This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Raymond Moseley,




Filed July 3, 2006


Halbrooks, Judge



Stearns County District Court

File No. CX-04-5644



Mike Hatch, Attorney General, Kelly Moller, Amy V. Kvalseth, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56302 (for respondent)


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




            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his convictions of third-degree criminal sexual conduct and first-degree burglary, arguing that the evidence is insufficient to support the convictions and that the district court erred by denying his request for substitute counsel without holding a hearing.  Because the evidence is sufficient to support the convictions and because the district court did not abuse its discretion in denying appellant’s request for substitute counsel, we affirm.


            Appellant Raymond Moseley and A.M. were friends; appellant wanted to date A.M., but she rebuffed his advances.  On December 28, 2004, appellant, A.M., and A.M.’s friend gathered on appellant’s driveway to fix the brakes of A.M.’s van.  They worked on the brakes in the afternoon and evening, stopping after dark when they got too cold to continue.  They were drinking while working on the van. 

            A.M. testified that she left appellant’s home around 9:00-10:00 p.m. and went across the street to 515 16th Avenue North, where she was staying with her boyfriend.  She testified that she showered and went to bed with her boyfriend.  She awoke around 1:00 a.m. to find appellant’s fingers in her vagina.  She stated that appellant was yelling at her.  She yelled at appellant and he left; A.M. then went back to sleep because she “wanted to believe that it was a dream.”  She awoke again around 3:30 a.m. and told her boyfriend what had happened. 

A.M. subsequently retrieved nine messages that appellant had left on her cell phone during the course of that evening, two of which were left after the assault.  A transcription of one of the messages indicates that appellant stated, “I’m sittin’ there finger bangin’ you when you’re passed out.  When you’re sittin’ naked next to Bruce.”  After retrieving the messages, A.M. called the police.  She declined to go to the hospital for a sexual-assault examination. 

            Appellant claims that he went to the house where A.M. was staying because he became worried about her when she did not return to his house that evening to pick up groceries.  He claims that someone yelled, “Come in,” after he knocked on the door.  When he entered, there were two men in the living room; appellant claims that one was passed out, but that the other nodded when appellant greeted him.  Appellant entered the bedroom where A. M. was sleeping and saw her son sleeping in a recliner; he also saw the single bed where A.M. was lying naked from the waist down next to her boyfriend.  Appellant maintains that he shook A.M.’s shoulder to wake her, said something to her, and left after she woke and yelled at him to leave.  Appellant denies ever touching A.M.’s genital area.  He testified that he was hurt and angry to find A.M. in bed with her boyfriend and that he left the messages “to make her feel cheap and dirty.”  He told the police that he did not mean that he actually touched A.M., but that he might have because she was so drunk.

            Of the five males (including A.M.’s 14-year old son) staying at the house where A.M. stayed in the early hours of December 29, none saw appellant in the house, nor did they hear A.M. or appellant yelling.  Each of the five men testified that he had not given appellant permission to come in that evening and that he had not heard anyone else tell appellant to come in. 

            Appellant was charged with one count of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (amended to subd. 1(a)) (2004), and one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.244, subd. 1(d) (2004).  The district court appointed a public defender for appellant; appellant appeared with counsel and pleaded not guilty to both crimes.  Shortly thereafter, appellant wrote to the district court and requested new counsel, claiming that he had not yet seen or spoken to his attorney.  Appellant appeared with his counsel at a pretrial settlement conference but did not raise the issue at that time.  The district court apparently never ruled on appellant’s request. 

            A jury convicted appellant of the charged crimes.  The district court denied appellant’s motion for a new trial.  This appeal follows.



            Appellant argues that there was insufficient evidence presented at trial to support his convictions.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, and, on review, we assume that the fact-finder believed the evidence supporting the state’s case and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court 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 have reasonably concluded that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            Third-degree criminal sexual conduct occurs when a person sexually penetrates another who the actor knows to be physically helpless.  Minn. Stat. § 609.344, subd. 1(d) (2004).  Here, this court must assume that the jury believed A.M.’s testimony that she awoke to find appellant digitally penetrating her and disbelieved appellant’s claim to the contrary.  See Dale, 535 N.W.2d at 623.    

            First-degree burglary occurs when a person enters an occupied dwelling without consent and commits a crime therein.  Minn. Stat. § 609.582, subd. 1(a) (2004).  Appellant admits that he entered the house on the night in question.  And we must assume that the jury believed the testimony from all six individuals staying at the home that none had given appellant permission to enter the house.  See Dale, 535 N.W.2d at 623.  The other element of first-degree burglary—that a crime be committed during an unauthorized home entry—is satisfied by the jury’s verdict that appellant is guilty of third-degree criminal sexual conduct.

            The weight and credibility of the conflicting testimony in this case was for the jury to determine.  See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  Viewing the record in the light most favorable to the convictions, we conclude that the facts in the record and all legitimate inferences drawn therefrom support appellant’s convictions of third-degree criminal sexual conduct and first-degree burglary.


            “A court will grant an indigent’s request for substitute counsel only if exceptional circumstances exist and the demand is timely and reasonably made.”  State v. Clark, 698 N.W.2d 173, 177 (Minn. App. 2005) (quotation omitted).  “The decision whether to grant a request for substitute counsel lies within the district court’s discretion.”  Id. In this context, the burden of showing exceptional circumstances rests with the defendant.  Id. Exceptional circumstances “are those that affect a court-appointed attorney’s ability or competence to represent the client.”  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  “General dissatisfaction or disagreement with appointed counsel’s assessment of the case does not constitute the exceptional circumstances needed to obtain a substitute attorney.”  State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998).

            Appellant asserts that “the court must inquire thoroughly into the facts underlying the defendant’s dissatisfaction with his attorney” when evaluating a request for substitute counsel.  There is no indication that the district court here was required to inquire further into appellant’s petition for substitute counsel, as the petition clearly articulated the bases for his request—bases that were either patently false or insufficient to require the district court to appoint substitute counsel. 

            In his February 3 request for substitute counsel, appellant claimed that he had not yet seen or spoken to his attorney, but he admitted that he had communicated with counsel about bail.  Appellant’s claim that he had not had any contact with his attorney was patently false.  The record shows that counsel for appellant contacted the court in January and communicated that appellant had decided to request speedy omnibus, pretrial, and settlement-conference hearings after originally waiving that right during his first appearance.  And appellant appeared, with counsel, at his omnibus hearing on January 21, where counsel stated that he had “discussed omnibus issues with Mr. Moseley.”  Finally, while not a dispositive fact, appellant failed to note any dissatisfaction with counsel at that time. 

            Appellant’s other complaint about counsel concerned his attorney’s alleged 14-day delay in requesting a bail survey.  Even if true, that delay does not constitute exceptional circumstances for the purpose of appointing substitute counsel. 

            Appellant essentially argues that this court should recognize a per se rule requiring district courts to hold a hearing or otherwise make inquiries whenever a defendant requests substitution of counsel.  But there is no such requirement in Minnesota law, particularly when, as here, the defendant’s request describes the basis for the request and fails to allege facts indicating the existence of exceptional circumstances.  The district court did not err by failing to inquire further when appellant failed to allege facts sufficient to show ineffective assistance of counsel.