Traverse County District Court File No. 78-CR-12-2
Lori Swanson, Attorney General, St. Paul, Minnesota; and Matthew P. Franzese, Traverse County Attorney, Alexandria, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and Larkin, Judge.
On appeal following his conviction of false imprisonment and three counts of first-degree criminal sexual conduct, appellant argues that the state failed to prove beyond a reasonable doubt that he committed first-degree criminal sexual conduct. Alternatively, appellant asserts that evidentiary errors warrant a new trial. We affirm.
In early 2011, appellant Jacob Comes Flying lived with his mother, his younger half-sister, V.H., and several other family members in a two-bedroom house in Browns Valley. V.H. was then 14 years of age and Comes Flying was 23. While living together, Comes Flying physically abused V.H. on a routine basis and became increasingly protective of her. Comes Flying sought to keep V.H. near him at all times and would even lay "right beside [her]" while she slept. The ongoing physical abuse of V.H. entailed hair pulling, shoving, grabbing, slapping, and hitting, and would often leave bruises on V.H.'s body. V.H. never told her mother about the abuse because she did not think that her mother would believe her.
In November 2011, after both V.H. and Comes Flying moved out of their mother's home, V.H. reported to school officials and law enforcement that Comes Flying had sexually assaulted her in March and May of that year. In connection with the March allegation, Comes Flying was charged with three counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g), (h)(i), (h)(ii) (2010); false imprisonment in violation of Minn. Stat. § 609.255, subd. 2 (2010); and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2010); and, based on the May allegation, three counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g), (h)(i), (h)(ii); false imprisonment in violation of Minn. Stat. § 609.255, subd. 2; and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1. Comes Flying pleaded not guilty to each count, and a jury trial was held.
At trial, V.H. testified that Comes Flying had sexually assaulted her only once, on May 21, 2011, and that she reported an additional incident in order to be more believable. She explained that on the evening of May 21, Comes Flying arrived home while she was asleep on the living-room couch with her sister, D.H. Comes Flying entered the living room, dragged D.H. off the couch by her hair, and yelled at V.H. to go to her bedroom. V.H.'s mother called the police because of this altercation. Comes Flying left the house when the police arrived, but returned later that night. Upon returning home, Comes Flying entered V.H.'s bedroom and got into bed with her. According to V.H., Comes Flying refused to leave and removed V.H.'s shorts and underwear, pulled his pants down, and got on top of V.H. V.H. testified that when she tried to push Comes Flying off of her, he pushed her down and hit her several times. She explained that she did not cry for help or scream during the assault "because [Comes Flying] was just going to hit [her]" if she did. When V.H. stopped resisting, Comes Flying sexually penetrated her. At the close of V.H.'s testimony, the prosecutor dismissed the charges associated with the alleged March incident.
Comes Flying testified in his own defense. He admitted that on May 21, 2011, he ordered V.H. and D.H. out of the living room and left the house after his mother called the police. But he stated that he did not sexually assault V.H. after returning home.
The jury convicted Comes Flying of three counts of first-degree criminal sexual conduct and one count of false imprisonment. The district court sentenced Comes Flying to 187 months' imprisonment for first-degree criminal sexual conduct and stayed imposition of the sentence for false imprisonment. This appeal follows.
Comes Flying challenges the sufficiency of the evidence in support of his conviction of first-degree criminal sexual conduct. In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of 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 that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In conducting that review, 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). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). "We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the necessity of ...