This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
James Peter Dehn,
Filed April 11, 2006
Affirmed in part and reversed in part
Mille Lacs County District Court
Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse,
Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of and sentence for second-degree criminal sexual conduct, appellant James Peter Dehn argues that (1) the district court abused its discretion in failing to instruct the jury that it had to unanimously agree on the act appellant committed when there was testimony at trial about two separate and distinct acts of sexual contact; (2) the district court abused its discretion in admitting Spreigl evidence of sexual conduct committed against appellant’s cousins; (3) the probation condition requiring that he move out of his parent’s house was not reasonably related to the offense and violated his right of family association; and (4) the district court erred in imposing as a condition of probation the requirement that he pay for the cost of the court-ordered sex-offender assessment. We affirm in part and reverse in part.
In December 2002, appellant, then age 19, lived with his mother, father, and sister. On the weekend of December 7, 2002, appellant’s cousins E.R.D., then age seven, and J.D. stayed overnight at appellant’s family’s house. E.R.D. and J.D. slept on the floor of appellant’s room. Appellant told E.R.D. to get on his bed. E.R.D. was wearing pajamas, and appellant was wearing only boxer shorts. About two weeks after the incident, E.R.D. stated to police investigator David Klein and Lynn Zierden of Isanti County Family Services that when she got onto the bed with appellant, “[h]e took his wiener and jammed it into my pee pee.” E.R.D. described it as feeling “pokey . . . [l]ike a porcupine.” Appellant told E.R.D. not to tell anybody what he had done. Afterwards, appellant carried E.R.D. downstairs to have breakfast. E.R.D. told Klein that when they got downstairs, appellant “set me down by his wiener and then like did it one more time.”
E.R.D.’s father picked her up later in the day. In the car, E.R.D. told her father that appellant had rubbed his “wiener” by her “pee pee.” E.R.D.’s father called appellant’s mother and told her what E.R.D. had said, and then E.R.D. talked to appellant’s mother and told her what had happened. The following evening, E.R.D. and her father went to appellant’s house and met with him and his parents. E.R.D. told the group what had happened and that appellant had told her not to tell anyone about it. E.R.D.’s father testified that appellant was very quiet, looked at the table most of the time, made very little eye contact, and said nothing.
E.R.D. left the room, and appellant was asked for his side of the story. E.R.D.’s father testified that appellant said that E.R.D. had jumped up on his bed in the morning and was sitting on his legs or jumping on the bed, and he told her to get off. Appellant denied to E.R.D.’s father that he had sexually assaulted E.R.D.
Based on E.R.D.’s statement to Klein and Zierden, appellant was charged with two counts of second-degree criminal sexual conduct. At trial, the district court admitted Spreigl evidence that appellant had sexually abused E.R.D.’s sister N.D. and E.R.D.’s cousin E.D. N.D. testified that she sometimes spent weekends at appellant’s house. N.D. testified that she did not get along with appellant because they would fight, and he touched her inappropriately. N.D. testified that appellant “would either pinch my butt or just like slap it, and a couple of times he touched me on my chest.” The touching occurred while N.D. had her clothes on. N.D. testified that the last time appellant touched her was probably in November 2002. N.D. testified that she sometimes told appellant’s sister and mother about the touching. Appellant’s sister “would always just say that he does that kind of stuff,” and his mother “would tell him to knock it off.” E.D. testified that appellant touched, grabbed, and pinched her buttocks and that she told him she did not like it.
1. Appellant argues that the district court’s failure to sua sponte give a specific unanimity instruction to the jury deprived him of his right to a unanimous verdict. Appellant did not object to the jury instructions at trial.
Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial. In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law.
State v. Baird, 654 N.W.2d 105, 113 (
defendant’s right to a unanimous verdict has been violated turns on whether the
defendant’s conduct constituted separate criminal ‘acts,’ or simply various
‘means’ by which the criminal act may be committed. “[T]he jury need not . . .
decide unanimously which of several possible means the defendant used to
commit the offense . . . .” State v.
Ihle, 640 N.W.2d 910, 918 (
Appellant was charged with two counts of second-degree criminal sexual conduct: sexual contact with a victim under age 13 when the defendant is more than 36 months older than the victim in violation of Minn. Stat. § 609.343, subd. 1(a) (2002); and sexual contact with a victim under age 16 when the defendant has a significant relationship to the victim in violation of Minn. Stat. § 609.343, subd. 1(g) (2002). The state alleged the same two distinct acts of sexual contact, the incident in appellant’s bedroom and the incident downstairs, to support both charges. The prosecution did not elect one of those two specific acts to rely on for conviction, and the district court did not instruct the jury that it must agree that the prosecution proved the same underlying criminal act beyond a reasonable doubt.
Appellant relies on Stempf, in which the defendant was charged with only one count of possession, but the state introduced two instances of possession to prove its case: (1) that he possessed methamphetamine found at the premises of his workplace; and (2) that he possessed methamphetamine found in the truck in which he was riding when he arrived at work. 627 N.W.2d at 354. The district court denied Stempf’s request for an instruction requiring jurors to evaluate the two acts separately and unanimously agree that the state had proven the same underlying criminal act beyond a reasonable doubt. Id. This court held that the lack of a specific unanimity instruction denied Stempf his right to a unanimous verdict, explaining:
[T]he jury must unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime. . . .
The New Hampshire Supreme Court explained the distinction between elements and means in the context of a crime of simple assault, where the elements are (1) mental state of knowingly acting and (2) proscribed conduct of unprivileged physical contact, and the prosecution presents evidence of different means used to show that an unprivileged physical contact occurred:
A conviction would have been proper if the jury had all agreed, for instance, that the defendant struck the officer in the face, but disagreed as to whether the blow occurred from a fist or knee. Also unassailable would have been a verdict of guilty based on agreement that a blow was struck to the officer’s torso, despite disagreement as to the body part of the defendant that caused the blow. In these examples, the element of contact would have been established through unanimous agreement, while the means--a punch or kick--need not have been agreed upon.
. . . .
The provision of the controlled-substance-crime statute under which appellant was charged and convicted contains two elements: (1) unlawful possession; and (2) one or more mixtures containing methamphetamine. . . . Underlying facts about which the jury would not necessarily have to agree would be whether the defendant had actual or constructive possession. But the statute makes the act of possession an element of the crime. Therefore, the jury must agree unanimously on one act of possession that has been proven beyond a reasonable doubt.
Citing State v. Poole, 489 N.W.2d 537 (Minn.
App. 1992), aff’d 499 N.W.2d 31 (
Unlike Poole, this case does not involve a continuing course of conduct. Rather, the complaint against appellant alleged two separate acts of sexual contact that occurred at different times and in different places. Because sexual contact is a required element of the charges against appellant, under Stempf, the district court erred in failing to give a specific unanimity instruction.
required element of the plain-error test is that the error affected substantial
rights. Baird, 654 N.W.2d at 113. The
defendant’s burden of persuasion on this element “is satisfied if the error was
prejudicial and affected the outcome of the case.” State
v. Griller, 583 N.W.2d 736, 741 (
Appellant does not articulate any reason why some jurors would have credited E.R.D.’s testimony and statement about the sexual assault in the bedroom but not about the sexual assault downstairs and other jurors would have credited her testimony and statement about the sexual assault downstairs but not about the sexual assault in the bedroom. In State v. Shamp, 427 N.W.2d 228 (Minn. 1988), the supreme court held that the district court’s failure to instruct the jury that it could not base the conviction on acts of abuse occurring outside the period of the statute of limitations was not prejudicial and, therefore, not plain error. The holding was based on the supreme court’s conclusion that there was no reasonable likelihood that the jury somehow discredited the victim’s testimony relating to abuse occurring within the limitations period but credited her testimony concerning abuse occurring earlier. Id. at 231. Here, as in Shamp, there is no reasonable likelihood that the jury would have credited E.R.D.’s testimony about one of the two incidents of sexual contact but not about the other.
Because appellant has failed to establish a required element of the plain-error test, he is not entitled to reversal of his conviction based on the district court’s failure to give a specific unanimity instruction.
2. Appellant argues that the district court erred by admitting the evidence that he had sexually abused N.D. and E.D. Evidence of other crimes or bad acts has been characterized as Spreigl evidence by Minnesota courts. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). In order to prevail, appellant has the burden to show error and prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
general, Spreigl evidence is not
admissible to prove that a criminal defendant acted in conformity with his
character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 495-96,
139 N.W.2d 167, 171-72 (1965). But the
evidence may be admissible to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b); Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. Before Spreigl
evidence may be admitted, the state must satisfy five conditions, one of which
is “proving that the probative value of the Spreigl
evidence is not substantially outweighed by its potential for unfair prejudice.” State
v. Washington, 693 N.W.2d 195, 201 (
cases, prior criminal sexual conduct is often probative where the defendant
disputes that the sexual conduct occurred or where the defendant asserts the
victim is fabricating the allegations. State v. Duncan, 608 N.W.2d 551, 557
(Minn. App. 2000), review denied (
[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case. Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.
Kennedy, 585 N.W.2d at 391-92; see also State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (stating that although the risk of prejudice is present whenever Spreigl evidence is admitted, in weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state’s case.).
The district court found “specifically that the proffered Spreigl evidence has probative value that outweighs the prejudicial impact in that it goes directly to show opportunity, common scheme and plan, intent and absence of mistake.” Appellant’s counsel argued to the jury that appellant had not engaged in intentional touching but rather had just been horsing around. Also, there was no physical evidence to support the state’s case. Under these circumstances, the district court did not err in finding that the probative value of the Spreigl evidence outweighed its prejudicial impact and admitting it into evidence. See Duncan, 608 N.W.2d at 557 (affirming the admission of Spreigl evidence where the state’s evidence consisted of the statements of two alleged child victims and there was no physical evidence of sexual contact); State v. Cichon, 458 N.W.2d 730, 734 (Minn. App. 1990) (affirming admission of Spreigl evidence when defendant denied touching victim in a sexual way, although “he might have touched her vagina when he applied salve or was playing with her,” and “claimed both touchings were accidental and not sexual”), review denied (Minn. Sept. 28, 1990).
3. Appellant argues that the district court erred in requiring as a probation condition that appellant move out of his parents’ home. District courts have broad discretion in setting the terms and conditions of probation. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000). Probation conditions “must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer’s liberty or autonomy.” Id. (quoting State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989)). “Although they do not entirely give up their constitutional rights, the rights of probationers are properly subject to limitations from which ordinary persons are free. The discretion of the trial court in establishing conditions of probation is reviewed carefully, however, when the conditions restrict fundamental rights.” Friberg, 435 N.W.2d at 516 (quotation omitted).
The corrections agent who wrote the presentence-investigation report (PSI) opined that treatment goals would not be accomplished if appellant continued to reside with his parents. The district court found:
I have a lot of trust and faith in Agent Thompson [the corrections agent], whom I have known for almost 20 years. He is a career probation agent who specializes in particular in these types of cases now and has exercised very reasonable judgment in my opinion in the past.
I think his recommendations are appropriate under the circumstances. They take due consideration to all of the aspects about [appellant’s] particular history that were outlined in the adult sex offender assessment.
After ordering appellant “to reside independently from your parental unit within three months of your release from custody,” the district court explained to appellant that “the therapist’s concerns about your inadequate socialization skills resulting in this offense are a primary concern and a primary reason for that recommendation, and I am adopting that rationale.”
The authority cited by appellant to support his argument that this probation condition violates constitutional family-relationship rights does not address the right of an adult child to reside in the parents’ home, and we find no authority conferring such a right. Probation conditions “may include restrictions upon employment or business activities, places the probationer may frequent and even people with whom the probationer may associate.” Friberg, 435 N.W.2d at 515-16.
We have reviewed the record before the district court at sentencing, including confidential portions of the PSI. The record shows that the condition that appellant not live with his parents is reasonably related to appellant being successful in treatment and is not unduly restrictive given the evidence regarding the relationship between appellant and his parents. The district court did not abuse its discretion in imposing that condition.
4. The district court ordered appellant to complete a sex-offender
assessment with the “[c]osts of said assessment/evaluation to be paid by
Minn. Stat. § 609.3452, subd. 1 (2004), states, “When a person is convicted of a sex offense, the court shall order an independent professional assessment of the offender’s need for sex offender treatment.” Minn. Stat. § 631.48 does not provide for payment of the mandatory sex-offender assessment, and Minn. Stat. § 609.3452 (2004) does not address payment.
The state argues that appellant should pay for the sex-offender assessment as a treatment cost. The district court has the authority to require as a probation condition that a defendant undergo treatment and that the defendant pay for the treatment See State v. Morrow, 492 N.W.2d 539, 544-49 (Minn. App. 1992) (holding that sentencing court did not err “when it revoked appellant’s probation, originally conditioned upon appellant’s completion of sex offender treatment, where the county would not fund and appellant could not afford to pay for the treatment himself”). But because the sex-offender assessment performed on appellant was mandated by statute upon conviction, it is not a probation condition. We, therefore, reverse that part of the sentencing order requiring appellant to reimburse the county for the cost of the sex-offender assessment.
Affirmed in part and reversed in part.
 Both parties cite unpublished opinions in their briefs. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (2004) (stating “[u]npublished opinions of the court of appeals are not precedential”); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) (stating district court erred “both as a matter of law and as a matter of practice” by relying on an unpublished opinion of the court of appeals, “stress[ing] that unpublished opinions of the court of appeals are not precedential” and noting both that “danger of miscitation [of unpublished opinions] is great because unpublished opinions rarely contain a full recitation of the facts” and that “[u]npublished opinions should not be cited by the district court as binding precedent”).
 Appellant does not contend that any of the remaining conditions for the admissibility of Spreigl evidence were not satisfied.