reinforced by the fact that Crawford and Craig apply to

separate and distinct confrontation issues.       Crawford sets forth the standard for

determining whether the admission of an out-of-court statement implicates a defendant’s

right to confront the declarant of that statement. 541 U.S. at 68, 124 S. Ct. at 1374. In


                                             7
contrast, Craig governs the method by which in-court testimony may be presented:

specifically, under what circumstances the Sixth Amendment’s preference for face-to-

face confrontation is outweighed by state interests. 497 U.S. at 860, 110 S. Ct. at 3171.

Those distinctions are significant. When a precedent of the Supreme Court “has direct

application in a case, yet appears to rest on reasons rejected in some other line of

decisions,” we are to “follow the case which directly controls, leaving to [the Supreme]

Court the prerogative of overruling its own decisions.”           Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989).

Because Crawford and Craig address different aspects of a defendant’s confrontation

rights, and because Craig directly controls the issue before us, we conclude that Craig

continues to apply when determining whether an exception to the Confrontation Clause’s

preference for face-to-face confrontation is constitutionally valid.

       Finally, we conclude that Craig remains valid following Crawford because it is

consistent with Crawford’s mandate that the reliability of testimonial evidence be

evaluated by “the crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S. Ct. at

1370. Under Craig, the Court concluded that in-court testimony was reliable only when

the “combined effect of [the] elements of confrontation” was met, which could include

physical presence, an oath, cross-examination, or observation of demeanor by the trier of

fact. Craig, 497 U.S. at 846, 110 S. Ct. at 3163. Like Crawford, Craig holds that cross-

examination is the primary means of confrontation guaranteed by the Sixth Amendment.

See Pack, 65 M.J. at 384 (explaining that the focus of Craig on the “combined effect of

the[] elements of confrontation . . . was retained in Crawford”) (quotation omitted). For


                                              8
those reasons, we conclude that Craig remains good law, that Minn. Stat. § 595.02,

subd. 4, is constitutional, and that the district court did not err by permitting B.W. to

testify outside of appellant’s presence.

                                              II

       Appellant also argues that the district court erred by permitting the state to

introduce testimony and out-of-court statements from an investigating detective who

vouched for the credibility of B.W. Prosecutors may not elicit vouching testimony from

trial witnesses. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). Improper

vouching testimony is testimony that another witness is telling the truth or that one

believes one witness over another. State v. Ferguson, 581 N.W.2d 824, 835 (Minn.

1998). “Bolstering a witness’s credibility exceeds the proper bounds of aiding the jury to

reach conclusions about matters not within its experience.               Witness credibility

determinations are strictly the domain of the jury.” State v. Blanche, 696 N.W.2d 351,

374 (Minn. 2005).

       Because appellant did not object to the admission of the detective’s statements and

testimony at trial, we consider only whether the admission of that evidence constituted

plain error. Plain error exists if there is an error, the error is plain, and the error affects

substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). An error is plain

if it is clear or obvious, meaning that it contravenes a rule, case law, or standard of

conduct, or disregards a well-established and longstanding legal principle.           State v.

Brown, 792 N.W.2d 815, 823 (Minn. 2011). An error affects a defendant’s substantial

rights if there is a reasonable likelihood that the error substantially affected the jury’s


                                              9
verdict. Id. at 824. If those three elements are met, we determine whether reversal is

necessary to protect the fairness and integrity of the judicial proceedings. Ramey, 721

N.W.2d at 302.

         Appellant first challenges several statements that the detective made during his

testimony regarding his interview with B.W. Appellant argues that admission of that

testimony was plainly erroneous because the detective indicated that he was assessing

B.W. for reliability, credibility, and believability. But a review of the record indicates

that, in each of those instances, the detective did not express an opinion that B.W. was

telling the truth or that B.W. was more credible than another witness. Instead, the

detective simply explained the process by which he interviewed B.W. and the methods

that he used to corroborate B.W.’s statements. Because the detective did not offer an

opinion regarding B.W.’s credibility, the admission of those statements was not plain

error.

         Appellant also argues that the following three statements, which the detective

made after the jury watched the video of his interview with B.W., constitute

impermissible vouching testimony: “[B.W.] was able to understand the difference

between truth and lie”; “[B.W.] would correct me or she would say she doesn’t know or

doesn’t remember or – very, very credible”; and “[B.W.’s] mother corroborated all of the

information, yeah, about what the child had said, which adds, yeah, [to] the reliability of

the child.” Of those three challenged statements, the second and third relate to the

detective’s personal assessment of B.W.’s credibility and thus could be viewed as

impermissible vouching testimony. But we need not decide whether the admission of


                                            10
those statements constituted plain error because, even if it did, the error did not affect

appellant’s substantial rights. See State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006)

(“If any prong of the [plain-error] test is not met, the claim fails.”).

       Here, appellant and B.W. both testified at trial, providing the jury an opportunity

to weigh each person’s credibility. See State v. Wembley, 712 N.W.2d 783, 792 (Minn.

App. 2006) (holding that expert’s testimony violated vouching prohibition but was not

unfairly prejudicial because the jury was able to independently judge child witness’s

credibility), aff’d, 728 N.W.2d 243 (Minn. 2007). In addition, the two troublesome

statements are only a small portion of the record. And the state did not rely on either

statement at closing argument, but instead argued that the jury’s assessment of B.W.’s

credibility should be based on their “observations of [B.W.’s] ability to relay . . .

information to you.” Cf. Van Buren v. State, 556 N.W.2d at 551 (holding that vouching

testimony deprived defendant of fair trial because prosecutor used it in closing argument

to bolster complainant’s credibility and the evidence of guilt was “close,” hinging

entirely on credibility of witnesses). Moreover, appellant challenged B.W.’s credibility

in closing argument and the jury found appellant not guilty of four of the seven charges,

suggesting that it was not swayed by any impermissible vouching testimony. Thus, the

alleged errors did not affect appellant’s substantial rights.

       Finally, appellant contends that the detective made several statements vouching

for B.W.’s credibility during his post-arrest interview of appellant, a tape of which the

jury observed at trial. But plain error cannot be established in the absence of binding

precedent. State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008). And case law does not


                                               11
expressly prohibit the admission of vouching statements that an officer made to a

defendant during a police interrogation.       Instead, the Minnesota Supreme Court has

explained that the admission of statements made by an officer during a police

interrogation are necessary to provide context to the defendant’s statements and that

juries will understand that those statements are made to “get as much information from

[the defendant] as possible.” State v. Lindsey, 632 N.W.2d 652, 662–63 (Minn. 2001);

State v. Ferguson, 581 N.W.2d at 835–36. Here, because the jury was informed that the

video depicted the detective’s interview of appellant, the jury had the necessary

information to understand that the detective’s statements were made as an investigative

technique and were not necessarily indicative of his personal opinion. As a result, the

district court’s failure to sua sponte exclude those statements did not constitute plain

error.

                                              III

         Appellant also argues that the district court erred by finding that the three offenses

for which he was convicted did not arise out of the same behavioral incident. A person

who commits multiple offenses against the same victim during a single behavioral

incident may be punished for only one of the offenses. Minn. Stat. § 609.035, subd. 1

(2012). The state bears the burden to establish by a preponderance of the evidence that

the conduct underlying the offenses did not occur as part of a single behavioral incident.

State v. Williams, 608 N.W.2d 837, 841–42 (Minn. 2000).                    A district court’s

determination that a defendant’s offenses did not arise out of a single behavioral incident




                                               12
is a factual finding, which we review for clear error. State v. Suhon, 742 N.W.2d 16, 24

(Minn. App. 2007), review denied (Minn. Feb. 18, 2008).

      To determine whether a series of offenses constitutes a single behavioral incident,

we consider whether the offenses share unity of time and place and “whether the segment

of conduct involved was motivated by an effort to obtain a single criminal objective.”

State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).             A defendant who

engages in multiple forms of sexual penetration during the same behavioral incident may

be convicted of only one offense for that conduct. State v. Dudrey, 330 N.W.2d 719,

721–22 (Minn. 1983). But multiple acts against the same victim do not constitute a

single behavioral incident when those acts are separated by time and place, even if the

motivation for each act is the same. Suhon, 742 N.W.2d at 24.

      Here, the jury found appellant guilty of three counts of first-degree criminal sexual

conduct. Count one alleged an incident of oral intercourse; count two alleged an incident

of anal intercourse; and count three alleged an incident of vaginal intercourse.        At

sentencing, the district court found that the acts underlying the three counts for which

appellant was convicted arose out of different behavioral incidents because those acts

occurred in different rooms and on different days.

      The district court’s findings are not clearly erroneous.        B.W. testified that

appellant engaged in several different forms of sexual penetration, that the abuse

happened at different times, and that it occurred in different rooms of appellant’s

apartment. See Suhon, 742 N.W.2d at 24 (upholding multiple sentences when abuse

occurred in same residence, but “happened in many different rooms and at different


                                           13
times”). B.W. also informed the detective about specific incidents of abuse, including the

first time the abuse began and an incident that occurred on a day that she was supposed to

be attending a friend’s birthday party. She also told the detective that the abuse occurred

in appellant’s bedroom, her bedroom, and the living room. Taken together, the evidence

is sufficient to support the district court’s finding that appellant’s offenses arose out of

separate behavioral incidents. See State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979)

(affirming sentence for two counts of criminal sexual conduct for two contacts five hours

apart). As a result, the sentence imposed was not erroneous.

                                            IV

       Finally, appellant argues that the district court erred by denying his petition for

postconviction relief following an evidentiary hearing. A person convicted of a crime

who claims his conviction was obtained in violation of his constitutional rights “may

commence a proceeding to secure relief.” Minn. Stat. § 590.01, subd. 1 (2012). We

review a denial of a petition for postconviction relief for an abuse of discretion. Riley v.

State, 819 N.W.2d 162, 167 (Minn. 2012).         In considering a postconviction court’s

decision to deny relief, we review issues of law de novo and issues of fact for clear error.

Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007); Riley, 819 N.W.2d at 167.

       Appellant argues that S.B.’s testimony constitutes newly discovered evidence that

entitles him to a new trial. A new trial may be granted based upon newly discovered

evidence when a defendant proves:

              (1) that the evidence was not known to the defendant or
              his/her counsel at the time of the trial; (2) that the evidence
              could not have been discovered through due diligence before


                                            14
              trial; (3) that the evidence is not cumulative, impeaching, or
              doubtful; and (4) that the evidence would probably produce
              an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).            Appellant asserts that S.B.’s

testimony warrants a new trial because it calls into question S.F.’s credibility.

       The district court denied the petition because it found that the newly discovered

evidence did not satisfy the materiality prong of the Rainer test. To meet the materiality

prong, the defendant must demonstrate that the newly discovered evidence is credible.

Tscheu v. State, 829 N.W.2d 400, 403 (Minn. 2013). Here, the district court found that

S.B.’s testimony was not credible because it was not corroborated by any other evidence,

it was internally inconsistent, and because S.B. had reason to lie given his friendship with

appellant. Because we give broad deference to the district court’s credibility findings,

appellant must meet a “high threshold” to show that those findings were clearly

erroneous. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015) (quotation omitted). We

do not disturb the district court’s findings of fact if reasonable evidence supports those

findings. Id. at 685.

       Here, the record reasonably supports the district court’s credibility findings. No

corroborating evidence suggests that appellant was about to receive an insurance

settlement, that S.F. believed that appellant was entitled to receive such a settlement, or

that S.F. intended to obtain custody of B.W. for the purpose of claiming insurance

proceeds. Likewise, no evidence in the record corroborates S.B.’s claim that S.F. asked

multiple people to kill appellant.     S.F. also testified that S.B. became friends with

appellant after she moved out of appellant’s apartment, and the district court did not


                                             15
clearly err by finding that his friendship with appellant could cause S.B. to lie. We

therefore conclude that the district court did not abuse its discretion in denying

appellant’s petition for postconviction relief.

       Affirmed.




                                              16
