                          This opinion will be unpublished and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
                                     A14-1851

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Charles Arthur Bell,
                                       Appellant.

                                Filed November 23, 2015
                                       Affirmed
                                      Kirk, Judge

                             Washington County District Court
                                 File No. 82-CR-13-198


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

Peter J. Orput, Washington County Attorney, Peter S. Johnson, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Mark F. Novak, Novak Law Office, Fridley, Minnesota (for appellant)


         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

KIRK, Judge

         On appeal from his conviction of first-degree criminal sexual conduct, appellant

argues that (1) the evidence is insufficient to sustain his conviction; and (2) the district
court abused its discretion by denying his motion for a downward dispositional departure

and imposing the presumptive sentence. We affirm.

                                          FACTS

       In September 2012, 20-year-old A.A.K. informed her mother that her step-

grandfather, appellant Charles Arthur Bell, sexually molested her approximately 11 to 14

years ago. The next day, A.A.K. reported the incident to the police. In January 2013,

appellant was charged with first-degree criminal sexual conduct. The district court held a

jury trial in May 2014.

       During the trial, A.A.K. testified that the incident occurred when she was visiting

her grandmother and appellant at their house in Afton. A.A.K. and her brother were

playing video games while appellant was sitting at an office desk near them. Appellant

asked A.A.K. to come over and sit on his lap. When she did, he pushed her under the

desk and proceeded to put his hand underneath her pajamas. He touched her breast and

shoved his fingers in her vagina. He then exposed his penis and rubbed her hand on it

until he ejaculated.

       A.A.K. also testified that, after she reported the incident to the police, she

confronted appellant about the incident in a text message. In response, appellant texted “I

am truly sorry for many of my past transgressions. My younger years were filled with

things I can’t take back and should not have happened[,] and will affect many lives for

years to come. I can only hope that the good I’ve done will somehow outweigh the bad.”

       A sheriff’s deputy, a detective, and A.A.K.’s mother testified to what A.A.K. had

reported to them.      Appellant also testified.   Appellant denied that he had sexually


                                              2
molested A.A.K. and claimed that it would have been physically impossible for the

incident to occur as A.A.K. described due to his obesity. Further, he claimed that the part

of the house that A.A.K. described the incident occurring in was under construction

during the time period of the alleged offense.

       The jury found appellant guilty of first-degree criminal sexual conduct. Following

a sentencing hearing, the district court sentenced appellant to a presumptive executed

sentence of 81 months in prison.

                                     DECISION

I.     The evidence in the record is sufficient for the jury to have reasonably
       concluded that appellant committed first-degree criminal sexual conduct.

       When presented with a claim of insufficient evidence, this court’s review is

limited to a careful analysis of the record to determine whether the evidence presented at

trial, viewed in a light most favorable to the conviction, is sufficient to allow the jury to

reach the verdict that it did. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). This

court will not disturb the verdict if the jury, “acting with due regard for the presumption

of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt,

could reasonably conclude that [the appellant] was proven guilty of the offense charged.”

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

       To convict appellant of first-degree criminal sexual conduct, the state had to prove

beyond a reasonable doubt that he sexually penetrated A.A.K. when A.A.K. was younger

than 13 years old and appellant was more than 36 months older.             See Minn. Stat.

§ 609.342, subd. 1(a) (2002). Appellant admits that A.A.K.’s testimony satisfied the



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elements of the charged offense. However, he contends that A.A.K.’s claims were

uncorroborated and unreliable.

       “[A] conviction can rest on the uncorroborated testimony of a single credible

witness.” State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004) (quotation omitted); see

also Minn. Stat. § 609.347, subd. 1 (2014). The determination of whether a witness is

reliable is a matter for the factfinder. See State v. White, 357 N.W.2d 388, 390 (Minn.

App. 1984) (“[T]he factfinder must choose between conflicting factual accounts and

determine the credibility, reliability, and weight given to witnesses’ testimony.”).

Accordingly, we defer to the jury’s credibility determinations, State v. Watkins, 650

N.W.2d 738, 741 (Minn. App. 2002), and assume that “the jury believed the state’s

witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d

101, 108 (Minn. 1989).

       Appellant acknowledges that a conviction can rest on the testimony of a single

credible witness and the deference owed to the jury’s credibility determinations, but he

argues that the Minnesota Supreme Court has reversed convictions where a witness’s

testimony was of dubious credibility and unsupported by other evidence. In support of

his argument, appellant cites to three supreme court cases in which convictions were

reversed “because each involved additional reasons to question the victim’s credibility.”

Foreman, 680 N.W.2d at 539. We conclude that all three cases are distinguishable from

this case.

       The first case, State v. Huss, involved the testimony of a three-year-old alleged

sexual-abuse victim who provided the state’s only direct evidence. 506 N.W.2d 290, 292


                                           4
(Minn. 1993). The supreme court summarized the child’s testimony as “contradictory as

to whether any abuse occurred at all, and . . . inconsistent with her prior statements and

other verifiable facts.” Id. The court also stated that the “repetitious use” of a therapy

book and its audio tape “may have caused the child to imagine the abuse,” a theory

supported by a licensed psychologist who testified as a defense expert at the trial. Id. at

293. The court concluded that, “on these unusual facts, . . . the state did not meet its

burden of proof beyond a reasonable doubt and that the conviction should be reversed.”

Id.

       In the second case, State v. Langteau, only the defendant and the alleged victim

“gave significant evidence at the trial.” 268 N.W.2d 76, 77 (Minn. 1978). The supreme

court noted that the victim’s actions were “unexplained,” the reasons why the defendant

would have committed the crime were “left a mystery,” and that “nothing was discovered

to link [the defendant] with the crime.”          Id.   The court held that under these

circumstances, the interests of justice required a new trial. Id.

       Lastly, State v. Gluff involved the trustworthiness of a witness’s lineup

identification of the defendant. 285 Minn. 148, 151, 172 N.W.2d 63, 65 (1969). The

supreme court noted that the witness saw the perpetrator for only 30 seconds before “he

leveled a revolver at her” and that her description to police was “wholly at variance” with

her later identification of the defendant. Id. The court stated that the witness’s testimony

about her identification “clearly lacked probative value” because of flaws with the lineup

procedure. Id. And it concluded that because the identification was not corroborated and

the victim had a “limited opportunity to observe the robber,” the trustworthiness of the


                                              5
witness’s identification of defendant was “permeated with doubt.” Id. The court held

that a new trial in the interest of justice was required. Id. at 153, 172 N.W.2d at 66.

       Here, A.A.K., the victim-witness, who was 22 years old at the time of the trial,

consistently testified during direct and cross-examination that appellant put his hand

underneath her pajamas, touched her vagina, and shoved his fingers inside of her. She

did not have to identify appellant from a lineup because appellant is her step-grandfather

and they had spent hours together before the incident. The testimony of law-enforcement

officers regarding what A.A.K. had reported to them was generally consistent with

A.A.K.’s trial testimony. Moreover, when confronted by A.A.K. in a text message,

appellant apologized for his “past transgressions.”

       Nonetheless, appellant argues A.A.K.’s accusations against him changed in

significant ways each time that she was asked to tell her version of events. For example,

he argues in A.A.K.’s statement to the police, she claimed that during the incident she

was startled by a noise. However, A.A.K. never told the police that her brother came up

to appellant looking for her, as she testified to at trial. He also argues that in another

statement to the police, A.A.K. claimed that she told appellant during the incident that

she wanted to go downstairs. However, A.A.K. later contradicted herself when she stated

that she asked to go to the bathroom during the alleged incident, not to go downstairs.

       But appellant’s attorney cross-examined the state’s witnesses about all these

apparent inconsistencies and highlighted these issues in his closing argument. Further,

when confronted with these issues on cross-examination, A.A.K. was able to provide

reasonable explanations.    A.A.K. testified that the noise that she referred to in her


                                              6
statement to police was her brother getting up and approaching appellant. A.A.K. also

testified that the bathroom was downstairs. The jury’s verdict reflects its rejection of

appellant’s arguments in favor of the state’s witnesses and evidence. Because the jury,

acting with due regard for the presumption of innocence and for the necessity of

overcoming it by proof beyond a reasonable doubt, could reasonably conclude that

appellant was guilty of first-degree criminal sexual assault, the verdict should not be

disturbed.

II.   The district court did not abuse its discretion in imposing the presumptive
      sentence.

      The district court executes the presumptive sentence provided in the sentencing

guidelines unless the case involves “substantial and compelling circumstances” to

warrant a departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent.

Guidelines 2.D.1 (2012). Appellate courts “afford the [district] court great discretion in

the imposition of sentences and reverse sentencing decisions only for an abuse of that

discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted).

“[A]s long as the record shows the sentencing court carefully evaluated all the testimony

and information presented before making a determination,” this court will not interfere

with the district court’s exercise of discretion. State v. Pegel, 795 N.W.2d 251, 255

(Minn. App. 2011) (quotation omitted).

      Substantial and compelling circumstances are those that make a case atypical.

Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003).            A defendant’s “particular

amenability to individualized treatment in a probationary setting” will support a

dispositional departure. Soto, 855 N.W.2d at 308 (quoting State v. Trog, 323 N.W.2d 28,

                                            7
31 (Minn. 1982)). Trog outlines the factors that may justify a dispositional departure, and

states that “the defendant’s age, his prior record, his remorse, his cooperation, his attitude

while in court, and the support of friends and/or family, are relevant to a determination

whether a defendant is particularly suitable to individualized treatment in a probationary

setting.” 323 N.W.2d at 31. But the presence of one or more of the factors identified in

Trog does not require that a district court depart from the guidelines. State v. Wall, 343

N.W.2d 22, 25 (Minn. 1984); see also State v. Bertsch, 707 N.W.2d 660, 668 (Minn.

2006) (stating that “we will not ordinarily interfere with a sentence falling within the

presumptive sentence range, either dispositionally or durationally, even if there are

grounds that would justify departure” (quotation omitted) (alteration in original)).

       Appellant argues that the district court abused its discretion by disregarding the

substantial and compelling reasons for a downward dispositional departure, including

evidence regarding his age, lack of a criminal history, feelings of remorse, cooperation,

attitude while in court, and the support that he receives from family and friends.

However, the record reflects that after reviewing the pre-sentence investigation report,

sentencing worksheet, A.A.K.’s victim statement, and the arguments from both

appellant’s counsel and the prosecutor, the district court considered and ultimately

rejected appellant’s arguments. Because the district court carefully evaluated all of the

testimony and information presented before making its determination, we conclude the

court did not abuse its discretion by denying appellant’s motion for a downward

dispositional departure.

       Affirmed.


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