This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1397
State of Minnesota, Respondent,
vs.
Nathan Charles Robert Schwartz, Appellant.
Filed September 28, 2015 Affirmed Peterson, Judge
Meeker County District Court File No. 47-CR-12-1021
Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, St. Paul, Minnesota; and
Anthony D. Spector, Meeker County Attorney, Litchfield, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer K. Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from convictions of second-degree criminal sexual conduct, use of a
minor in a sexual performance or pornographic work, and possession of a pornographic work, appellant argues that the evidence was insufficient to prove him guilty of
possession of a pornographic work, and the district court abused its discretion by
(1) admitting Spreigl evidence, (2) admitting expert testimony; and (3) imposing
“consecutive” fines. We affirm.
FACTS
In September 2012, 13-year-old O.S. reported that appellant Nathan Charles
Robert Schwartz, her adult brother, had been repeatedly sexually abusing her since she
was about three years old. O.S. reported that Schwartz would touch her “over her
clothing and on her bare vagina, breasts and butt . . . using his hand,” penetrated her with
his hand, asked her to “touch his naked penis,” “brib[ed] her to do what he asked
sexually,” and took photographs and videos of her while she was either naked or wearing
only underwear. Schwartz’s computer was seized from his bedroom during a search of
his parents’ home. A search of the contents of the computer revealed several
photographs and videos of O.S. either naked or wearing only a pair of underwear. The
search of the computer further revealed numerous other pornographic images, some of
which were images of children. Schwartz was charged with three counts of first-degree
criminal sexual conduct, three counts of second-degree criminal sexual conduct, five
counts of use of a minor in a sexual performance or pornographic work, and 42 counts of
possession of a pornographic work.
Before trial, the state notified Schwartz that it intended to introduce evidence that
Schwartz (1) was previously adjudicated a juvenile delinquent; and (2) previously
sexually abused four juvenile female relatives, including O.S., another sister, E.S., and a
2 niece, B.N. The state asserted that this evidence demonstrated that Schwartz had a
common scheme or plan of sexually abusing juvenile female relatives in his home. The
district court determined that the evidence was admissible to show a common scheme or
plan and to rebut Schwartz’s defense that O.S. fabricated her allegations of sexual abuse.
Schwartz waived his right to a jury trial, and the charges were tried to the court in
a three-day trial. One of the witnesses called by the state was Investigator Dan Lang of
the Meeker County Sheriff’s Office. The district court permitted Lang to testify on
rebuttal, over defense counsel’s objection as to foundation, that juveniles who experience
sexual abuse commonly delay reporting the abuse for months or years. Following the
trial, the district court convicted Schwartz of three counts of second-degree criminal
sexual conduct, five counts of use of a minor in a sexual performance or pornographic
work, and 15 counts of possession of a pornographic work. Schwartz moved for a
judgment of acquittal or a new trial based on insufficient evidence and trial errors; his
motion was denied.
At sentencing, the district court imposed consecutive terms of imprisonment for
one conviction of second-degree criminal sexual conduct, one conviction of use of a
minor in a sexual performance or pornographic work, and one conviction of possession of
a pornographic work. No sentences were imposed for two convictions of second-degree
criminal sexual conduct, and terms of imprisonment for the remaining convictions were
imposed to run concurrently. The district also ordered Schwartz to pay $900 in fines.
3 DECISION
I.
Schwartz was convicted of 15 counts of possession of a pornographic work, in
violation of Minn. Stat. § 617.247, subd. 4(a) (2012). It is a felony for a person to
“possess[] a pornographic work or a computer disk or computer or other electronic,
magnetic, or optical storage system or a storage system of any other type, containing a
pornographic work, knowing or with reason to know its content and character.” Minn.
Stat. § 617.247, subd. 4(a) (emphasis added); see also Minn. Stat. § 617.246, subd. 1(f)
(2012) (defining “pornographic work” to include only depictions of sexual performance
or sexual conduct involving a minor). Schwartz argues that the evidence presented at
trial was insufficient to prove that he had the mens rea for these 15 offenses.
When evaluating a challenge to the sufficiency of the evidence, the same standard
of review is applied following a court trial as is applied following a jury trial. State v.
Palmer, 803 N.W.2d 727, 733 (Minn. 2011). Assessing the sufficiency of the evidence
involves “a painstaking review of the record to determine whether the evidence and
reasonable inferences drawn therefrom . . . were sufficient to allow the [fact-finder] to
reach its verdict.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted).
A guilty verdict will not be reversed if, “giving due regard to the presumption of
innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt,
the [fact-finder] could reasonably have found the defendant guilty of the charged
offense.” Id. (quotation omitted). The appellate court must “view the evidence in the
light most favorable to the verdict and assume that the fact finder believed the state’s
4 witnesses and disbelieved any contrary evidence.” Gulbertson v. State, 843 N.W.2d 240,
245 (Minn. 2014) (quotation omitted).
A defendant’s state of mind is “generally proved circumstantially--by drawing
inferences from the defendant’s words and actions in light of the totality of the
circumstances.” State v. Clark, 739 N.W.2d 412, 422 (Minn. 2007) (quotation omitted).
Heightened scrutiny is applied when the sufficiency of the circumstantial evidence
proving state of mind is challenged, even if the other elements of the offense were proved
through direct evidence. See State v. Al-Naseer, 788 N.W.2d 469, 474-75 (Minn. 2010).
The sufficiency of circumstantial evidence is reviewed using a two-step analysis. State v.
Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, the appellate court identifies the
circumstances proved by the evidence, “consider[ing] only those circumstances that are
consistent with the verdict.” Id. at 598-99 (stating that the fact-finder is in the best
position to evaluate the credibility of circumstantial evidence and that “we defer to the
[fact-finder’s] acceptance of the proof of these circumstances and rejection of evidence in
the record that conflict[s] with the circumstances proved” (quotations omitted)). Second,
the appellate court “determine[s] whether the circumstances proved are consistent with
guilt and inconsistent with any rational hypothesis except that of guilt.” Id. at 599
(quotations omitted) (stating that the reasonableness of all inferences is examined
independently, with no deference given to the fact-finder’s choice between reasonable
inferences). “Circumstantial evidence must form a complete chain that, in view of the
evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a
5 reasonable doubt any reasonable inference other than guilt.” State v. Pratt, 813 N.W.2d
868, 874 (Minn. 2012) (quotations omitted).
The mens rea requirement in section 617.247, subdivision 4(a), applies to the
defendant’s knowledge that he possessed a work and to the defendant’s knowledge that
the work was pornographic and involved a minor. State v. McCauley, 820 N.W.2d 577,
585-86 (Minn. App. 2012) (“We cannot logically separate this mens rea requirement for
the content and character of a work from the actual possession of the work. A person
cannot ‘have reason to know’ a work’s content or character unless he actually knows he
possesses the work. . . . [T]he statutory mens rea required for knowledge of a work’s
content and character logically applies to the actual possession of the work as well.”),
review denied (Minn. Oct. 24, 2012). The phrase “reason to know” as used in section
617.247, subdivision 4(a), means that “the possessor is subjectively aware of a
‘substantial and unjustifiable risk.’” State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007).
The circumstances consistent with the verdict that were proved by the evidence
presented at trial include that the works of pornography were discovered on Schwartz’s
computer, which was password protected. The computer was located in Schwartz’s
basement bedroom, which he did not share, and the door to the bedroom had a lock and
an alarm. Analysis of the computer revealed that internet searches were run for terms
such as “preteen” and “PTHC,” which is “a common acronym” for “pre-teen hardcore,”
and that websites associated with child pornography were visited. The pornographic
works were downloaded from the internet onto the computer and later “deleted,” but
could be recovered on the computer. Schwartz reformatted the computer’s hard drive in
6 August 2012 after he attempted to download an adult video, and this reformatting
“wipe[d] out all data on the hard drive” so that there was “absolutely nothing on the
drive.” The works of pornography discovered on the computer were downloaded after
this reformatting but before the computer was seized on September 6, 2012.
The district court found that Schwartz “knowingly possessed videos and still
photographic images of minor females that depict ‘sexual conduct’ . . . [and] constitut[e]
a pornographic work.” Schwartz argues that another reasonable inference is that he may
not have known that the pornographic works were downloaded onto his computer or that
the works involved minors. He first contends that the pornographic works could have
been downloaded unintentionally when legal adult content was accessed. Cf. State v.
Myrland, 681 N.W.2d 415, 420 (Minn. App. 2004) (determining that the evidence was
insufficient to prove that the defendant possessed pornographic works where testimony
indicated that there are a number of ways that images can come to be stored on a
computer), review denied (Minn. Aug. 25, 2004).
According to the trial testimony, more than 14,000 works of “questionable
contraband content” were discovered on Schwartz’s computer, and it could not be
determined whether the pornographic works were actually viewed. The trial testimony
indicated that it is “unlikely, but possible” for images to be unintentionally downloaded
onto a computer when an adult website is visited. But Schwartz’s theory is contradicted
by the evidence that searches for the terms preteen and PTHC had been run on the
computer.
7 Schwartz also suggests that O.S. may have accessed his computer and downloaded
the pornographic works. Cf. id. (determining that the evidence was insufficient to prove
that the defendant possessed pornographic works when many other people had access to
the computers at issue). But the computer was password protected and was located in
Schwartz’s bedroom, which had a door with a lock and an alarm. And the district court
noted that there was no credible evidence indicating that O.S. was knowledgeable about
computers or had technical skills. The only reasonable inference from the evidence is
that Schwartz knew or had reason to know that he possessed the works and that the works
were pornographic and involved minors.
II.
Schwartz argues that the district court abused its discretion by admitting
prejudicial Spreigl evidence. See State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015)
(explaining that evidence of other crimes, wrongs, or acts is commonly known as Spreigl
evidence and citing State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)). A district
court’s decision to admit Spreigl evidence is reviewed for an abuse of discretion. Id. To
be entitled to a new trial, the defendant must show that the district court erred by
admitting the evidence and that the error was prejudicial. State v. Rossberg, 851 N.W.2d
609, 615 (Minn. 2014).
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
8 Minn. R. Evid. 404(b). It is improper to use Spreigl evidence to suggest “that the
defendant has a propensity to commit the crime or that the defendant is a proper
candidate for punishment for his or her past acts.” State v. Fardan, 773 N.W.2d 303, 315
(Minn. 2009) (quotation omitted). Spreigl evidence may not be admitted in a criminal
prosecution unless
1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; 2) the prosecutor clearly indicates what the evidence will be offered to prove; 3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; 4) the evidence is relevant to the prosecutor’s case; and 5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.
Minn. R. Evid. 404(b). “If it is unclear whether the Spreigl evidence is admissible, the
benefit of the doubt should be given to the defendant and the evidence should be
excluded.” Campbell, 861 N.W.2d at 102.
Schwartz argues that the Spreigl evidence presented at trial was inadmissible
because it was irrelevant to the case and unduly prejudicial. Spreigl evidence may be
admitted “to show a common scheme or plan.” State v. Ness, 707 N.W.2d 676, 687
(Minn. 2006). This exception permits the admission of “evidence of offenses which,
because of their marked similarity in modus operandi to the charged offense, tend to
corroborate evidence of the latter.” Id. at 687-88 (quotation omitted).
The evidence may be used “to establish that the conduct on which the charged
offense was based actually occurred or to refute the defendant’s contention that the
victim’s testimony was a fabrication or a mistake in perception.” Id. at 688; see also
9 State v. Wermerskirchen, 497 N.W.2d 235, 241-42 (Minn. 1993) (explaining that Spreigl
evidence is admissible because it is not offered to show that the defendant is a bad person
and raise an inference that he acted in conformity with his bad character, but to show that
the conduct on which the charge is based actually occurred). The supreme court has
indicated that the common-scheme-or-plan exception is particularly relevant “in the
specific context of rape and sex abuse prosecutions, particularly child sex abuse
prosecutions.” Id. at 240-42 (discussing the admission of Spreigl evidence under this
exception in cases involving sex crimes).
The state introduced into evidence a transcript of a juvenile hearing where
Schwartz was adjudicated a juvenile delinquent.1 Schwartz also testified at trial that,
when he was thirteen and his sister E.S. was five or six, he asked her to put his penis in
her mouth, but that act did not occur.
The state also called witnesses at trial to testify about Schwartz’s niece B.N.’s
reports of sexual abuse by Schwartz. B.N. reported that, in 2009, Schwartz sexually
1 Schwartz contends that the transcript was inadmissible as Spreigl evidence because his juvenile conduct did not demonstrate a common scheme or plan. Schwartz did not argue in district court, and has not argued on appeal, that the transcript was inadmissible because it showed a juvenile adjudication. “The disposition of the child [in a juvenile court proceeding] or any evidence given by the child in the juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court . . . .” Minn. Stat. § 260B.245, subd. 1 (2012). But we conclude that the error in admitting evidence of Schwartz’s juvenile adjudication was harmless. See Rossberg, 851 N.W.2d at 615 (stating that an erroneous admission of Spreigl evidence is harmless unless the error substantially influenced the verdict). This case was tried to the district court, and the court found that O.S.’s testimony was “sufficient in itself” to prove Schwartz guilty of criminal sexual conduct even without Spreigl evidence. The court found that O.S.’s allegations against Schwartz were “credible and consistent,” and her allegations were corroborated by photographs and videos of O.S. discovered on Schwartz’s computer.
10 abused four juvenile female relatives, including O.S., E.S., and B.N., in his basement
bedroom. B.N. reported that Schwartz instructed the girls to take off their pants and
underwear, took off his own pants and underwear, had each girl sit on top of his genitalia,
and “used his penis and played with our vaginas.” B.N. also testified that Schwartz “used
his private area and was playing with mine” on another occasion when she was three
years old.
The district court determined that the Spreigl evidence was admissible to test
Schwartz’s defense that O.S. fabricated her allegations of sexual abuse and to show a
common scheme or plan of sexual misconduct “because of the ages, the relative
relationship, all female, occurring in Mr. Schwartz’s zone of privacy.”
The Spreigl evidence demonstrated a course of sexual abuse by Schwartz of
juvenile female relatives in his home through inappropriate touching and attempted
touching. This evidence bears “a marked similarity” to O.S.’s testimony that Schwartz
“used to touch me inappropriately” both over and under clothes “[o]n my private areas”
and “used to try to have sex with me.” O.S. testified that this conduct occurred in their
home, began when she was around three years old, and continued until Schwartz was
arrested. The events with E.S. and B.N. would have occurred approximately during this
same period. Cf. Wermerskirchen, 497 N.W.2d at 242 (concluding that Spreigl evidence
of other sexual misconduct by the defendant was admissible because it “served to
complete the picture of defendant, to put his current conduct in its proper and relevant
context” and “was highly relevant in that it showed an ongoing pattern of opportunistic
fondling of young girls within the family context and, therefore, tended to disprove the
11 defense that [the victim, defendant’s daughter,] was fabricating or imagining the
occurrence of sexual contact”).
Schwartz argues that the true purpose and effect of the Spreigl evidence was to
demonstrate bad character and a propensity for sexually abusing girls. The supreme court
has recognized that there is a fine line between using Spreigl evidence for these improper
and prejudicial purposes and a proper use of Spreigl evidence under the common-
scheme-or-plan exception. Ness, 707 N.W.2d at 687. But the supreme court has stated
that the admission of Spreigl evidence is less likely to be unfairly prejudicial if the case is
tried to a court rather than to a jury. See State v. Burrell, 772 N.W.2d 459, 467 (Minn.
2009) (“The risk of unfair prejudice to [the defendant] is reduced because there is
comparatively less risk that the district court judge, as compared to a jury of laypersons,
would use the evidence for an improper purpose or have his sense of reason overcome by
emotion. Indeed, excluding relevant evidence at a bench trial on the grounds of unfair
prejudice is in a sense ridiculous.” (quotation and citations omitted)). The district court
did not abuse its discretion by admitting the Spreigl evidence of Schwartz’s sexual
conduct with E.S. and B.N. to refute Schwartz’s defense that O.S. fabricated her
allegations of sexual abuse and to show a common scheme or plan of sexual misconduct.
III.
Schwartz argues that the district court abused its discretion by permitting
Investigator Lang to testify regarding delayed reporting by juvenile sexual-abuse victims.
Schwartz contends that Lang was not “qualified as an expert by knowledge, skill,
12 experience, training, or education” and that the testimony did not “assist the trier of fact
to understand the evidence or to determine a fact in issue.”
“If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” Minn. R. Evid. 702. “Rulings concerning the admission of
expert testimony generally rest within the sound discretion of the district court and will
not be reversed absent a clear abuse of discretion.” State v. Mosley, 853 N.W.2d 789,
798–99 (Minn. 2014); see also State v. Ferguson, 804 N.W.2d 586, 604 (Minn. 2011)
(stating that decisions about whether an expert is qualified to provide testimony and
whether the testimony will assist the fact-finder are within the district court’s discretion).
A. Qualification as an Expert
A witness who testifies as an expert must be “qualified as an expert by knowledge,
skill, experience, training, or education.” Minn. R. Evid. 702; see also Minn. R. Evid.
702 1977 comm. cmt. (“The qualifications of the expert need not stem from formal
training, and may include any knowledge, skill, or experience that would provide the
background necessary for a meaningful opinion on the subject.”). Lang testified that he
completed multiple training courses dealing with interviewing children and testifying as
an expert witness and that these courses included mock interviews, mock trials, and real
scenarios. He stated that his training included the topic of delayed reporting. He also
stated that he had worked in the area of juvenile sex crimes since August of 2009, had
13 worked on 85 cases of juvenile sex crime, and had conducted the child interviews in 30
cases.
Schwartz argues that Lang was not qualified to provide testimony that juveniles
who experience sexual abuse commonly delay reporting the abuse for months or years.
But he cites no authority for his argument that a witness who testifies about delayed
reporting must have worked on many more cases than Lang worked on or must have a
degree in psychology or social work. See State v. Carillo, 623 N.W.2d 922, 926 (Minn.
App. 2001) (“Minnesota appellate courts have permitted police officers to provide expert
testimony concerning subjects that fall within the ambit of their expertise in law
enforcement.”), review denied (Minn. June 19, 2001).
Although Schwartz correctly notes that the state did not “formally move[]” to
qualify Lang as an expert, he cites no authority for his claim that a motion is a
prerequisite for expert testimony. Cf. State v. McCoy, 631 N.W.2d 446, 453 (Minn. App.
2001) (affirming a district court’s reliance on an expert report on sex offenders “even
though the record lacks a formal statement by the [district] court that [the report’s author]
is an expert” (quotation marks omitted)). When Lang began to testify about delayed
reporting, defense counsel objected on the basis that the investigator had not been
qualified as an expert. Lang then testified about his training and experience on the topic,
and the district court overruled defense counsel’s objection and permitted the testimony.
The district court did not abuse its discretion by determining that Lang was qualified to
provide testimony on the topic of delayed reporting by juvenile sexual-abuse victims.
14 B. Assistance to the Fact-Finder
Expert testimony will not assist the fact-finder if “the subject of the testimony is
within the knowledge and experience of a [fact-finder] and the testimony of the expert
will not add precision or depth to the [fact-finder’s] ability to reach conclusions about the
subject which is within that experience.” Ferguson, 804 N.W.2d at 604 (quotation
omitted). The supreme court has recognized that expert testimony regarding behavioral
characteristics typically displayed by juvenile sexual-abuse victims, such as delayed
reporting, may be helpful to the fact-finder and is admissible in the discretion of the
district court. See, e.g., State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987) (stating that
“we hold that in cases where a sexual assault victim is an adolescent, expert testimony as
to the reporting conduct of such victims . . . is admissible in the proper exercise of
discretion by the [district] court”); State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984)
(stating that, in cases involving a sexually abused child, the fact-finder is “often faced
with determining the veracity of a young child who tells of a course of conduct carried on
over an ill-defined time frame and who appears an uncertain or ambivalent accuser and
who may even recant,” and thus “[b]ackground data providing a relevant insight into the
puzzling aspects of the child’s conduct and demeanor which the [fact-finder] could not
otherwise bring to its evaluation of her credibility is helpful and appropriate”).
Schwartz argues that Lang’s testimony was not helpful to the district court because
O.S. testified about why she delayed reporting the sexual abuse by Schwartz. O.S.
testified that she “didn’t tell anyone that [Schwartz] wrongfully touched [her]” because
she “was scared that he would hurt [her].” Because Schwartz claimed that O.S.
15 fabricated her story and O.S.’s testimony explaining why she delayed reporting could be
part of the fabrication, the expert testimony that O.S.’s behavior is common for juvenile
sexual-abuse victims was helpful in determining whether the abuse occurred. The district
court did not abuse its discretion by determining that Lang’s testimony on the topic of
delayed reporting by juvenile sexual-abuse victims assisted the court as the fact-finder.
IV.
The district court imposed three consecutive and 18 concurrent terms of
imprisonment and also ordered Schwartz to pay $900 in fines, consisting of a $50 fine for
each of nearly all of Schwartz’s convictions. The district court stated that “consecutive”
fines were being imposed. Schwartz argues that he should be required to pay $150 in
fines, consisting of a $50 fine for each of the counts for which the consecutive terms of
imprisonment were imposed. A sentence imposed by a district court is reviewed for an
abuse of discretion. State v. Myers, 627 N.W.2d 58, 61-62 (Minn. 2001).
We have found no authority that uses the terms “consecutive” or “concurrent” to
describe a fine. But our review of caselaw reveals that separate fines are regularly
required for separate convictions even when the terms of imprisonment for the
convictions are imposed to run concurrently. See, e.g., State v. Wallace, 558 N.W.2d
469, 472 (Minn. 1997); State v. O’Hagan, 474 N.W.2d 613, 623 (Minn. App. 1991),
review denied (Minn. Sept. 25, 1991); State v. Sargent, 355 N.W.2d 179, 180-81 (Minn.
App. 1984). The district court did not abuse its discretion by ordering Schwartz to pay
$900 in fines.
Affirmed.