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State v. Thole

Court of Appeals of Minnesota

December 2, 2013

State of Minnesota, Respondent,
v.
Randall James Thole, Appellant.

UNPUBLISHED OPINION

Dakota County District Court File No. 19HA-CR-11-2676.

Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Elizabeth M. Swank, Assistant County Attorney, Hastings, Minnesota (for respondent).

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Melissa V. Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Hooten, Judge.

HUDSON, Judge

On appeal from his convictions of four counts of first-degree criminal sexual conduct, appellant argues that (1) the district court abused its discretion in precluding the admission of certain evidence, depriving him of the right to present a complete defense; and (2) the evidence was insufficient to support his convictions because his conduct did not meet the required statutory elements. In his pro se supplemental brief, appellant also argues that he received ineffective assistance of trial counsel. Because the district court's evidentiary ruling was not an abuse of discretion, the evidence was sufficient to support appellant's convictions, and appellant did not receive ineffective assistance of counsel, we affirm.

FACTS

A.D. is a female born on March 9, 1997. At age seven, A.D. went to live with L.S., her mother's sister. L.S. became A.D.'s legal guardian. Around 2002, appellant married A.D.'s grandmother. A.D.'s grandmother passed away in approximately 2009, but appellant still spent time with the family.

On August 6, 2011, L.S. took A.D. to E.D.'s house; E.D. is L.S.'s sister and A.D.'s aunt. L.S. testified that she took A.D. to E.D.'s house because she needed a babysitter for A.D. That evening, E.D. took her 13-year-old son J.G. and A.D. to appellant's house, where they were all going to spend the night. A.D.'s 8-year-old half-sister and appellant's 10-year-old son were also at appellant's house. Around 9:30 or 10:00 p.m., E.D. left appellant's house to go out with a friend. Appellant was the only adult left in the house with the kids. At the time, appellant was 50 years old and A.D. was 14 years old.

After E.D. left, A.D. and appellant went into appellant's bedroom because they were drinking alcohol and did not want A.D.'s sister to see them. Both of them had shots of liquor from a bottle. At some point, the two decided to watch a movie. Appellant got a pornographic movie out of a dresser drawer in the bedroom. A.D. testified that there were people having sex in the movie. A.D. testified that she was lying on the bed and appellant touched her vaginal area with his hand. A.D. told him no, but he continued to rub the area with his hand over her clothing. Appellant lay down next to A.D., and she rolled away from him so they were both lying on their sides with appellant's front facing A.D.'s back. A.D. testified that appellant "started to get forceful, " got on top of her and ripped off her pants. She testified that appellant removed her tampon and had oral and vaginal sex with her. A.D. testified that appellant was on top of her and at some point one of appellant's hands was on her chest and one was holding her legs. After appellant ejaculated, A.D. got up, went in the bathroom, and then to the living room and told J.G. that appellant had raped her. A.D. sent several text messages to E.D. telling her what happened and asking when she was coming home.

E.D. arrived shortly at appellant's house to pick up A.D. and J.G., who came out of the residence as soon as they saw her car. E.D. testified that appellant also came out to the car, and his demeanor "was odd." Appellant called E.D. seven times that evening after she left with A.D. and J.G. A.D. complained to E.D. that her vaginal area hurt, and E.D. got her an icepack. The following morning, L.S. picked up A.D. from E.D.'s house. L.S. testified that A.D. told her "[appellant] put in a porn movie . . . pushed her on the bed, took out her tampon, and forced himself inside of her." L.S. took A.D. to a hospital, but A.D. was angry and refused to talk to anyone. When L.S. and A.D. got home, L.S. called the police and A.D.'s mental-health social worker. After speaking with her social worker and a police officer, A.D. agreed to go back to the hospital. A.D. was examined by a Sexual Assault Nurse Examiner (SANE). The SANE noticed that A.D.'s vaginal opening was tender, and also observed redness and abrasions. The nurse took swabs of A.D.'s mouth, perineal area, vagina, and her tampon. Sperm and semen were discovered on the vaginal, perineal, and tampon swabs. The DNA from the sperm cells on the vaginal swab matched that of appellant. A lab analyst testified that the DNA profile obtained from the vaginal swab "would not be expected to occur more than once among unrelated individuals in the real world population." The analyst also testified that appellant was among .00008 percent of the population that could not be excluded as a contributor to the sperm cells on the perineal swab or the tampon.

The jury found appellant guilty of four counts of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(b), (e)(i), (g), and (h)(i) (2010). Appellant was sentenced to 360 months' incarceration. This appeal follows.

DECISION

I.

Previous Sexual Conduct Evidence


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