This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1259 State of Minnesota, Respondent,

vs. Blake Adam Schneider, Appellant. Filed July 25, 2016 Affirmed Reilly, Judge Sherburne County District Court File No. 71-CR-13-1763 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County Attorney, Elk River, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reilly, Pr esiding Judge; Worke, Judge; and Smith, Tracy M., Judge. U N P U B L I S H E D O P I N I O N
REILLY , Judge On appeal from his conviction of third-de gree criminal sexual conduct, appellant argues (1) he was denied his right to a fa ir trial by the admissi on of a lay witness’s2 testimony on the characteristics of sex assault cases involving 14-year-olds; and (2) he was deprived of his constitutional right to a fairtrial when the prosec utor committed misconduct by vouching for the credibility of the complainant and by encour aging the jury to draw an implication from appellant’s exercise of his ri ght to remain silent. Because appellant was not prejudiced by the admission of the testimony on the characteristics of assault cases, and the prosecutorial misconduct does not require re versal to ensure the fairness and integrity of the judicial proceedings in th is particular case, we affirm. FACTS In April 2012, A.K.T. ran away from home to live with her stepsi ster, W.T. W.T. lived with her boyfriend, her three-year old daughter, and appellant Adam Blake Schneider. One night in June 2012, A.K.T. babysat for W. T.’s daughter at the home with her friend, A.F. Appellant was also present with his young daughter. A.K.T ., A.F., and appellant “hung out” in the living room and watched television until A.F. went home. Appellant had been drinking beer and gave A. K.T. beer which caused her to feel impaired. Appellant had sexual intercourse with A.K.T. on a blanket on the living room floor and in her bedroom. Appellant ejaculated on A.K.T.’s stomach and in structed her to take a shower. After she got out of the shower appellant told her “tha t [she] had to remember not to tell anyone because if [she] did he would go to jail.” At the time of the sexual intercourse A.K.T. was 14 years old and appellant was 25 years old. Shortly thereafter, A.K.T. told A.F. that appellant had sexual intercourse with her. A few months later, A.K.T. told her school co unselor, and the counselor contacted the Elk River Police Department. In December 2012, the police depart ment contacted Julie Mlsna,3 a child protection worker who ha d previous experience with A. K.T.’s family and asked her to conduct an interview of A.K.T. During th e interview A.K.T. told Mlsna that in June 2012 appellant had sexual intercourse with her in the living room and in her bedroom at W.T.’s house. Appellant was charged by complaint with th ird-degree criminal sexual conduct in violation of Minn. Stat. § 609. 344, subd. 1(b), in December 2013. He was convicted by jury in February 2015. In June 2015, he was sentenced to 91 mo nths in prison. This appeal follows. D E C I S I O N
I. Appellant argues he was denied the right to a fair trial becaus e of the admission of Mlsna’s testimony about the char acteristics of sexual assault cases involving 14-year-old victims. On the first day of trial the state in dicated its intent to elicit testimony from Mlsna regarding the typicality of delayed reporti ng by sexual assault victims based on Mlsna’s expertise in interviewing juve nile victims of sexual assault. 1 The district court asked if the state intended to qualify Mlsna as an expert, and the state i ndicated it “could.” Appellant

1 Mlsna is the lead Child Prot ection Investigator for Sherbur ne County Health and Human Services in the In-take Child Protection Unit. She holds a bachelor’s degree in child development and family life with a minor in psychology and a master’s degree in counseling psychotherapy with an emphasis in marriage and family therapy. She has extensive experience work ing in the child protection system and serves on a multidisciplinary team for child forensic sexual abuse-type ca ses. She has had extensive training in the “CornerHouse” method of fore nsic interviewing. Sh e has conducted over 500 forensic interviews and, at times, she ha s been called upon by the FBI and the BCA to conduct interviews in high profile cases.4 argued that the district court s hould preclude this testimony because it was expert testimony and the state did not provide proper notice. The district court ruled: I will allow Ms. Mlsna provided you provide the Court with an adequate foundation, not necessar ily that she’s an expert but that she has experience with repo rting, to testify that generally speaking it’s not unusual for reporting to be delayed under circumstances where someone in this age range has been sexually assaulted. But if you’ re planning on going further with that you’ll have to provid e [defense counsel] between now and tomorrow with a CV and es sentially what you intend to elicit in terms of so-called expert testimony. I think based upon her experience, and again I’ll have to hear the foundation for what you’re going to outline, I think very limited information as I stated would be appropriate. At trial, after establishing that A.K.T. waited until December 2012 to report the sexual assault that occurred in June 2012, the state asked Ml sna if delayed reporting was unusual in sexual assault cases with 14-year-old victims. The following exchange occurred which appellant challenges on appeal: MLSNA: You know that’s not unus ual and that can happen for a variety of reasons where kids later disclose, and I don’t -- a wide variety being from kids fe el safe to maybe they’re in therapy, it could be a trigger, so mething reminds her what took place, a recollection where kids then begin to tell th eir story. It could be a wide variet y as to why kids disc lose six months later and it could be several years later. THE STATE: And rather silly question, but she doesn’t describe short of the fact that Mr. Schneider’s daughter may have been awake; she doesn’t desc ribe any witnesses to this, is that right? MLSNA: That is correct. THE STATE: Is that unusual? MLSNA: In regards to? THE STATE: People having -- a 14-year-old having a sex with a 25-year old? MLSNA: That there woul d be witnesses present? THE STATE: That there wouldn ’t be witnesses present.5 MLSNA: Absolutely, right, correct, there wouldn’t be. THE STATE: Is that normal? MLSNA: Typically. Expert Testimony Appellant contends the district court e rred by failing to treat Mlsna’s testimony regarding the typicality of delayed reporting as expert testimony. Mi nnesota courts have repeatedly held that the typicality of dela yed reporting is expert testimony because it requires specialized knowledge that is not w ithin the common knowle dge of lay people. State v. Obeta , 796 N.W.2d 282, 291 (M inn. 2011) (concluding “that expert testimony about counterintuitive behaviors of child- or adolescent-victims of sexual assault could aid jurors in their fact-finding”); State v. Hall , 406 N.W.2d 503, 505 (M inn. 1987) (“[I]n cases where a sexual assault victim is an adolescent, [general] expert testimony as to the reporting conduct of such victims and as to continued contact by the ad olescent with th e assailant is admissible in the proper exercise of di scretion by the trial court. . . .”); State v. Myers , 359 N.W.2d 604, 610 (Minn. 1984) (holding that e xpert testimony into “puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bri ng to its evaluation” of a child-victim of criminal sexual conduct wa s helpful to the jury). As such, we agree with appellant’s characterization of the testimony as expert tes timony, and the district court erred when it referred to testimony regarding the typicality of delayed reporting as “socalled” expert testimony. Discovery Violation Because the state did not provide proper notice of the expert testimony, appellant argues that a discovery violation occurred. Whether a discovery vi olation occurred is a6 question of law, which we review de novo. State v. Bailey , 677 N.W.2d 380, 397 (Minn. 2004). Expert testimony is subject to diff erent discovery rules than lay testimony. Pursuant to the Minnesota Rule s of Criminal Procedure, be fore the omnibus hearing the prosecutor must disclose the fo llowing regarding “[a] person wh o will testify as an expert but who created no results or reports in connection with the case”: “a written summary of the subject matter of the expert’s testimo ny, along with any fi ndings, opinions, or conclusions the expert will give, the basis for them, and the expert’s qualifications.” Minn. R. Crim. P. 9.01, subd. 1(4)(c). Th e state failed to comp ly with the notice requirement of rule 9.01 because the state did not disclose its intent to have Mlsna testify as an expert before the omnibus hearing and th ere is no record that appellant ever received any written summary of the subject matter of Mlsna’s testimony or a summary of Mlsna’s qualifications. Thus, a disc overy violation occurred. Even when a discovery viola tion occurs, the state’s violat ion of a discovery rule will not result in a new trial absent a show ing that appellant was prejudiced. State v. Palubicki , 700 N.W.2d 476, 489 (Minn. 2005). Appellant argues he was prejudiced by the improper admission of Mlsna’s testimony because the entire case depended on whether the jury believed A.K.T. Appellant relies on State v. Vue , where we concluded the admission of improper expert testimony warranted reversal where the defendant’s “conviction was based on disputed testimonial eviden ce” and “[t]he outcome of th e trial depended on whom the jury believed.” 606 N.W.2d 719, 724 (Minn. App. 2000), review denied (Minn. May 16, 2000). Vue is distinct from the present case because the expert testimony in Vue was inadmissible. Appellant does not argue that regardless of the discovery violation the7 testimony regarding the typicality of delayed reporting is in admissible. Here, defense counsel had the opport unity to extensively cross-examin e Mlsna regarding the typicality of delayed reporting a nd her qualifications to provide su ch testimony which mitigated any prejudice suffered by the lack of notice. As such, the error was harmless and reversal is not required. Exceeding the scope of permissible testimony Appellant also argues that the prosecutor committed misconduct by exceeding the scope of the district court’s limitation on Mlsna’s testimony by eliciting testimony regarding the typicality of eyewitnesses to sexual assaults of juveniles. The district court stated Mlsna could “testify th at generally speaking it’s not unusual for reporting to be delayed under circumstances where someone in th is age range has been sexually assaulted” and noted this “very limited info rmation . . . would be appropriate.” At trial, after Mlsna testified that A.K.T. did not describe any witnesses to the sexual assault, the state asked whether it was unusual that there wouldn’t be any witnesses present to a 14-year-old having sex with a 25-year-old. Appellant did not object to the alleged pr osecutorial misconduct. Generally, if a defendant fails to object to misconduct at tria l, he “forfeits the ri ght to have the issue considered on appeal.” State v. Powers , 654 N.W.2d 667, 678 (Mi nn. 2003). However, if the error is sufficient, an appellate court may review. Id

. Appellate courts review unobjected-to prosecutorial misconduct under a modified plain-error test. State v. Ramey , 721 N.W.2d 294, 299 (Minn. 20 06). “[T]here must be (1) e rror, (2) that is plain, and (3) affects substantial rights. If these thre e prongs are satisfied, th e court then assesses8 whether the error should be ad dressed to ensure fairness and the integrity of the judicial proceedings.” Id. at 302 (citation omitted). The burden is on appell ant to demonstrate that error occurred and that the error was plain. Id. Plain error is usually shown if an error “c ontravenes case law, a rule, or a standard of conduct.” Id. Although , it is improper trial conduct for a prosecutor to elicit inadmissible evidence, id. at 300, appellant relies on only a single question asked by the prosecutor to argue that the pr osecutor exceeded the scope of the district court’s order. See State v. Wilford , 408 N.W.2d 577, 580- 81 (Minn. 1987) (affirming conviction where questions were “not deliberatel y prejudicial” and were “brie f, isolated, not repeated, and were unlikely to have a substa ntial impact on the jury”). Moreover, the expert testimony that typically there are not third-party witn esses to sex crimes involving children could have little impact on the jury, since common sense would suggest that is the case. As such, appellant has not met his burden in demonstr ating that the single question affected his substantial rights.
II. Appellant argues the prosecutor committed misconduct during the closing argument by encouraging the jury to draw an implication from his exer cise of his right to remain silent and by vouching fo r A.K.T.’s credibility. Comment on appellant’s failure to testify Appellant exercised his right not to testify at trial. During th e state’s rebuttal the prosecutor argued9 You have to decide why you believe [A.K.T.]. She told a version of events six months later, everything before was verified, everything after was ve rified. And all of those other people, why those other people are all important, it’s because it’s not a he said, she said , it’s a what [A.F.], Julie Mlsna, Detective Besser, Officer Garcia, [W.T.], [D.T.], and [A.K.T.] said. (Emphasis added.) Appellant objected to the prosecutor’s stat ement that “it’s not a he said, she said” on the grounds that it asked the jury to draw an inference from his right to remain silent. The district court offered to give a cautionary or curative instru ction, but appellant indicated he did not want a curative instructi on because it would highlight the fact that he had chosen not to testify. “While prosecutors do have the right to legitimatel y argue, analyze, explain evidence and present prop er inferences, they may not direc tly or indirectly comment on a defendant’s failure to testify.” State v. DeRosier , 695 N.W.2d 97, 106-07 (Minn. 2005) (citations omitted). “Indirect refe rences to a defendant’s failure to testify are prohibited if they either (1) manifest the pr osecutor’s intention to call atte ntion to the defendant’s failure to testify, or (2) are such th at the jury would naturally have understood them as a comment on defendant’s failure to testify.” Id. at 107 (quoting Sidebottom v. Delo , 46 F.3d 744, 759 (8th Cir.1995)). “With respect to claims of prosecutorial mi sconduct arising out of closing argument, we consider the closing argument as a whole ra ther than focus on par ticular ‘phrases or remarks that may be taken out of c ontext or given undue prominence.’” State v. Johnson , 616 N.W.2d 720, 728 (Minn. 2000) (quoting State v. Walsh , 495 N.W.2d 602, 607 (Minn.10 1993)). The phrase “he said, she said” is unde rstood in common usage to refer to an event with conflicting accounts with only two witnesses. The prosecutor followed that statement by listing six witnesses who corroborated A.K.T .’s version of events. It does not appear the prosecutor was manifesting an intention to call attention to appellant’s failure to testify. Instead, when viewed in contex t it appears the prosecutor used the phrase to highlight the fact that other witnesses corroborated A.K.T.’s version of the events. Similarly, given the statement’s brief nature referencing appellant and the common use of the phrase, it does not appear a jury would understand it as a co mment on appellant’s failure to testify. Although the phrase “it’s not a he said, she said,” is inartful, it does not rise to the level of prosecutorial misconduct in this case ba sed on the context in which it was used. Improper Vouching The state’s opening argument began “Ladie s and Gentlemen, this case comes down to who do you believe and wh y,” and concluded with “[s]o, Ladies and Gentlemen, who are you going to believe and why? At the end after we presen t all of the evidence I’ll tell you who to believe; I’ll tell you to believe [A.K.T.], and if yo u believe [A.K.T.] you’ll find him guilty.” The state’s closing argument be gan with “[w]ho do yo u believe and why? Let’s cut to the chase. If you believe [A.K.T.]; he’s guilty, end of story,” and concluded with “[b]elieve [A.K.T.]; find him guilty.” Appellant alleges the directives by the prosecut or to the jury “I’ll tell you to believe [A.K.T.]” and “believe [A.K .T.]” are improper vouching amounting to prosecutorial misconduct. Appellant did not object to these st atements at trial. Appellate courts review unobjected-to prosecutorial misconduct under a modified plain-error test. Ramey , 72111 N.W.2d at 299. Appellant must show there was error that is plain. Id. Appellant asserts plain error occurred in this case because the statements we re a “direct endorsement of [A.K.T.’s] credibility.” “The assessment of a witness’s credibility ‘is exclusively the province of the jury,’” State v. McCray , 753 N.W.2d 746, 754 (Minn. 2008) (quoting Francis v. State , 729 N.W.2d 584, 589 (Minn. 2007)), and “[i] t is improper for the state to express a personal opinion on [a witness’s] credibility.” State v. Wright , 719 N.W.2d 910, 918 (M inn. 2006). Vouching occurs “when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witn ess’s credibility.” State v.
Patterson , 577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted). In Swanson , the supreme court held that the statement “[t]he st ate believes [the witness] is very believable” was “impermissible vouching on it s face because the state dire ctly endorsed the credibility of [the] witness.” State v. Swanson , 707 N.W.2d 645, 656 (Minn. 2006)

. Here, the prosecutor’s statements “I will tell you who to believe . . . [b]elieve [A.K.T.]” constituted misconduct because the prosecutor could reasonabl y be understood to be stating a personal opinion on A.K.T.’s credibility. See Ture v. State , 681 N.W.2d 9, 20 (Minn. 2004) (concluding that “the use of the first-person pronoun ‘I’ during closing argument . . . was an improper interjection of person al opinion into the argument”). Appellant has met his burden of establishing error that is plain. Under the modified plain-error test for prosecutorial misconduct, th e burden then shifts to the state, and the state must show that there is “no reasonabl e likelihood that the absence of the misconduct in question ‘would have had a significant effect on the verdict of the jury.’” Ramey , 72112 N.W.2d at 302 (quotation omitted). The state has made no such ar gument on appeal, and merely asserts “[t]here was no e rror, plain or otherwise, that a ffected appellant’s substantial rights.” Thus, the state has not met its burde n in establishing the error did not affect appellant’s substantial rights. 2 Because we conclude appellant has satisfied all three pron gs of the modified plainerror test for prosecutorial misconduct, we next assess “whether the error should be addressed to ensure fairness and the inte grity of the judicial proceedings.” Id. Under Minn. R. Crim. P. 31.02, review of unobje cted-to errors is discretionary. State v. Griller , 583 N.W.2d 736, 742 (Minn. 1998). In the present case, the jury found A. K.T.’s version of the events to be credible. While we do not condone the prosecuto r’s directive to the jury to believe A.K.T., we are also not persuaded that absent the prosecutor’s statement, the jury would have returned a different verdict. A.K.T. told a consis tent version of the events of the night in question to multiple witnesses including A.F., W.T., and Mlsna, and the witnesses corroborated A.K.T.’s story. After a careful review of the trial transcript we conclude that the prosecutorial misconduct does not require reversal to ensure the fairness and integrity of the judicial proceedings . As such, reversal is not warranted. Affirmed.

2 However, we note that the jury was properly instructed “You are the sole judges of whether a witness is to be believed and of th e weight to be given a witness’s testimony.” We presume that the jury follow ed the court’s instruction. State v. Pendelton , 706 N.W.2d 500, 509 (Minn. 2005). This instruction to th e jury mitigated harm to appellant caused by the prosecutorial misconduct.