A05-1782

State of Minnesota,

Respondent,

vs.

John Joseph Bussmann,

Appellant.

Filed September 19, 2006

Affirmed

Worke, Judge

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

WORKE, Judge

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 (Minn. App. 2006).

Trial I

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.” Minn. R. Crim. P. 28.02, subd. 2(1). A direct appeal may be taken within 90 days after final judgment. Id., subd. 4(3). Appellant was sentenced on September 1, 2005. Appellant’s post-trial motion could not be considered a petition for postconviction relief because he moved the district court before sentencing—postconviction relief is only available after the time for a direct appeal has expired, and direct appeal is not available until after there is a conviction and imposition of sentence. Therefore, we will not now consider appellant’s arguments relating to Trial I—the district court’s failure to sever the charges tried in Trial I, the admission of Spreigl evidence, the state’s failure to disclose evidence, and the contradiction between one witness’s testimony and the complaint, and the statute-of-limitations argument. Appellant is not precluded from filing a petition for postconviction relief in district court now that the time for direct appeal has expired. But we are not in any way commenting on the likelihood of success of any subsequent postconviction petition.

Trial II

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.

Joinder

Appellant 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 (Minn. Oct. 17, 2000). The ultimate question if offenses are improperly joined is one of prejudice. State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999). If the evidence of each offense would have been admissible as Spreigl evidence in the trial of the other(s), there is no prejudice. State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982). In order to admit Spreigl evidence, the district court must find (1) that the evidence is clear and convincing that the defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state’s case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice. State v. Dewald,464 N.W.2d 500, 503 (Minn. 1991).

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 Minn. R. Evid. 403 (stating that relevant evidence may be excluded if danger of unfair prejudice substantially outweighs probative value). The district court did not abuse its discretion in joinder of the offenses in one trial.

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 (Minn. 2003) (citations omitted). “The admission of expert testimony is within the broad discretion accorded a [district] court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the [district] court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citation omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997) (holding reversal requires “apparent error”).

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.

First, because 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 (Minn. 1998). We apply a three-prong test when making a plain error determination: “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id.at 740. Each prong of the test has to be met or the claim fails. Id. To satisfy the second prong, the error must be plain at the time of the appeal. State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002). An error is “plain” if it is clear or obvious. Id. The third prong of the test is satisfied if “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. Plain error is prejudicial if there is a “‘reasonable likelihood’” that the error “‘had a significant effect’” on the jury’s verdict. Id. (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)). There is no reasonable likelihood that this testimony had a significant effect on the jury’s verdict. This is especially true because both victims testified regarding appellant’s conduct, and the evidence that appellant committed the offenses was strong. Moreover, the evidence did not engraft Roman Catholic belief into Minn. Stat. § 609.344, subd. 1(l)(ii), because the testimony related to the services that are offered to victims of clergy exploitation, rather than the type of spiritual advice a parishioner may seek from clergy before the offense, as is contemplated under the criminal-sexual-conduct statute.

Appellant 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.” Minn. R. Evid. 702. Expert testimony is admissible if the testimony will help the trier of fact in evaluating evidence or resolving factual issues. State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995). This testimony assisted the jury in understanding something that an average jury may not understand, but that a counselor understood very well. The district court did not abuse its discretion in admitting this evidence.

Constitutionality of Minn. Stat. § 609.344, subd. 1(l)(ii) (2002)

Appellant argues that Minn. Stat. § 609.344, subd. 1(l)(ii) (2002), is unconstitutional. Minnesota statutes are presumed constitutional. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 308 (Minn. 2000). The party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). This court invokes every presumption in favor of the constitutionality of the statute and will declare a statute unconstitutional with extreme caution and only when absolutely necessary. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn. 2002); Reed v. Bjornson, 191 Minn. 254, 257, 253 N.W. 102, 104 (1934). The constitutionality of a statute is a question of law subject to de novo review. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn. 2000).

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[.]

Appellant 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 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); State v. Krawsky, 426 N.W.2d 875, 878 (Minn. 1988). Because the concept of vagueness is a “rough idea of fairness,” broad language alone is not enough to render a statute vague if the statute is “sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957 (1972).

Minn. 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 U.S. at 110, 92 S. Ct. at 1957. Minn. Stat. § 609.344, subd. 1(l)(ii), is not void for vagueness.

Entanglement with Religion

Appellant 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 (Minn. Oct. 21, 2003). Therefore, it is not necessary for us to consider appellant’s identical constitutional challenge.

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 (Minn. 1989). On appeal, we must assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The jury determines the credibility of witnesses and the weight of their testimony, and we assume that the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004). The verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense. Id.

Appellant 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 Moore, 438 N.W.2d at 108.

Affirmed.