This opinion will be unpublished and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
John Joseph Bussmann,
Filed September 19, 2006
Hennepin County District Court
File No. 04-01-1306
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of two counts of third-degree criminal sexual conduct, fifth-degree criminal sexual conduct, indecent exposure, theft, and theft by swindle, appellant argues that the district court abused its discretion by denying his motion for a new trial. Appellant argues that (1) the district court failed to sever the charges, (2) the district court abused its discretion by admitting Spreigl evidence, (3) he was prejudiced by the state’s failure to disclose evidence and by the contradiction between one witness’s testimony and the complaint, and (4) the district court abused its discretion in admitting testimony that entangled religious doctrine with civil law. Appellant also argues that Minn. Stat. § 609.344(1)(l)(ii) (2002) is unconstitutional, that there was insufficient evidence to support convictions of the two third-degree criminal-sexual-conduct charges, and that the theft and theft-by-swindle charges were barred by the statute of limitations. We affirm.
D E C I S I O N
Appellant John Joseph Bussmann argues that the
district court abused its discretion in denying his motion for a new trial. This court reviews the district
court’s denial of a motion for a new trial for abuse of discretion. State
v. Ahmed, 708 N.W.2d 574, 585 (
On March 18, 2004, appellant was charged with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(l)(ii) (2002); fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(l)(ii) (2002); fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1) (2002); indecent exposure, in violation of Minn. Stat. § 617.23, subd. 1(1) (2002); and theft over $500, in violation of Minn. Stat. § 609.52, subd. 2(1) (2002). The complaint was amended three times: the fourth-degree criminal-sexual-conduct charge was amended to third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(l)(ii); the charge of theft by swindle over $500, in violation of Minn. Stat. § 609.52, subd. 2(4) (2002), was added; and the victim of the theft and theft by swindle was changed from the church where appellant was the priest to a female victim. Appellant moved to sever the charges, and the district court divided the charges into two trials: the charges of fifth-degree criminal sexual conduct, indecent exposure, theft and theft by swindle were to be tried in Trial I; and the two charges of third-degree criminal sexual conduct were to be tried in Trial II. Appellant’s petition for a writ of prohibition restraining the district court from enforcing this order was denied by this court, and the supreme court denied further review.
On May 18, 2005, appellant was found guilty on all counts at the conclusion of Trial I. On August 9, 2005, appellant moved for a new trial. The district court denied appellant’s motion for a new trial because his motion was not timely. Under Minn. R. Crim. P. 26.04, subd. 1(3), “[n]otice of a motion for a new trial shall be served within 15 days after verdict or finding of guilty.” Thus, appellant’s motion was not timely, and the district court did not abuse its discretion by denying the motion.
Appellant contends that, in the alternative, his motion for a new
trial was a petition for postconviction relief.
A person convicted of a crime can petition for postconviction
relief at any time except when direct appellate relief is available. Minn. Stat. § 590.01, subd. 1 (2004). A defendant may file a direct appeal from any
adverse final judgment, which occurs when “there is a judgment of conviction . . . and sentence is imposed or
the imposition of sentence is stayed.”
Appellant argues that the district court abused its discretion in denying his motion for a new trial. On July 22, 2005, a jury found appellant guilty of two charges of third-degree criminal sexual conduct. On August 9, 2005, appellant moved for a new trial. The district court did not make a ruling, but proceeded with sentencing on September 1, 2005. We can construe from the district court’s sentencing of appellant that appellant’s motion was denied. This court reviews the district court’s denial of a motion for a new trial for abuse of discretion. Ahmed, 708 N.W.2d at 585.
contends that he is entitled to a new trial because the district court failed
to sever the third-degree criminal-sexual-conduct charges against two victims. The determination of whether
offenses arose from a single behavioral incident, so as to permit their joinder
for trial, depends on the facts and circumstances of the case. State
v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (
The district court did not abuse its
discretion in joinder of the two offenses.
First, the record contains strong evidence that appellant participated
in the offenses; indeed, appellant does not deny that he engaged in sexual
relations with the two victims. Further,
the evidence of each offense was relevant to both of the state’s cases because
of the similarities in modus operandi. S.J. met with appellant for pastoral guidance after she learned
that her sister had been diagnosed with cancer and another time to discuss
questions her sister had about rejoining the church. In September 2002, appellant invited S.J. to the
rectory. Appellant pulled S.J. to him, and
they kissed. S.J. pulled away, but
appellant told her that it was okay, that he was lonely, and that she was a “gift
from God.” Through February 2003,
appellant and S.J. maintained a sexual relationship. D.I. met with appellant in early 2002 to
discuss what she perceived was a message from God. Appellant told D.I. that it was “divine
intervention” and hired D.I. as the director of youth ministries. After D.I.’s mother passed away, appellant
and D.I. visited the grave site. D.I. talked
to appellant about her mother’s death and her own fear of death. Appellant told D.I. that he was talking to
her mother and that he promised her mother that he was going to protect D.I. Appellant first kissed D.I. after they
discussed how D.I. was coping after her mother’s death. D.I. continued to seek appellant’s advice
regarding her emotional instability.
During one of these meetings, appellant hugged D.I. and then put her
hand down his unbuttoned pants. D.I. proceeded
to give appellant oral sex. Appellant
and D.I. began a sexual relationship.
D.I. continued to discuss her emotional well-being with appellant, and
often appellant would tell D.I. that her mother was looking down on them and
that she was happy because they were meant to be together. The evidence of each relationship is similar
in modus operandi and would be material and relevant in the state’s proof of the
other offense. Finally, the
danger of unfair prejudice was not so severe that it outweighed the probative
value of the evidence. See
Admission of Evidence
Appellant argues that the district court abused its
discretion in admitting evidence.
“Evidentiary rulings rest within the sound discretion of the [district]
court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of
establishing that the [district] court abused its discretion and that appellant
was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
Appellant contends that the district court erred in permitting testimony regarding Roman Catholic duties and archdiocesan procedure because the testimony was irrelevant, confusing, entangled religious doctrine and civil law, and included expert testimony. After reporting appellant’s conduct, S.J. and D.I. both met with a counselor, and S.J. met with the chief operating officer for the Archdiocese. The chief operating officer testified that he and a team deal with clergy misconduct and provide different types of counseling. Spiritual counseling is offered to “sort out the God questions,” and secular counseling is offered in the form of group, individual, and family counseling in order to provide people with information and financial help. Appellant suggests that this testimony regarding spiritual and secular counseling engrafted Roman Catholic beliefs into the statute.
appellant did not object at trial, this argument should be deemed waived. Failure
to object to the admission of evidence generally constitutes a waiver of
the right to appeal on that basis, but this court has discretion to consider an
error not objected to at trial if it is plain error affecting substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (
argues that the district court abused its discretion in permitting the Director
of Advocacy for the Archdiocese to testify regarding “grooming”—a process of,
over time, singling out a victim to be special.
An expert witness may testify “in the form of an opinion” if the
witness’s “scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue.”
Appellant argues that
Minn. Stat. § 609.344, subd. 1(l)(ii)
(2002), is unconstitutional.
Void for Vagueness
Appellant argues that Minn. Stat. § 609.344, subd. 1(l)(ii) (2002), is void for vagueness. Under Minn. Stat. § 609.344, subd. 1(l),
[a] person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and . . . the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense[.]
contends that the statute is unconstitutional because it does not define
“ongoing” or “aid, or comfort.” A
penal statute must define a criminal offense with sufficient definiteness so
“ordinary people can understand what conduct is prohibited” and so it “does not
encourage arbitrary and discriminatory enforcement.” Kolender
v. Lawson, 461
Stat. § 609.344, subd. 1(l)(ii),
is sufficiently specific to provide fair warning that a member of the clergy,
or one who purports to be a member of the clergy, cannot engage in sexual
penetration when the complainant is seeking advice, aid, or comfort. Appellant contends that terms are not specifically
defined, but statutory language must be general enough to cover a variety of human
conduct. Colten, 407
Entanglement with Religion
also argues that Minn. Stat. § 609.344, subd. 1(l)(ii), is unconstitutional because it violates
the establishment clause of the First Amendment by excessively entangling religious
doctrine with state law. This court has
already determined that Minn. Stat. § 609.344, subd. 1(l)(ii), does not violate the Establishment Clause. Doe v.
F.P., 667 N.W.2d 493, 500 (Minn. App. 2003), review denied (
Sufficiency of the Evidence
Appellant argues that the evidence is
insufficient to support the jury’s verdict that he is guilty of third-degree
criminal sexual conduct. On a claim of
insufficiency of the 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 jury to
reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (
contends that the evidence does not support a conclusion that the victims were
seeking “religious or spiritual advice, aid, or comfort,” but, rather, shows
that the victims sought sexual relationships with appellant. But the evidence is sufficient to support the
jury’s verdicts. S.J. and D.I.
testified that they were seeking advice from appellant when they engaged in
sexual relations with him. S.J.
testified that she met with appellant to discuss her sister’s cancer and plans
to rejoin the church. D.I. testified
that she met with appellant to discuss a message from God and, later, her
mother’s death. Each woman testified
that she had topics in which she sought spiritual advice. Because we must assume that the jury believed
these witnesses and disbelieved evidence to the contrary, the record supports
the verdicts. See