State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0391

State of Minnesota,
Respondent,

vs.

Guy Robert Franklin Rabold,
Appellant.

Filed January 22, 2018
Affirmed in part, reversed in part, and remanded
Ross, Judge

St. Louis County District Court
File No. 69DU-CR-15-1864

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Guy Rabold faced trial for two counts of second-degree criminal sexual conduct for
fondling his 11-year-old stepsister’s buttocks and chest while she was asleep on the floor.
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Rabold asked the district court to replace his public defender, whom he accused of
providing him ineffective assistance of counsel in a previous case. He also argues that the
state did not present sufficient circumstantial evidence to convict him because the evidence
doesn’t rule out the possibility that what appeared to be fondling might have been just
inadvertent hand movements in his sleep. He argues also that the district court
miscalculated his sentence by failing to credit him for all the time he spent in custody
before sentencing. Because the district court did not abuse its discretion by denying
Rabold’s substitute-attorney request and because the trial evidence was sufficient to prove
that Rabold intentionally touched his stepsister, we affirm in part. But because the district
court miscalculated Rabold’s time-served credit, we reverse in part.
FACTS
Police arrested Guy Rabold in June 2015 for an incident that produced charges of
robbery, burglary, illegal-firearm possession, and auto theft, and three days later the state
also charged Rabold with two counts of second-degree criminal sexual conduct for his
behavior two months earlier. The two incidents were unrelated, but in both cases Rabold
was assigned the same public defender, Keith Shaw. The robbery -burglary-weapon-theft
case proceeded first: Rabold pleaded guilty , and the district court ordered a 240- month
prison sentence.
During a pretrial conference for the sex-offense charge, attorney Shaw stated that
Rabold planned to appeal his sentence in the earlier case and that one of Rabold’s
arguments would be that Shaw had provided him ineffective assistance of counsel. A
month later Rabold wrote to the district court saying that he believed Shaw had
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ineffectively represented him and asking the district court to substitute Shaw with a
different public defender. The district court denied Rabold’s request, explaining that his
claim of ineffective assistance was too vague and that the court saw nothing to justify
ordering substitute counsel after the court conducted a “searching inquiry” of the record.
The sex-offense case went to trial, and the jury heard the following account.
Rabold lived in one of two apartments directly above his father’s auto-body business
in Duluth. His father, R.R., occupied the other apartment. Every other weekend, R.R.’s
three other children—including Rabold’s 11- year-old stepsister, S.R—would stay with
R.R. Sometimes the three children would sleep over at Rabold’s apartment.
Rabold came home at 1:30 a.m. one night in April 2015 and found the three children
sleeping on his living-room floor. According to Rabold, he was so tired that he fell asleep
beside S.R. After a few hours, S.R. woke up feeling someone squeezing her buttocks. It
was Rabold. She pushed his hand away. Rabold moved his hand to her stomach. Then he
moved it up to her chest. S.R. pushed it away again, and Rabold slid it back to her chest.
S.R. got up and went to the bathroom and began to cry. Then fearing that Rabold might
begin to touch her younger sister, S.R. ran to the living room, woke her, and took her into
the bathroom. S.R.’s sister cried, and the two of them left for R.R.’s apartment.
Later that morning S.R. told her mother what had happened, and she in turn told
R.R. and called the police. Rabold denied intentionally touching S.R., saying that he had
been sleeping but that he might have inadvertently touched S.R.
During the trial, the district court asked Rabold whether he was satisfied with
Shaw’s performance, and Rabold said yes. The jury found Rabold guilty of both counts.
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Eighteen days after the jury found Rabold guilty for fondling his stepsister, he filed
a pro se supplemental brief in his appeal in the other case, arguing that Shaw had provided
him ineffective assistance of counsel. The district court rejected the claim and we affirmed,
because, among other things, “Rabold fail[ed] to assert . . . that his attorney’s performance
fell below an objective standard of reasonableness.” State v. Rabold, 2017 WL 957715, at
*4 (Minn. App. Mar. 13, 2017), review denied (Minn. May 16, 2017). The district court
sentenced Rabold to 171 months in prison and 10 years of conditional release, crediting
320 days for time already served. Rabold appeals.
D E C I S I O N
Rabold offers three arguments in this appeal. He argues first that the district court
improperly denied his request for a substitute attorney. He argues second that the state’s
circumstantial evidence failed to exclude the possibility that his touching was inadvertent
rather than intentional. Rabold argues third that the district court’s sentence miscalculated
his credit for time served. Only Rabold’s last argument merits a correction.
I
Rabold argues that the district court improperly denied his request for a substitute
public defender because the district court did not really conduct a “searching inquiry.” We
review a district court’s decision to deny a defendant’s request for a substitute public
defender for an abuse of discretion. State v. Munt, 831 N.W.2d 569, 586 (Minn. 2013). To
honor a defendant’s Sixth Amendment right to effective assistance of counsel, the district
court must substitute a public defender when a defendant’s timely and reasonable
complaints about the effectiveness of his appointed counsel establish exceptional
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circumstances warranting substitution. Id. “Exceptional circumstances are those that affect
appointed counsel’s ability or competence to represent the client.” Id. (internal quotations
omitted).
Rabold does not point to any “exceptional circumstances” warranting a substitute
attorney. He argues instead that the district court fai led to conduct a sufficient “searching
inquiry” into whether exceptional circumstances existed. It is true that when a defendant’s
complaint raises “serious allegations of inadequate representation,” the district court
should conduct a “searching inquiry” before declining a request to appoint substitute
counsel. Id. But the supreme court has held that a defendant’s statements evincing only his
“general dissatisfaction” with his attorney did not require a searching inquiry. I d. at 586–
87. Rabold did not raise any serious allegation of inadequate representation. He instead
merely generally characterized his attorney’s representation as “inadequate.” We observe
that the district court did open the door for an inquiry, responding to Rabold’s request for
a substitute attorney by inviting him to present any arguments on the record supporting his
request. Rabold never acted on that invitation. In fact, the only other time this issue was in
front of the district court was when it asked Rabold at trial if he was satisfied with Shaw’s
performance in the case, and Rabold said “Yes.” Rabold did not raise any “serious
allegations of inadequate representation” warranting a “searching inquiry” into the issues.
Although our decision does not depend on it, we add that it was not until four months after
he asked the district court for substitute counsel that Rabold formally alleged ineffective
assistance of counsel in his brief to this court —an allegation that we found to be “without
merit.” Rabold, 2017 WL 957715, at *4.
6
Rabold asks this court to adopt a per se rule that a district court must appoint
substitute counsel anytime a defendant challenges his current counsel’s performance as
ineffective in a previous case because of an apparent conflict of interest between the
defendant and the attorney. No. This is inconsistent with the standard in Minnesota. Here,
to justify a substitution a defendant must point to “exceptional circumstances” warranting
a substitute a ttorney, and being dissatisfied with one’s attorney —even really dissatisfied
to the point of previously claiming that the attorney’s performance was constitutionally
deficient—is not exceptional. And while an actual conflict of interest is sufficient evidence
of prejudice in an ineffective-assistance-of -counsel claim, see Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984), it does not follow that a mere claim of
ineffective assistance is an actual conflict of interest. Other jurisdictions have rejected
Rabold’s argument, and so must we. See Neal v. State, 379 S.W.3d 209, 222 (Mo. Ct. App.
2012) (“This tension does not require us to conclude, however, that every assertion of a
claim of ineffective assistance of counsel creates an actual conflict of interest . . . .”); State
v. Tauscher, 175 Wash. App. 1019 (2013) (“A mere allegation of ineffective assistance of
counsel does not create an inherent, conflict of interest requiring substitute counsel.”); State
v. Drisco, 355 N.J. Super 283, 293, 810 A.2d 81, 86 (App. Div. 2002) (rejecting argument
that “because defendant had previously charged trial counsel with ineffectiveness” the
court should apply a per se rule that establishes a conflict of interest); State v. Harris, 388
P.3d 627 (Kan. Ct. App. 2017) (rejecting defendant’s argument that “because alleging
ineffective assistance of counsel may create a possible conflict of interest between the
defendant and his attorney, the district court has an obligation to inquire further about
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allegations of ineffectiveness”); Hester v. State, 27 A.3d 551 (Del. 2011) (affirming district
court’s denial of defendant’s argument that allegation of ineffective assistance of counsel
creates a per se conflict of interest); State v. Terry, 173 Wash. App. 1004 (2013) (“But, a
claim of ineffective assistance of counsel does not necessarily create an unconstitutional
conflict of interest requiring substitution of counsel.”). These cases are consistent with the
standard in Minnesota, where a defendant with a serious—rather than specious— claim of
ineffective assistance is well protected; he need merely raise the allegation with the district
court, which in turn must inquire further and, being then fully informed, can decide whether
substitution is necessary to vindicate the defendant’s constitutional right to effective
counsel.
II
Rabold argues that the state’s evidence was insufficient to convict him of second-
degree criminal sexual conduct because it did not eliminate the rational hypothesis that he
inadvertently touched S.R. while he was sleeping. To convict Rabold of the charges against
him, the state had to prove that S.R. was “under 13 years of age” and at least 36 months
younger than Rabold, that he had a “significant relationship” with S.R., and that he
intentionally touched S.R.’s intimate parts. Minn. Stat. §§ 609.341, subd. 11, .343, subds.
1(a) and 1(g) (2016). We will reverse a conviction for lack of evidence if the record does
not contain evidence sufficient to support the jury’s verdict, giving due regard for the
burden of proof beyond a reasonable doubt. Bernhardt v. State, 684 N.W.2d 465, 476– 77
(Minn. 2004). When an element was proved entirely by circumstantial evidence, our review
of the evidence’s sufficiency is broken into two steps. State v. Silvernail, 831 N.W.2d 594,
8
598 (Minn. 2013). We first identify the circumstances proved at trial and “disregard
evidence that is inconsistent with the jury’s verdict.” State v. Harris, 895 N.W.2d 592, 601
(Minn. 2017). We then determine if those circumstances are consistent only with guilt—
inconsistent with any other rational hypothesis. Silvernail, 831 N.W.2d at 599. If they are,
we affirm. See id.
The state offered only circumstantial evidence to prove that Rabold’s reason for
touching S.R. was sexual. So we apply our circumstantial-evidence standard to the mens
rea element. We know that the following relevant circumstances were proved at trial based
on the testimony and the jury’s verdict:
1. Rabold was not under the influence of any substance that would h ave caused
him to fall asleep on the floor instead of walking to his bedroom, and at 1:30
a.m. he intentionally lay down on his living room floor immediately beside S.R.
instead of in his bedroom on his bed.

2. Rabold’s hand extended from his body and squeezed S.R.’s buttocks.

3. After S.R. pushed Rabold’s hand from her buttocks, Rabold’s hand extended to
S.R.’s abdomen beneath her clothing, and then it moved up and settled on her
chest.

4. After S.R. pushed Rabold’s hand away a second time, Rabold’s hand returned
again to settle on her chest.

On these circumstances, Rabold’s argument that his touching was merely inadvertent rather
than sexually motivated is unconvincing. We look for any reasonable inferences other than
guilt, not merely possible inferences other than guilt. See State v. Al-Naseer, 788 N.W.2d
469, 473 (Minn. 2010) . And we consider all the circumstances in their totality, not each
circumstance in isolation. Silvernail, 831 N.W.2d at 599. Rabold’s argument cannot
survive that standard.
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We might possibly infer that Rabold’s touching was inadvertent and unintentional;
but we could not reasonably so infer from these circumstances. What is the reasonable
explanation for Rabold’s decision to lie down on the floor immediately beside his 11-year-
old stepsister in the middle of the night rather than go to his own bed? His trial counsel
tried to persuade the jury that “it doesn’t . . . make a lot of sense” to conclude that Rabold
lay down intending to touch S.R., since he said he came home at 1:30 and the touching did
not occur until about four hours later. That some time passed between the point that Rabold
lay down and the point when he began touching S.R. does not render nonsensical the idea
that he was sexually motivated to be near S.R. Rabold offers no innocent explanation for
the coincidence that, in all three supposedly inadvertent touches, his hand happened
eventually to find an intimate area. He similarly does not attempt to reconcile the evidence
that he squeezed (rather than merely touched) S.R.’s buttocks with his inadvertent-touch
theory. The circumstances proved support only the guilty verdict.
Rabold cites various parts of S.R.’s trial testimony and recorded statement
attempting to demonstrate that Rabold could have been sleeping. But this testimony only
establishes that Rabold appeared to be sleeping, not that he actually was sleeping. And
when the statements are viewed in the context of all of S.R.’s trial testimony, it is
unreasonable to infer that Rabold was in fact asleep at the time he touched S.R., even if he
was asleep at some point or that he effectively feigned being asleep. The jury did not
believe that Rabold was actually sleeping when he touched S.R., and the circumstances as
a whole confirm that this implied finding is the only reasonable one.
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III
Rabold argues finally that the district court miscalculated his sentence by failing to
credit time he served from June 5 to January 24, 2016. When the facts are undisputed, we
review an alleged improper sentence-credit determination de novo. See State v. Doyle, 386
N.W.2d 352, 354 (Minn. App. 1986). The state concedes that Rabold’s sentence should
have included the credit. The concession is well founded. A district court must deduct from
an executed sentence time served “in connection with the offense or behavioral incident
being sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B) (2016). This remains the rule even
when the time served is in connection to two concurrent sentences, but it is not the rule for
consecutive sentences. State v. Clarkin, 817 N.W.2d 678, 685– 86 (Minn. 2012). A
defendant bears the burden of proving his entitlement to jail credit for a specific period.
State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985). Rabold committed this crime while
he was serving the supervised-release portion of an executed sentence for a previous felon-
in-possession conviction. Police took him into custody for this case beginning June 5, 2015,
and he remained incarcerated until he was sentenced on December 8, 2016. The district
court sentenced Rabold based on the presentence investigation report, which recommended
that Rabold receive credit for time served between January 24, 2016, and December 8,
2016. The problem is that the district court overlooked the fact that, if a defendant is
sentenced on a new conviction while he is incarcerated for a prior conviction, he gets jail
credit on his new sentence if his new sentence runs concurrent with the sentence he is
already serving. Clarkin, 817 N.W.2d at 685. Although the district court did not state that
Rabold’s sentence was to be served concurrent with his felon-in-possession sentence, when
11
a district court is silent as to the nature of a sentence, concurrent rather than consecutive
sentencing is presumed. State v. Rasinski, 527 N.W.2d 593, 595 (Minn. App. 1995).
Because of this, the district court inappropriately excluded some of the jail credit that
Rabold was entitled to receive. We remand and instruct the district court to recalculate
Rabold’s sentence.
Affirmed in part, reversed in part, and remanded.