                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0127

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                 James Roland Bain,
                                     Appellant.

                               Filed January 17, 2017
                                      Affirmed
                                  Halbrooks, Judge

                           Otter Tail County District Court
                               File No. 56-CR-15-1168

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

David J. Hauser, Otter Tail County Attorney, Kurt A. Mortenson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Mark D. Nyvold,
Special Assistant Public Defender, Fridley, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Kirk, Judge.

                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges his fifth-degree criminal-sexual-conduct conviction under

Minn. Stat. § 609.3451, subd. 1(1) (2014), arguing that (1) the district court erred by
failing to define “intimate parts” in the jury instruction outlining the elements of the

crime and (2) there is insufficient evidence for the jury to convict him. We affirm.

                                           FACTS

       In April 2015, 26-year-old J.B. intended to spend Easter weekend with her father,

appellant James Roland Bain, and his girlfriend. J.B. and Bain were alone one afternoon,

watching TV in Bain’s house, when they started talking about the fact that J.B. was not

involved in a relationship. Bain told J.B. that fathers are supposed to teach their children

about sexual relationships. Bain approached J.B., who was sitting at the corner the

couch, and sat beside her with his weight on top of her feet so that she could not move.

Bain then rubbed J.B.’s thigh, used his thumb to stimulate J.B.’s vaginal area through her

jeans, and put his hand on J.B.’s breast. J.B. felt shocked and uncomfortable. After

Bain’s girlfriend returned, J.B. made up an excuse and left Bain’s house earlier than she

had originally planned. On her way home, J.B., crying, called her mother and told her

what happened. She also called her roommate. The following day, J.B. reported the

incident to Otter Tail County Human Services.

       At trial, after the parties rested, the district court instructed the jury that the state

had to prove that Bain had intentional contact with J.B.’s intimate parts but did not define

the term “intimate parts.” Bain did not object to the instructions. The jury found Bain

guilty of fifth-degree criminal sexual conduct. This appeal follows.




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                                      DECISION

                                              I.

       Although Bain did not object at trial to the jury instruction, he now contends that

the district court erred when it did not include a definition of “intimate parts” in the

instruction. A district court has “considerable latitude” in the selection of language for

jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011). Jury instructions

must be viewed “in their entirety to determine whether they fairly and adequately explain

the law.” Id. “If the jury instructions correctly state the law in language that can be

understood by the jury, there is no reversible error.” State v. Rucker, 752 N.W.2d 538,

546 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008).

       A party generally forfeits his right to appeal a jury instruction if he fails to object

to the instruction before it is given to the jury. State v. Crowsbreast, 629 N.W.2d 433,

437 (Minn. 2001). But “a failure to object will not cause an appeal to fail if the [jury]

instructions contain plain error affecting substantial rights or an error of fundamental

law.” State v. White, 684 N.W.2d 500, 508 (Minn. 2004). The plain-error test requires

that we determine “whether the jury instructions contained an (1) error (2) that was plain

and (3) that affected the defendant’s substantial rights.” State v. Milton, 821 N.W.2d 789,

805 (Minn. 2012). “An error is plain if it is clear and obvious at the time of appeal.”

State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).

       The instruction that the district court gave, in part, provided: “First element, the

defendant intentionally touched [J.B.]’s intimate parts or the clothing over the immediate

area of [J.B.]’s intimate parts.” We note that the instruction given by the district court


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followed the jury-instruction guide. 10 Minnesota Practice, CRIMJIG 12.52 (2015)

(recommending, for the first element of fifth-degree criminal sexual conduct, “First, the

defendant intentionally touched [the victim]’s intimate parts or the clothing over the

immediate area of [the victim]’s intimate parts . . . .”). Following the jury-instruction

guide does not necessarily insulate an instruction from being plain error.         State v.

Gunderson, 812 N.W.2d 156, 162 (Minn. App. 2012). “When the plain language of the

statute conflicts with the CRIMJIG, the district court is expected to depart from the

CRIMJIG and properly instruct the jury regarding the elements of the crime.” Id. In this

case, there is no conflict between the statute and the CRIMJIG. Under the statute, fifth-

degree criminal sexual conduct occurs when a “person engages in nonconsensual sexual

contact.” Minn. Stat. § 609.3451, subd. 1(1). “Sexual contact” includes “the intentional

touching by the actor of the complainant’s intimate parts” and “the touching of the

clothing covering the immediate area of the intimate parts.” Minn. Stat. § 609.341, subd.

11(a)(i), (iv) (2014).

       The question, then, is whether “intimate parts” is a term within the ordinary

understanding of a juror. District courts do not need to define terms that are common

words or within the ordinary understanding of a juror. State v. Heinzer, 347 N.W.2d 535,

537 (Minn. App. 1984) (holding the jury instructions did not need to define the term

“resist” because it was a common word), review denied (Minn. July 26, 1984).

“‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttocks, or breast

of a human being.” Minn. Stat. § 609.341, subd. 5 (2014). We conclude that “intimate

parts” is a term within the ordinary understanding of a juror. The average juror would


                                             4
naturally associate “intimate parts” with private areas of the body associated with sexual

activity.

       Because we conclude that “intimate parts” is a common term that the jury could

understand, the district court did not err by not including a definition of the term in the

instruction involving the elements of the crime. We therefore do not address the other

prongs of the plain-error analysis.

                                              II.

       Bain argues that there is insufficient evidence to convict him of fifth-degree

criminal sexual conduct because J.B.’s testimony about the sexual contact was too vague.

In considering a claim of insufficient 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, is sufficient to allow the jury to reach the verdict it

did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will not disturb the

verdict if the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-

77 (Minn. 2004). In reviewing the conviction, this court must 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).

       J.B. testified at trial as follows:

                    But we were sitting on the couch; and he started, like,
              rubbing my thigh and using his thumb to, like, stimulate my
              vagina through my jeans and grabbing my boobs and stuff


                                              5
              and, like, just        made     me    super    awkward     and
              uncomfortable. . . .

                     ....

                      And then he had started, like, rubbing my thigh. And
              then I was sitting with my legs tight together and my feet up
              on the couch; and he had, like, pushed his hand down in
              between my thighs to, like, rub my crotch through my jeans
              and was, like, grabbing my boob with his other hand and, like,
              telling me that dads teach their daughters how to have sex and
              how to have, like, romantic relationships . . . .

       Bain argues that this evidence is insufficient to convict him because J.B.’s

testimony does not explicitly state that Bain rubbed J.B.’s vaginal area through her jeans

and because placing his hand on her thigh did not constitute contact with an intimate part.

Therefore, Bain argues, J.B.’s testimony did not sufficiently establish an intentional

touching of an intimate part. We disagree. J.B.’s testimony provided sufficient evidence

for the jury to conclude that Bain intentionally rubbed the clothing over J.B.’s inner

thighs and vaginal area and touched her breast.         Because a reasonable jury could

conclude that Bain was guilty of fifth-degree criminal sexual conduct based on this

testimony, the evidence is sufficient to support the conviction.

       Affirmed.




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