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This opinion will be unpublished and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
A17-1475

State of Minnesota,
Respondent,

vs.

Barry Richard Closmore,
Appellant.

Filed August 13, 2018
Affirmed
Smith, John, Judge*

Washington County District Court
File No. 82-CR-16-723

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, 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 Barry Richard Closmore’s conviction for third-degree criminal
sexual conduct because sufficient evidence supports the conviction.
FACTS
The state charged appellant with one count of third-degree criminal sexual conduct
after A.C. reported that appellant, the boyfriend of A.C.’s mother , physically held A.C.
down and penetrated her vagina during the early morning hours on February 21, 2016.
At trial, A.C. testified that she would sometimes spend the night with her mother,
D.C., who “basically lived” with appellant. A.C. testified that she had a good relationship
with appellant, but that his behavior changed during the evening of February 20, 2016. She
testified appellant acted “differ ent” and “weird” that night while she was consuming
alcohol in appellant’s garage with appellant, D.C., and K.W. She testified appellant made
a comment about blowing marijuana smoke into her mouth, but “backed away” when D.C.
entered the garage. She testified that appellant and D.C. eventually went into the house,
and K.W. and A.C. stayed in the garage.
A.C. testified that appellant came back to the garage 15 minutes later and wanted to
get in a hot tub at a neighbor’s house. Appellant, K.W., and A.C. got in the hot tub. A.C.
wore a bra and underwear. A.C. felt appellant touch her legs and buttocks under the water,
which made her uncomfortable and worried. After K.W. left the hot tub, A.C. decided to
leave; she carried her clothes to appellant’s house and appellant followed.

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A.C. testified that, when she got into the house, she believed appell ant went
downstairs and she went upstairs to take a bath. She removed her clothes and started to fill
the bathtub with water. She went into the attached bedroom, where A.C. nor mally stayed
when the room was not occupied by appellant’s mother, to grab an item for the bath. She
testified that appellant entered the room, grabbed her by the back of the neck, pushed her
down, and inserted his penis into her vagina forcefully. A.C. testified that appellant would
not let her move, and pushed her back down when she tried to get up. She testified that
she repeatedly told appellant, “No.” She testified that appellant placed his hands on her
neck and upper back, and he “pushed [her], face into the bed.” She did not scream because
she did not want to wake the children sleeping in a nearby room.
A.C. testified that when appellant finished, she listened for his door to close and
then grabbed a blanket and ran to K.W.’s house. K.W. and his mother answered the door.
A.C. told them about the assault . She told police and a nurse that the assault occurred in
the garage after she left the hot tub . She also told the officer that appellant removed her
clothes. She testified that, a few days after the assault , she remembered more details and
realized the assault occurred in the bedroom and not the garage , but she did not contact
police to inform them of her altered memory.
K.W. testified that A.C. looked very bad when he and his mother answered the door,
and that she appeared frightened and was crying. K.W. testified that A.C. told him that
appellant sexually assaulted her. K.W.’s mother testified that A.C. told her that she “didn’t
want to do it,” and that she was in pain. K.W. contacted police.

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A police officer testified that A.C. reported that appellant pushed her, bent her over
a table in the garage, removed her clothes, held her down, penetrated her vagina, and
continued to hold her down when she tried to get up. The officer testified that A.C. said
she was frightened. A police sergeant located A.C.’s wet undergarments, a towel, and
pants in the upstairs bathroom.
A.C. was taken to the hospital for a sexual assault examination . The nurse who
performed the examination testified that A.C. told her a similar story as that reported to the
police. The nurse collected swabs of A.C.’s vaginal area. DNA testing of those swabs
confirmed that semen found on A.C. belonged to appellant.
Appellant did not testify, but his interview with police was played to the jury.
Appellant indicated that he did not have a sexual relationship with A.C. and he did not
recall sexually penetrating her on February 21. During closing arguments, appellant’s
attorney argued that A.C. and appellant had consensual sex on February 21, and that A.C.
lied about it because she did not want to admit that she had consensual sex with D.C.’s
boyfriend.
The jury returned a guilty verdict after asking the district court several questions
and rewatching appellant’s interview . Appellant admitted aggravating sentencing factors
and agreed to a departure sentence of 96 months if the state dismissed a second charge .
The district court sentenced appellant in accordance with the agreement after finding that
aggravating factors supported a departure.

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D E C I S I O N
In considering a claim of insufficient evidence, our review is limited to an 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 a guilty verdict. State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must as sume “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 case depends
primarily 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 requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the crime. Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004).
In order to prove third -degree criminal sexual conduct , the state needed to show
that: (1) appellant intentionall y sexually penetrated A.C.; (2) A.C. did not consent; and
(3) appellant used force or coercion to accomplish the penetration. Minn. Stat. § 609.344,
subd. 1(c) (2014); 10 Minnesota Practice, CRIMJIG 12.21 (2015). Sexual penetration has
been defined as sexual intercourse or “any intrusion howeve r slight into the genital . . .
openings . . . of the complainant’s body by any part of the actor’s body. ” Minn. Stat.
§ 609.341, subd. 12(1), (2) (2014). Coercion is defined in part as “ use by the actor of
confinement, or superior size or strength, against the complainant that causes the
complainant to submit to sexual penetration or contact against the complainant’s will.” Id.,
subd. 14 (2014).

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Under Minnesota law, “the testimony of a victim need not be corroborated” in a trial
for third -degree criminal sexual conduct. Minn. Stat. § 609.347, subd. 1 (2016).
Nevertheless, a ppellant argues that A.C.’s testimony was not sufficient to sustain the
conviction in light of discrepancies between A.C.’s report of the assault and her trial
testimony, her failure to contact police when her memory changed, and her lack of injuries.
Appellant cites to State v. Ani, 257 N.W.2d 699 (Minn. 1977), for the principle that
corroboration of testimony may be required in some instances to uphold a criminal
conviction. In Ani, the Minnesota Supreme Court indicated that “corroboration is not a
requirement” in sex -crime cases, but “the absence of corroboration in an individual case
may well call for a holding that there is insufficient evidence upon which a jury could find
the defendant guilty beyond a reasonable doubt.” 257 N.W.2d at 700 (quotation omitted).
The supreme court upheld the conviction in Ani because “the victim’s testimony was
positive and not contradicted, and was strongly corroborated by other evidence.” Id.
Appellant argues that this case is unlike Ani because “there were significant reasons for the
jury to doubt A.C.’s credibility” and therefore corroboration was required.
The supreme court has reversed convictions where there were strong reasons to
question the credibility of an alleged victim and testimony was not corroborated. See State
v. Huss, 506 N.W.2d 290 (Minn. 1993); State v. Langteau, 268 N.W.2d 76 (Minn. 1978) .
In Huss, a child provided direct testimony that she had been abused by her father , but the
testimony was “contradictory as to whether any abuse occurred at all, and was inconsistent
with her prior statements and other verifiable facts.” 506 N.W.2d at 292 (indicating the
child accused both parents of “bad touches,” described hugs and touches to hair as “bad

7
touches,” inaccurately described her father, and testified that she had showered at her
father’s house that day despite not having seen him in a year) . Despite the contradictory
testimony, the supreme court wrote that it may have upheld the conviction if not for the
fact that the child was repeatedly exposed to a highly suggestive book and audio tape on
sexual abuse. Id. at 292-93. The supreme court noted that the exposure to the book and
audio tape “raise[d] questions about the validity of the accusations m ade against [the
father]. This is especially so in light of the child’s testimony.” Id. at 293.
In Langteau, the defendant challenged whether his conviction was supported by
sufficient credible evidence. 268 N.W.2d at 77. The supreme court acknowledged that the
victim’s testimony would normally be sufficient to sustain the verdict , but reversed the
conviction and remanded for a new trial after “a careful consideration of the record.” Id.
In support of its ruling, the supreme court cited unexplained gaps in the state’s case, such
as no explanation for why the victim had stayed at a hospital well past visiting hours, why
the defendant would rob someone he knew well, and why no stolen items were found in
the defendant’s room or on his person. Id. The state attempted to fill the gaps in the case
by arguing the defendant was under the influence of drugs, despite no evidentiary support
for such an argument. Id. The supreme court stated that “[u]nder all the circumstances,”
a new trial was required. Id.
This case is unlike both Huss, with the alleged victim’s contradictory and inaccurate
descriptions of verifiable facts, and Langteau, with gaps in the case the state fill ed with
unsupported assertions. A.C. provided consistent statements concerning the details of the
assault on February 21 . She provided direct testimony that appellant sexually penetrated

8
her, she did not consent to the penetration, and he used force to accomplish the penetration.
To the extent A.C.’s testimony differed from her statements on February 21 as to location
and whether clothing was removed, A.C. explained to the jury why her story had changed.
The jury credited A.C.’s version of events, including the DNA evidence and her
explanation of the inconsistencies, over appellant’s ar gument that A.C. created the
accusation to conceal consensual sex. “[I]nconsistencies and related credibility
determinations [are] for the jury to assess.” State v. Johnson, 679 N.W.2d 378, 387 (Minn.
App. 2004), review denied (Minn. Aug. 17, 2004).
Moreover, although not required, the state presented corroborating evidence of
A.C.’s version of events. Corroborating evidence may include the victim’s “prompt and
consistent accounts of the assault, her post -rape appearance and emotional state, and her
detailed descriptions of her assailant.” State v. Daby, 359 N.W.2d 730, 733 (Minn. App.
1984) (citations omitted). The jury heard from multiple witnesses who described A.C.’s
appearance after the assault and her prompt report of the assault. K.W. and his mother
testified about finding a naked and crying A.C. outside of their house, and about A.C.’s
accounting of the assault. The witnesses testified that A.C. unwaveringly identified
appellant as her assailant. We conclude that the record before the jury wa s sufficient to
allow the jury to reach the verdict that it did. We discern no reason to disturb the verdict.
Affirmed.