This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Brian Franklin Ross,



Filed December 26, 2001


Hanson, Judge


Hennepin County District Court

File No. 00057670



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from a conviction of second-degree criminal sexual conduct, appellant argues that the evidence that he touched his 8-year-old daughter’s genital area, in what he described as an examination to see whether a family acquaintance might have been improperly touching her, was not sufficient to prove that he had the requisite sexual or aggressive intent.  Appellant also argues that the district court erred by excluding expert testimony from appellant’s psychologist about the dynamics of sexual abuse and by excluding family photographs.  We affirm.


Appellant Brian Franklin Ross is married with two minor children, one of whom is his eight-year-old daughter, E.R.  The Ross family is physically expressive; for example, on Saturdays, when both parents were home, it was common for the entire family to lie in bed together, give each other back massages and wrestle.  During the week, E.R. would also occasionally lie alongside Ross before leaving for school. 

On the morning in question, E.R. joined Ross in bed.  They gave each other back massages.  Ross testified that after the massages, they began to tickle each other and, as he was tickling E.R.’s thighs, she said, “Ow.”  Ross explained that this concerned him because he had not been tickling her very hard and he was afraid that the tenderness was the result of inappropriate touching by an acquaintance who had been with the children two days earlier.  Ross then removed E.R.’s underwear, put her legs up, and touched E.R.’s genital area to determine whether anyone had been hurting her.  Afterwards, he told E.R. he was done and that she should get ready for school.  Ross testified that while E.R. was dressing, Ross became concerned that others may misunderstand his actions and told E.R. not to tell anyone about what he had done.

When E.R. testified, she characterized Ross’s touching as being more substantial, including rubbing her vagina and poking her “private spot.”  She also did not mention that any tickling had occurred or that she had any pain or discomfort prior to Ross’s “examination.”  In addition, the emergency room nurse testified that E.R. told her she thought Ross put his finger inside her.

A jury found Ross guilty of second-degree criminal sexual conduct. Ross filed a motion for judgment notwithstanding the verdict (JNOV) or for a new trial.  The district court denied the motion.  The district court imposed a stayed sentence of 21 months and placed Ross on probation for five years. This appeal followed.



Ross argues that the evidence was insufficient to prove beyond a reasonable doubt that he possessed sexual or aggressive intent when he touched E.R.  Second-degree criminal sexual conduct requires a showing that the defendant engaged in “sexual contact” with a victim who is under 13 years of age.  Minn. Stat. § 609.343, subd. 1(a) (1998).  To be guilty of “sexual contact,” for purposes of this provision, the defendant must have a “sexual or aggressive intent.”  Minn. Stat. § 609.341, subd. 11(a) (1998).

            In analyzing a challenge to the sufficiency of the evidence, an appellate court examines the evidence presented in the record, along with legitimate inferences from that evidence, to determine whether the jury could have concluded that the state met its burden of proving guilt beyond a reasonable doubt.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  The appellate court reviews the evidence in the light most favorable to the jury’s verdict.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  The court must assume that the jury believed the state’s witnesses and disbelieved evidence contradicting those witnesses.  Id.

When a conviction is based only on circumstantial evidence, it warrants stricter scrutiny.  Moore, 481 N.W.2d at 360.  Under that stricter review, an appellate court must determine whether the evidence, when taken as a whole, leads “so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  Id. (quotation omitted).  The fact-finder, however, still determines the credibility and weight of circumstantial evidence, and the reviewing court must continue to assume that the fact-finder believed the state’s witnesses.  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).

Ross argues that the circumstantial evidence was insufficient to prove criminal intent because it was equally consistent with the conclusion that “he was merely performing a parental care-taking function by checking his young child for harm.”  But when we view the evidence in the light most favorable to the verdict, we conclude that there was significant evidence that was inconsistent with Ross’ claims of innocence and that supported the jury’s finding of guilt beyond a reasonable doubt.  First, E.R. contradicted Ross’ description of the events leading to the exam.  She denied that she had any soreness or expressed any pain.  Second, there was no corroboration for Ross’ supposed concern that another person might have inappropriately touched E.R.  E.R. made no such complaint and Ross did not testify that he even asked her whether this had occurred.  Ross’ description of the circumstances giving rise to his concern was vague at best.  Third, while Ross minimized the nature of his touching, describing it as being akin to a medical exam, E.R. described a more substantial touching, which included rubbing and possible penetration.  Fourth, Ross told E.R. not to tell anyone, and, when Ross spoke to his wife by phone later that day, he did not tell her about the incident and was evasive.  Fifth, the child-protection worker testified that Ross gave an inconsistent description of his intent in an interview with her, wherein he stated that “all he was trying to do is teach her good touch bad touch.”  Finally, Ross did not explain to E.R. why he was “examining” her.

Taken as a whole, this evidence is inconsistent with the conclusion that Ross was only giving his daughter an examination to determine whether she had been inappropriately touched.  Instead, it supports the inference that Ross had a sexual or aggressive intent.


Ross argues that, even if the evidence is legally sufficient, this court should grant a new trial “in the interest of justice.”  The supreme court has, on occasion, granted a new trial when it “entertains grave doubt as to a defendant's guilt.” State v. Johnson, 152 N.W.2d 529, 533 (Minn. 1967) (citations omitted).  Whether the court of appeals has similar power is a question that has not been definitively addressed.  See, e.g., State v. Ostlund, 416 N.W.2d 755, 7665 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988) (denying request for new trial and sustaining conviction after reviewing record because the court did not have grave doubt as to defendant’s guilt); State v. Formo, 416 N.W.2d 162, 167 (Minn. App. 1987), review granted (Minn. Feb. 17, 1988) and review dismissed (Minn. July 28, 1988) (holding the evidence was insufficient and reversing conviction because there were grave doubts as to defendant’s guilt); State v. Roberts, 350 N.W.2d 448 (Minn. App. 1984) (holding the evidence was insufficient and reversing conviction because there were grave doubts as to defendant’s guilt).  Because we do not have grave doubts as to Ross’ guilt, we decline to address the question of this court’s power to order a new trial in the interest of justice.


Ross also argues that he was denied his constitutional right to present a defense when the court excluded testimony of an expert witness, photographs and a card.  

Evidentiary rulings rest within the district court’s sound discretion and an appellate court should not reverse those rulings, even when a defendant alleges his constitutional rights were violated, absent a clear abuse of that discretion.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).  Upon review, the party claiming error has the burden of proving that the district court abused its discretion and that the defendant was prejudiced by the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).

Defendant’s Expert Witness

Ross proposed to call Dr. Herbert Brenden as an expert witness and argues that his specialized knowledge would have been helpful to the jury in determining whether Ross’ actions were appropriate.  Dr. Brenden is a psychologist who had seen Ross several times after the touching incident with E.R.  Ross argues that Dr. Brenden should have been allowed to testify about the dynamics of sexual abuse and the progress of his treatment of Ross.

The admissibility of expert testimony is governed by Minn. R. Evid. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 


Ross now argues that Brenden is an expert in the fields of children, families, and abuse assessment.  However, Ross made no offer of proof at trial.  In fact, when Ross’ counsel was questioned repeatedly by the district court about what specific subjects Brenden would testify to, and how Brenden’s testimony would assist the jury, he failed to identify any specialized knowledge that Brenden’s testimony could provide to assist the jury’s understanding of the evidence or determination of a fact in issue.  Instead, he only vaguely described what Brenden’s testimony might include and suggested that Brenden be called for an in camera hearing to see what his testimony would be.  The district court did not abuse its discretion by excluding Brenden’s testimony when the defense could not state with clarity what specialized knowledge Brenden could provide.

Photographs and Card

Ross also sought to introduce photographs and a card showing the relationship between Ross and E.R. before and after the incident.  The district court sustained objection to these exhibits, but did allow Ross to testify about the close relationship between Ross and E.R.  Ross has made no showing that the district court abused its discretion by excluding the card or the photographs.