                          This opinion will be unpublished and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
                                     A15-0834

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Eric James Rutherford,
                                         Appellant.

                                   Filed April 18, 2016
                                        Affirmed
                                       Reilly, Judge

                               Dakota County District Court
                               File No. 19HA-CR-14-1265

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

James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

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

argues that the district court erred by permitting the state to amend the complaint to add
this offense, after both parties had rested, because the amendment charged an additional

and different offense than the third-degree criminal sexual conduct offense charged in the

original complaint. Because fifth-degree criminal sexual conduct is a lesser-included

offense of third-degree criminal sexual conduct, we affirm.

                                           FACTS

       Appellant Eric Rutherford met M.T. on Facebook and arranged to meet her because

he claimed he wanted to photograph M.T. to make her a model. Ultimately, M.T. went to

appellant’s residence for a photoshoot. Appellant photographed M.T. for several hours and

offered her food, alcohol, and water. M.T. accepted a glass of water and took a few sips

before she noticed a “pinkish reddish orangeish” substance in the glass. She stopped

drinking and felt dizzy and lightheaded.

       At one point in the evening M.T. posed lying down on a bed. Appellant sat next to

her and put his hand inside her “vagina area.” She told him not to touch her, but he

persisted. She then told him she would mace him and kick him in the “nuts” if he continued

to touch her. Shortly thereafter, appellant’s cousin arrived at the residence and appellant

left the room to talk to him. While appellant talked with his cousin, M.T. went to the

bathroom to change clothes and texted her father. M.T. told her father she was ready to

return home and that appellant had touched her inappropriately.

       While M.T. changed her clothes and texted her father, appellant entered the

bathroom and again penetrated M.T.’s vagina with his fingers. M.T. got dressed, gathered

her things, threatened appellant with mace, and ordered him to take her home. Appellant

spoke on the phone with M.T.’s father, and then drove M.T. home.


                                             2
       M.T. reported the incident to the Burnsville police department via telephone the

following morning, and went to the police station the day after. The police conducted an

investigation and appellant was subsequently charged with a single count of criminal

sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c) (2014).

Before trial, appellant filed a motion to dismiss for lack of probable cause. He argued there

was no evidence he “used force or coercion to accomplish the acts alleged by [M.T.].” The

district court denied the motion.

       On the third day of trial, the state moved the court “to instruct on the lesser included”

offense of fifth-degree criminal sexual conduct. The district court asked the state to provide

a citation for “what it should say as a count in the complaint[,]” but did not rule on the

motion. At the end of the third day of trial, the state asked the court if it could “take up the

amendment in the morning or . . . the lesser included in the morning.”

       The state rested at the beginning of the fourth day of trial. Defense counsel called

a single witness, and, following the witness’s testimony, made a motion to dismiss the “sole

count of the complaint.” The court then sought clarification and asked, “[t]here’s only one

count at this point?” After hearing arguments, the court denied the motion, but after a

lengthy explanation stated that it was “a very, very close call with whether there was force

or coercion.”

       Appellant waived his right to testify and did not call any further witnesses. The

state then inquired, “Judge, are you inclined to do a lesser included or not?” The court

responded, “I have started to work on my instruction so we can talk about it in five

minutes.” The court did not rule on the motion on the record. However, it instructed the


                                               3
jury that, “the [state] has filed a complaint charging the Defendant with two counts in the

complaint,” and went on to instruct the jury on the elements of third-degree and fifth-degree

criminal sexual conduct.

         Appellant’s closing argument primarily consisted of trying to discredit M.T. It

concluded with “[appellant] committed no crime in this case, not three times in the

bathroom, not two times in the bedroom and one time in the bathroom, not at all.” The

jury found appellant guilty on the fifth-degree count, and not guilty on the third-degree

count.

         At sentencing, appellant readdressed the issue of the addition of the lesser-included

offense. Appellant noted the state did not make a formal motion to add the instruction on

fifth-degree criminal sexual conduct, and made a record of his continued objection. The

district court determined that appellant was not prejudiced by the instruction because fifth-

degree criminal sexual conduct is a lesser-included offense of third-degree criminal sexual

conduct.

                                       DECISION

                                               I.

         Appellant argues the district court erred when it instructed the jury on fifth-degree

criminal sexual conduct because the jury instruction was an impermissible amendment of

the complaint under Minnesota Rule of Criminal Procedure 17.05. We review a district

court’s determination under rule 17.05 for abuse of discretion. Gerdes v. State, 319

N.W.2d 710, 712 (Minn. 1982). Rule 17.05 provides “[t]he court may permit an indictment




                                               4
or complaint to be amended at any time before verdict or finding if no additional or

different offense is charged and if the defendant’s substantial rights are not prejudiced.”

       Appellant argues that under rule 17.05 whether the added offense constitutes an

“additional or different offense” requires a different analysis than whether an offense is a

lesser-included offense of the charged offense. However, this assertion is not supported

by our caselaw on lesser-included offenses. In State v. Lory, appellant argued that the jury

instruction was an impermissible amendment of an indictment under rule 17.05 because

felony murder was a different offense than second-degree intentional murder (the crime

with which he was initially charged). 559 N.W.2d 425, 427-28 (Minn. App. 1997), review

denied (Minn. Apr. 15, 1997). We analyzed whether an “additional or different offense”

was charged by determining whether the jury instruction given was for a lesser-included

offense. Id. at 428. We determined rule 17.05 was satisfied because the amendment was

a lesser included offense of the crime charged. Id.

       A lesser included offense is “[a] crime necessarily proved if the crime charged were

proved.” Minn. Stat. § 609.04, subd. 1(4) (2014). Fifth-degree criminal sexual conduct is

a lesser-included offense of third-degree criminal sexual conduct. In order to convict

appellant of third-degree criminal sexual conduct the state needed to prove appellant

engaged in nonconsensual sexual penetration and used force or coercion. Minn. Stat.

§ 609.344, subd. 1(c). Fifth-degree criminal sexual conduct requires that the state prove

the defendant engaged in nonconsensual sexual contact. Minn. Stat. § 609.3451, subd. 1(1)

(2014). Sexual contact is the intentional touching of the complainant’s intimate parts or

the clothing over the intimate parts. Minn. Stat. § 609.341, subd. 11(a)(i) and (iv) (2014).


                                              5
Because contact precedes and is incidental to penetration, if third-degree criminal sexual

conduct is proved, fifth-degree criminal sexual conduct also is necessarily proved, making

it a lesser-included offense of the offense charged. See State v. Kobow, 466 N.W.2d 747,

752 (Minn. App. 1991) (determining second- and fourth-degree criminal sexual conduct

were lesser-included offenses of first-degree criminal sexual conduct because the

difference was “simply one of sexual contact versus sexual penetration.”), review denied

(Minn. Apr. 18, 1991). Because the constructive amendment to the complaint added a

lesser-included offense of the charged offense, it was not an “additional or different”

offense under the first prong of rule 17.05.

       Appellant argues that even if fifth-degree criminal sexual conduct is not a “different

offense” charged, we must independently consider whether he was prejudiced under a rule

17.05 analysis.1 However, the Minnesota Supreme Court has long held that “[u]pon careful

review of Rule 17.05, . . . in order to prejudice the substantial rights of the defendant, it

must be shown that the amendment either added or charged a different offense.” Gerdes,

319 N.W.2d at 712; see also State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (quoting

the above quoted passage in Gerdes in 1995). Therefore, because fifth-degree criminal


1
 Appellant relies on State v. Guerra, where we replaced the word “and” with “or” when
discussing rule 17.05 and referred to the prejudice prong of rule 17.05 as an “independent
proscription.” 562 N.W.2d 10, 13 (Minn. App. 1997). We stated “[a]n amendment to the
charges against [the defendant] could be permitted only if it did not charge a different or
additional offense or prejudice substantial rights.” Id. at 13. This is different from the text
of rule 17.05 which states “if no additional or different offense is charged and if the
defendant’s substantial rights are not prejudiced.” To the extent we described prejudice as
an “independent proscription” Guerra contradicts the plain language of rule 17.05 and
supreme court precedent, as such, reliance on Guerra for that point is inapposite.


                                               6
sexual conduct is a lesser-included offense of third-degree criminal sexual conduct and did

not add or charge a different offense, we need not reach the issue of whether appellant was

prejudiced.

       Although we do not need to reach the issue of whether appellant was prejudiced, we

address the issue for the sake of completeness. Appellant argues his substantial rights were

prejudiced because he was denied his opportunity to prepare a defense against the fifth-

degree count.    See State v. DeVerney, 592 N.W.2d 837, 846 (Minn. 1999) (“[T]he

opportunity to prepare a defense in a criminal case is a substantial right.”). Appellant

asserts his defense “centered around the force or coercion element.” Appellant cites to trial

counsel’s assertion at the sentencing hearing for support of that statement. However, a

review of the record indicates his defense strategy at trial was largely to discredit the victim.

The opening statement contained no theory of the case, the cross-examination of M.T.

focused almost exclusively on her credibility. At no point during the trial did appellant

concede there was any sexual contact, nonconsensual or otherwise, between him and the

victim. Contrary to appellant’s assertion it does not appear that his defense was “keyed”

to the force or coercion element, nor did the lesser-included instruction require a

“substantially different defense.” Cf. Guerra, 562 N.W.2d at 14 (determining a defendant

was prejudiced when his defense was keyed to the charged offense and the constructive

amendment required a substantially different offense). Thus, appellant’s substantial rights

were not prejudiced by the inclusion of the lesser-included instruction. Further, because

fifth-degree criminal sexual conduct is a lesser-included offense of third-degree criminal

sexual conduct, appellant was on notice that the trial court could, sua sponte, submit the


                                               7
instruction to the jury. See State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005) (quoting

State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975) (“Neither the

prosecution nor the defense can limit the submission of such lesser degrees as the trial court

determines should be submitted.”)).

                                               II.

       In his pro se brief, appellant argues that he is entitled to a new trial because the jury

pool was tainted. Appellant identifies four potential jurors who tainted the pool. Two were

selected to serve on the jury; two were not.

       Potential jurors G.H. and B.S. were not selected to serve on the jury. Appellant does

not assert that these jurors did or said anything to influence the jurors who were selected

to serve. Appellant does not provide, nor are we aware of, legal authority to support the

proposition that he is entitled to relief because the jury pool was tainted.

       Appellant alleges juror C.C. stated during voir dire that “[an] alleged victim would

[n]ever lie about [a sexual assault].” This assertion is not supported by the record. C.C.

did indicate one of her extended family members was convicted of sexual assault over ten

years ago, but when the court asked “how would it, if at all, affect you sitting on this case?”

she responded “I don’t think it would, I don’t.” Defense counsel asked C.C. “Would you

tend to believe a person who accuses a sexual assault over, I mean, would you tend to

believe that person and that this is the type of crime where you think no one can lie about?”

and she responded “no.” When defense counsel asked her if she would have any problem

finding appellant not guilty if the state did not meet its burden of proof beyond a reasonable

doubt, she responded “No, I don’t think so.” A careful review of the record does not


                                               8
support appellant’s assertion that C.C. stated she believed a person would never lie about

a sex crime.

       Appellant next asserts juror E.L. lied about knowing appellant’s brother, a witness

who testified at trial. This issue was brought before the district court for the first time at

sentencing. Defense counsel “ma[d]e a record” of the fact that appellant’s brother said he

recognized E.L. because he worked with him at a previous place of employment. Defense

counsel did not seek any relief. The state responded that it wasn’t an issue because E.L.

had the name of the witness prior to testifying and “it was not brought to anyone’s attention

that the juror had knowledge of, or has any reason to have any bias or prejudice against

[appellant].” The record was not developed further on this issue, and appellant did not seek

further relief from the district court. Therefore, this issue is not proper for appellate review.

See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding an appellate court will not

consider matters not argued to and considered by the district court).

       Affirmed




                                               9
