                        This opinion will be unpublished and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
                                   A14-1869

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Brian Matthew Husnick,
                                     Appellant.

                              Filed September 8, 2015
                                     Affirmed
                                 Toussaint, Judge*

                            Ramsey County District Court
                              File No. 62-CR-13-9640

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and

Toussaint, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           UNPUBLISHED OPINION

TOUSSAINT, Judge

         Appellant Brian Matthew Husnick challenges his conviction of four counts of

attempted criminal sexual conduct, arguing that the circumstantial evidence introduced to

prove intent was insufficient to convict him under the heightened scrutiny test applied to

circumstantial evidence cases. We affirm because we conclude that the only reasonable

inference to be drawn from the circumstances proved is that appellant intended to commit

criminal sexual conduct.

                                      DECISION

         When reviewing the sufficiency of the evidence, we thoroughly review the record

to determine whether the trier of fact could have reasonably concluded that the defendant

was guilty beyond a reasonable doubt. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.

2010). The verdict will be upheld if the jury could have reasonably found the defendant

guilty, “giving due regard to the presumption of innocence and to the state’s burden of

proof beyond a reasonable doubt.” Id. (quotation omitted).

         Appellant asserts that there was insufficient evidence to convict him of any of the

charges against him. Appellant was convicted of two counts of attempted first-degree

and two counts of attempted second-degree criminal sexual conduct.1 “Whoever, with


1
    The statutes pursuant to which appellant was found guilty provide:

                Minn. Stat. § 609.342, subd. 1(c) (2012):
                “A person who engages in sexual penetration with another
                person [under] circumstances [that,] at the time of the act[,]
                cause the complainant to have a reasonable fear of imminent

                                              2
intent to commit a crime, does an act which is a substantial step toward, and more than

preparation for, the commission of the crime is guilty of an attempt to commit that

crime.” Minn. Stat. § 609.17, subd. 1 (2012). In order for appellant’s conviction to

stand, there must be sufficient proof beyond a reasonable doubt that appellant intended to

sexually penetrate and sexually contact E.C. and took a substantial step toward

committing those acts. Appellant asserts that there was insufficient evidence to show that

he had the intent to sexually penetrate or sexually contact E.C. and that there was

insufficient evidence to show that he had taken a substantial step toward committing

those acts.




              great bodily harm to the complainant or another” commits
              first-degree criminal sexual conduct.

              Minn. Stat. § 609.342, subd. 1(e)(i) (2012):
              “A person who engages in sexual penetration with another
              person [and] the actor causes personal injury to the
              complainant, and . . . the actor uses force or coercion to
              accomplish sexual penetration” commits first-degree criminal
              sexual conduct.

              Minn. Stat. § 609.343, subd. 1(c) (2012):
              “A person who engages in sexual contact with another person
              [under] circumstances [that,] at the time of the act[,] cause the
              complainant to have a reasonable fear of imminent great
              bodily harm to the complainant or another” commits second-
              degree criminal sexual conduct.

              Minn. Stat. § 609.343, subd. 1(e)(i) (2012):
              “A person who engages in sexual contact with another person
              [and] the actor causes personal injury to the complainant, and
              . . . the actor uses force or coercion to accomplish sexual
              contact” commits second-degree criminal sexual conduct.


                                             3
       A.     Intent

       “Because intent is a state of mind,” it is generally proved by circumstantial

evidence. State v. Essex, 838 N.W.2d 805, 809 (Minn. App. 2013), review denied (Minn.

Jan. 21, 2014); see also State v. Welch, 675 N.W.2d 615, 619 (Minn. 2004); State v.

Collins, 580 N.W.2d 36, 44 (Minn. App. 1998), review denied (Minn. July 16, 1998). “A

conviction based on circumstantial evidence warrants stricter scrutiny.” State v. Smith,

619 N.W.2d 766, 769 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). While

the law does not prefer direct evidence to circumstantial evidence, see 10 Minnesota

Practice, CRIMJIG 3.05 (2006), a conviction based on circumstantial evidence requires

that the circumstances proved be consistent with an appellant’s guilt and inconsistent

with any other rational or reasonable hypothesis, State v. Clark, 755 N.W.2d 241, 257

(Minn. 2008); see also State v. Tscheu, 758 N.W.2d 849, 857 (Minn. 2008) (emphasizing

that the state’s evidence need not exclude all inferences other than guilt but must exclude

“all reasonable inferences other than guilt”).

       To determine whether the circumstances proved are consistent with appellant’s

guilt and inconsistent with any other reasonable hypothesis, the court applies a two-step

analysis.   State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).        First, the court

determines the circumstances proved, giving due deference to the fact-finder and

construing the evidence in the light most favorable to the verdict. Id. at 598-99. Second,

the court determines whether the circumstances proved are consistent with guilt and

inconsistent with any other rational or reasonable hypothesis. Id. at 599; Tscheu, 758

N.W.2d at 857. This analysis requires that the court look at the circumstances proved not


                                             4
as isolated facts but rather as a “complete chain that, in view of the evidence as a whole,

leads so directly to the guilt of the defendant as to exclude . . . any reasonable inference

other than guilt.” Al-Naseer, 788 N.W.2d at 473. This analysis gives “no deference to

the fact finder’s choice between reasonable inferences.” Silvernail, 831 N.W.2d at 599

(quotation omitted).

       Criminal sexual conduct is a general intent crime. See State v. Wenthe, 865

N.W.2d 293, 302 (Minn. 2015) (“Generally, criminal sexual conduct offenses require

only an intent to sexually penetrate. . . .”). But to convict appellant of attempt, the state

had to prove that appellant had the specific intent to sexually penetrate or sexually contact

E.C. See Welch, 675 N.W.2d at 619. “Intent must be determined from all the objective

facts and circumstances, including the defendant’s conduct and/or statements at the time

of the act.” State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983). “The intent of the

actor . . . [is] the focal point for inquiry[,]” not the effect of the actor’s actions on the

victim. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (“While it is true that the

effect of the assault on the victim is frequently introduced at trial as evidence of the

defendant’s intent, it is not essential for a conviction under the statute.”).

       When viewed in the light most favorable to the verdict, the following

circumstances were proved at trial (and undisputed):

               Appellant sat across the aisle from E.C. on a bus for 10 to
                20 minutes, repeatedly looking at her legs.

               E.C. attempted to get appellant to stop looking at her legs,
                her attempts angered appellant, and he reacted
                conspicuously by exhaling loudly and hitting his hand
                against his leg.


                                               5
               When E.C. exited the bus, and after a brief pause,
                appellant followed E.C. off the bus.

               Appellant followed behind E.C. in the street, pretending to
                talk on the phone.

               When E.C. walked into an area with fewer people,
                appellant rushed her from behind, running after her.

               E.C. attempted to run away, dropping all of her
                belongings as she fled, but appellant was able to catch her
                and grab her from behind.

               E.C. offered appellant all of her belongings, and appellant
                commanded that she “shut up.”

               Appellant choked E.C., and E.C. could not breathe.

               E.C. struggled.

               Appellant dragged E.C. to a parked van, shielding E.C.
                and himself from public view.

               Appellant commanded that E.C. get on her knees and
                forcibly pushed her forward.

               E.C. fell to her knees.

               E.C. scratched appellant’s eye.

               Appellant fled.

       Appellant argues that these circumstances do not “establish beyond a reasonable

doubt that Appellant had the intent to commit . . . sexual assault[].” Appellant asserts that

“[a]lthough E.C. believed that Appellant was attempting to rape her, her fear . . . could

not, and did not, establish Appellant’s intent.” Appellant argues that an alternative




                                             6
reasonable inference that could be drawn from the evidence is that appellant intended to

physically assault E.C.

       We conclude that the evidence, when viewed not as isolated facts but rather as a

“complete chain [and] in view of the evidence as a whole” leads to only one reasonable

conclusion: appellant intended to sexually assault E.C. See Al-Naseer, 788 N.W.2d at

473. Sexual intent generally must be inferred from the nature of a defendant’s conduct or

actions. Appellant’s actions of staring at E.C.’s legs for 10 to 20 minutes and his

command for her to get down on her knees is consistent with the inference that he was

acting with sexual intent. Further, appellant did not take or demand any of E.C.’s

belongings, and he moved E.C. to a more secluded location.             These actions are

inconsistent with robbery or assault and, combined with the actions discussed above, lead

to the only plausible inference that appellant intended to sexually assault E.C. Any other

inference is irrational.

       Therefore, the record evidence presented by the state was sufficient for the jury to

conclude that appellant intended to sexually penetrate and sexually contact E.C.

       B.      Substantial Step

       Appellant also challenges his conviction claiming that he did not take a substantial

step toward the commission of attempted criminal sexual conduct.      Appellant took a

substantial step toward committing first- and second-degree criminal sexual conduct if he

took a substantial step toward: (1) causing E.C. personal injury; (2) causing E.C. to

reasonably fear imminent great bodily harm; and (3) using force or coercion. Minn. Stat.




                                            7
§§ 609.342, subds. 1(c), (e)(i); .343, subds. 1(c), (e)(i); see also Dale v. State, 535

N.W.2d 619, 623 (Minn. 1995).

      It is undisputed that appellant caused E.C. injury, both to her knees when he

pushed her to the ground and to her neck when he choked her; that E.C. reasonably feared

imminent great bodily harm; and that appellant used force, choking her to keep her quiet,

forcibly moving her behind the van, and pushing her to her knees. Thus, the evidence

supports a substantial step toward the offense of criminal sexual conduct.

      Affirmed.




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