                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A13-0913

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                    Eric Scott Knutson,
                                         Appellant

                                    Filed July 28, 2014
                                   Affirmed as modified
                                       Worke, Judge

                              Olmsted County District Court
                                File No. 55-CR-12-1035

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his convictions of first-degree criminal sexual conduct and

third-degree assault, arguing that (1) the district court abused its discretion by denying his
request for surrebuttal when the state improperly shifted the burden of proof; (2) the

circumstantial evidence was insufficient to sustain his convictions; and (3) the district

court erred in sentencing. Appellant also raises numerous issues in a pro se supplemental

brief. We affirm appellant’s convictions but modify his sentence.

                                         FACTS

       In February 2012, appellant Eric Scott Knutson was the primary caregiver for his

daughters, six-year-old H.K. and 23-month-old A.K. The girls’ mother, C.B., had been

receiving treatment at a chemical-dependency center since September 2011.

       On Thursday, February 2, 2012, around 11:00 a.m., Knutson dropped the girls off

at their daycare provider’s home. Their daycare provider, M.G., noticed that A.K. was

extremely tired and let her sleep through the morning. When she woke up, M.G. changed

A.K.’s diaper. M.G. removed A.K.’s diaper and “stopped and . . . [was] frozen in time

for a minute” because she saw blood in A.K.’s diaper. She cleaned A.K., but could not

find the source of the blood. M.G. called child protection reporting what she saw, and

stating that she had no idea what to do about it, but that somebody should check it out.

M.G. was instructed to tell Knutson about the blood in A.K.’s diaper.

       When Knutson arrived at his normal time to pick up the girls, sometime between

4:30 and 5:00 p.m., M.G. told Knutson that there was something wrong with A.K. and

that he needed to call the nurse line or take her to the hospital. Later that night, Knutson

contacted M.G. and told her that he called the nurse line and was told that A.K. was fine

and did not need to see a doctor.




                                             2
       On February 2, C.B. was staying at her mother’s house near where Knutson and

her daughters lived. She called Knutson, and he told her that A.K. had blood “coming

out of her.” C.B. told Knutson to call the nurse line or take A.K. to the doctor. Knutson

told C.B. that it was no big deal, that it was probably a “pimple,” and assured her that he

would seek medical attention if A.K.’s condition worsened. C.B. asked Knutson to bring

the girls to her mother’s house that night, but Knutson said that they were ready for bed.

       On Friday morning, February 3, C.B. called Knutson. Knutson told C.B. that he

called the nurse line and was instructed to put ointment on A.K.’s wound, but because she

was no longer bleeding he did not need to bring A.K. to see a doctor. Knutson told her

that “everything was fine and that they were going forward with the day as planned.”

Knutson dropped the girls off at M.G.’s on Friday morning and told M.G. that A.K. was

fine. But when M.G. changed A.K.’s diaper, she noticed that A.K.’s genital area looked

worse because it was less swollen and she could more easily see the injury. A.K.’s

genital area was red and looked “torn” or “cut” in the area between her vagina and

rectum.

       On Saturday, February 4, Knutson dropped the girls off at C.B.’s mother’s house

around 10:50 a.m. Within five minutes, C.B. was changing A.K.’s diaper and “gasped”

when she saw blood. C.B.’s mother, a public-health nurse, saw A.K.’s wound and

decided to take her to the emergency room. Dr. Richard Kvam, an emergency room

physician, examined A.K. He found an “injury to the perineum, and . . . a fairly

extensive tear all the way from the vagina to the rectum and a few abrasions.” Dr. Kvam




                                             3
knew immediately that A.K. needed to be transferred to the hospital. He also suspected

abuse and called social services.

       Dr. Marcie Billings, a pediatrician at the Mayo Clinic in Rochester, was asked to

consult on A.K.’s case. Dr. Billings first examined A.K.’s external genital area, and it

“was very obvious that there was an area kind of between the vaginal opening and the

anal opening that was traumatized.”      Upon separation of A.K.’s labia, Dr. Billings

noticed that the laceration was “fairly wide” and “deep.” On further separation, she

observed that A.K.’s hymen was “transected or lacerated in two separate positions.” Dr.

Billings determined that A.K. had perineal trauma, which is suggestive of abuse because

the trauma was extensive.       A.K.’s injury was caused by “significant force,” which

would not typically happen without penetration. Dr. Billings contacted the pediatric

surgical department to conduct an internal evaluation after she observed gelled blood

inside A.K.’s vagina.

       Dr. Christopher Moir, a pediatric surgeon at the Mayo Clinic, performed surgery

on A.K. A.K. suffered a penetrating injury, rather than a “straddle injury,” because her

labia were essentially uninjured. “[A]n unusually large amount” of force was necessary

to cause A.K.’s injury, which she in “no way” could have inflicted herself. Based on

signs of healing, Dr. Moir believed A.K.’s injury to be about a day old. Dr. Moir

described A.K.’s injury as “identical to a severe tear with childbirth,” something that he

has never seen in a child so young. A.K.’s injury was “one step away from being the




                                            4
most severe injury you can ever have in that area.”1 Surgery was performed so that A.K.

would not experience risks of poor bowel function, urinary tract infections, and a non-

functional vaginal canal.

       On February 4, Investigator Eric Boynton received a call about A.K.’s injury.

Boynton went to Knutson’s home that night. Knutson appeared to be intoxicated. When

asked about A.K.’s injury, Knutson stated that she “ripped up at her bowel.” Knutson

stated that he called the nurse line and took A.K. to the doctor. But during a later

interview, Knutson admitted that he did not call the nurse line or take A.K. to the doctor.

Knutson was also unable to turn over A.K.’s old diaper, the clothes she wore earlier in

the week, or her bedding, claiming that A.K. had thrown up in bed and he had done the

laundry.

       On December 18, 2012, following a five-day trial, the jury found Knutson guilty

of first-degree criminal sexual conduct and third-degree assault.            A presentence

investigation (PSI) showed a presumptive prison sentence of 168 months, with a lower

range of 144 months and an upper range of 202 months. The district court imposed a

202-month sentence because of the victim’s age, the seriousness of her injury, and

because she was completely defenseless and profoundly hurt. The district court stated

that while “[t]here is no basis to depart” from the sentencing guidelines, there was “a fair,

just and reasonable basis to go to the top of the box,” and that “202 months is simply the

toughest penalty . . . authorized . . . under these circumstances.” This appeal followed.

1
  A.K.’s tear came into the wall of the rectum down to the circular muscle, which is the
second muscle layer of the rectum. The tear had not quite opened all the way into the
rectum, which would have been the most severe injury.

                                             5
                                     DECISION

Closing argument

      Knutson first argues that because the prosecutor shifted the burden of proof in

rebuttal closing argument, the district court abused its discretion by denying his request

for surrebuttal argument and a cautionary instruction. “The decision to grant surrebuttal

closing argument lies within the sound discretion of the district court.” State v. Morrow,

834 N.W.2d 715, 729 (Minn. 2013) (stating that Minn. R. Crim. P. 26.03, subd. 12(k),

provides that a district court “may allow” the defense a surrebuttal closing argument).

Whether to provide cautionary instructions is also within the district court’s discretion,

and we will review that decision only for an abuse of that discretion. See State v. Roman

Nose, 667 N.W.2d 386, 397-98 (Minn. 2003).

      During trial, text messages that M.G. sent near the time that she discovered A.K.’s

injury were admitted into evidence. Defense counsel argued in closing argument that law

enforcement focused on Knutson without investigating the possibility that A.K. was

injured at M.G.’s home. Defense counsel also argued that not only did M.G. send the

text messages while children were in her care, but she then lied about sending the

messages and then admitted she sent the messages on behalf of a friend. Knutson

challenges the following statement in the prosecutor’s rebuttal closing argument:

             The defense wants you looking a lot of other places. They
             want you following a lot of other trails.
                    Now, would [M.G.] get daycare provider of the year
             for texting for a marijuana joint or a half of a joint while she’s
             providing daycare services? No. Does that mean there’s any
             evidence that she used? No. Any evidence that she used
             while she was in possession or while she was in care of


                                             6
              children? No. And it actually makes the theory that she hurt
              the child a little crazier.
                      So during that time frame from 12:30 to the report at
              2:30, she’s sending at least 11 text messages while causing
              this horrific injury, cleaning it up, making the decision that
              actually I just hurt this girl and now I’m going to get caught,
              so what’s the best way not to get caught. I’ll call [s]ocial
              [s]ervices. All within the two hours or less since the drop offs
              at 12:30 since [Knutson] was there himself. Is that logical? Is
              that reasonable doubt?

       The prosecutor responded that M.G.’s sending a text message seeking marijuana

did not mean that she used it while she provided childcare. This fairly represents the

evidence, does not shift the burden of proof to Knutson, or misstate the law. See Minn.

R. Crim. P. 26.03, subd. 12(k) (stating that the district court may allow a defense rebuttal

if the court finds the prosecution has made a misstatement of law or fact or an

inflammatory or prejudicial statement in rebuttal).

       After the district court denied the request for surrebuttal argument, it asked

defense counsel whether there was “some corrective action that the [c]ourt should take

short of giving the [requested] surrebuttal argument?” Defense counsel stated that the

court could remind the jury that anything said by the attorneys is not evidence and that it

is the state’s “burden to prove and the defendant doesn’t have to prove anything.” The

district court declined to repeat the instructions.

       This is not necessarily an issue of the district court refusing to give a cautionary

instruction; rather, it is the district court merely declining to remind the jury of its

instructions. The district court had instructed the jury that it was the state’s burden to

prove Knutson guilty and that Knutson did not have to prove his innocence. The district



                                               7
court also had instructed the jury that an attorney’s statement was not evidence and that if

an argument contained a statement of law that differed from the law as instructed it was

to be disregarded. Therefore, the district court properly instructed the jury and did not

abuse its discretion by declining to repeat the jury instructions.

Sufficiency of the evidence

         Knutson next argues that the evidence is insufficient to support his convictions

because the state “fell short of establishing that [he] was the perpetrator because he did

not have sole access to [A.K.] during the time period when the injury was thought to have

occurred.”

         When reviewing a challenge to the sufficiency of the evidence, this court views

“the evidence in the light most favorable to the verdict and assume[s] that the [jury]

rejected any evidence inconsistent with the verdict.” State v. Pendleton, 759 N.W.2d 900,

909 (Minn. 2009). The verdict will not be overturned if the facts in the record and the

legitimate inferences drawn from them would permit the jury to reasonably conclude that

the defendant was guilty beyond a reasonable doubt. State v. Hughes, 749 N.W.2d 307,

312 (Minn. 2008).

         Knutson’s convictions were based on circumstantial evidence, which is entitled to

the same weight as direct evidence and will permit a conclusion that the convictions were

supported by the evidence. See State v. Whittaker, 568 N.W.2d 440, 452-53 (Minn.

1997).       This court takes a two-step-analysis approach in evaluating whether

circumstantial evidence supports a conviction. State v. Silvernail, 831 N.W.2d 594, 598

(Minn. 2013). First, we identify the circumstances proved. Id. In doing so, we defer “to


                                              8
the jury’s acceptance of the proof of these circumstances and rejection of evidence in the

record that conflicted with the circumstances proved by the [s]tate.” Id. at 598-99

(quotation omitted).    Second, we “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”

Id. at 599 (quotation omitted).

       The circumstances proved include: (1) A.K. suffered a severe injury to her genital

area, (2) A.K.’s injury was caused by “an unusually large amount” of force, (3) A.K.

could not have caused her own injury, (4) A.K.’s sister, H.K., could not have caused

A.K.’s injury, (5) A.K. was injured sometime between being picked up from daycare on

February 1—which was typically between 4:30 and 5:00 p.m.—and 2:30 p.m. on

February 2 when M.G. reported the injury, (6) A.K.’s mother did not have contact with

A.K. during the time when the injury occurred, (7) Knutson lied about calling a nurse and

taking A.K. to see a doctor, and (8) investigators were unable to collect evidence from

A.K.’s clothing, bedsheet, or diaper because Knutson claimed to have washed or disposed

of them. This circumstantial evidence is consistent with Knutson’s guilt and inconsistent

with any rational hypothesis except that of his guilt. See id.

       Knutson argues that the only evidence that he was alone with A.K. during the time

when she was injured comes from his statement, which cannot be used as the sole

evidence against him. See Minn. Stat. § 634.03 (2012) (stating that a confession is

insufficient to support a conviction without evidence that the offense charged has been

committed). But Knutson did not confess to committing the offense. He stated that he

was with his daughters during the timeframe when A.K. suffered her injury. There are


                                              9
additional circumstances to support that the offenses were committed outside of

Knutson’s statement. The evidence sufficiently supports Knutson’s convictions.

Sentence

       The district court stated its intention to sentence Knutson at the upper end of the

range, but relied on an error in the sex-offender grid when it imposed a 202-month

sentence. The state agrees that Knutson should have been sentenced to 201 months in

prison instead of 202 months.

       After Knutson’s worksheet was prepared, the sex-offender sentencing grid was

modified to correct sentencing errors that, in some instances, resulted in sentences outside

of the lawful range. See Minn. Stat. § 244.09, subd. 5(2) (2012) (stating that “[t]he

guidelines shall provide for an increase of 20 percent and a decrease of 15 percent in the

presumptive, fixed sentence”); 2012 Minn. Laws ch. 229, § 1, at 692 (stating that the sex-

offender sentencing grid shall be modified “to ensure that it provides for an increase of

not greater than 20 percent and a decrease of not greater than 15 percent in the

presumptive fixed sentence”).      Knutson’s worksheet showed that the presumptive

sentence was 168 months in prison. Adding 20% to the presumptive sentence is 201.6,

which is rounded down to 201 months.             See Minn. Sent. Guidelines 4.B (2014).

Knutson’s sentence shall be modified to 201 months in prison.

Pro se supplemental brief

       Knutson raises approximately 40 claims in his pro se supplemental brief. The

majority of his claims are not supported by legal argument or authority. See State v.

Ahmed, 708 N.W.2d 574, 585 (Minn. App. 2006) (stating that we need not address


                                            10
allegations not supported by legal analysis and citation). Others are raised for the first

time on appeal. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App.

1997) (refusing to consider issues raised for first time on appeal). A thorough review of

the entire record supports the conclusion that Knutson’s pro se claims lack merit.

       Affirmed as modified.




                                            11
