This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Timothy Olson,


Filed December 5, 2006

Affirmed in part, reversed in part, and remanded in part

Peterson, Judge


Swift County District Court

File No. K0-04-382


Mike Hatch, Attorney General, Thomas R. Ragatz, Binh T. Tuong, Assistant Attorney Generals, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Robin W. Finke, Swift County Attorney, 114 North 14th Street, Benson, MN  56215 (for respondent)


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, 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 first-degree criminal sexual conduct, appellant argues that (1) the evidence was insufficient to prove that appellant penetrated the child victim with sexual intent rather than accidentally; (2) the district court erred in allowing expert medical testimony on appellant’s intent; (3) the prosecutor committed misconduct in closing argument; (4) a second count must be vacated as violating the statutory protection against multiple convictions; and (5) the district court erred in impaneling a sentencing jury and instructing it on particular cruelty.  We affirm in part, reverse in part, and remand in part.


            A.C.B. was dating appellant Timothy David Olson, and in August 2004, she and her two-year-old daughter, A.A.M.B., moved into appellant’s home.  On October 28, 2004, a few hours after picking up A.A.M.B. at daycare, appellant phoned A.C.B. at work and told her to come home.  A.C.B. could hear A.A.M.B. screaming in the background, and appellant said that A.A.M.B. was bleeding from the rectum.  A.C.B. rushed home and found blood spots all over the hallway and in the bedroom.  A.A.M.B. was lying on the floor naked using a sweatshirt for a pillow.  A.C.B. and appellant rushed A.A.M.B. to the hospital. 

            Dr. Romulo Kabatay, the doctor who initially examined A.A.M.B, testified that during the exam, A.A.M.B. resisted Kabatay touching her and appeared to be terrified.  Kabatay determined that bleeding was from the vagina, not the rectum, observed a laceration on the outside of the vagina, and determined that there was more extensive injury internally based on the continued bleeding from the vagina.  Kabatay had A.A.M.B. transferred to the care of Dr. Timothy Swanson.  Kabatay testified that A.A.M.B.’s injuries were not consistent with a rectal-stimulation procedure. 

            With the assistance of a nurse and A.C.B., Swanson examined A.A.M.B., who was still quite agitated.  Swanson observed a laceration on the outside of the vagina and saw that A.A.M.B. was still bleeding from the vagina.  Because of the depth of the laceration and the vaginal bleeding, Swanson knew that A.A.M.B. required specialized pediatric treatment, so she was sent by ambulance to Children’s Hospital.  Swanson opined that A.A.M.B.’s injuries could not have been self-inflicted and were inconsistent with either rectal stimulation or accidental injury. 

            At Children’s Hospital, after A.A.M.B. was sedated, she was examined by Dr. Rich Kaplan, whose medical practice focuses mainly on evaluating abused children.  Using a colposcope, which is a special magnifying camera, Kaplan observed that A.A.M.B.’s hymen was torn and that she had suffered a v-shaped injury from the hymen right up to the anus.  The injury was so deep that it went through muscle, skin, and fat.  Due to the severity of the injuries, A.A.M.B.’s vaginal area had to be surgically reconstructed, and she was hospitalized until October 31, 2004.  Kaplan testified that A.A.M.B.’s injuries resulted from a “blunt penetrating trauma,” requiring major force, and were inconsistent with rectal stimulation.

            Appellant told A.C.B. that the injury to A.A.M.B., who has a history of severe constipation, occurred when he was trying to stimulate a bowel movement.  A method of stimulating a bowel movement is to wear a rubber glove and use the pinky finger to stimulate the rectum.

            Appellant was charged by complaint with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2004) (sexual penetration or sexual contact with a victim under age 13 when the defendant is more than 36 months older than the victim); and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(ii) (2004) (sexual penetration causing personal injury when defendant knows that the victim is mentally impaired, incapacitated, or physically helpless).  The complaint was amended to add one count of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2004) (assault with substantial bodily harm).

            A jury found appellant guilty as charged and also found that he treated the victim with particular cruelty.  The district court denied appellant’s motion for a new trial and sentenced him on count one, sexual penetration or contact with a victim under age 13, to an executed term of 182 months in prison, an upward departure from the presumptive guidelines sentence.  The district court also entered a conviction on count two, sexual penetration causing personal injury when the defendant knows the victim is physically helpless.  This appeal challenging the convictions and sentence followed.



            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, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be “consistent with the hypothesis that the [defendant] is guilty and inconsistent with any rational hypothesis [other than] guilt.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Even with this strict standard, the jury is in the best position to weigh the credibility of evidence and, thus, determines which witnesses to believe and how much weight to give to their testimony.  State v. Daniels, 361 N.W.2d 819, 826-27 (Minn. 1985).  “[P]ossibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

            A defendant who engages in sexual penetration with a victim under age 13 when the defendant is more than 36 months older than the victim is guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004); see Minn. Stat. § 609.341, subd. 12 (2004) (defining “sexual penetration”).  A defendant who engages in sexual penetration with a victim, causing personal injury, when the defendant knows or has reason to know that the victim is mentally impaired, incapacitated, or physically helpless is guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(e)(ii) (2004).

            First-degree criminal sexual conduct is a general-intent crime, requiring the general intent to sexually penetrate the victim.  State v. Bookwalter, 541 N.W.2d 290, 296 (Minn. 1995).    Appellant argues that the evidence is consistent only with the theory that he attempted to rectally stimulate A.A.M.B. to induce a bowel movement and, therefore, insufficient to prove that he intentionally sexually penetrated A.A.M.B.

            All three physicians who examined A.A.M.B.’s injuries testified that the injuries were inconsistent with rectal stimulation.  Further, Swanson opined that A.A.M.B.’s injuries could not have been self-inflicted or caused accidentally, and Kaplan testified that the injuries resulted from a “blunt penetrating trauma,” requiring major force.  Kaplan explained:

            Q.  So would this be the type of injury that could have occurred from accidentally inserting a finger into the vagina rather than the rectum?


            A.  You’re asking – accidentally is very hard to imagine without quantifying a major force.  If someone was falling forward and fell with an object in their hand – but typically I can’t conceive of the mechanics of somebody accidentally putting a finger in the vagina and causing a large injury like this, no.


            Appellant claims that the injury to A.A.M.B. occurred when he accidentally inserted his finger into her vagina while attempting to perform rectal stimulation.  But to have caused the injury that A.A.M.B. suffered, after accidentally inserting his finger into her vagina, appellant would have had to apply significant force as described by Kaplan.  Because the evidence does not explain how such significant force could have been applied accidentally, appellant’s theory is unreasonable in light of the evidence taken as a whole.  Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to prove that appellant intentionally sexually penetrated A.A.M.B.


            Appellant argues that erroneous evidentiary rulings and prosecutorial misconduct deprived him of his right to a fair trial.

            Expert testimony

            The district court has broad discretion to admit expert testimony.  State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003).  Expert testimony is admissible if it will assist the jury in understanding the evidence or in determining a fact in issue.  Minn. R. Evid. 702.

            Appellant argues that the district court erred in allowing Kaplan to testify that the injury to A.A.M.B. could not have been caused accidentally.  Expert opinion testimony directly addressing a defendant’s state of mind may be inadmissible.  See State v. Provost, 490 N.W.2d 93, 101-02 (Minn. 1992) (affirming the exclusion of testimony by a psychiatrist regarding whether defendant premeditated and intended victim’s death).  But Kaplan’s testimony did not directly address appellant’s state of mind.  Rather, based on Kaplan’s observation of the severity of A.A.M.B.’s injuries, he gave a medical opinion explaining what sort of force would be needed to cause the injury suffered by A.A.M.B. and that accidentally inserting a finger into the vagina would not include the required amount of force.  Such testimony is permissible under Minn. R. Evid. 704.  See State v. Chambers, 507 N.W.2d 237,239 (Minn. 1993) (stating that “pathologist may appropriately testify to things such as the number and extent of the wounds, the amount of bleeding, whether the wounds were caused by a knife or a blunt instrument, whether a gunshot wound is a contact wound, whether the wounds could or could not have been the result of accident, [and] the cause of death”); see also State v. Bowers, 482 N.W.2d 774, 778 (Minn. 1992) (upholding admission of expert testimony regarding whether a stab wound was a “deliberate act” or “an intentional act” when testimony was based on the physical nature of the injury).


            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally not admissible, subject to certain exceptions.  Minn. R. Evid. 801(c), 802, 803, 804.

            Appellant argues that the district court erred in allowing police officer Paula Wilson to testify that Kabatay said that he suspected A.A.M.B.’s injury resulted from sexual abuse.  A statement offered to show why an officer decided to investigate a matter further is not hearsay.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).

            Wilson’s testimony about Kabatay suspecting sexual assault explains why the police continued the investigation.  Wilson had gone to the hospital not knowing how A.A.M.B. was injured.  An injured and bleeding child, by itself, is not a reason to conduct a police investigation.  But when Wilson learned that Kabatay suspected sexual assault as the cause of the injury, she had a reason to conduct further investigation.  The district court did not err in admitting Wilson’s testimony.  Appellant cites no authority supporting his argument that a limiting instruction was required.

            Prosecutorial misconduct

            A district court’s denial of a new-trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  For less-serious prosecutorial misconduct, the standard for determining whether the misconduct is harmless error is whether it likely played a substantial part in influencing the jury to convict.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (quotation omitted).    

            During rebuttal closing argument, the prosecutor stated, “Obviously something was inserted into the vagina, something that caused the tear in the vagina wall.  Is it reasonable to assume that it could have been [appellant’s] penis or something else?”  Appellant argues that the reference to his penis possibly being inserted into A.A.M.B.’s vagina was improper because there was no evidence to support that claim.  The claimed misconduct was an isolated statement, and the district court sustained an objection to it and gave a limiting instruction.  At most, it was minor misconduct, and it is unlikely that it played a substantial part in influencing the jury to convict.

            Appellant is not entitled to a new trial based on evidentiary rulings or prosecutorial misconduct.


            The state concedes that Minn. Stat. § 609.04 (2004) requires vacation of one of appellant’s criminal-sexual-conduct convictions because both were based on the same evidence and conduct.  See State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989) (construing Minn. Stat. § 609.04); State v. LaTourelle, 343 N.W.2d 277 (Minn. 1984) (same).  Accordingly, we remand for vacation of one of appellant’s criminal-sexual-conduct convictions.

            Appellant’s argument that the evidence was insufficient to prove that A.A.M.B. was physically helpless is not persuasive.  The definition of “physically helpless” in Minn. Stat. § 609.341, subd. 9 (2004), is broad enough to include a two-year-old victim.


            The supreme court recently held that a district court has inherent judicial authority to impanel a sentencing jury to make factual findings on aggravating sentencing factors.  State v. Chauvin, ___ N.W.2d ___ (Minn. Oct. 26, 2006).  As a result of the Chauvin decision, we must consider appellant’s argument that the district court erred in failing to define “particular cruelty” for the jury.

            The district court instructed the jury:

You must determine whether the following aggravating factor exists:  Whether [A.A.M.B.] was treated with particular cruelty for which [appellant] should be held responsible.  The State has the burden of – to prove beyond a reasonable doubt the existence of any aggravating factor.  In deciding whether the State has met its burden, you may consider all the evidence presented at the trial, and the additional evidence presented at this hearing. 


In response to a question, the district court further instructed the jury:

[A]pparently the jury is looking for a definition of cruelty versus particular cruelty. . . . [H]ere’s the best I can tell you, and it’s – I don’t know if it’s going to help you or not.  There is no legal definition for the terms in question.  You should use your common understanding of those terms.  In making your decision you may consider all the evidence you heard during the guilt phase of the trial, and the evidence heard at the second phase.  You may also refer to the elements of the crimes to aid in your decision. 


            In State v. Schantzen, the supreme court stated that “particular cruelty” is cruelty “of a kind not usually associated with the commission of the offense in question.”  308 N.W.2d 484, 487 (Minn. 1981).  Based on Schantzen, we conclude that the district court erred by instructing the jury that there is not a legal definition for “particular cruelty” and that the jurors should use their common understanding of the terms “cruelty” and “particular cruelty.”  Particular cruelty needs to be determined relative to the way that others have committed the same offense committed by appellant and could not be determined by the jurors based only on their common understanding of the term.  Therefore, we reverse appellant’s sentence and remand for resentencing.  See State v. Kuhnau, 622 N.W.2d 552, 558-59 (Minn. 2001) (stating that an error in jury instructions is not harmless “if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict”).


            In a pro se supplemental brief, appellant argues that he was deprived of his right to be present at every critical stage of trial when a juror was questioned about a family member’s relationship with a police officer.  The supreme court has held that, even when a defendant is wrongfully denied the right to be present at a critical stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was “surely unattributable to the error.”  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  In applying harmless-error analysis, we consider the strength of the evidence against the defendant and “what the defendant would have contributed to his defense if he had been present.”  State v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001).

            The evidence against appellant was strong.  Although appellant asserts “that he would have demanded severe questioning of this juror,” he does not specify any additional questions that he would have asked.  We conclude that any error in excluding appellant from the questioning was harmless beyond a reasonable doubt.

            Affirmed in part, reversed in part, and remanded in part.