This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Reina Asmus,




Filed June 27, 2006

Harten, Judge


Stevens County District Court

File No. K4-04-179



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Charles C. Glasrud, Stevens County Attorney, Martin, Nelson, Glasrud & Klopfleisch, P. A., 109 East Sixth Street, P.O. Box 66, Morris, MN  56267 (for respondent)


John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Following a jury trial, appellant Reina Asmus was found guilty of felony incest under Minn. Stat. § 609.365 (2004).  On appeal from her conviction, she argues that the evidence was insufficient to prove beyond a reasonable doubt that she knew Andrew Kress was her biological brother at the time she had sexual intercourse with him.  Because the jury could reasonably find appellant guilty based on the circumstantial evidence presented, we affirm.


            Appellant was born in Guatemala in December 1984 and was adopted when she was almost two years old by the Asmus family of Morris, Minnesota.  The Asmuses were told that appellant had a biological brother and sister who were also being adopted by other families whose names and locations were not disclosed to them.

            At some point, the adoptive mother of appellant’s sister sought hereditary health information for the siblings after discovering that the sister had a heart defect.  The sister’s mother contacted the Asmuses when appellant was about six years old and told them about the sister’s hereditary heart defect.  She also contacted the brother, Andrew Kress, who was born in April 1980 and lived in Michigan with his adoptive family.  The three families began to exchange letters and refer to the children as siblings.

            After Kress finished high school in Michigan, he moved to Minnesota.  He represented himself to people in Morris as appellant’s brother, and appellant called him her brother.  The Asmuses initially were pleased that the siblings were becoming acquainted; at the time, appellant was a sophomore in high school.

            The Asmuses subsequently discovered that the siblings had become intimately involved.  They provided counseling for appellant and told her that she could not be involved with Kress because it was inappropriate and because any children they might have could have serious health problems.  Appellant told her parents that she knew the relationship was wrong and that it would be terminated.

            In spite of her acknowledgements that Kress was her biological brother and that any sexual relationship with him was wrong, appellant became pregnant by Kress and gave birth to a child who was given the Guatemalan surname of their biological mother as it appeared on their adoption certificates.

            Kress pleaded guilty to criminal sexual conduct involving appellant, who was under age 18.  Appellant attended some of Kress’s court proceedings.  Kress was ordered not to be alone with appellant; after that order expired, Kress moved into appellant’s apartment for a short time in early 2004.  Appellant indicated on a human services report that her brother lived in her household.

            In February or early March 2004, appellant again became pregnant with Kress’s child.  On 8 November 2004, a second child was born.

            During appellant’s pregnancy, the police department received a letter stating that a number of people believed that appellant and Kress were involved in an incestuous relationship.  During a subsequent investigation, police obtained DNA samples from appellant and Kress that showed that Kress could not be excluded as a maternal relative of appellant’s.

            Both appellant and Kress were charged with felony incest.  At appellant’s trial, they both admitted that they are the parents of the two children and that DNA testing has convinced them that they are biological siblings.  Both claimed, however, that they did not believe that they were related when their children were conceived.  Both further claimed that they ceased having sexual relations after receiving the results of the DNA testing.

            Appellant testified that at a young age, the Asmuses told her that she was adopted and that she might have a brother and sister.  She claimed that she did not know what to believe, that she had doubts, and that she wondered if the story was a fantasy such as stories about Santa Claus.  Appellant claimed that her doubts were confirmed when the Asmuses were unable to provide her with any papers to prove that Kress was her brother; when she finally met Kress, she was even more confused because he told her that he did not remember having a baby sister even though he was adopted when he was six years old.  Appellant further asserted that after her first child was born healthy, she was “one hundred percent” sure that Kress is not her biological brother.

            The jury rejected appellant’s claims and found her guilty of felony incest.  The district court stayed imposition of her sentence and placed her on probation for five years.


            When considering a claim of insufficient evidence, we are limited to a “painstaking” review of the record to determine whether the evidence, when reviewed in the light most favorable to the conviction, is sufficient to allow the jury to conclude that the defendant was guilty.  State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980); see State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            Here, the state was required to prove that appellant had sexual intercourse with her biological brother “with knowledge of [that] relationship.”  Minn. Stat. § 609.365 (2004); see 10 Minnesota Practice, CRIMJIG 12.93, 12.94 (1999).  Appellant argues that because she repeatedly testified that she did not know that Kress is her brother and because Kress corroborated her claim, the state failed to prove this element beyond a reasonable doubt.  She insists that, contrary to the prosecutor’s closing argument, there is no requirement either in the statute or the jury instructions that her belief or disbelief be reasonable.  See CRIMJIG 12.94 (“A person knows a fact if the person believes that the fact exists.”).

            But the jury was not required to accept appellant’s testimony, particularly when that testimony was self-serving and of doubtful credibility.  See Bauer, 598 N.W.2d at 370 (jury is presumed to have disbelieved evidence contrary to the verdict).  Moreover, a defendant’s knowledge of a fact necessarily refers to the defendant’s intent or state of mind, which is generally shown through circumstantial evidence, with inferences to be drawn from that evidence.  See, e.g., State v. Chuon, 596 N.W.2d 267, 271 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999) (“Intent must generally be proved by inferences from the defendant’s conduct and the surrounding circumstances.”); State v. Peterson, 375 N.W.2d 93, 95 (Minn. App. 1985) (“Knowledge that the property was stolen may be proven by circumstantial evidence.”).  Because the circumstantial evidence presented in this case overwhelmingly supports finding that appellant knew in February 2004, that Kress is her brother, we affirm appellant’s conviction of felony incest.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.