author:
LANCASTER, Justice.
      PAUL H. ANDERSON, J. GILBERT, J.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Edwin Olaf VICK, Respondent.
    No. C7-99-1949.
    Supreme Court of Minnesota.
    Aug. 30, 2001.

      Mike Hatch, Atty. Gen., Thomas R. Ra-gatz, Asst. Atty. Gen., St. Paul, William J. Hennessy, Cook County Atty., Grand Ma-rais, for appellant.

      Steven E. Wolter, Douglas A. Kelley, P.A., Minneapolis, for respondent.
   OPINION

LANCASTER, Justice.

In May 1999, respondent Edwin Olaf Vick was found guilty by a jury and convicted of second-degree criminal sexual conduct in violation of MinmStat. § 609.343, subd. 1(a) (2000). Vick petitioned for postconviction relief, alleging ineffective assistance of trial counsel and insufficient evidence to support the conviction. The posteonvietion court denied Vick’s petition. Vick subsequently appealed his conviction to the court of appeals, arguing that the trial court committed plain error when it admitted unnoticed and unproven Spreigl evidence. Vick also appealed the denial of his petition for post-conviction relief. The court of appeals reversed the conviction and ordered a new trial, agreeing with Vick that the trial court committed plain error by admitting the Spreigl evidence. State v. Vick, No. C7-99-1949, 2000 WL 890468, at *3 (Minn. App. July 3, 2000). The state appeals, arguing that the trial court’s failure to sua sponte strike the alleged Spreigl testimony or provide a cautionary instruction was not plain error. We conclude that the trial court did not commit plain error, reverse the court of appeals’ decision, and reinstate the jury verdict.

On December 27, 1997, C.G. and Dan Vick (Dan) went on vacation and left their two children, A.B. and J.V., in the care of Dan’s father, Edwin Vick (Vick). The children stayed with Vick at his cabin in Cook County. C.G. and Dan collected the children on Wednesday, December 31, at Vick’s home in Silver Bay. Neither parent noticed anything unusual about seven-year-old A.B.’s behavior then. During this time, A.B. lived with C.G., Dan, and J.V. in the Duluth area.

A.B. spent the following weekend with Cheryl Swanson, A.B.’s daycare provider and “second mother.” A.B. joined Cheryl and her son Joshua for a weekend at Cheryl’s boyfriend’s farm near Floodwood. During the weekend, Joshua and A.B. approached Cheryl and Joshua told her that A.B. had something to say. According to Cheryl, A.B. put her head down and began wringing her hands, then asked Joshua to tell Cheryl. Joshua explained that A.B.’s grandpa had touched her “private parts.” Cheryl asked whether A.B. told her mother, and A.B. replied that she had not because she did not want her grandpa to get in trouble. Subsequently, Cheryl called C.G. and told her that she wanted to get together to talk. She did not elaborate, but the two planned a meeting for the Monday after Cheryl returned from the farm.

Cheryl brought A.B. home on Sunday, January 4, 1998. That night, C.G. asked A.B. if anything had happened over the weekend. At that point, A.B. took her mother into her parents’ bedroom and explained that Vick had touched her. A.B. told her story reluctantly, telling her mother that she did not want Vick to get in trouble. C.G. asked Dan to come into the bedroom and told A.B. to tell Dan what she had told C.G. A.B. repeated it, and Dan began to cry.

That night, C.G. called a crisis center and explained what A.B. had said. A crisis center worker took the information and told C.G. to contact a social worker, which she did the next morning. C.G. then contacted the Duluth police and arranged for a police interview with A.B. at the First Witness house in Duluth. First Witness is a home in Duluth that provides a child-friendly atmosphere where police interview child sexual abuse victims. Specific interview techniques are employed by officers with the goal of obtaining an interview free of suggestion or outside influence.

During this time, Dan and C.G.’s relationship had been deteriorating. The two fought, and the children occasionally witnessed these fights. At trial, C.G. acknowledged that the fights affected the children. In January 1998, C.G. moved out of Dan’s house and took A.B. to live with her.

On January 20, 1998, Officer Scott Voigt conducted an interview with A.B. at First Witness. A.B. went to the First Witness house with her mother and Cheryl, but only Voigt and A.B. were present while the interview was conducted. Voigt and A.B. discussed the difference between good touches and bad touches, and when asked if she had ever received a bad touch, A.B. explained that her grandpa had touched her “butt.” A.B. said that Vick had touched her butt on two different occasions. The first occasion occurred at the Cook County cabin (“under-the-clothes touching”), and was the sole basis for the charge against Vick and his ultimate conviction. The second instance occurred at Vick’s “shop,” his place of work in Beaver Bay, Lake County (“over-the-clothes touching”). When describing the Cook County, under-the-clothes touching, A.B. explained that while she and her brother J.V. were sleeping on the bed, Vick — who was sleeping on the floor close to them— woke up and put his hand under her pajamas and rubbed her butt for a “couple of minutes.” A.B. said that she pretended to sleep while Vick touched her, and that the touching made her feel mad. Voigt asked A.B. whether Vick had touched her vagina at that time and, during the First Witness interview, A.B. said that he had not.

A.B. also described to Voigt a second instance when Vick touched her “butt.” A.B. explained that, while at Vick’s shop in Lake County, she was sitting down making a picture when Vick came up behind her, put his hand under her butt, and rubbed her for a couple of minutes. During this touching, A.B. stated that Vick touched her over her clothes, and she again denied being touched on her vagina.

Immediately after leaving the First Witness interview, A.B. told C.G. and Cheryl that she had forgotten to tell Voigt everything. At trial, the state asked C.G. what A.B. said:

Q. At some point on the way home [from the First Witness interview] or shortly thereafter, did [A.B.] tell you that she’d forgotten something?
A. We hadn’t even gotten to lunch yet. We were pretty much just pulling out of the office and we had asked [A.B.] how everything went. And she had told us that she had forgotten to tell them things. She had forgotten to tell them some stuff.
Q. Did she tell you what she had forgotten to tell them?
A. Yes.
Q. What did she tell you that she said she had forgotten to tell in the interview?
A. She had told me that there was another incident at Ed’s work where she was sitting on his lap and he was helping her with the computer and he had put his hands down her panties.
Q. Did she tell you anything else that she’d forgotten?
A. No.

Vick’s attorney made no objection, but Vick now challenges the admission of this testimony on the grounds that it is unnoticed and unproven Spreigl evidence. In contrast, the state claims in its brief to this court that C.G.’s testimony was merely a “misstatement,” speculating that she wrongly described the Lake County, over-the-clothes touching. The record does not resolve this factual ambiguity. It is the sort of ambiguity that could have been clarified through questioning of the witness. In the absence of clarifying testimony, the attempts by respective counsel to resolve the ambiguity are futile.

C.G. contacted the police after A.B. explained that she had not told Voigt everything. A second follow-up interview was arranged with the Chief Deputy of the Cook County Sheriffs Department, Mark Falk. On March 3, 1998, Falk went to C.G.’s house to interview all the witnesses involved in the case and he was told that A.B. had information to add. This time A.B.’s mother was in the room during the interview. Falk asked A.B. what she left out of the first interview, and Falk testified that before she responded, C.G. said “you’ve got to tell him.” A.B. then explained that on the occasions when Vick had touched her, he did touch her vagina and that it happened “two to four times.” When cross-examining Falk, Vick’s attorney clarified that A.B. told Falk that only the Cook County incident occurred under her clothes.

As part of the investigation, Officer Voigt asked C.G. if he could set up and tape-record a phone conversation between A.B. and Vick. C.G. declined, fearing the effect on A.B., but indicated that she herself would call Vick. C.G. called, the conversation was recorded, and the tape was ultimately played for the jury. During the call, C.G. told Vick about A.B.’s claim that Vick touched her. Vick responded: “Oh geez. God, with all that wrestling going on, anything could be touched but it’s not on purpose, I guarantee you that.” Vick denied touching A.B. while she slept. While talking with Vick, C.G. also mentioned that A.B. talked of another time when Vick touched her, this time at his shop: “She loves you and so do I and I just wanted to call and talk to you and find out, you know ⅝ * * because she mentioned to me that when she was at the shop and she was playing on the computer that you’d put your hand down her panties.” (Emphasis added.) Vick did not object to the admission of this tape.

Vick was charged with second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a). The charge was based exclusively on the December in-bed touching alleged to have occurred in Cook County. Prior to trial, Vick received a Spreigl notice informing him of the state’s intention to use evidence of the over-the-clothes touching that occurred at his Lake County shop.

At trial, A.B. testified that she could not remember the touching events, but testified that she had told the truth in the taped interview at First Witness. Before playing the tape for the jury, the judge explained:

Ladies and Gentlemen, at this time we’re going to watch * * * a video tape that [Office Voigt] has been talking about or testifying to. * ⅜ * Ladies and Gentlemen, ⅜ * ⅜ on the video tape, you will hear some evidence or some statements about incidents occurring at other times and other places. Most specifically about an incident occurring in Beaver Bay [Lake County] in December of 1997. It is important that you understand that Mr. Vi[c]k is not being tried for and may not be convicted of an offense other than the offense that he’s charged with here, which is an incident that is alleged to have occurred in December of 1997 in the Christine Lake area of Cook County. You are instructed specifically that you are not to base any conviction on the basis of any occurrences that occurred at other times or places, including specifically what you’ll hear a little bit about on this tape, an incident which allegedly occurred in Beaver Bay in Lake County.

The jury heard the taped interview in its entirety. As a result, the jurors heard evidence of both the charged under-the-clothes touching and the touching at the Lake County shop. The Lake County over-the-clothes touching was admitted either “to illuminate the relationship” between A.B. and Vick or as properly noticed Spreigl evidence. Vick did not object at trial to the admission of this evidence, nor does he challenge it now.

The state elicited testimony at trial to corroborate A.B.’s complaint. C.G. and Cheryl testified that, after the touching, A.B. became shy about her body and about being seen naked; she began to neglect personal hygiene and then to lie about it. Vick’s attorney asked C.G. questions about A.B.’s lying behavior and specifically asked whether, in the course of seeing a therapist from Lutheran Social Services, they ever discussed A.B.’s lies. In response, C.G. stated: “She told me at that time that many times after children have gone through the experience of being touched or what not, that lying is not out of the ordinary for them to do.” Vick’s attorney did not object to this response.

Vick and Dan testified in Vick’s defense. Vick testified that he had a good relationship with A.B. He testified that on no occasion, including the night the children stayed at his cabin, did he touch A.B. in a sexual manner, touch her buttocks, or put his hand under her pants. Dan testified that his relationship with C.G. began to deteriorate in October 1997 and that they had arguments in front of the children. In response to questions from Vick’s attorney, Dan also testified that in March 1999, prior to the trial when Ed was not permitted to see A.B., Dan had the children at his house one day and Vick stopped over. Dan and his wife were in the bedroom and the children were in the living room. Vick knocked and J.V. yelled “come in.” Vick walked into the living room, and A.B. went into the bedroom to explain that grandpa was there. Dan testified that A.B. did not seem upset at seeing Vick, but was surprised. On cross-examination, however, Dan admitted that after the visit to Vick’s cabin, A.B. expressed fear about seeing Vick.

In closing arguments, Vick’s attorney outlined the weaknesses in the state’s case. He reminded the jury that A.B.’s accusations arose at a time of high stress, explaining that her parents’ fighting caused turmoil and theorizing that this may have led to separation anxiety. He reminded the jury about A.B.’s “lying conduct” and discussed the inconsistent progression of A.B.’s allegations, beginning with accusations of buttocks touching and culminating with allegations of vaginal touching. Finally, he raised questions about the reliability of A.B.’s allegations, noting that decreased reliability can result when an allegedly abused child has a series of discussions about the abuse with many different people. The state, on the other hand, discussed the consistencies in A.B.’s allegations and the corroborating evidence. It argued that A.B. probably did not reveal the whole story from the start because, as she told C.G. and Cheryl, she did not want to get her grandpa in trouble.

The jury found Vick guilty of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a). Before the sentencing, Vick petitioned for postconviction relief, alleging ineffective assistance of trial counsel and insufficiency of evidence. After sentencing him to a stayed sentence of 21 months, contingent on his serving one year in prison, ten years probation, and participating in a sex offender program, the district court denied Vick’s petition. Vick then appealed his conviction and the postconviction court’s denial of his petition.

Vick made three arguments to the court of appeals. First, he argued that he was denied a fair trial when the trial court admitted C.G.’s alleged Spreigl testimony because it was “uncharged, unnoticed and unproven Spreigl evidence.” Second, Vick argued that the postconviction court abused its discretion in denying his petition for postconviction relief based on allegations of ineffective assistance of counsel. Finally, Vick challenged the sufficiency of the evidence supporting his conviction.

The court of appeals reversed Vick’s conviction and remanded for a new trial. Vick, 2000 WL 890468, at *3. The court held that it was plain error for the trial court to admit the purported Spreigl evidence without the necessary Spreigl safeguards and that the error affected Vick’s substantial rights and was prejudicial to the outcome of the case. Id. Because it ordered a new trial on this basis, the court did not address Vick’s other arguments.

I. C.G.’s Testimony

Vick urges us to affirm the court of appeals’ holding that the trial court committed plain error when it admitted, without adherence to the Spreigl procedural requirements, C.G.’s testimony that A.B. told her Vick had touched A.B. “down her panties” at his Lake County shop. Vick’s challenge is not to the Lake County shop incident in its entirety, but to the mother’s description of this (or some other — the record is unclear) episode as having been “down the panties.” No objection was made at trial to this testimony or, for that matter, to the over-the-clothes testimony, and so it is not clear whether the trial court admitted it as other-crimes (Spreigl) evidence or as relationship evidence. The district court in its postconviction order referred to it as Spreigl evidence, and we will treat it that way as well.

Vick did not object to C.G.’s testimony at trial. Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis. State v. Bauer, 598 N.W.2d 352, 363 (Minn.1999). However, an appellate court may consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affects the defendant’s substantial rights. State v. Ghiller, 583 N.W.2d 736, 740 (Minn.1998). To satisfy the third prong, a defendant bears a “heavy burden” of persuasion to show that “the error was prejudicial and affected the outcome of the case.” Id. at 741. If these three prongs are met, the court must then decide whether it should address the issue in order to “ensure fairness and the integrity of the judicial proceedings.” Id. at 740. Only after all these factors are satisfied may an appellate court exercise its discretion to correct an unobjected-to error. Id.; see Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (describing the plain error test, which the Minnesota Supreme Court adopted in Griller). For the following reasons, we reverse the court of appeals’ decision and hold that the trial court did not commit plain error.

While Vick complains on appeal that C.G.’s testimony was admitted, the record does not demonstrate that the trial court was given any advance opportunity to consider the admissibility of C.G.’s testimony; the record reveals no pretrial motion or objection about the testimony and contains no transcript of an omnibus hearing. Accordingly, the question before us is not whether the trial court erred in admitting the testimony, because the court was not given the opportunity to make that decision. Instead, the precise question before us is whether the trial court’s failure to sua sponte strike the testimony or to provide a cautionary instruction constituted plain error. The Spreigl notice was never made part of the record before the trial court, nor do the rules of criminal procedure require the notice to be made part of the record. Minn. R.Crim. P. 7.02. In the absence of an objection, then, we are hard pressed to see how the trial court could be attuned to whether C.G.’s testimony exceeded the scope of the Spreigl notice. Thus, there was no reason for the trial court to intercede sua sponte and, as a result, the trial court did not err in not striking C.G.’s testimony.

Furthermore, while trial courts are advised, even absent a request, to give a cautionary instruction upon the receipt of other-crimes evidence, failure to do so is not ordinarily reversible error. State v. Frisinger, 484 N.W.2d 27, 31 (Minn.1992) (“While the trial court clearly should have given the instructions sua sponte and while it is conceivable that a case may arise where the facts are such that a failure to give these instructions sua sponte may constitute plain error of a prejudicial nature requiring * * * a new trial, we find that a new trial is not required in this case.”); see State v. Williams, 593 N.W.2d 227, 237 (Minn.1999) (“[Ajlthough the failure to give limiting instructions [in connection with the admission of relationship evidence] in certain circumstances may constitute plain error, we hold that it does not do so in this case.”). In these circumstances, where C.G.’s testimony was an ambiguous description of what may or may not have been a separate Spreigl incident and where no objection was made to that testimony, any error resulting from the trial court’s decision not to intercede was not plain. For this reason, we are not compelled to depart from the rule that a trial court’s failure to sua sponte strike unnoticed Spreigl evidence or provide a cautionary instruction is not ordinarily plain error.

Even if there was an error, though, Vick cannot satisfy his heavy burden under the third prong of the plain error test because he cannot show that the error was so prejudicial as to have affected the outcome of the case. As in State v. Williams, there are several factors here that reduce the likelihood that the testimony unfairly infected the trial. 593 N.W.2d at 237. The Lake County over-the-clothes testimony was properly introduced, without objection. In connection with that testimony, the court twice provided an appropriate cautionary Spreigl instruction: once before playing the First Witness tape and again during the jury charge. Additionally, the court provided a broader instruction: “It is important that you understand that Mr. Vi[c]k is not being tried for and may not be convicted of an offense other than the offense that he’s charged with here, which is an incident that is alleged to have occurred in December of 1997 in * * * Cook County.” In fact, the trial court instructed the jury that Vick could not be convicted based on “any occurrence in * * * Lake County on or about December of '97.” Assuming, as we do, that the jury followed the court’s instructions, the effect of this instruction was to prohibit the jury from convicting Vick based on any description of any alleged touching occurring in Lake County. See State v. Shoen, 578 N.W.2d 708, 718 (Minn.1998).

Next, although C.G.’s testimony described the Lake County incident as occurring under the clothes, or at least “down her panties,” Vick did have notice of the state’s intention to use other-crimes evidence against him. Because he could anticipate the state’s impending other-crimes evidence, albeit in the form of “over-the-clothes” testimony, the potential for prejudice was minimized; the broader theme of the other-crimes evidence came as no surprise to Vick. See State v. Volstad, 287 N.W.2d 660, 662 (Minn.1980) (holding that the admission of unnoticed Spreigl evidence was not error, even though one of the prior crimes brought out at trial was not mentioned in the Spreigl notice, because: (1) the defendant did not specifically raise the issue at trial; (2) the incident was specifically mentioned in the complaint; and (3) the incident was part of a broader incident for which Spreigl evidence was provided); see also State v. Bolte, 530 N.W.2d at 198-99 (noting that wrongly-admitted Spreigl testimony did not affect the verdict and thus did not require a new trial when, among other things, “other other-crime evidence was properly admitted”). Moreover, Vick was on trial for under-the-clothes genital touching and the additional incident was not more inflammatory than the charged incident. In fact, Minn.Stat. § 609.343, subd.- 1(a), can be violated by over or under the clothes touching — the statute makes no distinction in degree between over- and under-the-clothes touching. Minn.Stat. § 609.341, subds. 5, 11(a), ll(a)(i), ll(a)(iv). In addition, both incidents were subject to identical impeachment because they involved the same child. The potential for prejudice was also reduced because the state did not rely on C.G.’s alleged Spreigl testimony during closing arguments. See Bolte, 530 N.W.2d at 198.

Furthermore, when Vick’s attorney cross-examined Chief Deputy Falk, Falk clarified that the child herself consistently described the incident at Vick’s shop only as an over-the-clothes touching. This clarification minimized the potential prejudice that may have resulted from C.G.’s testimony. Finally, the alleged Spreigl testimony did not prejudice Vick’s case given his theory of defense. See State v. Bauer, 598 N.W.2d 352, 364 (Minn.1999). In State v. Bauer, we held that the admission of an expert’s testimony stating that he believed the defendant intended to kill the victim was not plain error, in part because the defendant’s theory of defense was not affected by the admission. Id. at 363-64. Specifically, the defendant in Batter never argued that the killing was unintentional, but rather argued that he was not the person who committed the murder. Id. Similarly, Vick never argued that he only touched A.B. over the clothes, nor would it matter given the statute under which he was convicted; he argued that he never touched A.B. in a sexual manner.

The dissent concludes that the trial court committed plain error because, among other things: there was no clear and convincing evidence that the event as C.G. described it ever occurred; C.G.’s alleged Spreigl testimony was not relevant or material to the case; and as the question here is a close one, the “benefit of the doubt must be given to Vick.” Had the trial court been given an advance opportunity to consider C.G.’s testimony and then had a chance to decide whether to admit or suppress it, the concerns raised by the dissent would have played a part in our analysis as well. However, neither the dissent nor the court of appeals identifies a basis in the record for the tacit conclusion that the trial court had reason to know that C.G.’s testimony went beyond the notice given to the defense. The defense had pretrial access to the tape of the conversation between Vick and C.G. — at least we assume so because the discovery rules require it and there is no allegation of discovery failure. The tape contained the same statement C.G. made at the trial: “down her panties.” But discovery, like a Spreigl notice, goes to the parties, not to the court.

And so we reiterate that the real question before us is not whether the trial court erred in admitting the evidence, but instead is whether the trial court’s failure to sua sponte strike the testimony or provide a cautionary instruction was plain error. Approaching that question, we must keep in mind the general rule that, ordinarily, a trial court’s failure to sua sponte strike or instruct is not reversible error. See, e.g., Williams, 593 N.W.2d at 237 (“While a trial court should generally still provide [a limiting instruction] sua sponte to ensure that the [other-crimes] evidence is not used for an improper purpose, the failure to provide limiting instructions absent a request is not reversible error.”). We must also bear in mind that, having failed to challenge this testimony at trial, Vick must show plain error and must satisfy the heavy burden of proving that the outcome of his case was affected by the trial court’s failure to strike or provide an instruction. Griller, 583 N.W.2d at 741-42. We cannot agree that this one statement, whether it was a misstatement, unnoticed and unproven Spreigl evidence, or an accurate description of A.B.’s words to her mother, which was never again referred to by the state, affected the jury’s decision to convict. See Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 87 L.Ed. 704 (1943) (Frankfurter, J., concurring) (“In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure.”).

Because we hold that the trial court did not commit error, plain or otherwise, in failing to strike C.G.’s alleged Spreigl testimony or provide a separate cautionary instruction in connection with it, the court of appeals’ decision is reversed.

II. Ineffective Assistance of Trial Counsel

Vick contends that he is entitled to a new trial because he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Vick raised his ineffective assistance claim prior to his direct appeal. After holding an evidentiary hearing, the postconviction court denied Vick’s petition.

A postconviction court’s decision is reviewed for abuse of discretion, and Vick bears the burden of showing that the court abused that discretion. State v. Doppler, 590 N.W.2d 627, 632-33 (Minn.1999). To prove ineffective assistance, Vick must show that his “counsel’s performance was deficient and that this deficient performance deprived [him] of a fair trial.” State v. Brocks, 587 N.W.2d 37, 42 (Minn.1998). The first prong of the test, deficiency, requires a defendant to show that counsel’s performance fell below an objective standard of reasonableness. Id. Courts presume, however, that counsel’s performance fell within the “wide range of ‘reasonable professional assistance.’ ” Id. (quoting State v. Jones, 892 N.W.2d 224, 236 (Minn.1986)). Further, appellate courts do not review matters of trial strategy for competency. Doppler, 590 N.W.2d at 633. The second prong of the test, prejudice, requires a defendant to show by a preponderance of the evidence that counsel’s errors so prejudiced the case that a different outcome would have resulted but for the errors. Id.

Vick first alleges that during closing arguments his attorney conceded his guilt without consent. This accusation, if true, could warrant a new trial. State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984) (“[W]e generally believe that if a defense counsel impliedly admits a defendant’s guilt without the defendant’s permission or acquiescence, the defendant should be given a new trial even if it can be said that the defendant would have been convicted in any event.”). In Wiplinger, the defendant was tried for kidnapping and first-degree criminal sexual conduct involving a ten-year-old girl. 343 N.W.2d at 859. When cross-examining the victim, the defendant’s attorney asked questions like: “Throughout all of this, Mr. Wiplinger didn’t threaten you in any way, did he? * ⅝ ⅜ * And Mr. Wiplinger didn’t really use any kind of force on you, did he?” Id. Underlying these questions was the clear assumption that Wiplinger did have sexual contact with the victim.

Compared to the questions in Wiplinger, the comments about which Vick complains, taken in context, do not rise to the level of an implied admission:

We all talked about the presumption of innocence when we started out and every one of you folks said, yes, that’s the law, I will follow it. Now, if you assume that Mr. Vi[c]k is guilty, then the arguments of [the prosecutor] make perfect sense. Because then all you have to do is say, well, I’m assuming he’s guilty, let me look for a piece of evidence that supports that. And then you can find some evidence that supports that. But of course you’ve taken an oath that you will follow the law. And the law says you have to presume him innocent until the State has proved the case beyond a reasonable doubt. And they couldn’t do that in this case for reasons we’re going to talk about but for reasons I’m sure you’re going to talk about more in the jury room.

(Emphasis added to highlight the comments about which Vick complains.) Nothing in these statements would lead a reasonable person to conclude that Vick’s attorney admitted Vick’s guilt. Because Vick’s attorney’s comments, viewed in context, do not constitute a confession, a new trial is not warranted on this basis.

Vick next argues that the cumulative effect of numerous errors by his attorney deprived him of effective counsel. Vick complains of the following errors: (1) failure to vigorously cross-examine A.B. or impeach C.G.; (2) failure to object to expert testimony involving vouching for A.B.’s credibility; and (3) failure to object 'to the alleged Spreigl evidence. All of the alleged errors in this case involve matters of trial strategy, which are not reviewed for competency. State v. Voorhees, 596 N.W.2d 241, 255 (Minn.1999) (“What evidence to present to the jury, including which defense to raise at trial and what witnesses to call, represent an attorney’s decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence.”); see Brocks, 587 N.W.2d at 43 (concluding that a defense attorney’s decision not to cross-examine several state witnesses was a reasonable trial tactic). Therefore, Vick’s ineffective assistance claim fails.

Even if these alleged errors were reviewable, Vick has not shown that his attorney’s actions were not objectively reasonable. For instance, Vick complains that his attorney did not effectively cross-examine A.B. about her different accounts of the abuse. He argues that in sexual abuse cases the jury’s verdict turns on who they believe and therefore it was crucial to attack A.B.’s credibility. In his closing argument, Vick’s attorney explained his reasons for not aggressively questioning A.B.: he “did not want to make it any more difficult than it was for her,” and therefore he “didn’t ask her ver[y] many questions.” This decision was reasonable in order to avoid creating sympathy for A.B. and hostility toward Vick or his attorney. Similarly, the decision not to attempt to impeach C.G. about a romantic “interest” she had before the end of her relationship with Dan was reasonable. Even if Vick’s attorney had asked C.G. whether she had developed a romantic interest outside her relationship with Dan, he would have had to live with any denial because he could not use extrinsic evidence of this collateral matter to impeach. State v. Ferguson, 581 N.W.2d 824, 833-34 (Minn.1998). Additionally, he risked alienating the jury with any attempt to impeach C.G. with this unrelated information. Cf. Brocks, 587 N.W.2d at 43 (“His counsel might well have concluded that the jury would be alienated if he cross-examined the grieving mother about information not critical to the case.”).

Vick also argues that his attorney was ineffective because he failed to object to C.G.’s testimony regarding the therapist’s comment that “lying is not out of the ordinary” for children who have experienced sexual abuse. Vick claims that this testimony was improper expert vouching because it reflected the therapist’s belief that A.B. was sexually touched.

It is well settled that one witness may not “vouch for or against the credibility of another witness.” State v. Ferguson, 581 N.W.2d at 835. More specifically, “[a]s a general rule * * * we would reject expert opinion testimony regarding the truth or falsity of a witness’ allegations about a crime, for the expert’s status may lend an unwarranted ‘stamp of scientific legitimacy’ to the allegations.” State v. Myers, 359 N.W.2d 604, 611 (Minn.1984). In Myers, we permitted expert testimony describing commonly observed psychological and emotional characteristics in sexually abused children, and testimony describing those characteristics specifically observed in the victim, in order to provide background and insight into the behavior of child sexual abuse victims. Id. at 610-11. Similarly, the therapist’s statement in this case was a comment on the general characteristics of abused children and therefore not vouching. Id.; see Powell v. State, 714 N.E.2d 624, 629 (Ind.1999) (holding that a police officer’s testimony that it is not unusual for crime victims or witnesses to be reluctant to come forward and talk with the police was not impermissible vouching testimony); State v. Geyman, 224 Mont. 194, 729 P.2d 475, 479 (1986) (holding that expert testimony commenting on the veracity of child sexual abuse victims is admissible to help the jury assess the credibility of a child sexual assault victim). Because this testimony was not vouching testimony, Vick’s attorney made a reasonable decision not to object on that basis.

Finally, Vick complains that his attorney prejudiced his case when he failed to object to the alleged Spreigl testimony. This decision was a reasonable tactical decision because any objection may have highlighted that, although the Lake County incident may have involved touching over the clothes, the Cook County incident for which Vick was convicted did involve wzder-the-clothes touching. Cf. Doppler, 590 N.W.2d at 635 (concluding that an attorney’s decision not to focus on intoxication as a defense and failure to request an intoxication jury instruction was a matter of trial strategy); State v. Eling, 355 N.W.2d 286, 293 (Minn.1984) (stating that an attorney’s decision not to request a cautionary instruction “regarding the possibility of defendant’s appearing in handcuffs in view of the jurors” was a tactical decision that probably reflected the attorney’s attempt to avoid calling further attention to the defendant’s restraints).

Even if there was an error, Vick cannot show that the outcome of his case would have been different without the error. See Doppler, 590 N.W.2d at 633. When cross-examining Chief Deputy Falk, Vick’s attorney clarified that A.B. always described the Lake County shop touching as occurring over-the-clothes. This clarification, the fact that the judge twice gave cautionary instructions with regard to the use of other-crimes evidence, and the fact that the crime for which Vick was convicted did occur under the clothes all minimize the possibility that prejudice resulted.

In short, we conclude that Vick did not receive ineffective assistance of counsel and is not entitled to a new trial on that basis.

III. Sufficiency of the Evidence

Vick argues that the evidence presented at trial was insufficient to support his conviction for second-degree criminal sexual conduct and therefore his conviction must be vacated. When considering a sufficiency of the evidence challenge, we review the evidence presented at trial to determine whether the jury could reasonably have found the defendant guilty of the crime charged. State v. Folkers, 581 N.W.2d 321, 326 (Minn.1998). A defendant bears a heavy burden to overturn a jury verdict. State v. Bowser, 305 Minn. 431, 437, 234 N.W.2d 890, 893 (1975). On review, we must view the evidence in the record in the light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn.1995); Bowser, 305 Minn. at 437, 234 N.W.2d at 893.

Vick was convicted under Minn.Stat. § 609.343, subd. 1(a), which provides that a person is guilty of second-degree criminal sexual conduct if he engages in sexual contact with a victim who is “under 13 years of age and the actor is more than 36 months older than the complainant.” Sexual contact for purposes of this provision requires touching the genital area, groin, inner thigh, buttocks, or breast, either under or over the clothing, with sexual or aggressive intent. Minn.Stat. § 609.341, subds. 5,11(a), ll(a)(i), and ll(a)(iv).

Vick argues that the evidence at trial was not sufficient to demonstrate that the touching occurred with any sexual or aggressive intent. He claims that the touching of A.B.’s buttocks, without more, does not permit the jury to infer sexual intent.

Assuming, as we must, that the jury believed the state’s witnesses, evidence demonstrated that Vick touched A.B.’s buttocks on at least two occasions, once over the clothes and once under the clothes, and that on each occasion he rubbed her buttocks for a couple of minutes. The jury also heard from Chief Deputy Falk that Vick touched A.B.’s vaginal area between two and four times. Evidence was presented about A.B.’s abrupt change in behavior following the Cook County in-bed, under-the-clothes touching and about A.B.’s subsequent fear of visiting Vick. A.B. told several different people about the touching (C.G., Dan, Cheryl, Joshua, Officer Voigt, and Chief Deputy Falk), and although she did not reveal the entire story from the beginning, she never deviated from her basic position. As the jury watched the video interview with A.B., they could witness her demeanor and body language as she was asked detailed questions about the touching.

In State v. Kraushaar, a defendant challenged the sufficiency of the evidence sustaining his second-degree criminal sexual conduct conviction, arguing that the state failed to prove that he acted with sexual intent. 470 N.W.2d 509, 511-12 (Minn.1991). In Kraushaar, the five-year-old victim told her mother, her foster parent and a pediatrician that her daddy had touched her vagina and that he “French kissed” her. Id. at 510-12. The jury heard testimony that: (1) the victim told her story to several adults; (2) she was “very sexually precocious for her age”; (3) an expert explained that some of the child’s drawings were very indicative of abuse; and (4) no medical evidence corroborated the allegations, but that was not inconsistent with the victim’s story. Id. at 511-12. The defendant denied touching his daughter with sexual intent and explained that he only touched her in the genital or buttocks area in the course of ordinary care-giving activities, like bathing. Id. at 511. We held that the evidence was sufficient to support the conviction. Id. at 513.

In A.B.’s case, like in Kraushaar, the primary evidence against Vick is A.B.’s word and evidence of behavioral change. Vick argues that mere evidence of rubbing A.B.’s buttocks, without more, does not demonstrate sexual intent. However, the nature of the touching here, specifically the two instances of rubbing A.B.’s buttocks both over and under the clothes for minutes at a time accompanied by vaginal touching, negates the possibility of an innocent explanation such as accidental touching or touching in the course of care-giving. The touching described by A.B. during her interviews with Officer Voigt and Chief Deputy Falk clearly permits the inference that Vick touched A.B. with sexual intent. E.g., id. at 511-13; Myers, 359 N.W.2d at 606-08 (finding sufficient evidence to support a conviction for second-degree criminal sexual conduct where the victim stated that the defendant “did things to her like he did to her mother,” touched her on her “chest” and between her legs); see State v. Crego, 395 N.W.2d 140, 141 (Minn.App.1986) (holding that sufficient evidence supported a conviction for second-degree criminal sexual conduct when the victim awoke to find the defendant rubbing his hand under her panties and stating “[yjou’re getting older”). Therefore, we conclude that the evidence at trial was sufficient to permit the jury to convict Vick of second-degree criminal sexual conduct.

Reversed.

PAUL H. ANDERSON, J.

(dissenting).

I respectfully dissent from the majority’s approval of the admission of C.G.’s testimony about under-the-clothes touching. C.G.’s testimony, which falls into the category of Spreigl evidence, was admittedly a misstatement,. For this reason and others, the statement falls short of the standards that we have set for the admission of Spreigl evidence. Therefore, I conclude that the admission of this testimony was plain error affecting appellant Edwin Olaf Vick’s substantial rights.

I agree with the majority’s conclusion that we must look at this case by conducting a plain error analysis. Vick did not object to the testimony or seek a limiting instruction. Therefore, we may consider the issue only if there is plain error. For there to be plain error, there must be “(1) error; (2) that it is plain; and (3) the error must have affected substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). When these three prongs are present, we then assess whether we “should address the error to ensure fairness and the integrity of the judicial proceedings.” Id.; see Minn. R.Crim. P. 31.02. We have given direction as to how we proceed with such analysis in State v. Pilot, where we said:

[T]he trial error must have been so clear under applicable law at the time of conviction and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy.

State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996)).

A district court has the discretion to admit evidence of other crimes evidence— also known as Spreigl evidence — but the court must ensure that certain safeguards are met before admitting such evidence so that the Spreigl evidence does not wrongly remove reasonable doubt in the jury’s mind as to the defendant’s guilt. State v. Spreigl, 272 Minn. 488, 495-97, 139 N.W.2d 167, 172-73 (1965) (citing to State v. Doty for the proposition that “The danger of it [evidence of other offenses] is that a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes.” 167 Minn. 164, 166, 208 N.W. 760, 761 (1926)). Spreigl evidence is admissible for the legitimate purpose of establishing motive, intent, absence of mistake, identity, or common scheme or plan. State v. DeWald, 464 N.W.2d 500, 502-03 (Minn.1991).

To admit the other crimes or bad acts evidence referred to as Spreigl evidence, a court must find that (1) the state gave notice that it intended to use the evidence; (2) the state clearly indicated what the evidence was intended to prove; (3) the evidence that the defendant participated in the other offense or bad act is clear and convincing; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the evidence is outweighed by its potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). We have held that this type of evidence may be admitted if it is similar to the charged offense in either time, place, or modus operandi. State v. Filippi, 335 N.W.2d 739, 743 (Minn.1983). It is not sufficient that the prior crime is simply of the same generic type as the instant offense. Generic relevance is usually insufficient to allow its admission as Spreigl evidence. State v. Cogshell, 538 N.W.2d 120, 123-24 (Minn.1995). When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should.be given to the defendant and the evidence should be excluded. Id.

The admission of Spreigl evidence requires at the outset that the state give notice of its intent to use the evidence. Minn. R.Crim. P. 7.02. The purpose of the notice is to give the defendant sufficient opportunity to prepare for trial and to avoid defending against unexpected testimony concerning prior offenses or bad acts. State v. Bolte, 530 N.W.2d 191, 197 (Minn.1995). The Minnesota Rules of Criminal Procedure require that notice of “additional offenses shall be described with sufficient particularity to enable the defendant to prepare for trial.” Minn. R.Crim. P. 7.02. As the court of appeals said in its opinion here, the “notice serves the purpose of allowing a defendant to candidly assess the likelihood of success before trial and to accept a plea-bargain if it is in the defendant’s best interests.” State v. Vick, No. C7-99-1949, 2000 WL 890468 at *2 (Minn.App. July 3, 2000). Vick was never given the opportunity to weigh the impact of C.G.’s under-the-clothes touching testimony because no notice was provided. The reason for the lack of notice — because the statement was a misstatement — is irrelevant to the determination of whether the notice was proper.

The majority attempts to buttress its position for the admission of this testimony by stating that a Spreigl notice was given with respect to a Lake County over-the-clothes touching. The majority further attempts to buttress inclusion of the statement on the grounds that Deputy Falk testified that the Lake County touching was over the clothes and that the judge gave Spreigl instructions on the over-the-clothes testimony. I find these reasons to be insufficient to eliminate any prejudice from this testimony that affected the outcome of the case and certainly they are not an adequate básis for admission of this damaging, highly prejudicial evidence.

It was plain error to admit the Spreigl evidence which the state concedes was a misstatement because there is no clear and convincing evidence that an under-the-clothes or under-the-panties touching occurred in Lake County as is required for prong three of the Spreigl admission test. We have previously stated that evidence that a defendant participated in a prior offense or bad act must be clearly convincing. Kennedy, 585 N.W.2d at 389. Here there can be no showing by a preponderance of the evidence that any such incident happened or that the truth of the facts submitted is highly probable.

.1 also conclude that C.G.’s under-the-clothes touching testimony was not necessary in order to provide the proper context for A.B. having a second interview with the police. Cf. State v. Czech, 343 N.W.2d 854, 856-57 (Minn.1984). All that was necessary was for C.G. to testify that A.B. stated some information that was not included in the first interview and for this reason, the second interview was conducted. Admission of this evidence cannot be explained away as a justification for seeking the second interview. When we are dealing with evidence as potentially prejudicial as the evidence here, we must be careful not to overreach to characterize this testimony as anything other than Spreigl evidence. Furthermore, it confounds me that the majority could conclude that this misstatement did not affect the jury’s decision to convict.

' For all of these reasons, I conclude that error occurred in this case and that it was plain error. By failing to sua sponte strike the unnoticed Spreigl evidence or to provide a specific cautionary instruction as to this improper evidence, the district court plainly erred. The majority dismisses my concern about the propriety of the admission of C.G.’s statement because “the question before us is not whether the trial court erred in admitting the testimony, because the court was not given the opportunity to make that decision.” Rather, the question before us is “the trial court’s failure to sua sponte strike the testimony or provide a cautionary instruction * ⅜ *.” I find it ironic that under the majority’s approach, C.G.’s statements, which are at best misstatements and at worst could be deliberate attempts to mislead the jury, are not put to the full Spreigl admissibility test. The majority’s position has the potential of placing in the hands of an interested witness the ability to circumvent the strict Spreigl admission requirements by making damaging “misstatements” about prior bad acts in front of a jury. The majority’s emphasis on the distinction between not admitting the statements versus sua sponte striking the statements once they were made is misplaced. For purposes of the analysis here, I see no distinction because the effect of both is the same — the court could and should have prevented the jury from considering the improper information.

The fact that I have concluded that the admission of this evidence is plain error does not end my analysis. There must be a showing on the third prong of the plain error analysis that the error affected substantial rights, that it was so prejudicial that it affected the outcome of the case. Vick bears the burden of persuasion on this prong. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The majority again asserts that there was no prejudicial effect because the state gave notice that the Lake County over-the-clothes touching testimony would be introduced, the judge provided cautionary Spreigl instructions twice with respect to the over-the-clothes touching, and Officer Falk testified that the Lake County touching was over the clothet. The majority asserts that this activity with respect to over-the-clothes testimony “minimized” the potential for prejudice and that the over-the-clothes evidence theme gave sufficient notice to Vick so that the under-the-clothes testimony would come as no surprise. Equally problematic is the majority’s statement that C.G.’s misstatement “was not more inflammatory than the charged incident.”

It is difficult for me to understand the majority’s rationale in this regard. As the court of appeals pointed out, there is a wide chasm between Spreigl testimony alleging that Vick touched A.B. over her clothes while she was sitting on his lap at his Lake County shop versus testimony alleging Vick was putting his hands down A.B.’s panties. The court of appeals got it right when it said:

It is common knowledge that accidental, but misperceived, touches can occur over the clothes. We acknowledge that inappropriate touching can indeed occur over the clothing but, in this case, the down-her-panties Spreigl testimony was so prejudicial that the jury could not thereafter impartially determine whether the charged touching in Cook County occurred.

Vick, 2000 WL 890468 at *3.

I agree with the court of appeals’ conclusion that there is a difference between under-the-panties touching and over-the-clothes touching while sitting on a person’s lap. I concede that the issue is close, but we have said that when it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should not be included. This position reflects our recognition that “threaded through our precedents dealing with exceptions to the exclusionary rule is a note of concern, admonishing courts against depriving innocent persons of their constitutional right to a fair trial.” Spreigl, 272 Minn. at 495, 139 N.W.2d at 171. Here, the benefit of the doubt must be given to Vick. The district court should have excluded this misstatement because it so obviously did not meet the standards for Spreigl evidence. It was plain error to admit the evidence, and the admission of this evidence so clearly prejudiced the defendant that it needs to be addressed by our court on appeal in order to ensure the fairness and integrity of judicial proceedings.

I would affirm the court of appeals and remand to the district court for a new trial.

GILBERT, J.

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . C.G. is A.B.'s mother. At the time of these events, C.G. had the same last name as A.B., which was the last name of A.B.'s biological father and C.G.'s first husband. A.B.’s biological father died before she was born, which was in November 1990. Subsequently, C.G. entered into a long-term relationship with Dan Vick, although the two never married. At the time of these events, A.B. referred to Dan as "dad” and to Vick as “grandpa.” C.G. and Dan had one child, J.V., in 1993. C.G. and Dan broke off their relationship in January 1998 and C.G. moved out. C.G. remarried in May 1998, at which time she took a new last name.

      . At trial, Falk testified:
      Q. And then at the top of page six, you said, did he touch the vagina at the shop. The answer is yes. Was that over the clothes or underneath the clothes. Answer, over the clothes.
      A. Correct.
      Q. And she said that she was sitting on his lap when that happened.
      A. Correct.
      Q. Did anybody after this interview call you back and say that she has now said that he put his hand underneath her panties at the shop?
      A. It seems to me that there’s [been] something mentioned about that but I don't recall who has made that statement.
      Q. And you don't have that in any of your reports?
      A. No. Not that I can recall.

      . Minnesota Statutes § 609.343, subds. 1 and 1(a), state:
      A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exist:
      (a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced.

      . The Spreigl notice stated:
      PLEASE TAKE NOTICE that the [state] * * * will introduce evidence of other offenses within the meaning of Rule 7.02 of the Rules of Criminal Procedure at the Trial of this matter. That the other offenses occurred in Lake County at the Defendant's work shop in or near Two Harbors, MN and that such other offense constitutes evidence of prior conduct within the meaning of M.S. § 634.20. It is the position of the prosecution that this evidence of prior conduct is not within the meaning of the Spreigl Rule referred to as Rule 7.02 * * * however this Notice is given in order to obviate any potential argument that it is within said Rule. That evidence is set forth in detail in the statements and reports provided to the Defendant and is referred to in the Complaint as "touching over her clothes” that occurred in Lake County.

      . The record is not clear as to whether the trial court admitted the Lake County over-the-clothes evidence as other-crimes Spreigl evidence or as "relationship evidence.” See generally State v. Salas, 306 N.W.2d 832, 836 (Minn.1981) (noting that where evidence bears directly on the history of the relationship between the defendant and the victim, the state is not required to follow the Spreigl rule as a condition of getting the evidence admitted). In any event, Vick was well aware of this evidence before trial and of the state’s intention to use it because it was described in the complaint and because Vick had received a Spreigl notice in connection with the evidence.

      . On direct examination, Cheryl testified:
      Q. How was [A.B.] with respect to taking her clothes off to take a shower and being embarrassed about her body, that sort of thing?
      A. Prior to the incident?
      Q. Prior to the incident.
      A. Fine. She had no problem with it. If she had, you know, an owie on her butt, she’[d] show me.
      Q. How about after the visit with Grandpa Ed?
      A. No, no. She doesn't want — she wants absolutely no one to see her without clothes on. We're having trouble with her brushing her teeth, combing her hair, personal hygiene. She doesn't want to do any of that kind of stuff. And before we'd wash her hair and put in ponytails and braids and now we’re lucky to get a comb through it.

      . Dan testified that while on a car trip that led in the same direction as Vick’s cabin, A.B. asked with worry “we're not going to grandpa's, are we?”

      . A person is guilty of second-degree criminal sexual conduct if he engages in sexual contact with a complainant who is "under 13 years of age and the actor is more than 36 months older than the complainant." Minn.Stat. § 609.343, subd. 1(a). Sexual contact for purposes of this provision requires touching the genital area, groin, inner thigh, buttocks, or breast, either under or over the clothing, with sexual or aggressive intent. Minn.Stat. § 609.341, subds. 5, 11(a), ll(a)(i), and ll(a)(iv) (2000).

      . In order to admit other-crimes evidence in Minnesota, several safeguards must first be satisfied. Those safeguards are: (1) notice is given that the state plans to use the evidence, (2) the state must clearly indicate what the evidence is offered to prove, (3) the evidence is clear and convincing evidence that the defendant participated in the other offense, (4) the other-crimes evidence is relevant and material to the state’s case, and (5) the probative value of the evidence is not outweighed by potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998); State v. Bolte, 530 N.W.2d 191, 196-97 (Minn.1995); see State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (1965). These safeguards are often referred to as the Spreigl requirements.

      . Minnesota Statutes § 609.341, subdivisions 11(a) and ll(a)(iv), state that sexual contact for purposes of Minn.Stat. § 609.343 includes “touching of the clothing covering the immediate area of the intimate parts.”

      . The district court incorrectly categorized the testimony as evidence of a "common scheme or plan” and the first time the state acknowledged that this testimony was a misstatement was at oral argument before the court of appeals.


source: Caselaw Access Project

author: STRINGER, Justice. GILBERT, Justice PAGE, Justice ANDERSON, PAUL H., Justice

license: Public Domain

text:
    Corliss H. GUNDERSON, Petitioner, Appellant, v. Mark J. HARRINGTON, Respondent.
    No. C7-00-999.
    Supreme Court of Minnesota.
    Sept. 6, 2001.
    Rehearing Denied Oct. 9, 2001.
   OPINION

STRINGER, Justice.

Appellant Corliss Gunderson was employed as a receptionist by Harrington Orthodontics, a closely held corporation owned by respondent Dr. Mark Harrington (Harrington), an orthodontist. Gun-derson resigned in July of 1998 and brought a civil action against Harrington alleging assault, battery, intentional infliction of emotional distress and negligence. Gunderson’s complaint was dismissed by the district court on summary judgment on the basis, in part, that as her employer, Harrington is immune from common law claims for damages arising in the course and scope of employment under the Minnesota Workers’ Compensation Act, MinmStat. §§ 176.001-.862 (2000) (WCA). The court of appeals affirmed. Gunderson appeals, arguing that Harrington is not an employer under the act. In the alternative, she argues that she has raised a genuine issue of material fact that Harrington’s conduct was actionable under the intentional injury exception to the WCA. We affirm.

Harrington practices orthodontics in Plymouth, Minnesota and is the president and sole shareholder of Harrington Orthodontics. His wife Monica is the treasurer. Gunderson was hired in February of 1994 as a part-time receptionist and resigned on July 11, 1998 alleging that Harrington assaulted her on July 10, 1998 and on four other occasions leading up to the July 10 incident. Gunderson alleges the first incident occurred in approximately May of 1997. She testified that she was sitting at her desk when Harrington struck her on top of her head with his open hand and scolded her for forgetting something. She testified in deposition that she felt “belittled.” When asked, “Do you think he meant to hurt you?” Gunderson replied “No.”

Gunderson testified that in approximately August of 1997, Harrington again hit her on the head with his hand while she sat at the reception desk and expressed annoyance at her failure to write a patient’s name in the scheduling book. She stated that she felt a tingling sensation on the top of her head for a couple of minutes and felt “embarrassed.” When asked at deposition “Do you think Dr. Harrington meant to hurt you on that occasion?” Gunderson answered, “I don’t know.”

Gunderson claims that the third incident occurred when Harrington hit her on the top of the head with a heavy ballpoint pen in November of 1997, again criticizing her for a mistake connected with her job duties. She stated that this blow “hurt more” than the earlier incidents and she felt embarrassed and intimidated. When asked “Do you think he meant to hurt you when he hit you with the pen?” Gunder-son again responded, “I don’t know.”

Gunderson alleges that Harrington hit her the fourth time in February of 1998 with his open hand on the back of her head in front of three patients and reproached her for not knowing whether a patient had scheduled a follow-up appointment. Gun-derson testified that this blow was harder than the ones before and recalled “rubbing the area” for half an hour after the incident. Gunderson again testified in deposition that she did not know whether Harrington intended to hurt her with the blow. Following this incident, Gunderson complained to her co-workers about Harrington’s behavior but did not raise the issue with Harrington or his wife.

Gunderson alleges that Harrington struck her so severely a fifth time on July 10, 1998 that she decided to resign the next day. Gunderson testified that she was sitting at the reception desk when Harrington came into the area accompanied by a young boy who had just received braces. When she asked the patient for his name, Harrington forcefully hit her on the back of the head with his open hand while reprimanding her for not knowing his name after he’d spent two hours having his braces put on. Gunderson stated that the force of the blow caused her head to go forward “like whiplash,” straining her neck. Gunderson claims that the boy witnessed the blow and that she and the boy looked at one another for a moment after Harrington hit her. In deposition she was asked whether she thought Harrington meant to hurt her and she answered, “I think with the force of the hit, I think it was intentional.” When asked, “Is it possible that he just got carried away out of frustration without intending to hurt you?” Gunderson answered, “I don’t know.”

Gunderson testified that she did not speak with Harrington and finished her work quickly that day so she could leave the office. Later in the evening she discussed the incident with her husband and friends. They urged her to go to the police and quit her job. The next day Gunderson went to the Plymouth police station and filed a report, and on the advice of the police she then went to an urgent care center. Gunderson testified that a physician examined her head and noted swelling. The record does not contain a medical report.

Gunderson testified that she suffered from head and neck pain following the July 10 incident and she had feelings of insecurity, embarrassment and humiliation. She also stated that bruising and swelling on the back of her head made it difficult for her to comb her hair or rest her head on a pillow for one to two weeks.

The workers’ compensation insurer for Harrington Orthodontics, Berkley Administrators, accepted Gunderson’s claim for a July 10, 1998 head injury and agreed to pay reasonable medical expenses. In an application for reemployment insurance benefits, Gunderson characterized the first four incidents as “little swats on the head.”

Harrington was charged with fifth-degree assault for the July 10 incident. According to Harrington, he paid $100 in costs, completed anger management classes, and committed no similar offenses for one year, in exchange for the city dismissing the charge.

Gunderson brought this civil action against Harrington alleging assault, battery and intentional infliction of emotional distress. The complaint was later amended to include claims of negligent failure to refrain from making offensive contact with Gunderson and negligent failure to take reasonable steps to ensure that the workplace at Harrington Orthodontics was free from violence.

Harrington submitted an affidavit stating that Gunderson “was one of my most valued and trusted employees, and I considered her a friend. I would never do anything to intentionally injure anyone, certainly not a valued employee whom I considered to be a friend.” At deposition, Harrington testified that he does not recall the first four alleged incidents and that, “I do believe that it is possible that I could have done that, but I don’t have a specific recollection of any particular incidents.” Harrington denied hitting Gunderson on July 10, 1998 and stated that he never intended to injure her. Harrington identified the patient whom Gunderson alleged witnessed the July 10 assault as 14-year-old Ryan Wolcott. In a statement not under oath, apparently prepared by the attorney representing Harrington on the fifth-degree assault charge, Wolcott asserted “I never saw Dr. Harrington hit his receptionist or any other employee.” Gun-derson acknowledged it was Walcott who witnessed the assault.

The district court dismissed Gunderson’s suit on summary judgment. The court held that because Dr. Harrington is the alter ego of Harrington Orthodontics, Harrington is Gunderson’s employer, and because the alleged injuries arose in the course of employment, Gunderson must seek the remedies provided by the WCA unless some exception applies. The court further held that the intentional injury exception does not apply because, accepting all of Gunderson’s allegations as true, the record does not support a reasonable inference that Harrington acted with conscious and deliberate intent to injure Gunderson. The court noted that Gunderson stated she did not think that Dr. Harrington meant to hurt her when he first hit her on the top of the head in late spring of 1997, and that she did not know if Harrington meant to hurt her when he hit her on the other occasions. The court stated, “[t]o allow an employee a civil tort action for what Gun-derson herself has characterized as little swats on the head would trivialize the intentional injury exception and eviscerate the exclusive remedy doctrine.” Finally, the court concluded that Gunderson’s claims for intentional infliction of emotional distress fail as a matter of law because she offered no proof of extreme emotional distress nor physical manifestation of her emotional distress.

The court of appeals affirmed in a divided opinion. The court held that Harrington is the only agent of Harrington Orthodontics and as such, a “[hjolding that respondent was not appellant’s employer would ignore reality.” Gunderson v. Harrington, 619 N.W.2d 760, 763 (Minn.App.2000). Further, Harrington allegedly injured Gunderson while acting in his capacity as her supervisor because he was dissatisfied with her job performance. The court of appeals held that denying Harrington the protection of the exclusive liability provision because he chose to do business as a corporation would frustrate the stated purpose of the WCA: mutual renunciation of common law rights and defenses by employers and employees alike. Gunderson, 619 N.W.2d at 763 (quoting Minn.Stat. § 176.001 (1998)). In reaching its decision, the court cited Fox v. Swartz for the well-accepted principle that the WCA governs the master-servant relationship “to the exclusion of any liability at common law.” Fox v. Swartz, 228 Minn. 233, 36 N.W.2d 708, 710 (1949) (holding employee may not maintain separate damages suit under the civil damages act for injury compensable under workers’ compensation).

The court also affirmed the dismissal of Gunderson’s claim under the intentional injury exception to the WCA, ruling that she failed to present facts supporting a reasonable inference that Harrington acted with a conscious and deliberate intent to injure her. The dissent agreed with the majority that the intentional injury exception does not apply under the facts, but asserted that Harrington is an employee of Harrington Orthodontics and therefore subject to suit as Gunderson’s co-employee. Gunderson, 619 N.W.2d at 766 (Klaphake, J., dissenting).

On review here, Gunderson argues that dismissal was error as a matter of law because the corporation and not Harrington is her “employer” under the WCA, and therefore Harrington’s actions should be measured by the standards applicable to co-employees. Gunderson argues that Minn.Stat. § 176.011, subd. 10 clearly and unambiguously defines the employer as the corporation and does not state that “sole shareholders” or “alter egos” of a corporation are also employers for purposes of the act. Gunderson argues that it would be fundamentally unfair to allow Harrington to “have it both ways” — having the benefit of the corporate entity as a shield against personal liability for actions by creditors and others while at the same time claiming the protection offered by the exclusive remedy provision of the workers’ compensation statute as the “alter ego” of Harrington Orthodontics.

Gunderson asserts that her position is supported by a recent decision of the court of appeals, Buck v. Freeman, 619 N.W.2d 793, 796 n. 3 (Minn.App.2000) (concluding that appellant failed to present a genuine issue for trial on claim that principal was co-employee because appellant presented no evidence that respondent organized his business as a corporation), and decisions from other jurisdictions. See Crees v. Chiles, 437 N.W.2d 249 (Iowa App.1988) (holding that corporation is the employer for purposes of the state workers’ compensation act); see also Barnette v. Doyle, 622 P.2d 1349, 1352-55 (Wyo.1981) (holding that president, director, and shareholder of corporation was co-employee). Gunderson further argues that the court of appeals decision would require workers’ compensation insurers to insure “alter egos” as “employers.”

Finally, Gunderson argues that even if the court determines Harrington is her employer for purposes of the WCA, she has raised genuine issues of material fact regarding Harrington’s liability under the intentional injury exception to the statute. She argues that Minnesota law does not immunize employers who assault and batter their employees. Gunderson maintains that the court of appeals improperly intruded on the province of the trier of fact by making a credibility determination at the summary judgment stage and making a factual determination as to Harrington’s intent. Further, Gunderson asserts that the ruling below has created an impossible burden of production requiring an admission by the employer that he intended to injure the employee.

Harrington counters that the workers’ compensation definition of employer, “any person who employs another to perform a service for hire,” Minn.Stat. § 176.011, subd. 10, unambiguously establishes that he was Gunderson’s employer at the time of the alleged assaults. Further, Harrington argues that changing the form of his business from a sole proprietorship to a corporation, without change as to substance, should not strip him of the protection he would have had as a sole proprietor under the workers’ compensation statute. Harrington asserts that if Gunderson is allowed to maintain a common law suit against him it would frustrate the legislative intent of mutual renunciation of common law rights and defenses embodied in the workers’ compensation scheme.

Harrington further contends that Gun-derson has failed to state facts supporting a claim under the intentional injury exception to the WCA. He cites Gunderson’s failure to seek medical attention until ad-, vised to do so by the police, her deposition testimony that she did not know whether Harrington meant to hurt her and her characterization of the first four assaults as “little swats on the head.” Harrington argues that a reasonable jury could at worst infer that he acted impulsively or reflexively but could not find he acted with “the mental deliberation necessary to form an actual intent to injure.” Any other finding, Harrington argues, would require the use of the “implied intent” or “substantial certainty” tests- rejected by this court in claims involving the intentional injury exception to the WCA. See Hildebrandt v. Whirlpool Corp., 364 N.W.2d 394, 396-97 (Minn.1985).

I.

On review of summary judgment, we view the evidence in the light most favorable to the party against whom summary judgment was rendered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation of a statute and the determination of whether a genuine issue of material fact exists are subject to de novo review. Brookfield Trade Center v. Ramsey County, 609 N.W.2d 868, 874 (Minn.2000).

As an initial observation, we note that the WCA is based on a policy of “mutual renunciation of common law rights and defenses by employers and employees.?’ Minn.Stat. § 176.001 (2000). The exclusive remedy provision of the WCA states that “[t]he liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee * * * entitled to recover damages on account of such injury or death.” Minn.Stat. § 176.031 (2000). The WCA defines an employer as “any person who employs another to perform a service for hire; and includes [a] corporation, partnership, limited liability company, association, group of persons, state, county, town, city, school district, or governmental subdivision.” Minn.Stat. § 176.011, subd. 10.

Both parties argue that the clear and unambiguous language of the WCA supports their position regarding whether Harrington is Gunderson’s employer. Gunderson emphasizes that the act states that a corporation may be an employer but doesn’t list “shareholder” or “alter ego” in the definition of employer. She also notes, that a corporation is a legal entity separate-from its shareholders. Harrington argues that as the court of appeals held, the “common sense” reading of “any person who employs another to perform a service for hire” includes Harrington, and that as sole shareholder and president of Harrington Orthodontics, a corporation organized solely to support his professional practice as an orthodontist, he and the corporation are virtually indistinguishable.

Recognizing Harrington as Gun-derson’s employer is consistent with the reality that the form but certainly not the substance of his business changed when Harrington incorporated. The corporation was for all practical purposes Harrington personally as its sole principal and shareholder, and it could act only through him. To rigidly cling to the form of the corporation, ignoring Harrington’s sole authority to manage and direct Gunderson’s employment, would frustrate the purpose of the WCA: “mutual renunciation of common law rights and defenses by employers and employees alike.” Minn.Stat. § 176.001 (2000).

The dissent correctly indicates that our holding is not based on an equitable pierce of the corporate veil. The dissent cites our decision in Wessin v. Archives Corp., 592 N.W.2d 460 (Minn.1999) for the proposition that a closely held corporation must be treated the same as all other corporations under Minnesota statutes for purposes of the WCA. The corporation in that case had a small number of shareholders and the issue presented was whether the actions brought were direct or derivative. Wessin, 592 N.W.2d. at 462. In this case, much like a sole proprietorship, Harrington is the president and sole shareholder of the corporation. The clear indication that Harrington himself acted as the corporation and the well-settled doctrine that the WCA is intended to replace the uncertainty of tort actions against employers and provide the exclusive remedy for employment-related injuries supports our holding that Harrington is Gunderson’s employer under the WCA.

We hold that Harrington Orthodontics is so completely dominated by and identified with Harrington that he must be considered Gunderson’s employer for purposes of the WCA. Therefore, Gunderson is restricted to the remedies provided by the WCA for injury by Harrington in the course of her employment. We affirm the court of appeals ruling that Harrington is Gunderson’s employer as defined by the WCA.

II.

We turn next to Gunderson’s claim that even if Harrington is deemed to be her employer, the intentional injury exception to the exclusive remedy provision of the WCA should apply. The intentional injury exception was first recognized in Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930) where the employer swung a heavy broom handle at the employee, dislocating two finger joints. We stated:

No case has been cited where it has been held that one who willfully assaults and injures a workman while in the course of his employment, be he an employe[e], employer or a stranger, when sued for the tort, can successfully interpose as a defense that the plaintiff and his employer are under the workmen’s compensation act, and his sole remedy is thereunder. And we think none can be found, for it would be a perversion of the purpose of the act so to hold.

180 Minn. at 471, 231 N.W. at 233-34. In Breimhorst v. Beckman, we rejected a claim under the intentional injury exception where the employee failed to present a triable issue of fact regarding whether the employer had “conscious and deliberate intent directed to the purpose of inflicting an injury, and such intent may not be inferred from mere negligence, though it be gross.” 227 Minn. 409, 426, 35 N.W.2d 719, 730 (1949) (holding that the exclusive remedy for employee’s injury from concealed spring gun on employer’s premises was under the WCA).

Later in Hildebrandt v. Whirlpool Corp. we rejected the argument that an employer’s knowledge of a “substantial certainty” of injury to an employee should trigger the intentional injury exception and reiterated the “conscious and deliberate intent to inflict injury” standard. 364 N.W.2d 394, 396-97 (Minn.1985) (rejecting a claim under the intentional injury exception where employees presented evidence that the employer intentionally misrepresented the nature of a toxic chemical employees were required to handle). Most recently in Kaess v. Armstrong Cork Co. we stated again that a “conscious and deliberate intent to inflict injury” is necessary for the intentional injury exception to apply. 403 N.W.2d 643, 644-45 (Minn.1987) (dismissing an action in strict liability for injuries sustained through employee’s work with insulation materials containing asbestos manufactured by the employer).

To successfully oppose summary judgment Gunderson must identify material facts in the record creating a genuine issue as to whether Harrington consciously and deliberately intended to injure her. The stated purpose of the Rules of Civil Procedure — securing a just, speedy, and inexpensive determination of an action — is furthered by allowing a court to dispose of an action on the merits if there is no genuine dispute regarding the material facts, and a party is entitled to judgment under the law applicable to such facts. Minn. R. Civ. P. 1, 56.03. To raise a genuine issue of material fact, Gunderson must provide more than “evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of [her] case to permit reasonable persons to draw different' conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). She has failed to do so.

While Gunderson alleges that Harrington struck her on five different occasions, as to the first incident she testified that she did not think Harrington intended to injure her, and as to the next three incidents she testified that she did not know if he intended to hurt her. She characterized .them as “little swats on the head,” failed to mention the first three incidents to anyone, and sought no medical treatment for the first four incidents. As to the incident on July 10, 1998 she gave conflicting testimony, at first saying that “with the force of the hit, I think it was intentional,” but later saying she didn’t know if Harrington might have hit her out of frustration but without intending to hurt her. As the only other evidence in the record of Harrington’s intent is his denial of an intent to injure, Gunderson’s testimony clearly is the evidence most favorable to her claim. We are compelled to conclude that Gunderson’s belief that Harrington did not intend to hurt her, her statement that she didn’t know if he intended to hurt her, and her conflicting beliefs as to the July 10 incident do not create genuine issues of material fact of Harrington’s intent to injure her to oppose summary judgment. “A genuine issue of material fact for trial must be shown by substantial evidence.” Brookfield, 609 N.W.2d at 874. The evidence most favorable to Gunderson’s claim falls short of the substantial evidence standard.

While the evidence supports a finding that Harrington’s conduct was inappropriate, Gunderson has failed to present sufficiently probative evidence to establish the existence of a genuine issue of material fact for trial on the question of whether Harrington acted with a conscious and deliberate intent to inflict physical injury. We hold that Gunderson has failed to raise a genuine issue of material fact regarding an essential element necessary to maintain an action under the intentional injury exception — that Harrington acted with a conscious and deliberate intent to inflict injury. Therefore Gunderson may not maintain a common law action for damages under the intentional injury exception to the exclusive remedy provided by the WCA.

Affirmed.

GILBERT, PAGE, PAUL H. ANDERSON, JJ., dissenting.

DISSENT

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority’s opinion. This case arises from the district court’s granting of a motion for summary judgment. The court ruled that a co-employee’s intentional tort claims against a sole shareholder of a corporation who undisputedly committed the tort were precluded by the exclusive remedy provision of the WCA, and that the assaults were not intentional torts subject to the intentional torts exception of the exclusive remedy provision. The court of appeals held that an “employer” does not lose the protection of the exclusive liability provision of the WCA by choosing to incorporate.

By affirming decisions of the district court and court of appeals, the majority permits a co-employee/sole shareholder of a closely held corporation to use the WCA to shield himself from liability for intentional assaults on another employee. It is hard to fathom that the legislature intended such a result. Doing business in the corporate form does establish some limits of liability for shareholders, even sole shareholders, and this is often a reason for incorporation. Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn.1979). A corporation is generally considered a legal entity separate from the shareholders. Milwaukee Motor Transp. Co. v. Comm’r of Taxation, 193 N.W.2d 605, 608, 292 Minn. 66, 71 (1971). The corporation owns its own property, and it must answer for its own contractual obligation and tort liabilities. Id. As Gunder-son points out, the corporate entity Harrington Orthodontics generally shields Dr. Mark Harrington, D.D.S. from personal liability for actions by creditors and others. Harrington Orthodontics issued Gunder-son’s paychecks, and if Gunderson were to be owed wages or benefits, she would not be able to maintain an action against Harrington personally. The corporate entity would be considered the employer liable for the wages owed. The court of appeals’ holding is boldly asserted without authority. The definition of employer should not change for the purpose of applying the WCA.

However, the corporate shield is not without bounds. In certain circumstances, it is possible to “pierce the corporate veil” and hold a shareholder personally hable where there is fraud or where the shareholder is the “alter ego” of the corporation. Victoria Elevator Co., 283 N.W.2d at 512. When the courts use the alter ego theory to impose liability, they are “concerned with reality and not form, with how the corporation operated and the individual defendant’s relationship to that operation.” Id. In Victoria Elevator, we held that where the formalities of corporate existence are disregarded, the corporate existence cannot be allowed to shield the individual from liability for damages incurred by those dealing with the corporation. Id. But, in this case, Gunderson is not seeking to.pierce the corporate veil; rather, she is simply asking that a co-employee be held personally accountable for his intentional torts.

The majority reasons that Harrington is not personally responsible for his own intentional tort because of his status as the “sole principal and shareholder” and that the corporation is “completely dominated by and identified with Harrington.” The majority argues Harrington should be transformed into being the employer when applying the WCA even though Harrington Orthodontics, a duly authorized Minnesota corporation, is the employer under the law. The reasoning that the majority uses in making its argument is the type of reasoning usually used by the courts when applying an equitable remedy, such as an alter ego theory, in order to pierce the corporate veil to attach liability to the individual shareholder. See id. Instead, the majority uses this same equitable reasoning hére to shield Harrington from the consequences of his own active wrongful conduct. It concludes that Harrington is the employer for the purposes of the WCA. Therefore, he is personally immune from liability for his intentional assault on an employee. Even though the majority might not label it as such, this is an inappropriate application of the alter ego theory. The alter ego theory was never meant to shield either sole proprietors or co-employees from liability for intentional torts.

The majority’s decision also violates one of the maxims of equity: “he who seeks equity must do equity, and he who comes into equity must come with clean hands.” Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999) (quoting Hruska v. Chandler Assocs., Inc., 372 N.W.2d 709, 715 (Minn.1985)). Although Harrington is seeking equity, he is not coming to this court with clean hands and has not done equity to his long-time loyal receptionist. However, in granting Harrington equity, the majority holds that an individual employee of a corporation can escape liability for a variety of tortious conduct toward a fellow corporate employee, as long as that individual dominates the corporate entity.

The majority’s rhetoric about changing the form and not the substance of Harrington’s business upon incorporation is added without citing to any authority. This statement is in fact contrary to Minn. Stat. § 302A.161 (2000), which lists the powers held by a corporation independent of its shareholders, and case law where we have stated that “a closely held corporation is still a corporation with all of the rights and limitations proscribed by the legislature.” Wessin v. Archives Corp., 592 N.W.2d 460, 466 (Minn.1999). Importantly, the notion that because a corporation “is so completely dominated by and identified with Harrington, he must be considered Gunderson’s employer for the purposes of the WCA” is a totally new judicial principle added for effect, but again, without any authority. In the past, the corporate form has only been disregarded when corporate formalities have been disregarded or where there has been fraud to justify piercing the corporate veil. In this case, those elements are not present. Accordingly, Harrington Orthodontics must be considered the employer for the purposes of the WCA, just as it is for all other purposes.

If Harrington Orthodontics is the employer, Harrington should be considered Gunderson’s co-employee under the WCA. Importantly, the WCA does not shield co-employees from liability for intentional torts. A co-employee is not liable for personal injury of another employee unless the injury was a result of gross negligence or was intentionally inflicted by the co-employee. Minn.Stat. § 176.061, subd. 5(c) (2000). Gunderson’s injuries did not happen by accident. Harrington intentionally inflicted them when he hit Gunderson on the back of the head.

In addition to Minn.Stat. § 176.061, subd. 5(c), our case law indicates that the WCA does not shield individuals from liability for intentional torts. The majority concludes that the intentional tort exception to the WCA does not apply. It should be noted that the majority labels this exception the “intentional injury exception” because the “well-settled standard [is] ‘conscious and deliberate intent to inflict injury.’ ” This court has in fact repeatedly referred to this exception as the “intentional tort” exception even in those cases cited by the majority. See Kaess, 403 N.W.2d at 644; Hildebrandt, 364 N.W.2d at 394. The majority cites Breimhorst for the premise that there must be an intent to inflict injury for the intentional tort exception to apply. The very language cited by the majority demonstrates that Breimhorst is not analogous to the case at hand. Breimhorst involved a spring gun that injured an employee of a restaurant. The court concluded that “intent may not be inferred from mere negligence, though it be gross.” Breimhorst, 227 Minn. at 426, 35 N.W.2d at 730. Here, Harrington’s intent to hit Gunderson on the head is clear and an inference is not required. No matter how the facts are viewed, Harrington’s conduct cannot be viewed as negligence. There is no question that the case at hand involves an intentional tort.

The majority also cites Hildebrandt and Kaess for the proposition that in order for the intentional tort exception to apply, there must be a “conscious and deliberate intent to inflict injury.” Both eases involved injuries arising from exposure to toxic materials. The plaintiffs alleged that the course of conduct was intentional and injury was foreseeable. Neither case involved an intentional tort — assault—like we have here. Boek v. Wong Hing did involve an intentional assault. 180 Minn. 470, 231 N.W. 233 (1930). There, we held that just as an employee can maintain a claim against a third party for an intentional assault, so should an employee be able to maintain such an action against an employer for an intentional assault. 180 Minn. at 471-72, 231 N.W. at 234. “An employer who intentionally and maliciously inflicts bodily injuries on his servant should occupy no better position than would a third party not under a Compensation Act * * Id.

Summary judgment is only appropriate where a review of the evidence shows that there is no genuine issue as to material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On review of summary-judgment, the court reviews the evidence in the light most favorable to the party against whom the summary judgment was rendered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Even if the majority is correct and intent to injure is required for the intentional tort exception to apply, whether Harrington intended to cause injury when he assaulted Gunderson at least presents a question of fact that cannot be dismissed on summary judgment. The parties do not dispute that Harrington intended to strike Gunderson on numerous occasions. On the most recent occasion, he hit her hard enough to cause bruising and pain for several days. A jury might infer from the bruising that Harrington intended to hit Gunderson quite hard and that he intended to injure her. Just because Gunderson said in a deposition that she did not know whether Harrington intended to injure her, does not mean that it is conclusive that the intent to injure did not exist. Regarding the last assault, Gunderson was asked whether she thought Harrington meant to hurt her, and she answered, “I think with the force of the hit, I think it was intentional.” This testimony is evidence that Harrington did intend to injure Gunderson. While not the strongest of evidence, it at least presents a question of fact.

I would therefore reverse and remand for trial on the merits.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Gilbert.

ANDERSON, PAUL H., Justice

(dissenting)

I join in the dissent of Justice Gilbert.

      . The record refers to the corporation as both Harrington Orthodontics, Ltd. and Harrington Orthodontics, Inc.

      . The record does not contain an official disposition of the criminal case.

      . The WCA defines an employer as "any person who employs another to perform a service for hire; and includes [a] corporation, partnership, limited liability company, association, group of persons, state, county, town, city, school district or governmental subdivision." Minn.Stat. § 176.011, subd. 10 (2000).

      . In response to Gunderson’s arguments regarding Buck v. Freeman, Harrington argues that the issue presented here was not before the court of appeals in that case. Buck v. Freeman, 619 N.W.2d at 796. Harrington asserts that this court should not follow the cases from other jurisdictions cited by Gun-derson as they are factually distinguishable and are based on the application of the particular language of their state workers' compensation statutes.

      . See also 6 Larson's Workers' Compensation Law § 111.02[3] (2000) (stating that where "the defendant so dominates the corporation, perhaps as stockholder, president, and manager, that the defendant can honestly be said to be the alter ego of the corporation, this in itself may suffice to bar any action against him or her.”)

      . The cases from other jurisdictions cited by Gunderson are not consistent with this court's interpretation of the WCA and fail to persuade this court to hold in Gunderson's favor. We declined to apply the "dual capacity” doctrine in Kaess v. Armstrong Cork Co. without clear indication that the employer possesses a second persona so separated from the status as employer that it is a separate legal entity. 403 N.W.2d 643, 645 (Minn.1987). The liability of the corporation owner in Barnette v. Doyle, a Wyoming case cited by appellant, was based on the holding that the owner's duties as manager of day-to-day operations gave rise to a duty in his capacity as co-employee. 622 P.2d 1349, 1353-56 (Wyo.1981). The holding in Crees v. Chiles was based on the unique language of the Iowa workers' compensation act and Barnette. 437 N.W.2d 249, 252-53 (Iowa App.1988). Gun-derson's argument based on the court of appeals decision in Buck is similarly unhelpful, as it relies upon dicta. See Buck, 619 N.W.2d at 796 n. 3.

      . We utilize the term 'intentional injury exception' rather than 'intentional tort exception' throughout this opinion, as it most closely conforms with the well-settled standard 'conscious and deliberate intent to inflict injury. See, e.g., Kaess, 403 N.W.2d at 644—45, Hildebrandt, 364 N.W.2d at 396, Breimhorst v. Beckman, 227 Minn. 409, 426, 35 N.W.2d 719, 730 (1949); see also Boek v. Wong Hing, 180 Minn. 470, 472, 231 N.W. 233, 234 (1930) (utilizing the “willfully and intentionally inflicted bodily injuries” standard).

      . The dissent argues that Breimhorst cannot stand for the principle that there must be an intent to inflict injury for the exception to apply because the facts presented in that case indicated the employer did not know of the device that injured the employee and was at most negligent. In response to arguments regarding newly discovered evidence that the employer knew that the device was on the premises and had once accidentally discharged tear gas, we held that "such knowledge only served to put him on notice * * * [of] a tear-gas mechanism which, if used for the purpose for which it was intended, might inflict temporary discomfort but not bodily harm.” Breimhorst, 227 Minn. at 419, 35 N.W.2d at 727. Therefore, our holding in Breimhorst requires an intent to inflict injury.