                         This opinion will be unpublished and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
                                    A14-0104

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Damon Lamont Banks,
                                    Appellant.

                                Filed February 9, 2015
                                       Affirmed
                                    Larkin, Judge

                            Hennepin County District Court
                               File No. 27-CR-13-4787


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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Carson J. Heefner, Heefner Nelson Law, P.A., St. Paul, Minnesota (for appellant)


      Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and

Hudson, Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       The state charged appellant with two counts of first-degree criminal sexual

conduct based on allegations that he sexually assaulted two brothers. A jury found

appellant guilty of the offense against the younger brother and not guilty of the offense

against the older brother. Appellant challenges his conviction, arguing that the district

court erred by denying his motion to sever the offenses for trial and by denying his

motion to present evidence that the older brother sexually abused the younger brother.

He also argues that the evidence is insufficient to sustain his conviction. We affirm.

                                         FACTS

       In February 2013, K.Y. reported to the Plymouth Police Department that appellant

Damon Lamont Banks sexually assaulted her 14- and 10-year-old sons, M.Y. and G.C.

K.Y. stated that she had known Banks since July 2012 and that she allowed her children

to stay with Banks occasionally, so she “could get ‘a break.’” K.Y. reported that M.Y.

told her that Banks sexually assaulted M.Y. and G.C. while they stayed at Banks’s

residence in January 2013.

       Employees of CornerHouse, an independent organization that interviews children

in abuse cases, interviewed M.Y. and G.C. regarding the alleged sexual assault. M.Y.

told the interviewer that Banks anally penetrated him with his penis. M.Y. also stated

that Banks took him to Walmart, where Banks purchased condoms and a lubricant. M.Y.

stated that Banks used the condoms and a lubricant during the sexual assault and that




                                             2
Banks kept those items in a black bag in his bedroom. G.C. told the interviewer that

Banks kissed him on the lips and anally penetrated him more than once.

        Police officers executed a search warrant at Banks’s apartment. They found a

black bag with condoms and a lubricant in the location described by M.Y. They also

found a Walmart bag containing an unopened box of condoms. The state charged Banks

with two counts of first-degree criminal sexual conduct.         One count was based on

Banks’s alleged assault of M.Y., and the other count was based on his alleged assault of

G.C.

        Before trial, Banks learned that in April 2013, M.Y. had been charged as a

juvenile with first-degree criminal sexual conduct against G.C. Banks moved the district

court to allow evidence regarding M.Y.’s alleged sexual abuse of G.C. at his trial and to

sever the offenses for trial. The district court denied both motions.

        The state called several witnesses at Banks’s trial, including K.Y., M.Y., G.C., the

two CornerHouse employees who interviewed G.C. and M.Y., and a doctor who

examined the boys. Banks did not call any witnesses. The jury found Banks guilty of

sexually assaulting G.C. and not guilty of sexually assaulting M.Y. Banks appeals.

                                      DECISION

        Banks argues that the district court erred by denying his motions to sever the

offenses for trial and to admit evidence that M.Y. sexually abused G.C. He also argues

that the evidence is insufficient to sustain his conviction. We address each argument in

turn.




                                             3
                                             I.

       “When [a] defendant’s conduct constitutes more than one offense, each offense

may be charged in the same indictment or complaint in a separate count.” Minn. R.

Crim. P. 17.03, subd. 1. But a court “must sever offenses or charges if . . . [they] are not

related.” Minn. R. Crim. P. 17.03, subd. 3(1)(a). To determine whether offenses are

“related,” a court must determine whether the offenses “are part of a single behavioral

incident.” State v. Ross, 732 N.W.2d 274, 278 (Minn. 2007) (quotation omitted). That

determination depends on “a three-faceted inquiry, looking to the time and place of the

offenses and whether the segment of conduct involved was motivated by an effort to

obtain a single criminal objective.”     Id. (quotation and alterations omitted).     “The

determination of whether offenses arise from a single behavioral incident is dependent

upon the particular facts and circumstances of each case.” State v. Jackson, 615 N.W.2d

391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000). An appellate court

reviews a district court’s denial of a motion to sever offenses under rule 17.03 de novo.

State v. Kendell, 723 N.W.2d 597, 607 (Minn. 2006).1

       Banks acknowledges that the offenses against M.Y. and G.C. meet the “temporal

and geographic proximity” facets of the singular-behavioral-incident test, but he argues

1
  We recognize that the supreme court more recently wrote that the abuse-of-discretion
standard applies. Compare State v. Jackson, 770 N.W.2d 470, 485 (Minn. 2009) (“We
review a district court’s denial of a motion to sever for abuse of discretion.”) with
Kendell, 723 N.W.2d at 607 (“[W]e hold that de novo review is the appropriate standard
for reviewing a district court’s denial of a motion for severance of offenses under Minn.
R. Crim. P. 17.03.”). We follow Kendell because the supreme court expressly considered
and determined the applicable standard of review in that case, whereas in Jackson, the
supreme court relied on a case that predates Kendell, without acknowledging its later
express adoption of the de novo standard.

                                             4
that he was not motivated by a single criminal objective. He quotes State v. Profit for the

principle that “the existence of a common plan, alone, is simply insufficient to support

joinder.” 591 N.W.2d 451, 455, 460 (Minn. 1999) (holding that charges involving a May

1996 murder of one woman and an August 1996 sexual assault of another woman were

improperly joined for trial). In this case, the record shows more than a common plan; it

shows a single criminal objective. Banks misused his role as a trusted family friend to

obtain temporary care and custody of two minor brothers so he could sexually abuse

them. Once the boys were in his care, in his apartment, and behind his locked bedroom

door, he sexually abused each one of them, subjecting each boy to anal penetration.

       Banks’s misuse of his caretaking role to commit similar acts of sexual abuse

against a pair of siblings, in the same location, during the same timeframe supports a

determination that Banks’s behavior constitutes a single behavioral incident. Although

our determination is based on the particular facts of this case, it is also consistent with

caselaw holding that joinder was proper where a defendant committed similar crimes

against two different victims, in the same geographic area, during the same time frame.

See State v. Dukes, 544 N.W.2d 13, 15-17, 20 (Minn. 1996) (affirming denial of

severance motion where defendant was charged with murder, attempted murder, and

aggravated robbery after attempting to rob two different victims at gunpoint within a few

blocks and minutes of each other); State v. Dick, 638 N.W.2d 486, 489, 490-91 (Minn.

App. 2002) (affirming denial of severance motion where defendant was charged with

burglarizing two different cabins located approximately one-half mile from each other,

during the same early-morning time frame), review denied (Minn. Apr. 16, 2002); cf.


                                            5
State v. Blue, 600 N.W.2d 148, 148-49, 150 (Minn. App. 1999) (holding that joinder was

improper where defendant was accused of sexually assaulting two separate victims at the

same location, but the incidents occurred more than one month apart), review denied

(Minn. Sept. 28, 1999).

       Because Banks’s conduct constitutes a singular behavioral incident, the two

charged offenses are related and severance was not required under rule 17.03, subdivision

3(1)(a). See Kendell, 723 N.W.2d at 608 (concluding that offenses were part of a single

behavioral incident and therefore related). But that determination does not end our

analysis. Severance is also required if “appropriate to promote a fair determination of the

defendant’s guilt or innocence of each offense or charge.” Minn. R. Crim. P. 17.03,

subd. 3(1)(b). Accordingly, after a court determines that two offenses are related, it also

“must determine whether joinder would prejudice the defendant.” Kendell, 723 N.W.2d

at 607. We therefore consider whether joinder unfairly prejudiced Banks. See id. at 608

(considering whether joinder was unfairly prejudicial after determining that offenses were

related).

       “Joinder is not unfairly prejudicial if evidence of each offense would have been

admissible at a trial of the other offenses had the offenses been tried separately.” Id.

Because the purpose of an appeal regarding both joinder and Spreigl issues is to

determine whether the introduction of evidence of other crimes was prejudicial, a Spreigl

analysis “serves as a useful framework for evaluating the possible prejudicial effect of

improperly joining offenses.” Profit, 591 N.W.2d at 461. We therefore consider whether




                                            6
one of Banks’s offenses would have been admissible as Spreigl evidence at a separate

trial for the other offense.

       Five conditions must be met for Spreigl evidence to be admissible:

               (1) the state must give notice of its intent to admit the
               evidence; (2) the state must clearly indicate what the evidence
               will be offered to prove; (3) there must be clear and
               convincing evidence that the defendant participated in the
               prior act; (4) the evidence must be relevant and material to the
               state’s case; and (5) the probative value of the evidence must
               not be outweighed by its potential prejudice to the defendant.

Ross, 732 N.W.2d at 282 (quotation omitted). “For purposes of analyzing whether

prejudice resulted from improper joinder, [appellate courts] focus on the third, fourth, and

fifth conditions.” Id.

       Because Banks was convicted of the offense involving G.C., there is clear-and-

convincing evidence of his participation in that offense. See Jackson, 615 N.W.2d at 395

(“In light of these [guilty] verdicts, which require proof beyond a reasonable doubt, the

offenses were proven by clear and convincing evidence.”). But the inverse conclusion

does not result from Banks’s acquittal of the offense involving M.Y.              In Ross, the

supreme court concluded that the district court improperly joined four offenses. 732

N.W.2d at 280. In its Spreigl analysis to determine whether the improper joinder was

prejudicial, the supreme court stated that a “jury’s determination that a defendant is not

guilty of a particular crime does not preclude a subsequent determination that, at the time

of the trial, the defendant’s participation in underlying conduct related to the acquitted

offense was supported by clear and convincing evidence.” Id. at 281.




                                              7
       Following this approach, we consider whether, at the time of trial, there was clear-

and-convincing evidence that Banks sexually assaulted M.Y. Prior to trial, M.Y. reported

to his mother and a CornerHouse interviewer that Banks sexually assaulted him. He also

described the bag of condoms and lubricant that officers found in Banks’s bedroom,

along with a Walmart bag containing condoms. Those items corroborate M.Y.’s report

that he was with Banks at Walmart when Banks purchases similar items and that Banks

used such items during the sexual assault.      This evidence clearly and convincingly

showed that Banks sexually abused M.Y. See State v. Kennedy, 585 N.W.2d 385, 389

(Minn. 1998) (stating that Spreigl evidence meets the clear-and-convincing standard

“when the truth of the facts sought to be admitted is highly probable” (quotation

omitted)).

       We next consider whether evidence of each offense is relevant and material to the

state’s case regarding the other offense. Ross, 732 N.W.2d at 282. When determining

the relevance and materiality of Spreigl evidence, courts consider “the issues in the case,

the reasons and need for the evidence, and whether there is a sufficiently close

relationship between the charged offense and the Spreigl offense in time, place or modus

operandi.” Jackson, 615 N.W.2d at 395 (quotation omitted).

       Banks concedes that the timing of the offenses makes the offenses somewhat

relevant to one another, but he asserts that relevancy ends there.          He highlights

insignificant differences between the boys’ descriptions of Banks’s conduct.           For

example, unlike M.Y., G.C. did not testify that he was with Banks at Walmart when

Banks bought condoms, that Banks assaulted him outside his apartment, or that Banks


                                            8
showed him pornographic material.        But there are marked similarities between the

charged offenses: each sibling reported that Banks anally penetrated him while he was in

Banks’s care, in Banks’s bedroom, in January 2013. See State v. Ness, 707 N.W.2d 676,

688 (Minn. 2006) (“We take this opportunity to clarify that in determining whether a bad

act is admissible under the common scheme or plan exception, it must have a marked

similarity in modus operandi to the charged offense.”).

       Moreover, in criminal-sexual-conduct cases where the defendant denies that

sexual conduct occurred, as Banks did, evidence of other instances of sexual misconduct

is “highly relevant.” State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993). The

evidence “serve[s] to complete the picture of defendant, to put his current conduct in its

proper and relevant context, not to paint another picture or lead the jury to convict on the

basis of an irrelevancy.” Id. at 242-43. It is “relevant both to show that defendant did

what he was accused of doing and to show his intent.” Id. at 243. For those reasons,

evidence of each offense in this case is relevant and material to the state’s case regarding

the other offense. See Kennedy, 585 N.W.2d at 391 (“Spreigl evidence need not be

identical in every way to the charged crime, but must instead be sufficiently or

substantially similar to the charged offense—determined by time, place and modus

operandi.”).

       We last consider whether the probative value of the evidence is outweighed by its

potential for unfair prejudice. Ross, 732 N.W.2d at 282. The jury’s return of a not-guilty

verdict on the offense against M.Y. shows that it separately considered the offenses and

that the potential for unfair prejudice did not outweigh the probative value. See id. at 283


                                             9
n.7 (“[The defendant] was ultimately acquitted of [one of the joined offenses], indicating

that the jury weighed each charge separately and that the admission of evidence relating

to each of the . . . offenses did not result in prejudice to Ross.”).

       In sum, because the Spreigl factors favor admission of the evidence, evidence of

each offense would have been admissible at a trial of the other offense had the offenses

been tried separately. Joinder therefore was not unfairly prejudicial. See Kendell, 723

N.W.2d at 608.

                                               II.

       Minnesota’s rape-shield statute and Minnesota Rule of Evidence 412 generally

provide that, in a prosecution for acts of criminal sexual conduct, “evidence of the

victim’s previous sexual conduct shall not be admitted nor shall any reference to such

conduct be made in the presence of the jury.” Minn. Stat. § 609.347, subd. 3 (2012);

Minn. R. Evid. 412(1). But such evidence is admissible “in all cases in which admission

is constitutionally required by the defendant’s right to due process, his right to confront

his accusers, or his right to offer evidence in his own defense. State v. Benedict, 397

N.W.2d 337, 341 (Minn. 1986). Specifically, “a [district] court has discretion to admit

evidence tending to establish a source of knowledge of or familiarity with sexual matters

in circumstances where the jury otherwise would likely infer that the defendant was the

source of the knowledge.” Id.

       When deciding whether to admit evidence of a victim’s previous sexual conduct to

establish a source of knowledge, the district court must balance the probative value of the

evidence against its potential for unfair prejudice. Id. We review the district court’s


                                               10
ruling for an abuse of discretion. See id. (referring to a district court’s “discretion to

admit evidence tending to establish a source of knowledge”).           “A court abuses its

discretion when its decision is based on an erroneous view of the law or is against logic

and the facts in the record.” Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011).

       Banks moved to admit evidence that M.Y. sexually abused G.C. to show that G.C.

had an alternative source of sexual knowledge. In ruling on Banks’s motion, the district

court relied on rule 412, the rape-shield law, and Banks’s constitutional right to present

evidence regarding an alternative source of sexual knowledge.            The district court

considered Banks’s request on three occasions. The district court initially denied Banks’s

motion, concluding that the rape-shield law precluded the evidence. When Banks raised

the alternative-source-of-knowledge theory, the district court revised its ruling and said it

would allow the evidence “with certain limitations,” reasoning that Banks’s constitutional

right to present a complete defense and confront witnesses trumped the rape-shield law.

The district court said it would allow evidence regarding “any instance of inappropriate

sexual conduct that may have been committed against [G.C.] by [M.Y.] either before . . .

or contemporaneous with the allegations in the complaint to show his sexual knowledge.

Not after.” The district court explained, “I’m trying to balance . . . [Banks’s] need for the

testimony and . . . the privacy of the two victims.”

       On the morning of Banks’s trial, the prosecutor advised the district court that

M.Y.’s alleged abuse of G.C. may have occurred after Banks’s alleged offenses. The

district court therefore decided to conduct an in-camera review of the petition, police

report, and interview regarding M.Y.’s juvenile charge. Based on its review, the district


                                             11
court concluded that M.Y.’s alleged abuse of G.C. happened after Banks’s alleged

offenses and ruled that evidence regarding M.Y.’s alleged abuse was inadmissible.

Essentially, the district court reasoned that the evidence lacked probative value because

M.Y.’s alleged sexual abuse of G.C. could not establish G.C.’s source of sexual

knowledge regarding Banks’s alleged offense if M.Y.’s alleged abuse occurred after

Banks’s offense. See Benedict, 397 N.W.2d at 341 (upholding the district court’s ruling

on evidence of other sexual conduct “given the weak probative value of the evidence”).

      The documents available to the district court support that timeline. G.C.’s mother

reported Banks’s sexual assault of G.C. in February 2013. The district court noted that

the police reports regarding M.Y.’s alleged abuse of G.C. indicate that the abuse did not

occur until April. In addition, G.C. stated in his February CornerHouse interview that

nothing like what Banks did to him had happened to him before. Lastly, G.C. stated in

his April CornerHouse interview that M.Y. abused him “after [Banks].”

      Banks argues that because of “the seriousness of the allegations against [him], and

the resulting prison sentence under the [Minnesota Sentencing Guidelines],” he should

have been allowed to question G.C. about M.Y.’s alleged abuse. Banks argues that G.C.

might have testified that M.Y.’s alleged abuse occurred before the charged offenses. We

are not persuaded. The decision to admit evidence of a victim’s prior sexual conduct is

not determined by the potential penalty associated with a criminal charge. And Banks

acknowledges that M.Y.’s juvenile “file contained information that G.C. claimed [that

M.Y.] allegedly abused him after [Banks].”




                                             12
       In sum, the district court correctly applied the law and logically determined that

evidence regarding M.Y.’s alleged abuse of G.C. could not establish G.C.’s source of

sexual knowledge regarding Banks’s alleged sexual assault unless the alleged abuse

preceded Banks’s assault. Because there is no indication that M.Y. abused G.C. before

G.C. reported Banks’s assault, we discern no abuse of discretion in the district court’s

ruling. See Riley, 792 N.W.2d at 833.

                                           III.

       When considering a claim that the evidence is insufficient to support a conviction,

“this court thoroughly examines the record to determine whether the evidence, when

viewed in the light most favorable to the conviction, is sufficient to allow the jurors to

reach the verdict they did.” State v. Crockson, 854 N.W.2d 244, 247 (Minn. App. 2014),

review denied (Minn. Dec. 16, 2014). “We assume that the jury believed all of the state’s

witnesses and disbelieved any evidence to the contrary.” Id. (quotation omitted). “We

will not alter a 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.” Id. We “defer to the

fact-finder on determinations of credibility.” State v. Watkins, 650 N.W.2d 738, 741

(Minn. App. 2002). The “resolution of conflicting testimony is the exclusive function of

the jury[, which] has the opportunity to observe the demeanor of witnesses and weigh

their credibility.”    State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).           “Even

inconsistencies in the state’s case will not require a reversal of the jury verdict.” Id.

(quotation omitted).


                                           13
         Banks was convicted under Minn. Stat. § 609.342, subd. 1(a) (2012), which states

that a person is guilty of first-degree criminal sexual conduct if he engages in sexual

penetration with a victim under the age of 13 and the person is more than 36 months

older than the victim.2 G.C. was 11 years old at the time of trial. He testified that he

sometimes slept at Banks’s house and in Banks’s bed. The prosecutor asked G.C., “Now,

one of the times you were over at [Banks’s] house, did something happen to you that you

didn’t like very much?” G.C. responded, “Yeah.” G.C. described an incident that

occurred in Banks’s bedroom when the door was locked and he and Banks were in

Banks’s bed, unclothed. According to G.C.’s testimony, Banks put his penis “[k]ind of

all the way” into G.C.’s “butt.”     G.C. testified that he told M.Y. and the CornerHouse

interviewer about the incident.

         In a prosecution for criminal sexual conduct, the state is generally not required to

corroborate the victim’s testimony.      Minn. Stat. § 609.347, subd. 1 (2012). Banks

acknowledges that principle, but he asserts that because G.C. made inconsistent

statements regarding the sexual assault before and during trial, “his testimony [is] suspect

enough that corroboration was required.” Banks relies on State v. Ani, in which the

supreme court stated that “the absence of corroboration in an individual case may well

call for a holding that there is insufficient evidence upon which a jury could find the

defendant guilty beyond a reasonable doubt.”         257 N.W.2d 699, 700 (Minn. 1977)

(quotation and alterations omitted).



2
    There is no dispute that Banks is more than 36 months older than G.C.

                                              14
       Banks contends that G.C. made inconsistent statements regarding whether Banks

sexually assaulted him. Banks argues that G.C. admitted during cross-examination that

he “told his mother that he was not abused by [Banks].” Banks also argues that G.C. told

the CornerHouse interviewer “that he was sorry, and that [Banks] didn’t commit sexual

assault.” The transcripts indicate that G.C.’s exonerating statement to the CornerHouse

interviewer referred to Banks’s alleged assault of M.Y. and not to his assault of G.C.

Moreover, the CornerHouse interviewer provided testimony that could have explained

G.C.’s inconsistent statement to his mother to the jury’s satisfaction. The interviewer

testified that G.C. “mentioned several times feeling like he was at fault or like he was

responsible and had done something wrong and that he hadn’t gotten any messages from

anyone else that it wasn’t his fault.”

       Banks also contends that G.C. made inconsistent statements regarding whether he

was awake when the assault occurred and whether or not he felt it. But the record shows

that G.C.’s statements on these points were generally consistent. Essentially, G.C. said

that he was asleep when the assault began and that he woke up during the assault. He

also testified that the assault hurt. Even if G.C. made inconsistent statements regarding

the details of the assault, inconsistencies in the state’s case do not require a reversal. See

Lloyd, 345 N.W.2d at 245. The jury’s verdict indicates that it found G.C. credible, which

was its prerogative. See id.

       Banks also highlights the lack of physical evidence.          Banks argues that the

physician who examined G.C. testified that there were no signs of physical abuse and that

the investigators did not gather physical evidence from the crime scene in an attempt to


                                             15
obtain DNA evidence. However, the examining physician also testified that any injuries

resulting from the sexual assault could have healed during the time between the assault

and G.C.’s examination. As to the lack of DNA evidence, there is no requirement that

the state present such evidence.

       We note that several of the state’s witnesses corroborated G.C.’s testimony. M.Y.

and K.Y. testified that G.C. told them about the sexual assault. A forensic interviewer

with CornerHouse testified that G.C. told her that during a visit to Banks’s house, Banks

took off G.C.’s clothes, put his penis in G.C.’s “butt,” and “bounced up and down.” The

interviewer also testified that G.C. demonstrated the sexual assault using an anatomical

doll. The examining physician testified that G.C. told him that Banks anally penetrated

G.C. with his penis “several times” in January. To the extent that corroboration is

necessary, G.C.’s generally consistent description of the sexual assault provides adequate

corroboration. See State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984) (finding that

victim’s testimony was unnecessarily but effectively corroborated by her general,

consistent reports to others).

       In sum, we defer to the jury’s resolution of any conflicting evidence and to its

determination that G.C. was credible. And based on that deference, we conclude that 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 Banks

was guilty of the charged offense against G.C. We therefore do not alter the verdict.

       Affirmed.




                                            16
