(concurring).
I concur in the result reached by the majority and would affirm the conviction of appellant, Michael Carrasco Sontoya; but I write separately to emphasize my concern with respect to the content of the medical examiner’s testimony. The court assumes that there was error, and it was plain, and then concludes that the assumed plain error did not affect Sontoya’s substantial rights. I would not skip an analysis under the first two prongs and would conclude that there was error and it was plain. Moreover, I want to emphasize my position that how the court reached its conclusion on the third prong should not detract from the serious nature of the underlying error. The only reason I would affirm is because this is one of those cases where the evidence that Sontoya murdered G.R. while committing or attempting to commit criminal sexual conduct is so overwhelming, we should affirm despite the serious nature of the error.
The facts surrounding the murder of G.R. are horrible and paint a gruesome picture of how she spent the last hours of her life. The evidence that Sontoya was the perpetrator of the acts that ended G.R.’s life is overwhelming, as is the evidence that Sontoya murdered G.R. while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence in violation of Minn.Stat. § 609.185(a)(2) (2008). The district court’s error in admitting the medical examiner’s testimony regarding an element of the offense, which is to be determined by the jury, does not affect this result. Therefore, the jury’s verdict that *877Sontoya is guilty should be affirmed. But as we affirm Sontoya’s conviction I believe we can only do so in the context of a strong statement that testimony like that of the medical examiner is improper and will not be tolerated in the future.
Testimony on an ultimate issue — an element of the crime — is generally not objectionable if the testimony is helpful to the jury. See Minn. R. Evid. 704. But because the testimony of an expert witness has the potential to unduly influence a jury, we have said that “[sjpecial care must be taken by the trial judge to ensure that the defendant’s presumption of innocence does not get lost in the flurry of expert testimony and, more importantly, that the responsibility for judging credibility and the facts remains with the jury.” State v. Grecinger, 569 N.W.2d 189, 193 (Minn.1997).
At Sontoya’s trial, the last witness called by the State was the Ramsey County Medical Examiner who examined G.R.’s body at the crime scene and conducted the autopsy. During direct examination, the medical examiner testified that the cause of G.R.’s death was “exsanguinations due to multiple traumatic injuries due to a sexual assault.” The State followed this answer with a question about whether G.R. “bled to death from the sexual assault” and, in his answer, the medical examiner confirmed that she had. The medical examiner then testified that the manner of death was “homicide.” The State continued to question the medical examiner as to whether he could determine G.R.’s time of death due to the “sexual assault.” During this questioning, the medical examiner testified that the contusions on G.R.’s arms were “fingerprint injuries” which occur when someone is grabbed “during the course of an assault.” Finally, the State used the medical examiner’s expert testimony in its closing argument when it made the following assertions:
As I said, we know that G.R. died a horrific death. She bled to death from a sexual assault, as the medical examiner has testified.
The medical examiner testified that G.R. died as a result of bleeding to death from a sexual assault. That, Ladies and Gentlemen, is Murder in the First Degree.
The medical examiner told you that she died from a sexual assault that caused her to bleed to death.
(Emphasis added.)
To be admissible, expert testimony should add “precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience.” State v. DeShay, 669 N.W.2d 878, 888 (Minn.2003). The basic consideration in deciding whether to admit expert testimony is whether the testimony will help the jury in resolving factual questions. Grecinger, 569 N.W.2d at 195. To be “helpful,” expert testimony should “explain a phenomenon not within the understanding of an ordinary lay person.” State v. Hennum, 441 N.W.2d 793, 798 (Minn.1989). Expert testimony is not helpful if “the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury’s ability to reach conclusions about that subject which is within their experience.... ” State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980).
Under the helpfulness test, we have consistently “not allowed ultimate conclusion testimony which embraces legal conclusions or terms of art.” State v. DeWald, 463 N.W.2d 741, 744 (Minn.1990); see also Minn. R. Evid. 704 comm. cmt.-1977 (stating that expert testimony involving legal analysis or mixed questions of law and fact *878is not helpful to the trier of fact). This rule is necessary because opinions involving a legal analysis or mixed questions of law and fact are of no use to the trier of fact. State v. Chambers, 507 N.W.2d 237, 238 (Minn.1993); see also State v. Lopez-Rios, 669 N.W.2d 603, 613 (Minn.2003) (“[WJhile the evidentiary rules do not bar all expert testimony concerning the ultimate issue, a district court may exclude ultimate issue testimony ... when the testimony would merely tell the jury what result to reach.”).
We have in the past stated that admission of a physician’s opinion that rape or sexual assault occurred constitutes error. For example, in State v. Saldana, the defendant was charged with first-degree criminal sexual conduct. 324 N.W.2d 227, 229 (Minn.1982). At trial, the defendant admitted to having had sexual intercourse with the alleged victim but claimed that the sexual activity was consensual. Id. To rebut the defendant’s claim, the State offered the testimony of an expert witness, who stated that the alleged victim was in fact sexually assaulted and raped. The defendant appealed his conviction and on appeal, we adopted the majority rule of other courts that “admission of a physician’s opinion that rape or sexual assault had occurred is error.” Id. at 231. We concluded that jurors were capable of considering the admissible evidence and determining whether a rape occurred and that the expert testimony was not helpful to the jury. Id. We went on to say that the expert testimony was a legal conclusion, “which was of no use to the jury.” Id. We then held that the erroneous admission of the physician’s testimony was reversible error and remanded the case for a new trial. Id. at 232.
More recently, in State v. Moore, the defendant was charged with first-degree assault. 699 N.W.2d 733, 735 (Minn.2005). At trial, the State’s expert witness, the treating physician, testified that the victim’s injuries met the legal definition of “great bodily harm,” an element of the charged offense and the defendant was convicted. Id. at 736. On appeal, we held that the expert testimony of the physician was improper and inadmissible, because it constituted a legal conclusion on an element of the charged offense and merely told the jury what result to reach. Id. at 740. We reasoned that the jury was equally capable of determining whether the victim suffered great bodily harm and that the expert testimony did not add precision or depth to the jury’s ability to reach a conclusion on the question. Id. We found reversible error and remanded for a new trial. Id.
Here, the medical examiner’s testimony that G.R. was sexually assaulted was a legal conclusion on a key element of the crime with which Sontoya was charged. The testimony was not helpful to the jury; rather, it told the jury that the sexual assault element of the charged first-degree murder offense had been proved by the State.1 Consequently, the expert testimony impermissibly intruded upon the jury’s “responsibility for judging credibility and the facts.” Grecinger, 569 N.W.2d at 193. The jury was capable of determining whether G.R. was sexually assaulted and the expert testimony did not add precision or depth to the jury’s ability to reach its own conclusion.
Further, it should be noted that Sontoya is not suggesting that the medical examiner could not have testified as to the cause and manner of G.R.’s death. For example, in Chambers, we summarized the proper *879scope of a pathologist’s testimony in a murder case as follows:
A pathologist may appropriately testify to things such as the number and extent of the wounds, the amount of bleeding, whether the wounds were caused by a knife or a blunt instrument, whether a gunshot wound is a contact wound, whether the wounds could or could not have been the result of accident, the cause of death, and so forth, but the pathologist should not be allowed to make an “expert inference” of intent to kill from these matters. That is for the jury to do.
Chambers, 507 N.W.2d at 239.
To be consistent with our case law, I believe we must conclude that the medical examiner’s testimony that G.R. was sexually assaulted, an element of the charged first-degree murder offense, was inadmissible expert testimony and should have been excluded. Further, I conclude that an error of this nature affects substantial rights if it is prejudicial and affects the outcome of the case. State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002). We have held that an error affects substantial rights when there is a reasonable likelihood that the absence of the error would have had a significant effect on the jury’s verdict. State v. Reed, 737 N.W.2d 572, 583 (Minn.2007).
In order to convict Sontoya on the charged offense, the State was required to prove beyond a reasonable doubt that he committed a sexual assault against G.R. when he murdered her. Sontoya’s defense at trial was that he did not sexually assault G.R. The key disputed issue for the jury to decide was whether a sexual assault occurred. The medical examiner’s testimony that G.R. was sexually assaulted was the only direct evidence presented by the State that a sexual assault occurred. In essence, the medical examiner told the jury what result to reach on the only contested element of the charged offense. At the same time, the testimony unfairly prejudiced Sontoya’s consent defense. Moreover, the medical examiner’s improper expert testimony was presented in a manner that could not have been lost on the jury. Expert testimony by its very nature has a potential to unduly influence a jury. The medical examiner was also the last witness the jury heard before it retired to deliberate which meant Sontoya had no way in which to counter the medical examiner’s testimony.
Under most similar circumstances, we would have no alternative other than to conclude that the plain error committed by the admission of the medical examiner’s testimony affected Sontoya’s substantial rights and that affected the ultimate outcome in the case. Nevertheless, I conclude that this is one of those plain error cases where because of the overwhelming evidence of Sontoya’s guilt, we should affirm the jury’s verdict and the conviction.
. See Minn.Stat. § 609.185(a)(2); see also 10 Minn. Disl. Judges Ass'n, Minnesota Practice-Jury Instmction Guides, Criminal, CRIMJIG 11.07 (5th ed.2006).