                          This opinion will be unpublished and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
                                     A14-0422

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Jared Armand Cobb,
                                        Appellant.

                                 Filed March 2, 2015
                   Affirmed in part, reversed in part, and remanded
                                     Hooten, Judge

                              Ramsey County District Court
                                File No. 62-CR-13-5751

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, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Rodenberg, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges his conviction of third-degree criminal sexual conduct,

contending that the district court erred by: (1) excluding evidence of the victim’s
previous sexual conduct; (2) imposing an upward durational sentencing departure; and

(3) imposing a lifetime conditional-release term. We affirm the district court’s exclusion

of evidence and the upward sentencing departure, reverse the lifetime conditional-release

term, and remand.

                                        FACTS

      On April 20, 2013, K.G., her neighbor S.C., and S.C.’s boyfriend spent much of

the day drinking wine in K.G.’s apartment in St. Paul. At some point during the evening,

S.C. brought her boyfriend back to her apartment to rest because he was intoxicated.

Before she left, S.C. indicated that she would return to K.G.’s apartment later. At about

10:30 p.m., appellant Jared Armand Cobb knocked on K.G.’s apartment door, looking for

S.C. Cobb was carrying a case of beer. K.G. knew of Cobb, thought that he was married

to S.C.’s daughter, and had seen him around the apartment building. Cobb said that S.C.

was not answering her door, and K.G. invited Cobb into her apartment.

      K.G. telephoned S.C. several times, but S.C. did not answer her phone because she

had fallen asleep. K.G. left her a voicemail message, stating that she should “get back

down here” because Cobb was there and “he brought [her] a 12 pack” of beer. After

K.G. left the voicemail message, Cobb moved next to her on the couch and put his hand

between her thighs. K.G. jumped up and said, “No. No. No. I don’t get down like that.”

She walked into the kitchen and then returned to the couch, sitting away from Cobb.

Cobb got up, walked over to K.G., and forced her to give him oral sex. K.G. testified that

it all happened very quickly and that she was too scared to fight back. She tried to move

away, but felt that she could not overpower Cobb, who outweighed her by nearly 100


                                            2
pounds. Cobb ejaculated on K.G.’s face and then left the apartment. K.G. got up, locked

her apartment door, and used a washcloth to clean her face.

      K.G. did not report the incident to the police right away because she felt scared,

embarrassed, and humiliated. But, in early May, after she started having nightmares, her

family encouraged her to report the incident. On May 13, 2013, she reported the incident

to St. Paul police officer John Raether. Officer Raether described K.G. as emotional and

ashamed as she related the incident, and she seemed like “she needed to get the story

out.” K.G. gave Officer Raether the washcloth that she had used to clean her face on

April 20, which had not been laundered. K.G. also spoke with St. Paul police sergeant

Paul Cottingham, an investigator in the Sex Crimes Unit.

      On May 14, 2013, Sergeant Cottingham spoke with Cobb.             Cobb admitted

knowing who K.G. was, but denied ever being alone with her or having sexual contact

with her. Subsequently, DNA analysis revealed that the washcloth K.G. gave police

contained sperm-cell fractions from a mixture of two or more people. The predominant

profile matched Cobb’s, and an expert later testified that it “would not be expected to

occur more than once in the world[’s] population.”            In August 2013, Sergeant

Cottingham ordered Cobb’s arrest and interviewed him again. He confronted Cobb with

the DNA results from the washcloth. Cobb admitted to sexual contact with K.G., but

claimed that it was consensual. He stated that K.G. initiated oral sex and that he was

embarrassed about it.

      Cobb was charged with third-degree criminal sexual conduct in violation of Minn.

Stat. § 609.344, subd. 1(c) (2012) (sexual penetration—force or coercion). At a pretrial


                                            3
hearing, Cobb moved to admit evidence of K.G.’s previous sexual conduct pursuant to

Minnesota Rule of Evidence 412. As an offer of proof, Cobb presented evidence of three

allegedly similar incidents involving K.G. becoming “sexually aggressive once she is

intoxicated,” which he argued established a common scheme or plan of similar sexual

conduct. The district court, in denying Cobb’s motion, found that the evidence was

“completely unrelated to this incident” and was “highly inflammatory and unfairly

prejudicial.”

       At trial, Cobb testified in his own defense. He claimed that he went to S.C.’s

apartment at about 9:00 p.m. on April 20, 2013, to get some money. He stated that he

found S.C. in K.G.’s apartment, that K.G. and S.C. had been drinking, and that K.G. gave

him a hug. Cobb stated that he went to the liquor store and then returned to S.C.’s

apartment, but S.C. did not answer her door, so he went to look for her at K.G.’s

apartment. Cobb claimed that he was sitting on the couch in K.G.’s apartment when his

hand accidentally touched K.G.’s thigh. He claimed that he immediately moved his hand

away, but K.G. grabbed his hand and put it back on her thigh. Cobb claimed that K.G.

then sat on his lap and started kissing him. He testified that he placed K.G. back on the

couch, but she got back on his lap. He claimed that he pushed her away, but she

unzipped his pants as he stood up and initiated oral sex. He claimed that he eventually

gave in to K.G.’s advances. He stated that, at some point, K.G. told him not to ejaculate

in her mouth and then continued to give him oral sex. Cobb admitted that he eventually

ejaculated on K.G.’s face. He stated that they cleaned up with washcloths, K.G. kissed

him and asked him not to tell anyone about the encounter, and then he left.


                                            4
      The jury returned a verdict of guilty. Based on the severity of the offense and

Cobb’s criminal history, his presumptive guidelines sentence was an executed prison

term of 62 months, with a range of 53 to 74 months. See Minn. Sent. Guidelines 4.B

(2012). The presentence investigation report recommended a double upward durational

departure from the presumptive sentence to a sentence of 124 months. The state moved

for an upward durational departure based on aggravating factors.

      Cobb waived his right to have a jury make findings as to whether any aggravating

factors were present. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The district court found that: (1) Cobb had a prior criminal-sexual-conduct conviction;

(2) the crime was committed with particular cruelty because Cobb ejaculated on the

victim’s face; and (3) the crime occurred in the victim’s zone of privacy. The district

court expressed concern that, in addition to Cobb’s two criminal-sexual-conduct

convictions, he has “had a number of sexual assaults that have gone unreported and not

charged.” While addressing Cobb, the district court added: “[I]n terms of what you’ve

done in your very young life, in terms of preying upon people that are more vulnerable

than you, the age span here that you have victimized is terribly concerning . . . .” The

district court imposed an executed sentence of 110 months, an upward durational

departure of 48 months. The district court also imposed a lifetime conditional-release

period. This appeal followed.




                                           5
                                    DECISION

                                           I.

      Cobb argues that the district court abused its discretion by denying his motion to

admit evidence of the victim’s previous sexual conduct. We review the district court’s

evidentiary rulings for an abuse of discretion. State v. Davis, 546 N.W.2d 30, 33 (Minn.

App. 1996), review denied (Minn. May 21, 1996). The district court denied Cobb’s

motion pursuant to Minnesota Rule of Evidence 412, often referred to as the “rape shield

rule.” Minn. R. Evid. 412, 2006 comm. cmt. The rule provides:

                     (1) 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, except by court order
             under the procedure provided in [this rule]. Such evidence
             can be admissible only if the probative value of the evidence
             is not substantially outweighed by its inflammatory or
             prejudicial nature and only in the following circumstances:
                     (A) When consent of the victim is a defense in the
             case,
                     (i) evidence of the victim’s previous sexual conduct
             tending to establish a common scheme or plan of similar
             sexual conduct under circumstances similar to the case at
             issue, relevant and material to the issue of consent . . . .

Minn. R. Evid. 412(1)(A)(i); see also Minn. Stat. § 609.347, subd. 3 (2012) (containing

similar language).

      Cobb argues that he had a constitutional right to present evidence that was

material and favorable to his theory that K.G. consented to have oral sex. “Every

criminal defendant has a right to fundamental fairness and to be afforded a meaningful

opportunity to present a complete defense.” State v. Crims, 540 N.W.2d 860, 865 (Minn.



                                           6
App. 1995) (quotation omitted), review denied (Minn. Jan. 23, 1996). “The right to

present a defense includes the opportunity to develop the defendant’s version of the facts

. . . .” Id. A defendant also has the right to confront adverse witnesses in order to reveal

bias or a disposition to lie. Id. “To vindicate these rights, courts must allow defendants

to present evidence that is material and favorable to their theory of the case.” Id. at 866.

       The rape shield rule usually does not affect a defendant’s right to present a

defense, however, because the rule is based on “the premise that a [victim’s] character is

generally irrelevant to a specific case.” Davis, 546 N.W.2d at 34. “However, when a

victim’s sexual history involves a pattern of clearly similar behavior constituting habit or

modus operandi and is favorable to the defendant’s theory of consent, the evidence

becomes relevant, material, and potentially admissible as a matter of constitutional law.”

Id.; see also Crims, 540 N.W.2d at 866. “To qualify as a pattern of clearly similar sexual

behavior, the sexual conduct must occur regularly and be similar in all material

respects.” Davis, 546 N.W.2d at 34 (emphasis added).

       Cobb sought to present evidence under rule 412 “of [K.G.’s] pattern of inviting

guests into her apartment, drinking heavily, and then acting sexually aggressive in order

to solicit sexual activity.” According to Cobb, “[K.G.’s] method was always the same

and was similar to what occurred in Cobb’s case in all material respects.” His offer of

proof included three instances of K.G. drinking heavily with friends and becoming

“sexually aggressive”:

              1.     About a month prior to the incident in this case, K.G.
                     and S.C. were drinking together when K.G. allegedly
                     tried to touch S.C.’s breasts.


                                              7
             2.     About two months prior to the incident in this case,
                    K.G. allegedly made sexual advances toward a male
                    neighbor, W.B., while K.G. was intoxicated. K.G.
                    allegedly danced on W.B.’s lap in a seductive manner
                    and stopped when W.B.’s daughter walked into the
                    room.
             3.     Some other time when K.G. was intoxicated, she
                    allegedly danced in front of W.B. and allowed him “to
                    see her private parts.” S.C. witnessed this incident.

Under Cobb’s consent theory, K.G. was intoxicated when he returned to her apartment on

April 20, 2013. They were alone in the apartment, sitting on the couch, when K.G.

jumped into his lap and began acting sexually aggressive. Cobb resisted at first, but

eventually gave in to her advances, and K.G. initiated consensual oral sex.

      The three incidents described in Cobb’s offer of proof are not similar in all

material respects to Cobb’s version of the April 20 incident, for several reasons. First,

none of the three alleged incidents led to sex, let alone oral sex. Second, none of K.G.’s

alleged prior behaviors were obviously intended to “solicit sexual activity,” as Cobb

claims. Third, at least one of the alleged incidents occurred in the presence of a third

person.   And fourth, one of the alleged incidents involved K.G. acting “sexually

aggressive” toward a woman, not a man.

      “[T]he victim’s sexual history is normally irrelevant in a sexual assault

prosecution,” Crims, 540 N.W.2d at 867, and the victim’s “sexual history is irrelevant to

the charge of rape without evidence of modus operandi,” id. at 868. The three incidents

described in Cobb’s offer of proof do not establish a common scheme or plan under the

rape shield rule because there is “no pattern of clearly similar behavior.”       See id.

Moreover, given the significant variations between the three prior incidents, they cannot


                                            8
possibly constitute modus operandi. See id. (citing with approval an Illinois case that

defines modus operandi narrowly). Accordingly, the district court did not abuse its

discretion by excluding evidence of K.G.’s previous sexual conduct.

       Cobb also argues that the rape shield rule should have “yield[ed]” to his

constitutional right to present a complete defense, citing State v. Benedict, 397 N.W.2d

337 (Minn. 1986), and State v. Caswell, 320 N.W.2d 417 (Minn. 1982). But, the rape

shield rule can only yield, in certain cases, if the proffered evidence satisfies Minn. R.

Evid. 403. See Caswell, 320 N.W.2d at 419 (“[A]ny time evidence tends to establish a

predisposition to fabricate a charge of rape, the evidence should be admitted unless its

potential for unfair prejudice substantially outweighs its probative value.”); Crims, 540

N.W.2d at 866 (“[A] defendant has no right to introduce evidence that either is irrelevant,

or whose prejudicial effect outweighs its probative value.”). In this case, Cobb offered

no evidence that K.G. made prior allegations of sexual assault that were fabricated, which

would have been more probative of K.G.’s credibility.        Instead, Cobb only offered

evidence of K.G.’s prior sexual behavior, which is not probative in a criminal sexual

conduct case absent modus operandi. We conclude that the district court did not abuse its

discretion by denying Cobb’s motion to admit evidence of K.G.’s previous sexual

conduct because it properly found that Cobb’s proffered evidence was “completely

unrelated to this incident” and was “highly inflammatory and unfairly prejudicial.”

                                            II.

       Cobb next argues that the district court abused its discretion by sentencing him to

110 months in prison, an upward durational departure of 48 months from the presumptive


                                            9
guidelines sentence of 62 months. We review an upward durational departure for an

abuse of discretion. State v. Jackson, 749 N.W.2d 353, 356–57 (Minn. 2008). But,

whether the district court’s reasons for the departure are proper is a legal issue that we

review de novo. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied

(Minn. July 20, 2010). If the reasons given by the district court justify the departure, the

departure will be affirmed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the

reasons given are improper or inadequate, and there is insufficient evidence in the record

to justify the departure, the departure will be reversed. Id.

       “Requests for durational departures require the district court to consider whether

the conduct involved in the offense of conviction was significantly more or less serious

than the typical conduct for that crime.” State v. Peter, 825 N.W.2d 126, 130 (Minn.

App. 2012), review denied (Minn. Feb. 27, 2013). The sentencing guidelines contain a

nonexclusive list of aggravating factors that may justify an upward departure. Minn.

Sent. Guidelines 2.D.3.b (2012). When a defendant waives his right to a sentencing jury,

the district court must determine beyond a reasonable doubt whether any alleged

aggravating factors exist. Minn. Stat. § 244.10, subd. 7 (2012). The district court relied

on three aggravating factors to justify its upward durational departure: a prior criminal-

sexual-conduct conviction, particular cruelty, and zone of privacy. Cobb disputes each

aggravating factor.

       Cobb argues that the district court improperly relied on his prior criminal-sexual-

conduct conviction as an aggravating factor “because it [was already] used in calculating




                                             10
[his] criminal history score” and because it was also “used for determining the term of

conditional release.” His arguments are unpersuasive.

       In 2004, Cobb was adjudicated delinquent of fourth-degree criminal sexual

conduct in an extended jurisdiction juvenile (EJJ) proceeding. “An [EJJ] conviction shall

be treated in the same manner as an adult felony criminal conviction for purposes of the

[s]entencing [g]uidelines.” Minn. Stat. § 260B.245, subd. 1(a) (2012); see State v. Jiles,

767 N.W.2d 27, 29 (Minn. App. 2009) (“EJJ adjudications are considered convictions for

purposes of sentencing.”), review denied (Minn. Aug. 26, 2009). In general, a prior

conviction cannot constitute an aggravating factor because it is already used to calculate a

defendant’s criminal history score. State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).

But, the supreme court has indicated that certain prior felony convictions may serve as an

aggravating factor notwithstanding this general rule. See id. (“The guidelines recognize

the unfairness of treating all felonies the same in determining criminal history.”). The

prior-criminal-sexual-conduct-conviction aggravating factor is one such exception.

Under the sentencing guidelines, Cobb’s EJJ conviction clearly constitutes a valid

aggravating factor. See Minn. Sent. Guidelines 2.D.3.b(3) (citing as an aggravating

factor that “[t]he current conviction is for a criminal sexual conduct offense, . . . and the

offender has a prior felony conviction for a criminal sexual conduct offense . . . .”); see

also Minn. Stat. § 244.10, subd. 5a(a)(3) (2012) (same).

       Cobb provides no authority for his additional claim that a criminal-sexual-conduct

conviction cannot be used both as an aggravating factor and to determine the term of

conditional release. Therefore, he has waived this claim. State v. Wembley, 712 N.W.2d


                                             11
783, 795 (Minn. App. 2006) (“An assignment of error in a brief based on mere assertion

and not supported by argument or authority is waived unless prejudicial error is obvious

on mere inspection.”) (quotation omitted), aff’d, 728 N.W.2d 243 (Minn. 2007).

Accordingly, the district court properly concluded that the aggravating factor of Cobb’s

prior criminal-sexual-conduct conviction is a substantial and compelling ground to

support the departure and that this aggravating factor exists beyond a reasonable doubt.

      Cobb appears to argue that the particular-cruelty aggravating factor, based on his

ejaculating on K.G.’s face, was not proved because “it is hard to imagine that ejaculation

somewhere was not contemplated as part of the commission of this particular offense.”

This argument is without merit. Under well-established precedent, ejaculating on a

victim’s face is a valid particular-cruelty aggravating factor.     State v. Griffith, 480

N.W.2d 347, 350 (Minn. App. 1992) (“Appellant ejaculated on the victim’s face. This

was particularly demeaning and humiliating, and went beyond the inherent humiliation a

victim of third-degree criminal sexual [conduct] must experience.”), review denied

(Minn. Mar. 19, 1992), superseded by statute on other grounds, Minn. Stat. § 609.341,

subd. 9(b) (1994). The district court properly concluded that the aggravating factor of

particular cruelty is a substantial and compelling ground to support the departure and that

this aggravating factor exists beyond a reasonable doubt.

      Cobb also argues that the zone-of-privacy aggravating factor was not proved. The

state argues that, even if the zone-of-privacy factor was not proved, the aggravating

factor of “exploitation of trust” was proved.      We need not decide whether a third

aggravating factor was proved, however, because the first two aggravating factors that the


                                            12
district court properly relied on were sufficient to justify the upward durational departure

in this case, which amounted to less than double the presumptive sentence. See Dillon,

781 N.W.2d at 596 (“We have found no cases in which an appellate court has held that

adequate grounds to depart exist but that the district court abused its discretion by

extending the sentence up to twice its presumptive term.”); cf. State v. Mohamed, 779

N.W.2d 93, 96–97, 100 (Minn. App. 2010), review denied (Minn. May 18, 2010)

(indicating that, in some circumstances, an upward durational departure amounting to less

than double the presumptive sentence could be properly based on a single aggravating

factor). The district court did not abuse its discretion by imposing the upward durational

departure.

                                            III.

       Cobb also argues that the district court erred by imposing a lifetime conditional-

release term because he does not have “a previous or prior sex offense conviction” within

the meaning of Minn. Stat. § 609.3455, subd. 7(b) (2012). The state concedes that

Cobb’s argument is correct. Statutory interpretation is a question of law, which we

review de novo. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).

       Section 609.3455, subdivision 7(b), provides that when “the offender has a

previous or prior sex offense conviction, the court shall” impose a lifetime conditional-

release term. For purposes of this section, the term “conviction” includes “conviction as

an extended jurisdiction juvenile under section 260B.130 for a violation of, or an attempt

to violate, section 609.342, 609.343, 609.344, or 609.3453, if the adult sentence has been

executed.” Minn. Stat. § 609.3455, subd. 1(b) (2012) (emphasis added).


                                            13
       Cobb is correct that the district court erred by imposing a lifetime term of

conditional release, for two reasons. First, Cobb’s prior EJJ conviction was for fourth-

degree criminal sexual conduct, in violation of Minn. Stat. § 609.345 (2002). But, a prior

conviction under section 609.345 is not included in the applicable definition of a

“conviction” under the lifetime-conditional-release statute. See id. Second, there is no

evidence in the record that the adult sentence underlying Cobb’s prior EJJ conviction was

ever executed, as is required under the definitions statute.       See id.   Minn. Stat.

§ 609.3455, subd. 6 (2012), requires the district court to impose a ten-year term of

conditional release for a person convicted of third-degree criminal sexual conduct, as

Cobb was in the present case. Therefore, we reverse the district court’s imposition of a

lifetime conditional-release term and remand for imposition of a ten-year conditional-

release term.

       Affirmed in part, reversed in part, and remanded.




                                           14
