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State v. Varnado

Court of Appeals of Minnesota

December 30, 2013

State of Minnesota, Respondent,
v.
Donzell Antoine Varnado, Appellant.

UNPUBLISHED OPINION

Dakota County District Court File No. 19HA-CR-11-2064.

Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Toussaint, Judge. [*]

KIRK, Judge

On appeal from his convictions of two counts of first-degree criminal sexual conduct, appellant argues that (1) the district court committed plain error by admitting evidence of the victim's character for truthfulness and credibility; (2) the evidence is insufficient to sustain his convictions; and (3) the district court abused its discretion by denying his motion for a dispositional departure. We affirm.

FACTS

In March 2011, 13-year-old K.C. reported to police that her mother's boyfriend, appellant Donzell Antoine Varnado, attempted to have sexual intercourse with her. Appellant and K.C.'s mother had been in an on-again, off-again relationship since K.C. was three years old. K.C. reported that the incident occurred at the beginning of March on an evening when her mother was at work. K.C. asked appellant, who was watching television in her mother's room, to rub her back because it was sore from playing basketball. K.C. lay down on her mother's bed on her stomach and appellant rubbed her back. After a while, appellant mistakenly thought K.C. was asleep and began touching K.C.'s vagina with his hands. Appellant pulled down her pants and underwear, put his fingers in her vagina, and attempted to put his penis in her vagina.

K.C. pretended to wake up and then left the room, took a shower, and began doing her homework in her room. K.C. texted her mother and told her that she needed to talk to her. After her mother got home from work, K.C. and her mother left the house in her mother's car. K.C. told her mother what had just happened. After her disclosure, K.C. and her mother returned to the house and her mother confronted appellant, who denied that anything had occurred. K.C.'s mother allowed appellant to sleep in the basement that night but told him he had to leave the next day; appellant moved out of the house the next day.

In June 2011, respondent State of Minnesota charged appellant with one count of fifth-degree criminal sexual conduct. Shortly before the trial, the district court granted the state's motion to amend the complaint by replacing the existing count with two counts of first-degree criminal sexual conduct. The district court held a jury trial in March 2012, and both K.C. and appellant testified. Appellant denied that he had sexually assaulted K.C. He testified that K.C. asked him to give her a back rub and he did so for about 15 to 20 minutes while K.C. was lying on her mother's bed. Appellant testified that he left the bedroom and watched television in the living room after K.C. fell asleep on the bed.

The jury found appellant guilty of both counts alleged in the complaint. Following a sentencing hearing, the district court sentenced appellant to 144 months in prison. This appeal follows.

DECISION

I. The district court did not commit plain error by admitting evidence of the victim's character for truthfulness and evidence vouching for ...


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