This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dennis George Johnson,
Filed July 28, 1998
Affirmed as modified
Ramsey County District Court
File No. K8-96-1956
John M. Stuart, Minnesota State Public Defender, Ann McCaughan, Assistant State Public
Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230
Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101 and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County
Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge
U N P U B L I S H E D   O P I N I O N
A jury found appellant Dennis George Johnson guilty of criminal sexual conduct in
the second degree, and the judge committed him to the custody of the commissioner of
corrections for 72 months rather than the presumptive 48 months. He appeals his
conviction and sentence. We affirm as modified.
Appellant and Lori Baugart (Baugart) divorced in 1992. The two oldest children,
twelve-year-old K.J. and eleven-year-old A.J., lived with appellant, and R.J., the youngest
child, lived with Baugart. During a weekend visitation with her mother in April 1996,
K.J. told her mother that she did not want to go back to appellant's house because she did
not like him touching her. After an investigation, appellant was charged with criminal
K.J. testified at trial that appellant began sexually touching her a couple of weeks
after her tenth birthday in March 1995, and continued for over a year until she reported
the conduct to her mother and grandmother. She testified that appellant touched her in his
bedroom "every day" when A.J. was visiting their mother, and K.J. and appellant were
alone. She stated that appellant would sometimes come into her bedroom at night and
carry her into his own bedroom. Then he would lie on the bed with his leg draped over
her. K.J. testified that appellant tickled her and touched the clothing over her "potty" and
her "boobies," and that sometimes he stuck out his tongue when he kissed her. K.J.
testified that appellant also improperly touched her while they were wrestling, or as she
sat in the front seat of the car while appellant was driving. K.J. testified that appellant
sometimes came into the bathroom and watched her as she showered.
At trial, appellant introduced evidence of his good character and his good conduct
as a parent. During the trial, a videotape of K.J.'s interview and examination at Midwest
Children's Resource Center was played. In the videotaped interview, K.J. reported that
appellant had magazines of naked ladies, a video of a naked person in a bathtub, and a toy
which performs a sexually explicit act. Earlier the trial court had ruled that evidence of
pornographic material in appellant's house was inadmissible.
The prosecutor, in her closing arguments, remarked on appellant's so-called "dad-of-the-year" theme telling the jury "even assuming that the defendant is the father of the
year, " he "isn't credible, he isn't believable. He has too much at stake and the most
incentive to lie."
The jury began deliberations at 11:35 a.m. on April 24, 1997. On April 25, 1997,
at 11:18 a.m. the court received a note from the jury indicating it was unable to reach a
verdict. The court reread 3 Minnesota Practice, CRIMJIG 3.04 (1996), to the jury about
their duty to discuss the case and come to a unanimous verdict, if possible. After
deliberating for five and a half more hours, the jury found appellant guilty of second
degree criminal sexual conduct. The trial court granted the state's motion for an upward
durational departure based on the vulnerability of the victim, the length of abuse, and the
victim's psychological injury. This appeal followed.
D E C I S I O N
Appellant argues that the trial court erred where evidence of pornography,
previously ruled inadmissible, was heard by the jury during the taped interview with the
victim. The court denied the motion and issued a curative instruction.
The court later noted that, since appellant had put his character as a good parent into
evidence, the evidence regarding the pornography was legitimate.
In addition, the trial court gave a curative instruction to the jury, telling them to disregard
any evidence of pornography. State v. Bickham, 485 N.W.2d 923, 925 (Minn. 1992)
(any potential prejudice is remedied by giving a curative instruction to the jury).
Therefore, the trial court did not abuse its discretion in denying appellant's motion for a
Appellant argues that the prosecutor derided appellant's character and negatively
referred to him as "father of the year" and to his "dad of the year" defense. In addition,
appellant argues that the prosecutor improperly expressed her personal opinion to weaken
Appellant's attorney did not object to the prosecutor's closing argument, but now
contends, for the first time on appeal, that the prosecutor's remarks constituted
misconduct. However, defense counsel's failure to object at trial or to preserve the issue
in a post-trial motion, is deemed to be a waiver of the objection. Furthermore, it was
proper for the prosecutor to comment on appellant's character defense and credibility, both
material issues in the trial. State v. Marquetti, 322 N.W.2d 316, 318 (Minn. 1982).
In appellant's motion for a new trial, he argued that the court impermissibly
required the jury to return a verdict after the jury indicated that it was deadlocked.
Appellant argues that, according to Minn. Stat. § 631.12 (1996), the trial court should
have discharged the jury when there was no reasonable probability of agreement.
"Trial courts have considerable latitude in the selection of the language of the jury
charge." State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (citations omitted). The
question in this case is whether the trial court's instructions, taken as a whole, coerced the
jury to reach a unanimous verdict. The record supports the conclusion that the trial court's
instructions did not coerce the jury. See State v. Martin, 297 Minn. 359, 373, 211
N.W.2d, 765, 772 (1973) (potential for coercion minimized if charge is simply reread at
a time when jury appears deadlocked). When the jury sent the judge a note indicating that
it was deadlocked, the judge brought the jury into the courtroom and read CRIMJIG 3.04
(unanimous verdict - duty of jurors to discuss), which is the same instruction that it read
when it charged the jury. See id. We find that it was not improper for the court to
remind the jury of its function.
Next, appellant argues that the court coerced the guilty verdict when the court told
the jury that "[I]t is the Court who decides when and if the jury is hung. It is not the
jury." A trial court acts within its discretion by giving appropriate additional instructions
when responding to a note from the jury. Minn. Crim. P. 26.03, subd. 19(3). It is also
within the court's discretion to require the deadlocked jury to continue deliberations. State
v. Jones, 556 N.W.2d 903, 911-912 (Minn. 1996). Here, the court acted in accordance
with the rules of criminal procedure and Minnesota caselaw. Despite appellant's claims,
the trial court did not err by requiring the jury to continue its deliberations.
The state filed a motion for an upward durational departure based on the
vulnerability of the victim, length of abuse, and her psychological injury. The court
sentenced appellant to 72 months, and ordered him to pay for therapy for both K.J. and
The trial court may depart from the presumptive sentencing guidelines when the
individual case involves substantial and compelling circumstances. State v. Givens, 544
N.W.2d 774, 776 (Minn. 1996). "A durational departure is appropriate only when a
defendant commits a crime in a manner that is significantly more or less serious than the
typical commission of the crime." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983).
On appeal, this court examines the record to determine whether the trial court's reasons justify departure from the presumptive sentence." Williams v. State, 361 N.W.2d
840, 844 (Minn. 1985).
The record justifies an upward departure based on the negative impact of the abuse
on K.J.'s family situation, see Kilcoyne v. State, 344 N.W.2d 394, 397-98 (Minn. 1984)
(court considers effect of abuse on victim's family life when evaluating reasons for
departure); the psychological injury to K.J., see State v. Patterson, 511 N.W.2d 476, 478
(Minn. App. 1994) (psychological injury is sufficient ground for departure) (review denied
Minn. March 31, 1994); and the locus of the crime having breached the victim's "zone of
privacy." State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984) (victim's home is no
longer the "island of security" upon which victim has previously relied, * * * making
offense particularly cruel).
The trial court committed no error as to any of the sentencing issues relating to K.J.
and we affirm as to those issues. The trial court, however, erred in ordering appellant
to pay for A.J.'s therapy costs. As a witness, A.J. is not entitled to restitution but only
to compensation in the form of witness fees. Minn. Stat. § 357.22 (1996) (witness fees).
We therefore vacate the trial court's order of restitution to A.J.
Affirmed as modified.
(1) A. J. was not a "victim" of appellant's sexual contact, but rather was allegedly present
when some of the abuse occurred.