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This opinion will be unpublished and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
A17-0872

State of Minnesota,
Respondent,

vs.

Boe Michael Tankersley,
Appellant

Filed May 7, 2018
Affirmed
Smith, John, Judge*

Hennepin County District Court
File No. 27-CR-16-18973

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawo nn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant Boe Michael Tankersley’s multiple convictions for criminal
sexual conduct because (1) the evidence was sufficient to support the convictions and (2)
prosecutorial misconduct, if any, was not prejudicial.
FACTS
In April 2016, M.H. told her youth leader that her stepfather , a chiropractor, had
“touched [her] inappropriately.” The youth leader told M.H.’s pastor, who asked M.H. if
appellant had ever touched her “in a place where a swimsuit would cover .” After M.H.
answered yes, the pastor immediately called the police and M.H.’s mother.
In May, M.H. was interviewed at CornerHouse by Judy Weigman. M.H. described
two specific incidents wh ich led to the criminal char ges: one involved her stepfather
rubbing her breasts during a sports physical and the other involved her stepfather digitally
penetrating her in her bedroom.
Appellant was eventually charged with one count of first -degree criminal sexual
conduct and one count of second-degree criminal sexual conduct . Before trial, appellant
filed a motion in limine requesting that the state be precluded from eliciting evidence of
his other bad acts. The state did not contest this motion, and it was granted.
At trial, the prosecutor repeatedly referenced appellant’s prior conduct with M.H.
beyond the two specific incidents that led to his criminal charges. This included the
prosecutor questioning witnesses about appellant allegedly touching M.H.’s thigh and butt,

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kissing her on the lips, walking in while she was showering, and exposing himself to her,
as well as references to this conduct in opening and closing arguments.
The jury found appellant guilty of both counts of criminal sexual conduct. The
district court sentenced appellant to a guidelines sentence of 160 months on count one, and
a concurrent sentence of 70 months on count two.
This appeal follows.
D E C I S I O N
I. The evidence was sufficient to convict appellant of second-degree criminal
sexual conduct.
Appellant argues that the evidence was insufficient to convict him of second-degree
criminal sexual conduct because the state did not prove he acted with sexual intent. In
considering a claim of insufficient evidence, review by this court is “limi ted to a
painstaking analysis of the record to determine whether the evidence, when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We cannot
retry the facts and must take the view of the evidence most favorable to the state. See State
v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978). Accordingly, we assume that the jury
believed the state’s witnesses and disbelieved any contradictory evidence. See State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the
jury, acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonabl e doubt, could reasonably conclude the defendant was guilty of the
charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

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To convict appellant of second-degree criminal sexual conduct, the state had to
prove beyond a reasonable doubt that he engaged in sexual contact with M.H. when she
was younger than 13-years-old and that appellant is more than 36 months older than M.H.
See Minn. Stat. § 609.343, subd. 1(a) (20 12).1 “Sexual contact ” is defined as “the
intentional touching by the ac tor of the complainant ’s intimate parts” that is “committed
with sexual or aggressive intent.” Minn. Stat. § 609.341, subd. 11(a)(i) (2012). “Intimate
parts” are defined to include the “breast of a human being.” Id. at subd. 5 (201 2).
Appellant argues that the state did not prove that he touched M.H.’s breast with th e
requisite sexual or aggressive intent when he performed the sports physical.
“[B]ecause intent is a state of mind, it is generally proved by inferences drawn from
a person’s words or actions in light of all the surrounding circumstances.” State v.
Thompson, 544 N.W.2d 8, 11 (Minn. 1996). We apply a two-step analysis in determining
whether circumstantial evidence is sufficient to support a guilty verdict. State v. Andersen,
784 N.W.2d 320, 329 -30 (Minn. 2010). First, we identify the circumstances proved ,
deferring to the verdict of the fact-finder and, second, independently determine whether
the circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).
Here, the record supports the following circumstances: (1) when M.H.’s mother
was not present in the home, appellant performed a physical examination of his

1 The sports physical took place in September 2014. The digital penetration took place at
some time in 2013 or 2014. Because the statute was unchanged during this time period,
the 2012 version is used herein.

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stepdaughter as she lay on the cou ch in the family’s living room , (2) appellant had M.H.
put on a medical gown with only her underwear on and asked her to remove her bra, which
she did upon his request, (3) during the exam appellant reached under M.H.’s gown and
touched her chest for “a really long time ,” moving her breasts with his hands in way that
made M.H. uncomf ortable and scared , and (4) when M.H.’s mother returned home,
appellant abruptly stopped this part of the exam.
These circumstances lead only to the reasonable inference that appellant acted with
sexual or aggressive intent when he touched M.H.’s breasts for an extended period of time
during the physical. Based on M.H.’s testimony, appellant’s explanation for his actions is
simply implausible. M.H. testified that appellant touched her breasts with his bare hands
and appellant himself explained that the physical exam did not require him to touch M.H.’s
breasts with his hands. By appellant’s own explanation of what the exam entailed, there
was no medical reason for him to be touching M.H.’s breasts with his bare hands.
Appellant also asserts that corroboration was necessary because M.H.’s testimony
was unreliable and inconsistent with her statements to the CornerHouse interview er. In
her interview, M.H. reported that appellant was not breathing heavily while touching her
during the physical examination , but M.H. testified at trial that appellant was breathing
heavily when he touched her. Based on this discrepancy, appellant argues, “Where sexual
intent can only be inferred from outside circumstances, the question of whether [he] was
breathing heavily while performing M.H.’s physical is of key importance.” Appellant also
argues that M.H.’s testimony was unreliable because she had a motive to lie about the
incident due to appellant’s extramarital affair “breaking apart her family.”

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Appellant’s argument is unconvincing. “[A] conviction can rest on the
uncorroborated testimony of a single credible witness.” State v. Foreman, 680 N.W.2d
536, 539 (Minn. 2004) (quotation omitted); see also Minn. Stat. § 609.347, subd. 1 (2016)
(providing that “the testimony of a victim need not be corrobor ated” in a criminal-sexual-
conduct prosecution). The determination of whether a witness was reliable is a matter for
the jury, not the reviewing court. See State v. White , 357 N.W.2d 388, 390 (Minn. App.
1984). T he jury in appellant’s case was entitled to credit the testimony of M. H. and
reasonably inferred that appellant acted with sexual intent based on M.H.’s version of
events. See Foreman, 680 N.W.2d at 539 (where the jury is “apprised of the previ ous
inconsistent statements . . . the task of weighing credibility was for the jury, not this court”).
Therefore we conclude that the evidence was sufficient to support appellant’s second-
degree-criminal-sexual-conduct conviction, including the element of sexual intent.
II. Any misconduct by the prosecutor did not prejudice appellant.
Appellant argues that the prosecutor committed misconduct by (1) repeatedly
referencing evidence of his other bad acts and (2) asking “were they lying” questions about
the state’s other witnesses. Appellant asserts that these errors deprived him of a fair trial
and substantially affected the jury verdict.
Because appellant did not object to any of the prosecutor’s alleged misconduct, we
apply a modified plain-error test. State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). To
prevail, an appellant must establish that there was an error and that the error was plain.
State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). If such an error is established, the

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burden then shifts to the state to show that the plain error did not affect appellant’s
substantial rights. Id.
Given the strength of the state’s evidence as a whole, we conclude that the error, i f
any, did not affect appellant’ s substantial rights. See, e.g. , Mosley, 853 N.W.2d at 801
(determining that no relie f was warranted where defend ant’s substantial rights were not
affected, even upon an assumption of plain error); State v. Dobbins, 725 N.W.2d 492, 513
(Minn. 2006) (“In light of this strong evidence against [appellant], the state has shown that
there is no reasonable likelihood that the absence of the misconduct at issue would have a
significant effect on the jury’s verdict.”). The state’s evidence of prior bad acts and line of
“were they lying” questioning was only a small piece of an overall strong case against
appellant. M.H.’s discussion of appellant’s prior bad acts was a limited portion of her
direct testimony and M.H.’s mother only testified as to the exposure incident. Appellant
had the opportunity to rebut all of the alleged prior bad acts , providing innocent
explanations at length on direct examination for his various conduct and why M.H. likely
misinterpreted it. Similarly, the prosecutor asked “were they lying” questions only briefly
on appellant’s cross-examination and, as defense counsel requested, appellant’s answers
were not referenced in closing arguments. Cf. State v. Morton, 701 N.W.2d 225, 235 -36
(Minn. 2005) (holding that defendant’s substantial rights were not violated even where the
state improperly referred to his answers to “were they lying” questions in closing argument,
thereby emphasizing the misimpression already made to the jury). Finally, at trial M.H.
described appellant digitally penetrating her in her bedroom and rubbing her bare breasts
during the sports physical. These two incidents were the basis for appellant’s two criminal-

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sexual-conduct convictions, and M.H.’s testimony regarding both incidents was nearly
identical to the CornerHouse interview that was played for the jury.
As discussed above, t he jury was entitled to credit M.H.’s version of events, and
M.H.’s direct testimony r egarding the sexual contact and penetration was sufficient to
convict appellant; no physical proof, additional eyewitness, or other corroborating
evidence was necessary. See Minn. Stat. § 609.347, subd. 1. Because appellant’ s
substantial rights were not affected, we need not consider whether to address the matter to
ensure the fairness and integrity of the judicial proceed ings. See Morton, 701 N.W.2d at
234 (“Only if the three prongs of [the plain-error] test are satisfied will we assess whether
we shoul d address the error to ensure fairness and the integrity of the judicial
proceedings.”). In sum, we conclude that appellant failed to satisfy the three -pronged
plain-error test and the district court did not commit reversible error.
III. Appellant’s pro se claims lack merit.
Appellant raises four additional pro se arguments. We address each in turn.
Inflaming passions
Appellant argues that the prosecutor’s references to his extramarital affair
“smear[ed]” his name and “inappropriately incite[d] a moral prejudice against him within
the jury.” As a general rule, the state “must avoid inflaming the jury’s passions and
prejudices against the defendant.” State v. Porter , 526 N.W.2d 359, 363 (Minn. 1995).
“While the state’s argument need not be colorless, i t must be based on the evidence
produced at trial, or the reasonable inferences from that evidence.” Id. (quotation omitted).

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Appellant’s defense attorney discussed the affair multiple times on direct
examination and the affair appears to have been part of a larger theme of his defense. Since
the affair was a significant part of appellant’s defense as an explanation for his
uncomfortable interactions with M.H, we conclude it is unlikely that there was any
prejudice to appellant in the state referencing the affair as well.
Striking jurors for cause
Appellant argues that the district court should have removed more jurors for cause.
Appellant provides no s pecific citations to the record and has not provided us with a
transcript of the voir dire proceedings. Because there is an insufficient record before us to
review this claim, it has not been sufficiently r aised. See State v. Little, 851 N.W.2d 878,
885 (Minn. 2014) (“It is well settled that an appellate court may not base its decision o n
matters outside the record on appeal, and that matters not produced and received in
evidence below may not be considered.”) (quotation omitted).
Ineffective assistance of counsel
Appellant argues that he received ineffective assistance of counsel because his
attorney did not procure a better plea deal and did not present enough evidence about how,
among other things, appellant’s affair may have motivated M.H. and her mother to seek
revenge against him.
“To prove ineffective assistance of counsel, a defe ndant must show that (1) his
attorney’s performance fell below an objective standard of reasonableness, and (2) a
reasonable probability exists that the outcome would have been different, but for counsel’s
errors.” State v. Mosley, 895 N.W.2d 585 (Minn. 2017) (quotations omitted ). “An

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attorney’s representation meets the objective standard of reasonableness if the attorney
exercises the customary skills and diligence that a reasonably competent attorney would
exercise under the circumstances. Strategic choices made by an attorney after a thorough
investigation of the facts and law are virtually unchallengeable. ” Swaney v. State , 882
N.W.2d 207, 217 (Minn. 2016) (quotation omitted).
The arguments that appellant complains his attorney did not make at trial appear to
be strategic choices, which this court will not second-guess on appeal. See State v. Davis,
820 N.W.2d 525, 539 n.10 (Minn. 2012). As to appellant’s grievance that he did not
receive a more favorable plea offer, it is well settled that the prosecution’s participation in
plea negotiations is discretionary; the prosecutor “has no duty to initiate plea barg aining”
or “make a bargain.” State v. Andrews, 282 Minn. 386, 391 n. 4, 165 N.W.2d 528, 532 &
n. 4 (1969). Appellant chose not to accept the straight guilty plea he was offered, and there
is no evidence that this choice was based on misinformation or lack of information by his
defense counsel. Thus, appellant’s ineffective-assistance-of-counsel arguments do not
entitle him to relief.
Downward departure
Appellant argues that “a multitude of factors” indicated that he should have received
a downward departure. Appellant argues that his low criminal -history score, high
education level, self-owned business, child-support obligations, and strong family support
made him particularly amenable to probation.
This court will reverse sentencing decisions only for an abuse of discretion, and
district courts are afforded great discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn.

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2014). Only in a rare case will this court reverse a district court’s refusal to depart. State
v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
“[A]s long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination,” this court will not
interfere with the district court’s decision. State v. Pegel , 795 N.W.2d 251, 255 (Minn.
App. 2011). In this case, in finding that there were no substantial or compelling re asons
for a downward dispositional departure, the district court stated:
Mr. Tankersley, I have carefully considered the whole record
including the letters and the comm ents of your family and
friend. . . . You argue that you should get probation for the sake of
your family, that your children need you, and I agree there . . . are
indications that you are a devoted father. However, you were not
a devoted father to [M.H.]. You used your position of trust and
authority to violate her. You should have though t of your other
children when you did that. Instead of ow ning up to your deeds,
you took this to trial and you revictimized [M.H.] by causing her
to testify to the sexual abuse she suffered in a courtroom full of
strangers. It’s apparent from my reading of the PSI that you have
not fully owned up to the extent of what you did to [M.H.]

We conclude that this is not a “rare case which would warrant reversal of the refusal to
depart.” See Kindem, 313 N.W.2d at 7.
Affirmed.