State v. Barthman

917 N.W.2d 119
CourtCourt of Appeals of Minnesota
DecidedSeptember 10, 2018
DocketA17-1191
StatusPublished
Cited by1 cases

This text of 917 N.W.2d 119 (State v. Barthman) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barthman, 917 N.W.2d 119 (Mich. Ct. App. 2018).

Opinion

KIRK, Judge

In this direct appeal, appellant challenges his six convictions of first- and second-degree criminal sexual conduct (CSC) and his resultant aggravated sentences on two counts. Because the district court sentenced appellant to the statutory maximum on count one, we conclude that it unduly exaggerated appellant's criminal conduct to impose both a consecutive sentence and the statutory maximum on count two. Thus, we affirm in part, reverse in part, and remand for resentencing on count two.

FACTS

On December 15, 2015, then-12-year-old C.B., a developmentally and cognitively disabled girl, reported neglect and poor *124conditions at home to a school counselor. A few days later, she told a school social worker that her parents-appellant Brian Arthur Barthman and his wife-needed help. C.B. said that appellant needed help because he physically and sexually abused her. During a forensic interview, C.B. described multiple incidents of sexual contact and sexual penetration by appellant, and indicated that appellant touched her on her breasts and between her legs, and that he sexually penetrated her with his penis and with a sex toy-the "vibrator" incident. The incidents occurred at the family's home sometime between October 31, 2012, and December 18, 2015.

C.B. was removed from the home following the forensic interview. In a subsequent therapy session in January 2016, C.B. disclosed that her mother was present during some of appellant's sexual abuse and that her mother also had sexual contact with her. During a second forensic interview, C.B. described an incident in her parents' bedroom when both her mother and appellant had sexual contact with her genitals-the "all three in bed" incident. C.B. also described another incident in the living room when her mother was present and masturbated as she watched appellant sexually abuse C.B.-the "mom in rocker" incident.

Appellant was charged with multiple counts of CSC. Appellant's criminal complaint was amended twice to include six counts of first-degree CSC. The case was tried to a jury in March 2017. C.B. and her mother testified at the trial, as did school workers, counselors, social workers, law enforcement, and medical professionals who had worked with C.B. and the family.

After the state rested its case-in-chief, the state moved to amend the complaint for a third time to charge only three counts of first-degree CSC and three counts of second-degree CSC based on the facts elicited at trial. The district court granted the amendment without challenge. The jury found appellant guilty on all six counts. The state sought aggravated sentences, and the jury affirmatively answered five questions related to the aggravating-sentencing factors.

At the May 2017 sentencing hearing, the district court sentenced appellant to the statutory maximum sentence of 360 months (30 years) for first-degree CSC on count one, and to the statutory maximum sentence of 360 months (30 years) also for first-degree CSC on count two, to be served consecutively. Appellant asks this court to reverse his convictions or to remand for resentencing.

ISSUES

I. Was there sufficient evidence to convict appellant on count two?

II. Did appellant show prejudicial plain error warranting reversal on count two?

III. Did the district court plainly err in failing to provide the jury a sua sponte accomplice-corroboration instruction?

IV. Did the district court reversibly err in admitting appellant's possession of child pornography as Spreigl evidence?

V. Did the district court err in sentencing appellant on both counts one and two?

VI. Did the state give adequate notice of the grounds for seeking aggravated sentences?

VII. Is appellant's aggregate 720-month sentence excessive?

ANALYSIS

I. There was sufficient evidence to find appellant guilty on count two.

Appellant challenges the sufficiency of the evidence for his conviction of first-degree CSC on count two-the "vibrator"

*125incident. Our review of the sufficiency of the evidence is limited to a thorough analysis of the record to determine if 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).

Appellant argues that the state failed to prove sexual penetration or sexual contact to find him guilty on count two. Sexual penetration includes "any intrusion however slight into the genital or anal openings ... of the complainant's body by ... any object used by the actor for this purpose." Minn. Stat. § 609.341, subd. 12(2)(i) (2012).1

The record shows that in a February 2016 therapy session C.B. disclosed that appellant used a "toy" that "vibrated." C.B.'s therapist inferred that some of appellant's sexual abuse of C.B. involved a "dildo." At trial, C.B. testified that appellant put his penis inside of her more than one time. The prosecutor then asked, "Did dad put anything else inside of your private spot other than his penis?" After C.B. responded "yes," the prosecutor inquired, "What did he-what was the next thing that he used on your private spot?" C.B. testified that he used a "bad" or "wrong toy," which she called a "sex toy."

Appellant contends that the prosecutor's use of "on" suggests that appellant put the vibrator "on" her vagina and not inside of it. But when the prosecutor's entire line of questioning is read in context, it shows that the prosecutor was asking about what else appellant put "inside" of C.B. other than his penis, and C.B. responded, a "sex toy." Viewing the evidence in the light most favorable to the verdict, there was sufficient evidence for the jury to reasonably find that appellant sexually penetrated C.B. with a vibrator.

II. Appellant failed to show error warranting reversal on count two.

On appeal, appellant raises several alternative challenges to count two that he did not raise below. Generally, appellate courts do not consider issues not argued to or considered by the district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996). However, we may consider the issue if an appellant shows "(1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen , 648 N.W.2d 681, 686 (Minn. 2002) (citing State v. Griller , 583 N.W.2d 736

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Bluebook (online)
917 N.W.2d 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barthman-minnctapp-2018.