                        This opinion will be unpublished and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
                                   A15-0745

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Arne Henry Mahlberg,
                                     Appellant.

                                Filed March 28, 2016
                                      Affirmed
                                 Kalitowski, Judge

                           St. Louis County District Court
                            File No. 69DU-CR-14-3308

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and

Kalitowski, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

KALITOWSKI, Judge

      Appellant Arne Henry Mahlberg challenges his convictions of first- and second-

degree criminal sexual conduct, arguing that the district court erred by admitting a

recording of the victim’s out-of-court statements to a forensic interviewer because the

statements were not particularly trustworthy or reliable. We affirm.

                                    DECISION

      Arne Mahlberg was convicted of two counts of first-degree criminal sexual conduct

and two counts of second-degree criminal sexual conduct. See Minn. Stat. §§ 609.342,

subd. 1(a, g), .343, subd. 1(g) (2014).1 The victim of Mahlberg’s offenses is N.J.M., the

step-granddaughter of his live-in girlfriend, C.W. N.J.M. was born on October 30, 2006;

she stated that she was between the ages of four and seven when Mahlberg committed the

offenses.

      C.W. is the mother of N.J.M.’s stepfather. N.J.M. refers to C.W. as “grandma” and

Mahlberg as “grandpa.” Until N.J.M. disclosed the allegations, C.W. provided daycare for

N.J.M. at her home, which she shares with Mahlberg, while N.J.M.’s mother worked full-

time. Although C.W. was typically the primary caretaker while N.J.M. stayed at her home,

Mahlberg occasionally cared for N.J.M. alone.

      Two weeks after N.J.M. disclosed the allegations to a school counselor, forensic

interviewer Laura Gapske interviewed her. N.J.M. disclosed various occasions of sexual


1
 Because the statutes of conviction did not change over the course of Mahlberg’s conduct,
we cite the current versions.

                                            2
abuse by Mahlberg during the interview. She reported that Mahlberg first touched her

inappropriately while they were in the bathroom cleaning the dog’s dish; she stated, in age-

appropriate terms, that Mahlberg touched her bare vagina and inserted his finger into her

anus. On a separate occasion, he undid his belt, exposed his penis, and hugged her to his

body, pressing his bare penis to her bare stomach; on the same incident, he forced her hand

around his penis. On another occasion, she reported that Mahlberg again touched her anus

by inserting his hand down the back of her skirt while she was showing him a video on the

computer. She also reported that Mahlberg once penetrated her anus and her vagina with

his penis, causing blood to come out when she next urinated. On another occasion, she

stated that Mahlberg kissed her vagina through her clothes. Finally, she disclosed that

Mahlberg had shown her a digital photo of himself naked.

       The state charged Mahlberg with seven offenses: three counts of first-degree

criminal sexual conduct, three counts of second-degree criminal sexual conduct, and one

count of solicitation of a child to engage in sexual conduct.

       On the first day of trial, N.J.M. testified. N.J.M. was unable to recall many of the

details of her disclosures to Gapske in her testimony. After N.J.M. testified, the state

moved to admit the recording of the Gapske interview under the residual hearsay exception,

Minnesota Rule of Evidence 807. Following an evidentiary hearing, the district court ruled

the video admissible. The residual exception to the rule prohibiting hearsay allows

admission of statements not falling under one of the accepted hearsay exceptions that

(1) have “equivalent circumstantial guarantees of trustworthiness,” (2) are evidence of a

material fact, (3) are more probative on that point than any other evidence that is attainable


                                              3
by reasonable methods, and (4) serve the interests of justice and the general purpose of the

rules of evidence. Minn. R. Evid. 807. In applying the residual exception to admit

evidence, “[t]he court should make findings explicitly on the record unless there is a waiver

. . . or the basis of the ruling is obvious.” State v. DeRosier, 695 N.W.2d 97, 105 (Minn.

2005) (quotation omitted).

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden

of establishing that the [district] court abused its discretion and that appellant was thereby

prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted); see also

State v. Ahmed, 782 N.W.2d 253, 259–60 (Minn. App. 2010) (reviewing admission of a

sexual-abuse victim’s extrajudicial statements for abuse of discretion).

       Here, Mahlberg challenges the district court’s ruling on the recording’s

circumstantial guarantees of trustworthiness. “[W]hether the circumstances surrounding

the making of the statements . . . show that the statements possessed particular guarantees

of trustworthiness” is a legal question, which we review de novo. State v. Salazar, 504

N.W.2d 774, 776–77 (Minn. 1993) (quotation omitted).             To admit an extrajudicial

statement under rule 807, the statement’s proponent must establish that “it is particularly

likely that the declarant was telling the truth at the time of making the statements.” Ahmed,

782 N.W.2d at 261 (quotation omitted). To determine whether the extrajudicial statement

has circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions, we

follow the totality-of-the-circumstances approach, accounting for “all relevant factors




                                              4
bearing on trustworthiness.” State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006)

(quotation omitted).

       “The relevant circumstances under rule 807 are ‘those circumstances actually

surrounding the making of the statements.’” Ahmed, 782 N.W.2d at 260 (quoting State v.

Lanam, 459 N.W.2d 656, 661 (Minn. 1990)). Minnesota cases enumerate several relevant

circumstances in child-abuse cases:

              whether the statement was spontaneous, whether the
              questioner had a preconceived idea of what the child should
              say, whether the statement was in response to leading
              questions, whether the child had any apparent motive to
              fabricate, whether the statements are of the type one would
              expect a child of that age to fabricate, whether the statement
              remained consistent over time, and the mental state of the child
              at the time of the statements.

Id.; see also Robinson, 718 N.W.2d at 410 (applying these factors to assess extrajudicial

statement).

       After entertaining arguments from counsel, hearing forensic interviewer Gapske’s

testimony, and viewing the interview recording for the purposes of the motion hearing, the

district court ruled it admissible. In analyzing the statement on the record, it noted that the

interview occurred because N.J.M. self-reported a “bad touch.” It further emphasized

Gapske’s testimony, including her description of the protocols employed to ensure the

trustworthiness of an interview, her minimal knowledge of the allegations, and her

impression that N.J.M.’s disclosures were spontaneous.            The court concluded that

appropriate protocols, including the avoidance of leading questions, had been followed.

N.J.M.’s demeanor was consistent throughout, and no motive to fabricate was presented at



                                              5
the interview. Later, in a thorough and well reasoned Findings of Fact, Conclusions of

Law and Order, the district court reiterated that the recording “had equivalent

circumstantial guarantees of trustworthiness based on the interview protocol utilized by

Ms. Gapske and the spontaneity of N.J.M.’s statements.”

       Mahlberg argues that the district court committed reversible error by admitting the

recording because its contents were not particularly trustworthy or reliable, relying on

application of the factors enumerated in Ahmed.        Specifically, he contends that the

statements were not spontaneous, Gapske knew of the specific allegations before the

interview, Gapske’s questions were not general, and N.J.M. had not consistently told the

same story. He contends the recording’s admission was highly prejudicial and he is

therefore entitled to a new trial. We disagree.

       Applying the Ahmed factors, the district court’s conclusion that the recording had

equivalent circumstantial guarantees of trustworthiness to other hearsay exceptions is well

supported by the record. Gapske’s testimony, particularly her description of the interview

protocols, supports the district court’s conclusion.    Accordingly, we summarize the

relevant portions of Gapske’s testimony regarding the interview protocol before applying

the Ahmed factors to the recording.

Interview Protocol

       Gapske testified that the interview followed a research-based “RATAC” forensic

protocol. Each letter of the RATAC acronym stands for a distinct stage of the interview.




                                             6
       During the first, rapport-building stage, the interviewer’s goals are to get the child

comfortable, reiterate to the child the importance of correcting the interviewer when

appropriate, and assess the child’s communication style and abilities.

       In the next stage, the anatomy-identification stage, the interviewer uses a drawing

of male and female bodies to elicit the words the child uses for different parts of their body.

Gapske testified that the interviewer uses the child’s body-part terms throughout the

interview because that reduces the child’s suggestibility to an adult’s use of different words

and because the interviewer wants the child to be comfortable using their own words.

       During the next stage of the RATAC protocol, the touch inquiry, the interviewer

asks the child “about touches that they like to get on their body,” and after a few such

scenarios, about “touches that they don’t like.” Following the touch inquiry is the abuse-

scenario stage; during this stage the interviewer explores any disclosures the child has

made. Finally, in the closing stage, the interviewer identifies safe people in the child’s life,

in whom they could confide if necessary.

       Gapske testified that the protocol is intended to be adaptable to the child; the

interview generally follows the protocol in order unless the child makes a spontaneous

disclosure. In the event of a child’s spontaneous disclosure, the interviewer follows the

child’s lead and “go[es] right into abuse disclosure, no matter when the child discloses

during the interview.” Ideally, the interviewer will ask only open-ended, non-leading

questions, but other question types may be used as necessary to clarify the details of a

disclosure.




                                               7
        With the interview protocols in mind, we next apply the Ahmed factors to the

recording of N.J.M.’s interview.

Spontaneity of the Statements

       Gapske testified that N.J.M.’s disclosures of abuse were spontaneous. She further

testified that she diverted from the chronological RATAC protocol during N.J.M.’s

interview because N.J.M. made a spontaneous disclosure during the rapport-building stage.

The transcript of the recording corroborates her testimony: N.J.M. tells Gapske that her

sister is coming to town the next week, that her sister will be upset because they cannot go

to C.W.’s house, and they cannot go to C.W.’s house because Mahlberg was “doing bad

stuff” to her.

       The transcript and the recording show that N.J.M. volunteered the allegations

without prompting.     Before volunteering the first allegation, N.J.M. had only been

instructed that everything said in the room had to be the truth. Subsequent allegations arose

at N.J.M.’s discretion, consistent with the protocol, amidst her tangential comments

regarding pets, family traditions, and toys. Moreover, when asked what she’d been told

before the interview, N.J.M. responded that her mother had simply told her that she had an

appointment and that N.J.M. would “see . . . what the appointment was about. It’s not a

doctor’s appointment, it’s just a different appointment. . . .” Sufficient evidence shows that

N.J.M.’s statements were spontaneous.

Preconceived Ideas of the Questioner

       Gapske testified that, going into the interview, consistent with the protocol, she

knew only the information contained in the intake report: that N.J.M. had disclosed


                                              8
allegations of abuse by her grandpa to a school counselor. Gapske’s questions throughout

the transcript reflect that she did not learn of the number of instances of abuse, the location,

or N.J.M.’s age at the time of the offenses until N.J.M. disclosed those details to her.

       Additionally, the transcript shows that despite Gapske’s knowledge that Mahlberg

was the alleged perpetrator, she never disclosed this knowledge to N.J.M.; instead, the

video shows that Gapske simply followed N.J.M.’s lead.               Contrary to Mahlberg’s

contention that “Gapske’s knowledge of N.J.M.’s allegations, and her role to obtain

evidence, is indicative of the untrustworthy nature of N.J.M.’s statements,” the

interviewer’s mere knowledge of the alleged perpetrator’s identity does not render the

statements unreliable. See Lanam, 459 N.W.2d at 661 (noting reliability of victim’s

disclosure to police where she consistently identified the defendant as the abuser before

forensic interview). The record shows that Gapske’s minimal preconceived ideas of the

allegations did not influence N.J.M.’s statements.

Method of Questioning

       The transcript of the recording shows, and the video confirms, that Gapske used

non-leading, general questions to interview N.J.M. When N.J.M. disclosed an allegation,

Gapske would repeat it back to N.J.M. in the same terms, and follow up by asking N.J.M.

to tell her more about it.

       Moreover, Gapske openly asked N.J.M. to correct her, if necessary, and consistently

thanked N.J.M. for correcting her to encourage such behavior. During the interview, the

only questions containing references to the allegations came in response to N.J.M.’s own

descriptions of what happened. For example, when N.J.M. said that her grandpa “was


                                               9
doing bad stuff” to her, Gapske repeated it back to N.J.M. in the form of a question and

then said “tell me more about your grandpa doing bad stuff to you.” Accordingly, in the

context of the entire interview, Gapske’s questions simply echo N.J.M.’s own language

and are not suggestive in nature so as to render N.J.M.’s statements unreliable.

Viability of Fabrication

       The state asserts, and we agree, that a seven-year-old girl would be unable to

describe the conduct and her own reactions to Mahlberg’s conduct that N.J.M. details in

her interview in the absence of abuse. N.J.M. told Gapske that Mahlberg put his penis into

where her “pee comes out” and that it felt like it went all the way up into her stomach,

“right into [her] belly button.” She stated that he inserted his finger into her “butt hole”

and then told her to smell his finger. When asked how that made her body feel, she said

“it kind of hurted my butt and it made me feel like I’m going to throw up.” She stated that,

on multiple occasions, he asked her if she liked him touching her in that way, to which she

first responded that she didn’t, and later “no, you already asked me that and I said no.”

       Further, N.J.M.’s mother testified that N.J.M. generally liked going to C.W.’s house,

where Mahlberg lived; her testimony reflected no possible motive to fabricate the

statements. Indeed, N.J.M. expressed remorse because her sister would be upset that they

could not go to C.W.’s house. These circumstances support the district court’s conclusion

that N.J.M. had no reason to fabricate the statements, thus contributing to their reliability.

Consistency of the Statements

       Here, as in Lanam, N.J.M.’s details and dates varied, as did her ability to disclose

the allegations.   459 N.W.2d at 661.       But as in Lanam, her “basic story remained


                                             10
unchanged.” Id. She consistently alleged that her grandpa had touched her inappropriately;

first to her school counselor, then to Gapske, and her later testimony—though she had

difficulty recalling the specifics of her allegations on the stand—was consistent with this.

We conclude that this factor did not detract from the reliability of N.J.M.’s statements.

Mental State of the Child at the Time of the Statements

       The video shows that N.J.M.’s demeanor throughout the interview was consistent:

she appears open, engaged, calm, and candid. Nothing about her mental state suggests that

her statements were not reliable.

       In sum, the district court properly assessed the Ahmed factors in deciding to admit

the recording of the Gapske interview. The district court’s detailed findings are amply

supported by the record and the recording of the interview. Accordingly, it did not abuse

its discretion in admitting the recording.

       Affirmed.




                                             11
