                          This opinion will be unpublished and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
                                     A15-0990

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                Benjamin Danton Newman,
                                       Appellant.

                                  Filed April 11, 2016
                    Affirmed in part, reversed in part, and remanded
                                    Connolly, Judge

                              Wabasha County District Court
                                 File No. 79-CR-14-278


Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

CONNOLLY, Judge

         Appellant challenges his criminal-sexual-conduct convictions, arguing that the

district court abused its discretion in admitting expert-witness testimony on the tendency
of adolescent victims of sexual abuse to delay reporting the abuse and that the prosecutor

committed misconduct by referring to the victim’s loss of virginity. Appellant also

challenges his sentence, arguing that the record was not sufficiently developed as to his

criminal history. Because we see no abuse of discretion in the admission of the expert-

witness testimony and no misconduct in the prosecutor’s reference to the loss of the

victim’s virginity, we affirm appellant’s convictions; because the parties agree that the

record concerning appellant’s criminal history was not sufficiently developed, we reverse

the sentence and remand for a hearing and further findings.

                                            FACTS

       During the summer of 2012, A., the daughter of appellant Benjamin Newman,

brought her friend C.J., then 13, to visit appellant in his trailer home. C.J. testified that, on

the night of June 19, A. went to sleep in a bedroom, and appellant and C.J. remained in the

living room, watching videos and drinking alcohol. C.J. fell asleep in a chair and woke

during the night to find appellant putting his tongue in her mouth and his hands down her

pants. She told A. about this the next morning, but told no one else.

       On the night of July 4, C.J. and appellant again stayed up watching videos and

drinking alcohol while A. slept. When C.J. fell down on the floor, appellant got on top of

her, looked down her pants, said he wanted to see more, and told her to go into his bedroom.

There, he removed her clothing below the waist and had intercourse with her for what C.J.

thought was about half an hour. He then told her to clean up; she did so, put on her clothes,

and went to sleep. A couple of weeks later, she told A. what had happened. She and A.

agreed that, if it happened again, they would leave appellant’s trailer.


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          C.J. and appellant had daily electronic contact for the next few weeks. At one point,

they talked about the July 4 incident and appellant told C.J. he “could get in trouble.” C.J.’s

mother noticed that something was wrong with C.J., who seemed depressed and had started

to cut herself.

          Later in July, when C.J. and A. were at appellant’s residence, A. left to spend the

night at her grandmother’s. Appellant took C.J. into his bedroom and asked her to perform

oral sex. She refused, and he had intercourse with her. C.J. then wanted to go home and

asked her mother to come and get her; she did not talk to appellant again. A couple of

weeks later, C.J. told A. what had happened. A. stopped visiting appellant.

          Around Christmas of 2012, C.J.’s mother was concerned about C.J.’s depression

and asked appellant if something was going on between him and C.J. He denied that

anything inappropriate had happened. In March 2013, A. sent C.J.’s mother a text message

saying appellant had had sex with C.J., but C.J. denied this when her mother asked her

about it. In December 2013, C.J. told her boyfriend about the three incidents in June-July

2012; he then told C.J.’s mother, who took C.J. to the police station so she could file a

report.

          The June 19 incident resulted in appellant being charged with second-degree

criminal sexual conduct (Count I); the July 4 and late-July incidents resulted in him being

charged with first-degree criminal sexual conduct (Counts II and III). The jury found

appellant guilty of counts I and II, but not guilty of count III.

          He challenges his convictions, arguing that the district court abused its discretion

by admitting expert-witness testimony as to the tendency of adolescent abuse victims to


                                                3
delay reporting their abuse and that the prosecutor committed misconduct when, during

closing argument, he referred repeatedly to C.J.’s loss of virginity and referred once to the

difficulty she experienced in testifying about the abuse.

                                       DECISION

1.     Expert-witness testimony

       “The admission of expert testimony is within the broad discretion accorded [to] a

[district] court, and rulings regarding materiality, foundation, remoteness, relevancy, or the

cumulative nature of the evidence may be reversed only if the district court clearly abused

its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citation

omitted).

       At trial, appellant objected to the proposed testimony of a licensed psychologist on

the delayed reporting of sexual abuse by adolescent victims, arguing that this case did not

involve delayed reporting and the testimony would be irrelevant. The district court

admitted the testimony, finding that

              there is testimony in the record from which it would appear that
              the reporting was delayed, and, therefore, testimony as to the
              general propensities of adolescent victims that would include
              delayed reporting would be relevant and of assistance to the
              Jury in addressing any questions the Jury might have about the
              timing of the reporting.

The licensed psychologist testified that she had not met C.J., but that adolescent victims of

sexual abuse: (1) are more likely to reveal the abuse to friends than parents or other

relatives; (2) may reveal the abuse either because they want it to end or because they seek

support; (3) may postpone revealing the abuse for a few weeks or months or until they



                                              4
themselves are adults; (4) may postpone revealing abuse because they have been

threatened; they feel embarrassment, guilt, or fear; or they want to protect the abuser;

(5) have conflicting feelings toward the abuser; and (6) experience feelings such as

depression, and manifest the feeling by acting out or self-destructive behavior. Appellant’s

counsel moved to strike this testimony as irrelevant. The motion was denied, and the

district court noted that it was “quite consistent” with C.J.’s testimony.

       The district court’s decision to admit expert-witness testimony on delayed reporting

is supported by caselaw. See, e.g., State v. Hall, 406 N.W.2d 503, 503 (Minn. 1987) (“It

is within the trial court’s discretion to admit expert testimony concerning the behavioral

characteristics typically displayed by adolescent sexual assault victims.”); State v.

Sandberg, 406 N.W.2d 506, 507 (Minn. 1987) (“It is within trial court’s discretion to admit

expert testimony concerning the reporting practices of adolescent victims of sexual

assault.”); see also State v. Obeta, 796 N.W.2d 282, 283 (Minn. 2011) ( holding that, when

defendant argues sexual conduct was consensual, “the district court has discretion to admit

expert-opinion evidence on the typicality of delayed reporting . . . . when [it] concludes

that such evidence is helpful to the jury and the opinion has foundational reliability”).

While appellant argues that these decisions are not “a blanket invitation that conduct

labeled by the state as ‘delayed reporting’ is always admissible,” he makes no attempt to

distinguish them.

       Appellant argues that the testimony was unfairly prejudicial because “the state used

the expert to unfairly bolster and vouch for the complainant’s credibility: the expert,

although she did not expressly comment on C.J.’s credibility, provided such improper


                                              5
bolstering.” But appellant does not explain how testimony as to the behavior of adolescent

sexual-abuse victims generally could have unfairly bolstered the credibility of this

particular victim, whom the expert witness had never met and on whose testimony she did

not comment.

       The district court did not abuse its discretion in admitting the expert-witness

testimony.

2.     Prosecutorial misconduct

       A district court’s denial of a new-trial motion based on alleged prosecutorial

misconduct will be reversed only “when the misconduct, considered in the context of the

trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to

a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). When

the defendant fails to object, prosecutorial misconduct is reviewed under the plain-error

standard, requiring that (1) the prosecutor’s act was error, (2) the error was plain, and

(3) the error affected the defendant’s substantial rights. State v. Ramey, 721 N.W.2d 294,

302 (Minn. 2006). While the defendant has the burden of showing the first two criteria,

the state has the burden of proving that there is no reasonable likelihood that the absence

of the misconduct would have had a significant effect on the jury’s verdict. Id.

       The phrase “lost her virginity” occurs four times in the prosecutor’s 23-page closing

argument. The argument opened with the sentence, “On June 19th of 2012, [C.J.] turned

13, and just a few weeks later she lost her virginity to a 36-year-old man named

[appellant].” During the argument, the prosecutor explained the fact that some witnesses

said they had not seen any misconduct by saying, “the only witness to the conduct was the


                                             6
girl who lost her virginity; was the girl who was inappropriately touched, because they

[C.J. and appellant] were alone in the room together when those things happened.” The

argument concluded:

              [T]his 15-year-old girl ha[d] to tell about how she lost her
              virginity at 13 to a room full of strangers. . . . Not only was this
              a traumatic event, but it happened almost three years ago, [and]
              she came here and told you what happened . . . .
                      On June 19th of 2012, [C.J.] turned 13, and a few weeks
              later she lost her virginity to the defendant, a 36-year-old man.
              As C.J. told you, she has to live with that.

Appellant did not object to any of the references to lost virginity during the trial.

       “A prosecutor must not appeal to the passions of the jury. When credibility is a

central issue, this court pays special attention to statements that may inflame or prejudice

the jury.” State v. Mayhorn, 720 N.W.2d 776, 786-87 (Minn. 2006) (citation omitted).

Appellant argues that the references to C.J.’s loss of virginity did not concern an element

of the crimes and inflamed the passions of the jury and were therefore plain error.

       Even assuming that the references were error and that the error was plain, the error

did not affect appellant’s substantial rights. References to the virginity of teenage victims

of criminal sexual conduct have been held not to justify a new trial. See, e.g., Finnegan v.

State, 764 N.W.2d 856 (Minn. App. 2009), aff’d on other grounds, 784 N.W.2d 243 (Minn.

2010); State v. McNeill, 658 N.W.2d 228 (Minn. App. 2003). Finnegan concerned a 14-

year-old victim; the prosecutor made nine comments relative to her innocence and virginity

at the time of the abuse in a 28-page closing argument, and defense counsel objected to

two of them. Finnegan relied on State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983)

(holding that a closing argument must be considered as a whole) and concluded that the


                                               7
district court had not abused its discretion in denying postconviction relief. Finnegan, 764

N.W.2d at 866. Here, four comments were made in a 23-page closing argument, and

appellant’s counsel objected to none of them. On those facts, Finnegan does not support

granting a new trial.

       Finnegan also concluded that a prosecutor’s “comments [in closing argument] were

improper because they ‘were wholly unrelated to the elements of the offenses with which

[the] appellant was charged or the evidence at trial.’” Finnegan, 764 N.W.2d at 865

(quoting McNeill, 658 N.W.2d at 235). McNeill concerned abuse over a seven-year period,

when the victim was eight to fifteen years old. 658 N.W.2d at 231. The prosecutor in

McNeill (1) appealed to the jurors’ sympathy, saying that, while the jury could not “give

[the victim] back her childhood,” or “give her back her virginity,” it could “give her

justice”; (2) improperly vouched for “[the victim’s] credibility” and (3) “invite[d] the jury

to punish [the] appellant for exercising his right to trial.” Id. at 235. But even these three

acts of misconduct together were found not to “outweigh [the victim’s] descriptive and

detailed testimony[,]” and “these statements, although improper, [did not] unduly prejudice

[the] appellant.” Id. at 236. Similarly, even if the prosecutor’s four references of C.J.’s

lost virginity and his comment on C.J.’s difficulty in testifying before the jury were

improper, C.J.’s extensive testimony on the three incidents would outweigh the

impropriety. McNeill, like Finnegan, also does not support granting a new trial on the basis

of prosecutorial misconduct.




                                              8
       Finally, appellant challenges his sentence, arguing that the record of his criminal

history was not sufficiently developed, and the State agrees with this position.1 We also

agree. We therefore affirm appellant’s conviction but reverse his sentence and remand for

a hearing and for the district court to make further findings relative to appellant’s criminal-

history score.

       Affirmed in part, reversed in part, and remanded.




1
  Specifically, although appellant agreed at the sentencing hearing that he had a 2002
Wisconsin conviction of being a felon in possession of a firearm, he argues now that his
presentence investigation report “failed to establish a prior felon in possession conviction”
and “merely states that the prior conviction was ‘equivalent’ to a conviction under Minn.
Stat. § 624.713, subd. 2(b).”

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