                           This opinion will be unpublished and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
                                      A14-0871

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                               Francisco Cleofus Mountain,
                                        Appellant

                                    Filed June 22, 2015
                                         Affirmed
                                       Worke, Judge

                               Dakota County District Court
                               File No. 19HA-CR-13-1339

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
Attorney, Hastings, Minnesota (for respondent)

         Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his first-degree criminal-sexual-conduct conviction, arguing

that (1) evidence that the victim was physically helpless at the time of the sexual
encounter was insufficient, (2) the district court abused its discretion by admitting

graphic photographs, and (3) the district court abused its discretion by imposing the

statutory maximum sentence. We affirm.

                                           FACTS

         On April 27, 2013, at approximately 3:29 a.m., officers and paramedics responded

to a call for medical attention. Appellant Francisco Cleofus Mountain reported that he

and his girlfriend, M.B., had a consensual sexual encounter and fell asleep on the couch.

When Mountain woke, he noticed blood and called 911. There were pools of bright red

blood on the floor, a chair, and the couch, but no other indication that a struggle took

place.

         M.B. was found covered in blood, actively bleeding, and with a bloody towel

around her waist. Paramedics had difficulty detecting the cause of M.B.’s injury because

significant amounts of blood and large amounts of clots were coming from her vaginal

area. M.B. had slurred speech, poor balance, and was emitting an odor of an alcoholic

beverage.

         In the ambulance, paramedics observed that M.B. was impaired, incoherent, did

not remember much about the evening, was not alert or oriented, and did not “know what

was going on” or “have a grasp on reality.” She made statements about “having her

brother . . . kick her boyfriend’s a--,” and that “he will never do this again.”

         When M.B. arrived at the emergency room, she was not forthright with the

emergency room physician.        Initially, M.B. reported that she had a fight with her

boyfriend and complained of foot and back pain. M.B. denied having sexual intercourse


                                               2
and could not explain the significant vaginal bleeding. Later, M.B. stated that she had

been kicked in her vaginal area. M.B.’s alcohol content (AC) measured .31.

       M.B. underwent surgery to mend a five centimeter laceration on the left wall of

her vagina, an eight centimeter laceration on the right wall of her vagina, and three

external tears. M.B. had a blood transfusion, which is rare in a vaginal bleeding case.

The emergency room physician did not believe that M.B.’s injury could have been caused

by a penis or a finger “unless the finger had a knife on the end of it.” He also did not

believe that M.B.’s injury could have been caused by a consensual act, such as fisting1,

based on the extent of the trauma and amount of bleeding. The OB/GYN who performed

M.B.’s surgery observed that M.B. was languid and did not remember things. The

surgeon, likewise, did not believe that fisting caused the lacerations in M.B.’s vagina

because they were caused by “something sharp, something rigid, too large for the vagina

or . . . excessive force.”

        Following her surgery, M.B. told a detective that she did not remember what

happened. She stated: “I kinda [sic] remember falling to the ground and that’s all I

remember.” M.B. told the detective that Mountain has been abusive, has hit her, and

“tried to put his hand up her [vagina] and tear her.”

       Mountain was charged with first-degree criminal sexual conduct, using force or

coercion to accomplish sexual penetration and causing injury; first-degree criminal sexual

conduct, engaging in sexual penetration with a person who is physically helpless and


1
 During trial, the word “fisting” was used to describe the sexual activity of inserting a
hand into the vaginal cavity.

                                             3
causing injury; first-degree assault, infliction of great bodily harm; terroristic threats;

domestic assault; and pattern of stalking conduct.

       M.B. testified at Mountain’s jury trial that she was not feeling well on April 27,

and had taken DayQuil. Around 6:30 p.m., M.B. and Mountain began drinking vodka,

and spent the next six hours drinking alcohol and hanging out. M.B. became extremely

intoxicated. She recalled being on her couch making out with Mountain, including some

form of vaginal penetration, and the next thing she remembered was waking up in the

hospital. But M.B. also testified that a few weeks before Mountain’s trial, she told the

defense investigator that she and Mountain had engaged in a consensual sexual act of

fisting. M.B. testified that during this consensual act, she lost her balance and fell off of

him while his hand was in her vagina. M.B. testified that it was embarrassing to be

injured in this manner, so she did not feel comfortable telling anyone. M.B. also testified

that she did not want Mountain to get into trouble.

       The jury found Mountain not guilty of all counts except for first-degree criminal

sexual conduct, engaging in sexual penetration with a person who is physically helpless

and causing injury to that person. The district court sentenced Mountain to 360 months

in prison, the top of the presumptive range. This appeal follows.

                                     DECISION

       Mountain first argues that the evidence was insufficient to show that M.B. was

physically helpless. We review a claim of insufficient evidence to determine whether the

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

the jury to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We will


                                             4
not disturb the verdict if the jury, acting with due regard for the presumption of innocence

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

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

476-77 (Minn. 2004).

       When a jury considered circumstantial evidence, we apply a heightened standard

of review. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). This standard

includes a two-step analysis to determine whether the evidence was sufficient to support

the conviction. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we “identify the

circumstances proved.” Id. Then we “examine independently the reasonableness of the

inferences that might be drawn from the circumstances proved,” and “determine whether

the circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.” Id. (quotations and brackets omitted). The evidence is

considered as a whole, not each piece in isolation. State v. Andersen, 784 N.W.2d 320,

332 (Minn. 2010).

       It is not this court’s role to interpret the evidence, State v. Stein, 776 N.W.2d 709,

714 (Minn. 2010), because the jury is in the best position to evaluate the evidence and has

already done so. See Moore, 846 N.W.2d at 88; see State v. Pieschke, 295 N.W.2d 580,

584 (Minn. 1980) (stating that weighing credibility of witnesses is the exclusive function

of the jury).   Accordingly, when determining the circumstances proved, this court

“assume[s] that the jury resolved any factual disputes in a manner that is consistent with

the jury’s verdict.” Moore, 846 N.W.2d at 88. “There may well be testimony on behalf

of the defendant as to inconsistent facts and circumstances, not conclusively proved, and


                                             5
which the jury may have a right to and do reject as not proved.” State v. Tscheu, 758

N.W.2d 849, 858 (Minn. 2008) (quotation omitted).

       A person is guilty of first-degree criminal sexual conduct when he engages in

sexual penetration with an individual, whom he “knows or has reason to know” is

“mentally impaired, mentally incapacitated, or physically helpless,” and causes that

individual personal injury. Minn. Stat. § 609.342, subd. 1(e)(ii) (2012). Mountain argues

that M.B. was not physically helpless.

       A person is physically helpless if she “is (a) asleep or not conscious, (b) unable to

withhold consent or to withdraw consent because of a physical condition, or (c) unable to

communicate nonconsent and the condition is known or reasonably should have been

known to the actor.” Minn. Stat. § 609.341, subd. 9 (2012). Consent is present when

“words or overt actions . . . indicat[e] a freely given present agreement to perform a

particular sexual act with the actor. Consent does not mean . . . that the complainant

failed to resist a particular sexual act.” Id., subd. 4(a) (2012). A person who is physically

helpless cannot consent to a sexual act. Id., subd. 4(b) (2012).

       The circumstances proved include: (1) M.B. had taken DayQuil because she was

not feeling well; (2) M.B. drank alcoholic beverages for approximately six hours;

(3) M.B. was extremely intoxicated; (4) M.B. had slurred speech, poor balance, was

emitting an odor of an alcoholic beverage, did not remember a lot, and did not “seem to

have a grasp on reality”; (5) M.B. was impaired, incoherent at times, not alert or oriented,

and “was unable to really know what was going on”; (6) M.B. could not explain the

bleeding from her vagina to the emergency room physician and denied having sexual


                                             6
intercourse; (7) M.B. had an AC of .31; (8) M.B. was languid and unable to remember

things; (9) M.B. remembered making out with Mountain on the couch and then waking

up in the hospital; and (10) M.B. told a detective that she did not remember what

happened to her.

       These circumstances show that M.B. was physically helpless, i.e., “(a) asleep or

not conscious, (b) unable to withhold consent or to withdraw consent because of a

physical condition, or (c) unable to communicate nonconsent.”                Id., subd. 9.

Additionally, these circumstances show that Mountain knew or should have known

M.B.’s condition. See id. M.B. and Mountain had been drinking together for six hours.

He claims the sexual encounter was consensual, but M.B. did not remember anything

after making out with Mountain, and denied having sexual intercourse to the emergency

room physician. And she exhibited signs of severe impairment, which undermines a

conclusion that she was able to give or withdraw consent.

       We must now determine whether the circumstances proved are inconsistent with

any rational hypothesis except that of guilt. Mountain claims that M.B. testified that their

sexual activity was consensual. But the jury’s verdict reflects that they did not believe

M.B. Her testimony was inconsistent. She testified that she did not remember what

happened, but she told a defense investigator in preparation for Mountain’s trial that the

sexual activity was consensual. She also testified that she did not want Mountain to get

into trouble. The jury was free to evaluate M.B.’s credibility and disregard any of her

testimony.




                                             7
      Mountain also suggests that the evidence shows that M.B. resisted Mountain and

communicated her nonconsent. But if M.B. did not consent, Mountain would have had to

use force or coercion to accomplish sexual penetration, and the jury found Mountain not

guilty of using force or coercion. Mountain cites to State v. Montermini, to support his

assertion that circumstances proved may not include circumstances of a charge for which

he was acquitted. 819 N.W.2d 447, 461 (Minn. App. 2012).         In Montermini, the jury

found the defendant guilty of third-degree murder, among other charges, but acquitted

him of kidnapping charges. Id. at 453. The defendant challenged the sufficiency of the

evidence supporting the third-degree-murder conviction, arguing that circumstances

proved may not include any circumstances underlying the kidnapping charges because

the acquittals render these circumstances unproven. Id. at 461. But this court stated that

“[t]he acquittals here shed no light on which circumstances the jury believed or

disbelieved; the acquittals only demonstrate that the jury believed the state failed to

establish the elements of kidnapping.” Id. The kidnapping elements were irrelevant to

the elements of third-degree murder: “caus[ing] the death of another by perpetrating an

act eminently dangerous to others and evincing a depraved mind, without regard for

human life.” Id. at 460.

      Here, the acquittals show that the jury was not persuaded that the state established

the elements of first-degree criminal sexual conduct, using force or coercion to

accomplish sexual penetration and causing injury. Minn. Stat. § 609.342, subd. 1(e)(i)

(2012).   The jury found Mountain guilty of first-degree criminal sexual conduct,

engaging in sexual penetration with an individual, knowing or having reason to know that


                                            8
the person is physically helpless, and causing personal injury. Id., subd. 1(e)(ii). Thus,

the jury believed that the state proved the elements of sexual penetration and injury, but

failed to prove that Mountain used force or coercion. Unlike Montermini, the acquittal

sheds light on which circumstances the jury believed or disbelieved. The circumstances

proved do not establish that M.B. was capable of communicating nonconsent; therefore,

they are not consistent with any rational hypothesis except that of guilt. The evidence

was sufficient to support Mountain’s conviction.

Admission of evidence

       Mountain also argues that the district court should not have admitted graphic

photographs of M.B.’s vagina.         Mountain’s attorney objected to admission of

photographs that a sexual assault nurse examiner (SANE) took of M.B.’s injuries,

asserting that they were “inflammatory and prejudicial” and failed to aid the jury in

understanding M.B.’s injuries.     The district court stated that the photographs were

“prejudicial” but not “unduly prejudicial,” and although “upsetting,” admitted them into

evidence. This court reviews a district court’s evidentiary ruling for abuse of discretion.

State v. Bolstad, 686 N.W.2d 531, 541 (Minn. 2004).

       In general, relevant evidence is admissible. Minn. R. Evid. 402.           Relevant

evidence has “any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without

the evidence.” Minn. R. Evid. 401. But relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice . . . or by

considerations of . . . needless presentation of cumulative evidence.” Minn. R. Evid. 403.


                                            9
“Photographs are generally admissible whe[n] they accurately portray anything which is

competent for a witness to describe orally, and [when] they are relevant to some material

issue.” State v. Durfee, 322 N.W.2d 778, 785 (Minn. 1982).

       In State v. DeZeler, the supreme court held that the district court appropriately

admitted “photographs showing the horrible condition of [the] decedent’s body” because

there was no indication that the pictures had been distorted or inaccurately portrayed the

subject matter. 230 Minn. 39, 46, 41 N.W.2d 313, 318 (1950). The supreme court noted

that a “horrible, revolting, and ghastly” depiction was “an inherent and inseparable part

of the facts which were relevant to a full consideration of material issues by the jury.” Id.,

41 N.W.2d at 318-19. The material issues included “the nature and location of the death

wound,” the time of death, and the manner in which the body was concealed. Id., 41

N.W.2d at 318; see also State v. Morton, 701 N.W.2d 225, 228, 237 (Minn. 2005)

(holding that “grisly” photos were relevant to show elements of first-degree and second-

degree murder and admissible when medical examiner testified to cause of death and

probable killing during sexual assault).

       Here, the photographs were relevant to show M.B.’s injuries. Several of the

charges included an injury element. The photographs showed the extensive amount of

bleeding, a cut in the vaginal wall, and tears in the labia. The photographs, although

“upsetting,” accurately portrayed the condition of M.B.’s body immediately after the

incident. And the SANE testified regarding the relevance of each photograph and the

injury it portrayed.   See Durfee, 322 N.W.2d at 785 (stating that photographs are




                                             10
generally admissible when they are relevant, an accurate portrayal, and a competent

witness describes them).

       Mountain asserts that the photographs were not necessary to show the extent of

M.B.’s injuries because witnesses testified about M.B.’s excessive blood loss and the

surgeon detailed the extent of M.B.’s injuries. But the availability of other means for

presenting the evidence does not make admission of the photographs an abuse of

discretion. See State v. Hahn, 799 N.W.2d 25, 34-35 (Minn. 2011) (concluding that the

district court did not abuse its discretion by admitting pornographic photographs even

though a witness could have testified to their existence).

       Mountain also claims that the photographs were prejudicial and likely affected the

outcome of his case. But Mountain was acquitted of first-degree criminal sexual conduct,

using force or coercion to accomplish sexual penetration and causing injury; and first-

degree assault, infliction of great bodily harm. Mountain’s acquittal on these charges

tends to show that the jury was not unduly affected by the photographs. See State v.

Young, 710 N.W.2d 272, 281 (Minn. 2006) (reasoning that jury’s acquittal on one count

indicated that evidence was not prejudicial).

Sentence

       Mountain argues that the district court abused its discretion by imposing a

sentence at the top of the presumptive range. This court reviews sentences imposed by

the district court for an abuse of discretion. State v. Delk, 781 N.W.2d 426, 428 (Minn.

App. 2010), review denied (Minn. July 20, 2010).




                                             11
       A district court must impose the presumptive guidelines sentence absent

“identifiable, substantial, and compelling circumstances to support a sentence outside the

range on the grids.”     Minn. Sent. Guidelines 2.D (2012).        Sentence ranges in the

sentencing guidelines are presumed to be appropriate for the crimes to which they apply.

Id. “All three numbers in any given cell [on the sentencing guidelines grid] constitute an

acceptable sentence.” State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008); Delk,

781 N.W.2d at 428 (“[A]ny sentence within the presumptive range for the convicted

offense constitutes a presumptive sentence.”). A district court does not have to explain

its reasons for imposing a presumptive sentence, and we will not interfere with the

district court’s exercise of discretion when “the record shows the [district] court carefully

evaluated all the testimony and information presented before making a determination.”

State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. 1985). “[I]t would be a rare case which

would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7

(Minn. 1981).

       With Mountain’s five criminal-history points, the presumptive guidelines sentence

was 306 months in prison, with a range between 260-360 months. The district court

sentenced Mountain to 360 months in prison, the top of the range, but a presumptive

sentence. Mountain argues that the district court erred by finding that he acted with

particular cruelty and that, although the jury did not find that he used a dangerous

weapon, the court stated that it believed that he used a hammer that was found at the

scene to inflict the injury. Although the district court made these statements, it did not




                                             12
depart. It imposed a presumptive sentence and was not required to explain its reasons for

doing so. See Van Ruler, 378 N.W.2d at 80.

      Mountain also claims that the district court failed to consider mitigating factors.

The state had moved for imposition of the statutory maximum sentence of 30 years and a

mandatory sentence under the dangerous-offender statute based on Mountain’s two prior

qualified convictions for criminal sexual conduct and second-degree assault. The district

court stated that it believed that Mountain felt remorse, was concerned about M.B., and

wanted to get her medical attention. The court also stated that Mountain was respectful

and conducted himself well in court. But the district court concluded that Mountain was

a danger to public safety. The district court weighed aggravating and mitigating factors,

and imposed a sentence at the top of the presumptive range, which also happens to be the

statutory maximum. This is not a rare case that warrants reversal of imposition of a

presumptive sentence.

Pro se claim

      In his pro se supplemental brief, Mountain argues that “the jury was impacted by

the rip and slice[] in [M.B.’s] dress and the cut bra and [M.B.’s] internal injuries.” He

claims that no witness described the clothing in the condition they were in when placed

into evidence. Mountain’s argument is unclear; perhaps he is suggesting that the clothing

was intact when collected and subsequently ripped while in the custody of law

enforcement. Nonetheless, this claim is deemed waived for lack of briefing. State v.

Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (deeming arguments set out in pro se

supplemental brief waived because “brief contain[ed] no argument or citation to legal


                                           13
authority in support of the allegations”); State v. Wembley, 712 N.W.2d 783, 795 (Minn.

App. 2006) (stating that assignment of error based on mere assertion and not supported

by argument or authority is waived unless prejudicial error is obvious on mere

inspection), aff’d, 728 N.W.2d 243 (Minn. 2007).

      Affirmed.




                                          14
