                         This opinion will be unpublished and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
                                     A14-0097

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Wendell Anthony Greene,
                                      Appellant.

                              Filed November 23, 2015
                  Affirmed in part, reversed in part, and remanded
                                    Smith, Judge

                             St. Louis County District Court
                              File No. 69DU-CR-12-1941

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Smith, Presiding Judge; Stauber, Judge; and Klaphake,

Judge.

                        UNPUBLISHED OPINION

SMITH, Judge

       We reverse appellant’s conviction of criminal sexual conduct in the second degree,

count three, because there was insufficient evidence for the jury to convict appellant, and


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
we therefore remand for resentencing. We affirm appellant’s convictions of criminal

sexual conduct in the first degree, count one, and criminal sexual conduct in the second

degree, count two, and the postconviction court’s summary denial of appellant’s

postconviction petition.

                                          FACTS

       Appellant Wendell Anthony Greene appeals his convictions of three counts of

criminal sexual conduct. Greene was charged with one count of criminal sexual conduct

in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a) (2010), and three

counts of criminal sexual conduct in the second degree in violation of Minn. Stat.

§ 609.343, subd. 1(a) (2010). Counts one and two pertained to Greene’s contact with a

then ten-year-old girl, L.E.G., and counts three and four pertained to Greene’s contact

with a then nine-year-old girl, M.R.G. After a jury trial, Greene was found guilty on

counts one, two, and three, and not guilty on count four. Because we reverse on count

three, our factual summary is limited to the facts bearing on that conviction.

       Greene met L.E.G. and M.R.G. when he was a referee and coach for youth

basketball at the Salvation Army. Over time, the girls became close with Greene, seeing

him as a sort of “uncle.” Greene spent considerable time alone with L.E.G. and M.R.G.,

taking them to basketball practice, driving to parks, and picking them up from school.

       On June 9, 2012, Greene took L.E.G. to Dairy Queen and Canal Park, and then

stopped at his apartment with L.E.G. before bringing her home. When she arrived home,

L.E.G. told her mother that Greene had licked her genitals while they were at his

apartment. Within several days, the incident was reported to social services.



                                             2
       Subsequently, on June 12, 2012, Investigator Ryan Temple of the Duluth Police

Department interviewed L.E.G. and M.R.G. Both interviews were recorded and later

played at trial. L.E.G. stated that M.R.G. told her about an incident with Greene in the

bathroom at Greene’s apartment.      L.E.G. told Investigator Temple that Greene was

“supposedly giving [M.R.G.] a bath . . . and he was using his hand to scrub that

(indicates), and he had a scrubber sponge and he started scrubbing it down.” The video

shows L.E.G. pointing to the vagina on a diagram of a girl. L.E.G. stated that after

M.R.G’s bath, Greene took a shower and asked M.R.G. to grab a towel for him, and

M.R.G. saw “it” causing Greene to smile “a little bit.”

       Investigator Temple and M.R.G. discussed touches that M.R.G. does not like to

get—she pointed to the butt, vagina, and chest on the diagram. When asked who touched

her there, M.R.G. said “Wendell.” M.R.G. stated that the touches happened on top of her

clothing and that they made her feel “grossed out.” M.R.G. also told Investigator Temple

that Greene once bathed after she took a bath at his apartment and asked M.R.G. to bring

him a towel, whereupon she saw his penis. M.R.G. said that Greene told her that he

usually gets his own towel. M.R.G. stated that when she bathed, Greene stayed in the

living room and that she dressed herself.

       On June 13, Investigators Temple and Lisa Mickus interviewed Greene. The

interview was recorded and played at trial. Greene confirmed that he knew L.E.G. and

M.R.G. through his interactions with them as a basketball coach at the Salvation Army.

Greene confirmed that M.R.G. came to his apartment once for the weekend at R.B.’s

request. Greene stated that while there, M.R.G. took a bath because she “hadn’t had a

bath in a week.” Greene said that he came into the bathroom because the water was too
                                             3
warm and that he helped M.R.G. dry off. When asked if he could think of anything that

M.R.G. would have thought was inappropriate, Greene cited the bath incident.

Investigator Temple noted that as a nine year old, M.R.G. may not have needed help

drying off to which Greene responded, “That’s correct. She may not have necessarily

needed help drying off.”

      Andrew Fena, a social worker with St. Louis County Public Health and Human

Services in the Initial Intervention Unit (IIU), interviewed Greene. Fena recorded his

interview with Greene, and that interview was played at trial. Fena and Greene discussed

M.R.G.’s bath at Greene’s apartment. Greene again said that M.R.G. told him that “she

had not had a bath in about a week.” Greene stated, “I came in there while she was

undressed and cooled the water down. . . . I brought her a towel and helped her dry

off . . . like what you would normally do . . . .” Greene continued, “I used the towel to

dry the parts that she had missed and wrapped her up in a towel . . . .” Later in the

interview, Fena and Greene returned to M.R.G.’s bath. Fena asked, “Did you scrub her

vagina that day, maybe?” Greene responded, “I probably told her don’t forget. . . . But I

helped her—I helped her dry off . . . [s]o I touched her there when I helped her dry off.”

Greene claimed, “I did not consciously dry her specific body parts.” In response to

Fena’s question about whether M.R.G. may have misconstrued any of Greene’s actions

where “she got confused and sort of turned it into a yucky thing for her,” Greene stated,

“It could have been the towel drying.”

      M.R.G. testified that she had been to Greene’s apartment “once” and took a bath

while she was there. M.R.G. stated that Greene ran the bath for her and “scrubbed my

back” with “[a] sponge.” M.R.G. testified that Greene did not scrub anywhere else and
                                            4
that she dried herself off. M.R.G. testified that after her bath, Greene asked M.R.G. to

bring him a towel while he was in the bath and M.R.G. saw him naked, which made her

feel “[d]isgusted.” M.R.G. testified that she told her sisters what had happened but not

until after L.E.G. had told their mother what happened to her.

       The district court also admitted Spreigl evidence for the purposes of establishing

common scheme or plan, modus operandi, and intent.1 The Spreigl witness testified that

she met Greene through basketball when she was “about 14” years old. Greene agreed to

give the witness extra coaching and became close with the witness and her family, to the

point of coming over for Christmas. The witness testified that the relationship between

her and Greene changed to “prolonged hugs and then it moved to like kisses on cheek.”

The witness also testified that when she was in eighth grade, Greene had sex with her at

her family’s home.

       The jury returned guilty verdicts on counts one, two, and three, and a not-guilty

verdict on count four. Count three was based on the bath incident with M.R.G.

       Greene filed a notice of appeal on January 21, 2014, and we later stayed the appeal

so that Greene could file a petition for postconviction relief. The district court summarily

denied Greene’s petition for postconviction relief.




1
 “Spreigl evidence is evidence of another crime, wrong, or bad act . . . .” Ture v. State,
681 N.W.2d 9, 15 (Minn. 2004). Such evidence is inadmissible to “prove the character of
a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b).
However, Spreigl evidence is admissible for “other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id.
                                             5
                                      DECISION

                                              I.

       Greene argues that it was plain error to admit L.E.G’s video recitation of what

M.R.G. allegedly told her about the bath incident.          Greene contends that this was

inadmissible hearsay, but did not object to L.E.G.’s videotaped statement on that ground

at trial. Where a defendant fails to object to the admission of evidence, our review is

under the plain-error standard. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d

736, 740 (Minn. 1998). “The plain error standard requires that the defendant show:

(1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen,

648 N.W.2d 681, 686 (Minn. 2002). An error is plain if it is clear and obvious. State v.

Jenkins, 782 N.W.2d 211, 230 (Minn. 2010). “If those three prongs are met, we may

correct the error only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Strommen, 648 N.W.2d at 686 (quotation omitted).

       Greene contends that even if L.E.G’s videotaped statement was properly admitted,

there is no hearsay exception that would allow for the admittance of M.R.G’s statements

to L.E.G. We agree. Hearsay is an out-of-court statement that is offered to prove the

truth of the matter asserted. Minn. R. Evid. 801(c). Generally, hearsay is inadmissible

unless an exception applies. Minn. R. Evid. 802. When, as here, there are two layers of

hearsay (the first layer consisted of L.E.G.’s videotaped statement and the second layer

was L.E.G’s recitation of what M.R.G. told her about the alleged bath incident), each

layer must fall within an established exception. Minn. R. Evid. 805. After a thorough

review of the record and the Minnesota Rules of Evidence, we conclude that the second

layer of hearsay contained in the video statement does not meet any of the hearsay
                                              6
exceptions. Consequently, the district court committed plain error when it admitted

M.R.G.’s out-of-court statement through L.E.G.’s video interview. See State v. Reed,

737 N.W.2d 572, 583 (Minn. 2007) (stating that an error is plain if it “contravenes case

law, a rule, or a standard of conduct” (quotation omitted)).      We do not reach the

remaining portions of the plain-error analysis because we reverse Greene’s conviction on

count three for insufficient evidence.

       Greene contends that his conviction on count three must be reversed because there

was insufficient evidence to prove beyond a reasonable doubt that he had sexual contact

with M.R.G.’s intimate parts. Moreover, Greene argues that because it was plain error to

admit L.E.G.’s video recitation of what M.R.G. told her, we cannot consider that piece of

evidence in assessing the sufficiency of the evidence on count three. We agree. See State

v. Daniels, 380 N.W.2d 777, 781 (Minn. 1986) (“If the hearsay statements . . . are

inadmissible . . . appellant’s conviction rests on circumstantial evidence.”); State v.

Carver, 380 N.W.2d 821, 827 (Minn. App. 1986) (“The only positive evidence that the

jury could have relied on . . . had to be the hearsay statements we have already held

inadmissible.     Those convictions are accordingly reversed.”), review denied (Minn.

Mar. 27, 1986).

       “A defendant bears a heavy burden to overturn a jury verdict.” State v. Vick, 632

N.W.2d 676, 690 (Minn. 2001). On review of the sufficiency of the evidence, we must

assume “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). The reviewing 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,
                                           7
could reasonably conclude [the] defendant was proven guilty.” Bernhardt v. State, 684

N.W.2d 465, 476 (Minn. 2004) (quotation omitted). “The weight and credibility of the

witnesses is for the trier of fact.” State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).

       A person who engages in sexual contact with another is guilty of criminal sexual

conduct in the second degree if the complainant is under 13 years of age and the actor is

more than 36 months older than the complainant. Minn. Stat. § 609.343, subd. 1(a).

“Sexual contact” is defined as “the intentional touching . . . of the complainant’s intimate

parts” or “the touching of the clothing covering the immediate area of the intimate parts”

that is “committed with sexual or aggressive intent.”        Minn. Stat. § 609.341, subd.

11(a)(i), (iv) (2010). “Intimate parts” is defined to include “the primary genital area,

groin, inner thigh, buttocks, or breast of a human being.” Id., subd. 5 (2010).

       We have previously construed the statute at issue here to concern a specific-intent

crime. State v. Austin, 788 N.W.2d 788, 792 (Minn. App. 2010), review denied (Minn.

Dec. 14, 2010). To convict Greene, the state was required to prove beyond a reasonable

doubt that Greene “intend[ed] the specific result of touching [M.R.G.’s] intimate body

parts.” See id. at 793.

       Greene argues that the evidence was insufficient to prove the “very specific

element of contact with an intimate part.” A conviction required the state to show more

than “recklessness or negligence.” Id. at 792. What the evidence needed to show was

that Greene “intend[ed] the specific result of touching intimate body parts.” See id. at

793.   Because we have concluded that it was plain error to admit L.E.G.’s video

recitation of what M.R.G. told her about the alleged bath incident, the only direct

evidence remaining is Greene’s statement that he may have touched M.R.G. when he
                                             8
helped her dry off. Although it was for the trier of fact to determine who was credible

and to decide how much weight to accord this statement, see Huss, 506 N.W.2d at 292, a

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

overcoming it by proof beyond a reasonable doubt,” see Bernhardt, 684 N.W.2d at 476,

could not have reasonably concluded that Greene intended the specific result of touching

M.R.G.’s intimate parts.

       Nor is there sufficient circumstantial evidence to sustain the conclusion that

Greene intended the specific result of touching M.R.G.’s intimate parts. In applying the

circumstantial evidence standard, the reviewing court uses a two-step analysis. State v.

Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).         “The first step is to identify the

circumstances proved. In identifying the circumstances proved, we defer to the jury’s

acceptance of the proof of these circumstances and rejection of evidence in the record

that conflicted with the circumstances proved by the [s]tate.” Id. at 598-99 (quotation

and citation omitted).     “The second step is to determine whether the circumstances

proved are consistent with guilt and inconsistent with any rational hypothesis except that

of guilt.” Id. at 599 (quotations omitted).

       On the sexual-contact element, the circumstances proved were: (1) Greene

touched M.R.G. at an unidentified time; (2) M.R.G. took a bath at Greene’s house; (3)

Greene may have touched M.R.G. when he helped M.R.G. towel off; and (4) Greene

twice cited the towel incident as a time that M.R.G. may have been uncomfortable.

Additionally, Spreigl evidence was admitted to show, among other things, intent.

       Although the circumstances proved are consistent with the conclusion that Greene

may have touched M.R.G.’s intimate parts, the circumstances also lead to the rational
                                              9
hypothesis that Greene did not act with the requisite specific intent to touch M.R.G’s

intimate parts:   he admitted to inadvertently touching M.R.G’s intimate parts while

helping her towel off.     “Because of that reasonable doubt . . . there is insufficient

evidence to support [Greene’s] conviction . . . .” See State v. Al-Naseer, 788 N.W.2d

469, 481 (Minn. 2010). Accordingly, we reverse Greene’s conviction on count three.

                                            II.

       Greene raises two additional issues: (1) that the postconviction court erred when it

summarily denied his postconviction petition; and (2) that the district court committed

reversible error in denying his request for a modified Spreigl instruction. For reasons set

out below, we do not fully address these arguments.

       A.     Summary Denial of Postconviction Petition

       Greene contends the postconviction court abused its discretion when it summarily

denied his petition for relief. In his postconviction petition, Greene alleged that he was

denied effective assistance of counsel because his trial attorney failed to file a motion to

suppress Greene’s interview with Fena.       This court reviews a summary denial of a

petition for postconviction relief for an abuse of discretion. Riley v. State, 819 N.W.2d

162, 167 (Minn. 2012). “Because claims of ineffective assistance of counsel are mixed

questions of law and fact, we review the postconviction court’s legal conclusions on such

questions de novo.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).

       A district court may summarily deny a postconviction petition when “the petition

and the files and records of the proceeding conclusively show that the petitioner is

entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2014). A petitioner asserting an

ineffective-assistance-of-counsel claim should be granted an evidentiary hearing if the
                                            10
petitioner has “allege[d] facts that, if proven by a fair preponderance of the evidence,

would satisfy the two-prong [Strickland] test.” Bobo v. State, 820 N.W.2d 511, 516

(Minn. 2012); see Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052,

2064, 2068 (1984). Under prong two, “the defendant must prove there was a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different.” Nicks, 831 N.W.2d at 504.

       After a thorough review of the record, we conclude that Greene did not allege

facts showing that, under prong two, there is a reasonable probability that the result of the

proceeding would have been different on counts one and two, the remaining convictions.

Therefore, we affirm the postconviction court’s summary denial of Greene’s

postconviction petition.

       B.     Spreigl Instruction

       Greene also requests that we reverse his convictions because the district court

committed reversible error when it refused his request for a modified Spreigl 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) (quotation omitted).

“The refusal to give a requested jury instruction lies within the discretion of the district

court” and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d

43, 50 (Minn. 1996). When a district court abuses its discretion in administering jury

instructions, we apply the harmless-error standard. See State v. Babcock, 685 N.W.2d 36,

42 (Minn. App. 2004) (determining whether a district court’s denial of a proposed jury

instruction was harmless error), review denied (Minn. Oct. 20, 2004).



                                             11
       As with Greene’s postconviction argument, we do not reach the merits of this

issue. Even assuming the district court abused its discretion in denying Greene’s Spreigl

instruction request, we conclude that any error was harmless on counts one and two.

       We affirm Greene’s convictions on counts one (first-degree criminal sexual

conduct) and two (second-degree criminal sexual conduct), affirm the postconviction

court’s summary denial of Greene’s postconviction petition, but reverse Greene’s

conviction on count three (second-degree criminal sexual conduct) for insufficient

evidence. We therefore remand the case to the district court for resentencing consistent

with this opinion.

       Affirmed in part, reversed in part, and remanded.




                                           12
