                           This opinion will be unpublished and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
                                       A13-1774

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                   Joseph Michael Tuseth,
                                         Appellant.

                                   Filed October 14, 2014
                              Affirmed in part and remanded
                                       Stauber, Judge

                                 Polk County District Court
                                   File No. 60CR122755

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

Gregory Alan Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)

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

       Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and

Kirk, Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

       On appeal from his conviction of felony domestic assault, domestic assault by

strangulation, and felony pattern of stalking conduct, appellant argues that (1) the district

court plainly erred by admitting certain witness testimony; (2) the prosecutor committed
prejudicial misconduct by eliciting improper vouching testimony; (3) he was denied the

effective assistance of counsel; and (4) the district court abused its discretion by sentencing

him to an upward departure from the presumptive sentence. We affirm appellant’s

convictions, but remand for resentencing.

                                            FACTS

       Appellant Joseph Michael Tuseth was charged with felony domestic assault,

domestic assault by strangulation, and felony pattern of stalking conduct for allegedly

assaulting his girlfriend A.B. in December 2012. At trial, the state presented testimony

and other evidence establishing that appellant and A.B. began dating in the summer of

2010, and began cohabitating “right away.” A.B. testified that the first time appellant

became physically abusive he slapped her across the face, choked her, and threw her

belongings in the snow. A.B. also testified that appellant assaulted her again in May

2011. According to A.B., appellant chased her into the bathroom and pushed her against

a towel rack, causing her head to bleed. A.B. then attempted to leave the apartment, but

appellant grabbed her, lifted her off her feet by her throat, and choked her until she lost

consciousness. A.B. further testified that when she began to regain consciousness, she

saw appellant wipe her blood off the hallway wall and that when appellant saw that she

was conscious, he called her names and kicked her in the ribs, causing a fracture.

       For the May 2011 assault, appellant was charged with a number of offenses and

later pleaded guilty to domestic assault by strangulation, third-degree assault, and false

imprisonment. Appellant was then sentenced to 18 months in prison. While the case was

pending, appellant contacted A.B. by telephone in violation of a domestic abuse no


                                               2
contact order (DANCO). Consequently, appellant was charged with and pleaded guilty

to two counts of violation of a DANCO.

       After appellant was released from prison, he moved in with A.B. at her apartment.

But on December 7, 2012, appellant told A.B. that he wanted to end the relationship. The

next morning, the two feuded over money before A.B. left for work. Appellant then went

to A.B.’s place of work where, according to A.B., she observed appellant consuming

alcohol in the parking lot. A.B. also testified that appellant was “in and out calling me a

whore and a bitch” before he “eventually” left.

       After work, A.B. was home asleep when she awoke to find appellant standing over

her, intoxicated and calling her names. A.B. testified that she then went to stay with a

friend, L.F., who lived across the parking lot. But when she saw the lights off in her

apartment, she assumed appellant had left, so she went back to her apartment to get her

pajamas and toothbrush.

       Upon reentering her apartment, A.B. observed appellant passed out on the couch

in an “uncomfortable” position. According to A.B., she woke appellant up “to see if he

wanted to go lay in bed.” A.B. testified that appellant responded by calling her a bitch

and a whore and accusing her of having sex with a neighbor. Appellant then struck A.B.

in the nose, causing blood to “gush[] out.” A.B. claimed that when she tried to leave,

appellant threw her on the ground and choked her.

       Appellant eventually permitted A.B. to leave the apartment. A neighbor, S.K.,

was in the parking lot when she saw A.B. “run[] outside with blood all over her face and




                                             3
her clothes.” According to S.K., A.B. told her that she had been in a fight with appellant.

After S.K. got a towel for A.B.’s face, A.B. returned to L.F.’s apartment.

       L.F. testified that when A.B. arrived back at her apartment, “she had blood all over

her” and said that appellant had “punched her in the face.” In the meantime, S.K. went to

A.B.’s apartment because she thought A.B. had gone back home. According to S.K.,

when appellant let her into the apartment, she observed that the “apartment was kind of

beat up, things thrown around, a lot of blood everywhere.” S.K. also testified that

appellant “had blood all over his body as well.” S.K. then left the apartment, found A.B.,

and took her to the hospital.

       At the hospital, A.B. was treated by Dr. Steven Weiser. He observed that A.B.

“had a lot of facial trauma,” including a “pretty significant amount of swelling to her

nose,” and an abrasion on her neck. According to Dr. Weiser, A.B. told him that “she

was punched in the face, punched in the nose, and she was choked.” Dr. Weiser also

testified that “it was clinically clear to me that [A.B.] had been assaulted.”

       Officer Anthony Reznicek testified that he was dispatched to the scene and

observed that the “apartment was in disarray” and that there was a “large amount of

blood on the floor.” Officer Reznicek then heard the shower turn on and soon discovered

appellant in the shower. Officer Reznicek called to appellant, and when appellant

“looked outside the shower curtain” Reznicek “could see [that] there was blood on

[appellant’s] upper neck, down his shoulder, and it appeared that [appellant] was trying to

wash the blood off of him.” Officer Reznicek further testified that appellant was

“uncooperative,” and “appeared to be intoxicated.”


                                              4
       B.H., who lived two doors down from A.B., testified that he overheard the

argument between appellant and A.B. on December 8, 2012. Although B.H. did not see

the argument, he testified that it “sounded like” the male was the “aggressor” and the

female was the “victim.”

       Appellant took the stand in his defense and claimed that the day before the alleged

assault, he ended the relationship with A.B. because she was using controlled substances.

According to appellant, he had been moving his belongings out of the apartment, which

was why the apartment was in disarray. Appellant also testified that he went to the

apartment on the evening of December 8 to get “the rest of [his] property,” but because

he was intoxicated and A.B. was not there, he decided to stay the night and fell asleep on

the couch. Appellant testified further that he woke up with A.B. on top of him, slapping

him and “freak[ing] out” about him ending the relationship. Appellant claimed that he

was disoriented, so he grabbed A.B. and his head accidentally hit her nose. Although he

could not see A.B.’s nose bleeding because the apartment was dark, appellant testified

that he could feel the blood on his body.

       Appellant also testified that after the altercation, A.B. told appellant that he was

“screwed,” that she was going to call the police, and that he was going back to prison.

Appellant claimed that, because he did not want to go back to prison and the blood on his

body made it look like he had done something wrong, he got in the shower to wash off

the blood. Although appellant believed that police would not credit his side of the story

because of his prior convictions, he denied choking and punching A.B. in the face.




                                              5
       The jury found appellant guilty of the charged offenses and the district court

sentenced on the felony of pattern stalking conviction. The state then requested a 90-

month sentence, essentially a double upward departure from the presumptive guidelines

sentencing range of 43 months, based upon appellant’s criminal-history score of five.

The district court stated that it “strongly consider[ed]” a longer sentence, but concluded

that a “57 month guideline sentence is the most appropriate given all circumstances.”

This appeal followed.

                                      DECISION

                                              I.

       “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).

       Appellant argues that the district court erred by allowing (1) Dr. Weiser to offer

“expert opinion testimony” regarding whether A.B. was assaulted and (2) the state to

introduce as substantive evidence B.H.’s unsworn statement to an investigating officer

that he overheard a woman complaining about being strangled. Appellant argues that

because these errors were prejudicial, he is entitled to a new trial.

       Because appellant did not object to the district court’s admission of the challenged

testimony, we review the issue for plain error. State v. Griller, 583 N.W.2d 736, 740

(Minn. 1998). Appellant, therefore, “must show that the district court’s failure to sua


                                              6
sponte exclude the testimony at issue constituted (1) an error; (2) that was plain; and

(3) that affected [appellant’s] substantial rights.” State v. Medal-Mendoza, 718 N.W.2d

910, 919 (Minn. 2006). If these requirements are established, we “will order a new trial

only if the error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” State v. Bahtuoh, 840 N.W.2d 804, 811 (Minn. 2013).

       A.     Dr. Weiser’s expert testimony

       Expert testimony is permitted if the expert’s “scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Minn. R. Evid. 702. “The basic consideration in admitting

expert testimony under rule 702 is the helpfulness test-that is, whether the testimony will

assist the jury in resolving factual questions presented.” State v. Grecinger, 569 N.W.2d

189, 195 (Minn. 1997). “An expert opinion is helpful if the members of the jury, having

the knowledge and general experience common to every member of the community,

would be aided in the consideration of the issues by the offered testimony.” State v.

Bradford, 618 N.W.2d 782, 793 (Minn. 2000) (quotation omitted).

       Here, Dr. Weiser’s testimony included several statements opining that A.B. was

assaulted. Appellant’s defense at trial was that A.B.’s injuries were caused when he

“accidentally head-butted [A.B.] after she woke him up from a drunken stupor by

slapping and yelling at him.” Based on his trial defense, appellant argues that Dr.

Weiser’s testimony “interfered with the jury’s role of resolving the ultimate legal

conclusion of whether [appellant] intentionally assaulted [A.B.] or if he accidentally

caused her injured nose.”


                                               7
       Assuming but not deciding that Dr. Weiser’s testimony constituted expert-opinion

testimony, we conclude that appellant cannot establish that it was plain error to admit it.

“Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

Minn. R. Evid. 704. The comments to rule 704 explain that the admissibility of opinion

testimony depends on whether “the opinion would be helpful to or assist the jury as

provided in Rules 701-703.” Minn. R. Evid. 704, 1977 comm. cmt. Consequently, an

objection that opinion testimony goes to an ultimate issue is, by itself, “not sufficient.” In

re Estate of Olson, 176 Minn. 360, 370, 223 N.W. 677, 681 (1929). Instead, a party

objecting to such testimony must show that, in the case of expert-opinion testimony, the

testimony “will [not] assist the trier of fact to understand the evidence or to determine a

fact in issue.” Minn. R. Evid. 702.

       The applicable law demonstrates that the pertinent question is whether

Dr. Weiser’s testimony that A.B.’s injuries were consistent with those of someone who

had been assaulted is helpful to the determination of a fact issue. See Minn. R. Evid.

701(b). The challenged testimony relates to a simple fact question: whether A.B.’s

injuries were the result of an intentional or accidental act. As a result, Dr. Weiser’s

testimony could reasonably be deemed helpful to the jury. Therefore, it was not plain

error for the district court to admit the challenged testimony.

       B.     B.H.’s out-of-court statement

       B.H. testified that he heard a struggle between a man and a woman in A.B.’s

apartment, but did not remember any specific words being said by either person. The


                                              8
state did not attempt to refresh B.H.’s memory with his prior statement to police. Later,

the state called Officer Kyle Steever, who interviewed B.H. after the incident. According

to Officer Steever, B.H. told him that he overheard the woman “state something to the

effect of stop choking me or can’t breathe, something like that.”

       A witness’s prior inconsistent statements that are not made under oath are

generally admissible only for impeachment purposes and not admissible to prove the

truth of the matters asserted in them. Minn. R. Evid. 613(b); 801(d)(1)(A). Citing this

rule, appellant argues that because B.H.’s prior statement was made during an unsworn

police interview, it was not admissible as substantive evidence.

       Even if we were to conclude that it was plain error to admit the challenged

testimony, appellant is unable to establish that it affected his substantial rights. The

record reflects that the evidence offered by the state was strong. A.B. testified in detail

regarding the events of December 8, 2012, including appellant’s alcohol consumption, his

obnoxious behavior at her place of employment, and his later assault at her apartment.

She also testified about appellant’s prior domestic abuse, and photographs depicting the

prior abuse were admitted into evidence. Moreover, photographs of A.B.’s injuries from

the December 8 assault, as well as the condition of the apartment, which showed it in

disarray with blood everywhere, were shown to the jury. And several other witnesses,

including L.F. and S.K., testified that they were told by A.B. that she was assaulted by

appellant. In light of the abundant evidence admitted at trial supporting appellant’s guilt,

he is unable to demonstrate that there is a reasonable likelihood that the outcome of the

proceeding would have been different if the challenged testimony was not admitted. See


                                              9
State v. Burg, 648 N.W.2d 673, 677 (Minn. 2002) (“To show that the error affected

substantial rights, the defendant bears the heavy burden of showing that the error was

prejudicial-that is, the defendant must show that there is a reasonable likelihood that the

error substantially affected the verdict.”). Appellant is not entitled to a new trial.

                                              II.

       Appellant argues that the prosecutor committed misconduct by eliciting improper

vouching testimony from Heddan and Officer Reznicek. Because appellant failed to

object to the admission of this testimony at trial, the issue is reviewed under a modified

plain-error test. See State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To meet this

test, an appellant must establish that the misconduct amounted to error that was plain. Id.

If plain error is established, the state has the burden to show that it did not prejudice the

appellant’s substantial rights. Id. This burden is satisfied if the state can show that there

is no reasonable likelihood that the misconduct had a significant effect on the jury’s

verdict. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). “Finally, if all three

prongs . . . are satisfied, the court determines whether to address the error to ensure

fairness and integrity in judicial proceedings.” State v. Cao, 788 N.W.2d 710, 715

(Minn. 2010).

       “The credibility of a witness is for the jury to decide.” State v. Ferguson, 581

N.W.2d 824, 835 (Minn. 1998) (quotation omitted). “Therefore, one witness cannot

vouch for or against the credibility of another witness.” Id. It is improper for a

prosecutor to intentionally elicit vouching testimony during trial. Van Buren v. State, 556

N.W.2d 548, 551 (Minn. 1996).


                                              10
       Here, the prosecutor asked B.H., based upon “what [he] could hear,” who

“appeared to you” to be “the aggressor?” B.H. responded that “[i]t would have been the

guy,” and the female voice would have been “the victim.” The prosecutor also asked

Officer Reznicek if, when he responds to assaults, the more “agitated” person “is

typically the person that would be the aggressor?” Officer Reznicek responded: “In my

experience, yes.”

       Referring to this testimony, appellant argues that the prosecutor committed

misconduct by asking B.H. and Officer Reznicek to vouch for A.B.’s “credibility by

testifying whether [appellant] or [A.B.] was the aggressor when neither witness observed

the incident happen.” But improper vouching testimony is testimony that another witness

is telling the truth or that one believes one witness over the other. Ferguson, 581 N.W.2d

at 835. Nowhere in the challenged testimony does either B.H. or Officer Reznicek state

that A.B. was telling the truth or that they believed A.B.’s testimony over appellant’s

testimony. Because the challenged testimony does not constitute improper vouching

testimony, appellant is unable to establish that the prosecutor committed misconduct by

eliciting the testimony. Furthermore, even if it was plain error to admit the testimony,

there is no reasonable likelihood that the outcome of the proceeding would have been

different. Therefore, appellant’s claim that he is entitled to a new trial based on

prosecutorial misconduct is without merit.

                                             III.

       To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate that (1) counsel’s performance “fell below an objective standard of


                                             11
reasonableness” and (2) there is a reasonable probability that the outcome would have

been different but for counsel’s errors. Andersen v. State, 830 N.W.2d 1, 10 (Minn.

2013); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

The burden of proof on this claim rests with the defendant, who must overcome the

“strong presumption that counsel’s performance fell within a wide range of reasonable

assistance.” Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007). When the defendant fails

to prove either counsel’s deficient performance or resulting prejudice, the defendant’s

claim of ineffective assistance of counsel fails. State v. Blanche, 696 N.W.2d 351, 376

(Minn. 2005).

       Here, appellant was charged with felony domestic assault, which requires proof

that appellant committed a domestic assault within ten years of committing two or more

“previous qualified domestic violence-related offense convictions.” Minn. Stat.

§ 609.2242, subd. 4 (2012). At trial, the state introduced evidence that appellant was

convicted of third-degree assault and violation of a DANCO. Later, the state introduced

evidence that appellant was convicted of fifth-degree assault in November 2003. Defense

counsel objected to the admission of the conviction, noting that the state had already met

its burden on the prior-qualified domestic-related offenses. Defense counsel then

indicated that he would stipulate to that element of the offense. The prosecutor, however,

declined to enter into the stipulation because “that stipulation would have had to be

entered into before we started trial.” After a short recess, defense counsel withdrew his

request to stipulate, stating that “I didn’t realize [the fifth-degree assault conviction was]




                                              12
part of the charge itself. That being the case, I don’t think there is any basis to withhold

[it].”

         Appellant argues that his “defense counsel was ineffective for failing to stipulate

that [he] had two or more previous qualified domestic violence-related convictions.” But

evidence supporting appellant’s guilt was very strong. Thus, even if appellant can

establish the first Strickland prong, appellant’s ineffective-assistance-of-counsel claim

fails because he cannot establish that there is a reasonable probability that, but for

counsel’s errors, the outcome would have been different. See Blanche, 696 N.W.2d at

376 (stating that when the defendant fails to prove either counsel’s deficient performance

or resulting prejudice, the defendant’s claim of ineffective assistance of counsel fails).

                                              IV.

         Appellant challenges the district court’s imposition of a 57-month sentence on the

assault offense, which is a six-month upward departure from the 51-month top-of-the-box

guidelines sentence. This court reviews sentences imposed by a district court for an

abuse of discretion. State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review

denied (Minn. July 20, 2010).

         A district court “must pronounce a sentence within the applicable range” for a

crime unless “identifiable, substantial, and compelling circumstances” exist to support a

departure from the presumptive sentence. Minn. Sent. Guidelines 2.D.1 (2012). The

sentencing guidelines contain a nonexclusive list of aggravating factors that may justify a

sentencing departure. Minn. Sent. Guidelines 2.D.3.b (2012). If the reasons given for the

“departure are legally permissible and factually supported in the record,” this court will


                                              13
affirm the departure. State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). But “a

sentencing court has no discretion to depart from the sentencing guidelines unless

aggravating . . . factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).

       Appellant was sentenced for the felony pattern of stalking conviction. Because

appellant had a criminal-history score of five, the presumptive sentence for this offense

was 43 months, with a presumptive range of 37-51 months. See Minn. Sent. Guidelines

4.A., 5.A. (2012). The state, however, requested a sentence of 90 months, which is a

greater than double upward departure from the presumptive sentence. Although the

defense stipulated that there was a departure factor, counsel for appellant argued for a

guidelines sentence.

       In deciding to impose a 57-month sentence, the district court stated on the record

that

              the Court did very strongly consider sentencing [appellant] to
              72 months, 84 months, and at one point in thinking about this
              file, frankly I thought about sentencing you to 96 months.
              However, when I do reflect on this file and I do look at the
              overall charge that did lead to this Count 4, the Court does
              believe that the 57 month guideline sentence is the most
              appropriate given all circumstances. The Court does believe
              that the State’s argument is supported certainly factually by
              the items we’ve noted here today, by the record that was
              generated at trial, and by the written submissions that have
              been made throughout this process.

       Appellant argues that because the “district court failed to state reasons on the

record to justify an upward departure, and meant to impose a presumptive term, [he] is

entitled to be resentenced to the presumptive term to not exceed 51 months.” Conversely,

the state asserts that the “district court specifically found that the aggravated departure


                                              14
factor had been proven when it stated that it accepted and adopted the prosecution’s

argument,” and that the district court was properly advised that the correct presumptive

range for appellant’s conviction was 37-51 months. Therefore, the state argues that

appellant’s sentence should be affirmed because the “district court clearly intended to

depart upwardly by six months when it imposed an executed sentence of 57 months.”

       Our review of the record reveals that the parties agreed that an aggravating factor

was present, and the district court’s statements on the record constitute its recognition

that an aggravating factor was present. But, although the district court imposed a

sentence that was an upward departure, it did not specifically state that it was departing

from the presumptive sentence, and it did not give the specific reason for the departure at

the time the sentence was imposed. Instead, the district court indicated that a departure

was not appropriate and stated that a “guideline sentence is the most appropriate given all

the circumstances.” This language indicates that the district court intended to impose a

guidelines sentence, but misspoke by imposing a 57-month sentence. And as appellant

points out, this scenario seems likely in light of the fact that the sentencing worksheet that

was before the district court at the time of sentencing mistakenly listed appellant’s

criminal history score as 8 instead of 5. Consequently, the sentencing worksheet

erroneously listed the presumptive sentence as 48 months, with a presumptive range of

41-57 months. Therefore, in light of the uncertainty surrounding the basis for appellant’s

sentence, we remand for resentencing pursuant to the guidelines range of 37-51 months.

       Affirmed in part and remanded.




                                             15
