This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Obadhyah Matthew Glay,
Filed September 11, 2007
Hennepin County District Court
File No. 04069620
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Justin L. Seurer, Seurer Law, LLC, 2116 2nd Avenue South, Minneapolis, MN 55404 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.*
Appellant challenges his conviction of two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(f), (g)(iii) (2004), arguing that (1) the state should not have been allowed to amend the complaint on the day that trial was scheduled to begin; (2) the evidence was insufficient to support probable cause to charge appellant with third-degree criminal sexual conduct involving multiple acts, in violation of Minn. Stat. § 609.344, subd. 1(g)(iii); and (3) the evidence was insufficient to support appellant’s conviction of both counts of third-degree criminal sexual conduct. We affirm.
Stephen and Ophelia Zeogar live in a home in Brooklyn Park with their five children. The Zeogars have four sons and one daughter, C.M., who was born on November 27, 1986. The Zeogars’ house has two bedrooms and a bathroom on the lower level and three bedrooms and a bathroom on the upper level. The couple’s oldest son sleeps in one of the lower-level bedrooms. The remaining boys and C.M., as well as Stephen and Ophelia, sleep in the three upper-level bedrooms. And for a period of time, appellant Obadhyah Matthew Glay, Stephen’s cousin, slept in the second lower-level bedroom.
On January 21, 2005, appellant was charged with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(f) (2004), after C.M. reported that appellant had been sexually assaulting her. Trial was scheduled to begin on October 17, 2005, with jury selection to commence on October 18. But on October 18, the state filed an amended complaint, which included a second charge of third-degree criminal sexual conduct for multiple acts in violation of Minn. Stat. § 609.344, subd. 1(g)(iii) (2004). After permitting the state to amend the complaint, the district court continued the trial until January 2006.
C.M. testified at trial that in January 2004, she was asleep and woke up after feeling “something heavy over [her].” When C.M. opened her eyes, she saw appellant “over [her]” and “felt . . . his whole body over [her].” At that time, C.M. “realized that [appellant] was actually having sex with [her].” C.M. testified that she had a painful feeling coming from “in between [her] legs.” When C.M. “jumped” out of bed and asked appellant what he was doing in her room, appellant put his index finger in front of his mouth and said, “Shhh.” Appellant eventually left C.M.’s room, and she “washed off” in the bathroom. C.M. then “went back in [her] room” and put a clothes hamper behind her bedroom door in an attempt to “[k]eep the door closed.”
C.M. testified that she spoke with appellant the following day, but he denied that anything had happened the previous night and told C.M. that she was probably just dreaming. Nonetheless, C.M. began placing the hamper behind her door every night when she went to bed until her mother told her to stop putting it there.
C.M. further testified that in March 2004, she woke up to find her “pajama pants and underwear [we]re . . . off at [her] leg.” She testified that appellant was “[h]aving sex with [her],” stating that she “felt his penis in [her] vagina and his body moving.” C.M. “got up” and asked appellant, “Why do you keep doing this to me? Why don’t you leave me alone?” But appellant did not say anything and left C.M.’s room. C.M. stated that she did not tell anybody about the incident because she “was afraid” and “didn’t think anybody would really believe [her].”
In April 2004, C.M. again woke up to find her clothes off and appellant “leaning over [her]” and “having sex with [her].” C.M. testified that appellant’s penis was inside of her and that “he was moving up and down,” but that he did not ejaculate inside of her. When C.M. asked appellant to get out of her room, he left without saying anything. C.M. confronted appellant later on that same day. After initially denying that anything had happened, appellant stated, “I’m your first and we’re going to keep it that way.” Appellant also told C.M. that if she told her mom about the incident, her mom would divorce her dad. In July 2004, appellant offered C.M. $300 to sleep with him. When C.M. refused, appellant told her, “I’m just kidding.”
On July 23, 2004, C.M. informed her mother that appellant had been sexually assaulting her and that he had offered her $300 for sex. Later that day, C.M., Ophelia, Stephen, C.M.’s grandmother, and C.M.’s cousin, Marbay Kranger, all confronted appellant about C.M.’s allegations. C.M., Ophelia, Stephen, and Kranger all testified that appellant initially denied that anything had ever happened, but that he eventually began crying and admitted that while he did not penetrate C.M., he did “perform oral sex.” Immediately thereafter, Ophelia called the police, and C.M., Ophelia, and Stephen subsequently went to the police station to give statements. At trial, appellant denied having any sexual contact with C.M. and also denied that he ever admitted to having sexual contact with her.
The jury found appellant guilty of both counts of third-degree criminal sexual conduct, and the district court sentenced appellant to 48 months in prison.
This appeal follows.
Appellant argues that the district court erred by permitting the state to amend the complaint on the day that trial was scheduled to begin because the state “had any and all information needed to charge the additional count . . . when the original complaint was filed.”
Minn. R. Crim. P. 17.05 provides that “[t]he court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” But “this rule refers to motions to amend indictments or complaints after the commencement of trial.” State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990) (“Rule 17.05 comes into play once jeopardy has attached—that is, once the jury is sworn.”). “Under Minn. R. Crim. P. 3.04, subd. 2, the [district] court is relatively free to permit amendments to charge additional offenses before trial is commenced, provided the [district] court allows continuances where needed.” Id.; see also State v. Guerra, 562 N.W.2d 10, 12 (Minn. App. 1997) (“Prior to trial the [district] court is relatively free to allow an amendment charging an additional offense in a criminal complaint.”). Whether the district court correctly interpreted the rules of criminal procedure is a question of law, which we review de novo. State v. Brown, 709 N.W.2d 313, 316 (Minn. App. 2006).
Here, the state filed the initial complaint against appellant on January 21, 2005, charging appellant with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(f) (2004). The record indicates that trial on that offense was scheduled to begin on October 17, 2005. The attorneys were advised that jury selection would commence on October 18. But on October 18, the state filed an amended complaint that included a second charge of third-degree criminal sexual conduct for multiple acts in violation of Minn. Stat. § 609.344, subd. 1(g)(iii) (2004). Trial was subsequently continued for a hearing on the issue of whether the district court should permit the amendment. The district court ultimately permitted the state to amend the complaint before the jury was selected and sworn in and thereafter continued trial until January 2006. As a result, a jury was not sworn in the matter until January 2006.
Because the district court may freely permit amendments to charge additional offenses under rule 3.04, subdivision 2, before trial begins and because this trial did not start until January 2006, we conclude that the district court did not err when it allowed the state to amend the complaint prior to trial in October 2005. See Bluhm, 460 N.W.2d at 24 (holding that district court “was free to allow an amendment charging an additional or greater offense” under rule 3.04, subdivision 2, where state moved to amend during jury selection); State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980) (holding that district court was free to allow amendment of complaint under rule 3.04, subdivision 2, when amendment occurred after mistrial).
Appellant also argues that the evidence was insufficient to support probable cause on count 1 of the amended complaint, which charged appellant with third-degree criminal sexual conduct involving multiple acts, in violation of Minn. Stat. § 609.344, subd. 1(g)(iii).
The complaint must be interpreted so as to uphold its validity whenever it is reasonably possible. State v. Pratt, 277 Minn. 363, 365, 152 N.W.2d 510, 512-13 (1967). “The test of probable cause is whether the evidence worthy of consideration brings the charge against the prisoner within reasonable probability.” State v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003) (quotation omitted); see also State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978) (defining probable cause as a “reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty” (quotation omitted)); State v. Hookom, 474 N.W.2d 624, 630 (Minn. App. 1991) (“In determining questions of probable cause, the [district] court must answer the question of whether, under the facts disclosed by the record, it is fair and reasonable to require the accused to stand trial.”).
Under Minn. R. Crim. P. 2.01, “the facts establishing probable cause to believe that an offense has been committed and that the defendant committed it shall be set forth in writing in the complaint, and may be supplemented by supporting affidavits or by sworn testimony of witnesses taken before the issuing judge or judicial officer.” The statement of the offense normally is sufficient “if [it] spells out all essential elements in a manner which has substantially the same meaning as the statutory definition.” Pratt, 277 Minn. at 365, 152 N.W.2d at 512. Each specific element of the crime, however, need not be identified. State v. Ewald, 373 N.W.2d 358, 359 (Minn. App. 1985) (finding that a complaint was sufficient where the “essential facts constituting the offense were stated” and that the failure to list an element of the offense was not significant). “The public policy of this state is to free criminal pleading from the pitfalls that resulted from the formalities and technicalities of common-law pleading.” Pratt, 277 Minn. at 365, 152 N.W.2d at 512 (citing State v. Bolsinger, 221 Minn. 154, 172 21 N.W.2d 480, 491 (1946)); see also State v. Lopes, 201 Minn. 20, 24, 275 N.W. 374, 376 (1937) (“Long gone is the time when, in respect to an information or indictment, a defendant can successfully claim not to be able to get from it the knowledge in respect to the charge against him that any other sane and intelligent reader would gather from even a casual reading, without resorting to inference.”).
Minn. Stat. § 609.344, subd. 1(g)(iii), provides that a person who engages in sexual penetration with another person is guilty of third-degree criminal sexual conduct if: (1) the actor has a significant relationship with the victim; (2) the complainant was at least 16 but under 18 years of age at the time of the act; and (3) the sexual abuse involved multiple acts over an extended period of time.
Here, count 1 of the amended complaint charged appellant with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(g)(iii), stating:
That on or between January 2004 and April 2004, in Hennepin County, Minnesota, [appellant], born 1/7/58, engaged in sexual penetration with C.M., born 11/27/86, a person at least sixteen (16) but under eighteen (18) years of age at the time of the penetration, and [appellant] is C.M.’s father’s cousin, and the sexual abuse involved multiple acts committed over an extended period of time.
In addition, the probable-cause portion of the amended complaint, which incorporated the probable-cause portion of the original complaint, stated:
Your complainant, Detective Kent Nielsen, is an investigator with the Brooklyn Park Police Department. In that capacity, he has investigated the facts and circumstances in this matter and believes the following to be true:
On July 23, 2004, Brooklyn Park Police received a report of a sexual assault of a known juvenile female, C.M., DOB 11/27/86, by [appellant] Obadhyah Matthew Glay, at the family home in Brooklyn Park, Hennepin County, Minnesota. C.M. reported that [appellant] is her cousin and had been residing with her family off and on since June of 2003. C.M. reported that [appellant] came into her bedroom multiple times and had sexual intercourse with her during the period January 2004-April 2004. C.M. reported she told her mother in July 2004, after her mother asked her why she was being disrespectful to [appellant]. C.M. reported that [she] was afraid to tell her parents earlier. On July 23, 2004, C.M. and other members of C.M.’s family confronted [appellant] about the sexual abuse of C.M. [Appellant] admitted C.M.’s statements about the sexual abuse were true.
Appellant contends that “[t]he information available to the [c]ourt in this matter was insufficient to support probable cause and the [appellant] should not have been compelled to stand trial” because the state did not show multiple acts of sexual penetration that occurred over an extended period of time. Citing State v. Shamp, 427 N.W.2d 228 (Minn. 1988); State v. Wasson, No. C5-01-1014 (Minn. App. Dec. 4, 2001), review denied (Minn. Jan. 29, 2002); and State v. Fillion, No. C1-95-2117 (Minn. App. June 4, 1996), review denied (Minn. July 10, 1996), appellant contends that “Minnesota [c]ourts have interpreted an ‘extended period of time’ as longer than a four-month time period” and that “a period extending to a maximum of four months is insufficient to support the charge of ‘multiple acts.’” We disagree.
First, the cases cited by appellant all address charges of first-degree criminal sexual conduct rather than third-degree criminal sexual conduct. In addition, both Wasson and Fillion are unpublished decisions of this court and are therefore not precedential. Minn. Stat. § 480A.08 (2006). More important, however, is the fact that while these cases all dealt with abuse occurring over longer periods of time, none of them articulates a bright-line rule with regard to the minimum amount of time required to constitute an “extended period of time” under section 609.344, subdivision 1(g)(iii). See State v. Campa, 399 N.W.2d 160, 162 (Minn. App. 1987), review denied (Minn. Feb. 13, 1987) (concluding that evidence was sufficient to show multiple acts over an extended period of time despite fact that victim never testified to a specific date of abuse but instead described various acts of sexual abuse and stated that they occurred “more than once”).
Accordingly, we conclude that the information cited in the amended complaint, including C.M.’s allegation that appellant had engaged in sexual acts with her on multiple occasions from January-April 2004, and appellant’s alleged admission to family members that C.M.’s allegations were true, was evidence of multiple acts of sexual penetration occurring over an extended period of time and was therefore sufficient evidence of probable cause to support the charge against appellant for third-degree criminal sexual conduct-multiple acts.
Finally, appellant argues that the evidence was insufficient to support his conviction of both counts of third-degree criminal sexual conduct. 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 a 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 evidence to the contrary. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This is especially true when resolution of the matter depends mainly on conflicting testimony. Id. 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. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
Under Minn. Stat. § 609.344, subd. 1(f), whoever “engages in sexual penetration with another person is guilty of criminal conduct in the third degree if . . . the actor has a significant relationship to the complainant and the complainant was at least 16 but under 18 years of age at the time of the sexual penetration.” In addition, under Minn. Stat. § 609.344, subd. 1(g)(iii), whoever
engages in sexual penetration with another person is guilty of criminal conduct in the third degree if . . . the actor has a significant relationship to the complainant, the complainant was at least 16 but under 18 years of age at the time of the sexual penetration, and . . . the sexual abuse involved multiple acts committed over an extended period of time.
“Sexual penetration” includes sexual intercourse, cunnilingus, fellatio, or any other intrusion into a complainant’s genital opening, whether or not the emission of semen occurs. Minn. Stat. § 609.341, subd. 12 (2004). Further, “significant relationship” is defined as
(1) the complainant’s parent, stepparent, or guardian;
(2) any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; or
(3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.
Minn. Stat. § 609.341, subd. 15 (2004).
Therefore, in order to convict appellant of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(f), the state must prove that: (1) appellant intentionally sexually penetrated C.M.; (2) appellant had a significant relationship with C.M.; (3) C.M. was at least 16 years of age but under 18 years of age at the time of the sexual penetration; and (4) appellant’s act took place between January 2004 and April 2004 in Hennepin County. See 10 Minnesota Practice, CRIMJIG 12.29 (2006). In order to convict appellant of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(g)(iii), the state must show all of the elements listed above, plus prove that the sexual abuse committed by appellant involved multiple acts committed over an extended period of time. See 10 Minnesota Practice, CRIMJIG 12.27 (2006).
The record indicates that C.M. was 17 years old at the time the acts took place in the early months of 2004. Appellant had a “significant relationship” with C.M., given that he was Stephen’s cousin and resided in the same residence as C.M. In addition, there is no dispute that if any acts occurred, they occurred in Hennepin County between January 2004 and April 2004. Thus, the main issue for the jury to decide was whether appellant engaged in “sexual penetration” with C.M. for purposes of Minn. Stat. § 609.344, subd. 1(f), and whether appellant engaged in multiple acts of sexual penetration with C.M. over an extended period of time for purposes of Minn. Stat. § 609.344, subd. 1(g)(iii). Appellant argues that several inconsistencies between C.M.’s trial testimony and her earlier statements to law enforcement create reasonable doubt that she was sexually assaulted.
Minn. Stat. § 609.347, subd. 1 (2004), provides that “the testimony of a victim need not be corroborated” in a prosecution under section 609.344. Here, C.M. testified that in January 2004, she woke up and saw appellant “over her” and “felt . . . his whole body over [her].” C.M. testified that appellant “was . . . having sex with [her],” which resulted in a painful feeling coming from “in between [her] legs.” C.M. further stated that in March 2004, she woke up to find appellant “[h]aving sex with [her]” and that she “felt his penis in [her] vagina and his body moving.” C.M. stated that in April 2004, she again woke up to find appellant “leaning over [her]” and “having sex with [her].” C.M. testified that appellant’s penis was inside of her and that “he was moving up and down.” After confronting appellant, C.M. testified that appellant told her, “I’m your first and we’re going to keep it that way” and, “If you tell your mom something about this, she will divorce your dad and it will be all your fault.” C.M. also testified that in July 2004, appellant offered her $300 to sleep with him.
While C.M.’s in-court testimony was not completely consistent with her out-of-court reports, it is well established that the jury is responsible for credibility determinations due to its superior opportunity to judge credibility and weigh conflicting evidence. State v. Green, 719 N.W.2d 664, 673-74 (Minn. 2006).
Although not required, C.M.’s testimony was supported by corroborating evidence. Ophelia, Stephen, and Kranger all testified that when appellant was confronted with C.M.’s accusations on July 23, he denied that he had penetrated her but eventually admitted to having sexual contact with C.M., including oral sex. Ophelia also testified that on one occasion she left her bedroom in the middle of the night and saw appellant upstairs with a towel on his shoulder. When Ophelia asked appellant what he was doing upstairs, he said that he was getting some water. That statement surprised Ophelia at the time because appellant had a bathroom near his bedroom on the lower level. Evelyn Kish, C.M.’s cousin, who occasionally shared a bedroom with C.M. when staying with the Zeogars, testified that she once woke up during the night and saw a man resembling appellant standing in C.M.’s bedroom and touching C.M. Finally, a number of witnesses testified that after giving C.M. gifts such as a car, a cellular phone, and a CD player, appellant later took the gifts back from C.M.
Viewing the record evidence in the light most favorable to the conviction and assuming that the jury believed the state’s witnesses and disbelieved any contrary evidence, we conclude that the evidence was sufficient to support appellant’s convictions of both counts of third-degree criminal sexual conduct.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The record indicates that the state notified appellant on October 17 that it intended to file an amended complaint.
 Both C.M. and Ophelia testified that C.M. is a heavy sleeper.