This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3(2002).






State of Minnesota,





Leon Burnette,



Filed April 1, 2003

Affirmed in part and reversed in part

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 01088433



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106, and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N



            Arguing evidentiary error and insufficiency of the evidence, appellant Leon Burnette challenges his convictions of first- and third-degree criminal sexual conduct.  The district court did not err in admitting pornographic books into evidence, but clearly erred in finding evidence sufficient to support third-degree criminal sexual conduct as to one of the victims.  Accordingly, we affirm in part and reverse in part.


            After a bench trial, the district court found appellant Leon Burnette guilty of two counts of first-degree criminal sexual conduct against his minor daughter, T.B., and one count of third-degree criminal sexual conduct against M.F.E., a non-relative minor female.

            T.B., Burnette’s 12-year-old daughter, testified that when she reached that age Burnette asked her to try on lingerie.  He told her that if it fit her, it would also fit his wife.  T.B. complied, and Burnette watched as she undressed.  He also took Polaroid photographs of her while she was wearing the lingerie.  She testified that sometimes after she was undressed Burnette would order her to get on the bed.  He would then open his pants, get on top of her, and rub against her until he ejaculated.  On one occasion, T.B. stated, Burnette penetrated her anally, using a lubricant labeled “Sex Kit.”  After these incidents, Burnette gave T.B. special privileges, such as computer usage, television access, or food treats.

            M.F.E., age 20 at the time of trial, testified that when she was 15 she attended parties that Burnette hosted.  Burnette was the only male in attendance, and he generally just watched as the four or five girls played games and engaged in sex acts with each other.  Burnette did sometimes perform sex acts with one of the girls, whom he later married.  On at least one occasion, he sucked on M.F.E.’s breasts, put his fingers in her vagina, and performed oral sex on her.  He also photographed her in the nude.

            Burnette denied T.B.’s allegations, contending that someone else had taken the photographs and that he had found them hidden in the basement rafters of his home.  He also claimed that T.B. made up the story because she was angry with him and that she hated him because he sided with his wife in disagreements his wife had with T.B.  Burnette admitted having sex with M.F.E., but contended that it occurred when she was 18 years old.

            During the trial, the district court received in evidence eight pornographic novels; the titles of two were Teens for Older Men and Blow, Granddaughter, Blow.

            The district court found that Burnette engaged in sexual contact with and sexual penetration of T.B. when she was age 11 or 12, that he was more than 36 months older than she, and that he was her custodial parent, which acts constituted criminal sexual conduct in the first degree under Minn. Stat. § 609.342, subd. 1 (2000).

            As to M.F.E., the court found that “[W]hen M.F.E. was 15 years of age she performed oral sex upon defendant,” and relied on this finding to convict Burnette of criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subd. 1 (1996).

            On appeal, Burnette argues that the court committed prejudicial error by receiving the pornographic books in evidence and by concluding that M.F.E. had performed oral sex on Burnette.


Evidence of Pornographic Books


Burnette argues that the district court abused its discretion by allowing the pornographic books into evidence.  Decisions regarding the admission of evidence rest within the sound discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Naylor,  474 N.W.2d 314, 317 (Minn. 1991).  In seeking to have an evidentiary ruling overturned, Burnette bears the burden of proving the district court abused its discretion and that he was prejudiced by the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  If the district court has erred in admitting evidence, this court determines whether the error was harmless.  State v. Carroll, 639 N.W.2d 623, 626 (Minn. App. 2002), review denied (Minn. May 15, 2002).  An error is harmless if, based on a review of the entire record, there is no “reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).

            Although Burnette argues that the pornographic books “constituted improper character evidence,” he bases his argument for exclusion on Minn. R. Evid. 403.  That rule provides in part that even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”  Minn. R. Evid. 403.  Burnette contends that the books were introduced simply to show that he acted in conformity with their titles, that they had no other identifiable probative value, and that their introduction substantially prejudiced his defense.

            The district court ruled that the books had some relevance and probative value because they were pornography found in an area Burnette controlled and that the “prejudicial effect is really miniscule compared to the charges that are actually lodged.”

            The books clearly would have been inadmissible character evidence if the purpose of their introduction was to invite the court to draw the inference that because a man possesses pornographic novels about minor females he must therefore have engaged in sexual misconduct with minor females.  Minn. R. Evid. 404(a).  But the books appeared to have been received by the court as indicative of the general circumstances the minor female victims found themselves in.  See State v. Sebasky, 547 N.W.2d 93, 99 (Minn. App. 1996) (holding that the admission of evidence for the purpose of showing conformity alone is improper, but admission of evidence may still be proper for the purpose of corroborating testimony), review denied (Minn. June 19, 1996).

            The circumstances portrayed through the testimony of T.B. and M.F.E. were of an adult male who was sexually preoccupied with minor females and who surrounded them with a sexual atmosphere consisting of lingerie modeling, explicit poses for photographs, and sex games.  The district court received the books as corroborating evidence of the sexual circumstances the minor females described.  See State v. Holscher, 417 N.W.2d 698, 703-03 (Minn. App. 1988) (holding sex toys seized from the scene of a sexual assault were relevant and admissible despite the fact that they were not used against the victim); review denied (Minn. Mar. 18, 1998).

            Burnette argues that the books were highly prejudicial because “the state’s case relied heavily on credibility * * *” and “it is impossible for this Court to determine that the trier of fact would have reached the same conclusion, absent the admission of the books.”  The district court’s determination of Burnette’s guilt did not rest on any inference that could have been drawn from the book titles, but rather on T.B.’s credibility in describing the conduct constituting the crimes charged.  The court said:

[T]he thought that [T.B.] would lie about this, knowing what the result is, is beyond my comprehension that that young woman would come in and lie, knowing that you would go to prison as a result of this * * * .  I don’t think she was lying.  * * * I absolutely believe [T.B. is] telling the truth * * * .


This court defers to the district court’s ability to judge the credibility of witnesses.  State v. Larson, 520 N.W.2d 456, 464 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994).

            It was within the court’s discretion to admit the books as corroborative of the general circumstances of the crime.  Additionally, the court’s own statements that any prejudicial effect of the books was “miniscule” and that the court absolutely believed T.B. reveal that the admission of this evidence played little or no part in the court’s determination of Burnette’s guilt.

Conviction of Third-Degree Criminal Sexual Conduct

            Burnette next contends that the district court’s finding that M.F.E. performed oral sex on him was clearly erroneous and that, because that finding was the basis for the conviction as to M.F.E., the conviction must be reversed.

            “On appeal, this court will accept the district court’s findings of fact unless those findings are clearly erroneous.”  State v. Colvin, 645 N.W.2d 449, 453 (Minn. 2002) (citation omitted).  “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citation omitted).

            In a bench trial, the court must “specifically find the essential facts in writing on the record.”  Minn. R. Crim. P. 26.01, subd. 2.  Findings of fact must be supported by the evidence.  Colvin, 645 N.W.2d at 453.  The court found Burnette guilty of criminal sexual conduct in the third degree against M.F.E. based on a finding that M.F.E. performed oral sex upon him.  Although there is evidence in the record of sexual contact between Burnette and M.F.E., of Burnette’s penetration of M.F.E.’s vagina with his fingers, and of his performance of oral sex upon her, there is no evidence to support the finding on which the court premised this conviction.  The state argues that the finding was a proper inference or, in the alternative, the court merely misspoke.  Either way, the state suggests, any error was harmless.

            When we review the record, we see evidence that Burnette performed acts of penetration of M.F.E.  But the evaluation of the credibility of that evidence is the prerogative of the trier of fact and is not within this court’s authority.  Thus, we cannot assume that the court actually meant to rely on that evidence in finding Burnette’s guilt.  It is clear that the finding the court made was erroneous, and because the finding was essential to the determination of guilt, it cannot be said to have been harmless error.  This conviction must be reversed.

            Affirmed in part and reversed in part.