State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0307

State of Minnesota,
Respondent,

vs.

Nathan Anthony Janish,
Appellant.

Filed August 26, 2019
Affirmed
Smith, Tracy M., Judge

Anoka County District Court
File No. 02-CR-17-753

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, As sistant County
Attorney, Anoka, Minnesota (for respondent)

Mark G. Giancola, Rory P. Durkin, Giancola -Durkin, P.A., Anoka, M i n n e s o t a ( f o r
appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
After his seven-year-old niece r eported that he had sexually as saulted her on two
occasions, appellant Nathan Anthony Janish was charged with six counts of criminal sexual

2
conduct: two counts each for both occasions and two counts for “multiple acts over an
extended period of time.” A jury found him guilty on all six co unts, and the district court
entered a conviction on one of th e counts charging multiple act s. Janish filed a
postconviction petition claiming ineffective assistance of counsel, which the district court
denied without an evidentiary h earing. Janish appeals from both the conviction and
postconviction ruling, arguing th at (1) the postconviction cour t should have granted an
evidentiary hearing, (2) the dis trict court improperly admitted Spreigl evidence, (3) the
jury’s verdict may not have been unanimous, (4) the district co urt erred by not severing
two of the counts before trial, and (5) the evidence was insufficient to support the verdict.
We affirm.
FACTS
The convictions in this case arose out of several sexual assaults committed by Janish
against A.W., his niece. Two sexual assaults occurred on one night in the summer of 2016,
when A.W. was sleeping over at Janish’s house, located in Anoka County. On that night,
Janish twice approached A.W., while she was asleep or in bed, a nd made sexual contact
with and penetrated her. A third sexual assault occurred one n ight in October 2016 when
A.W., her sister, and her cousins were staying over at their gr andparents’ house in Cass
County, which the family referre d to as the “wood house.” This sexual assault, too,
involved sexual contact and penetration.
In November, A.W. reported the sexual assault at the wood house to her parents,
who then contacted Midwest Children’s Resource Center (MCRC). A nurse from MCRC
interviewed A.W., who described both the sexual assault at the wood house and a sexual

3
assault at Janish’s house to the nurse. The nurse then reported the sexual assaults to a police
department in Cass County, the Anoka County Sheriff’s Department, and Anoka County
Child Protection. The Anoka County Sheriff’s Department investi gated. On February 1,
2017, the state charged Janish w ith first- and second-degree cr iminal sexual conduct
(counts one and two) based on a sexual assault occurring at Jan ish’s house in Anoka
County, in violation of Minn. Stat. § 609.342, subd. 1(a) (2016), and Minn. Stat. § 609.343,
subd. 1(a) (2016).
In early July, the state amended the complaint, adding four new counts. Counts three
and four were based on the sexual assault in Cass County and ch arged first- and second-
degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a), and Minn.
Stat. § 609.343, subd. 1(a). Counts five and six likewise charged first- and second-degree
criminal sexual conduct, but they alleged multiple acts committed over an extended period
of time against a victim with whom the actor had a significant relationship, in violation of
Minn. Stat. § 609.342, subd. 1(h)(iii) (2016), and Minn. Stat. § 609.343, subd. 1(h)(iii)
(2016). Because the initial compla int had described the Cass Co unty sexual assault, even
though it had charged only a sexual assault occurring in Anoka County, the statement of
probable cause was not amended except to add a statement that “ criminal sexual conduct
may be prosecuted in any jurisdiction in which the violation originates or terminates.”
A jury trial was held in Anoka County from July 10 to July 17, 2017. Before jury
selection began, Janish’s attorney moved to dismiss the new cou nts. He argued that the
district court in Anoka County lacked jurisdiction over counts three and four because they
alleged acts occurring in Cass County. He also argued that there was no probable cause for

4
counts five and six because acts in Anoka County followed six months later by acts in Cass
County were not, according to him , “multiple acts over a protra cted period of time.” The
district court denied the motion to dismiss counts three and fo ur based on Minn. Stat.
§ 627.15 (2016), which allows a prosecution for child abuse to be venued in “the county
where the alleged abuse occurred or the county where the child is found.” And the district
court denied the motion to dismiss counts five and six, ruling that whether the allegations
constituted “multiple acts committed over an extended period of time” was a question of
fact for a jury.
At trial, A.W. described three s exual assaults by Janish: two o n the same summer
night at Janish’s house in Anoka County and one in October at t he wood house in Cass
County. A.W. testified that, durin g each sexual assault, Janish “stuck his private part in
[her] mouth,” “rubbed something up against her bottom,” and “pu t . . . [her] hand around
his private part.” Other witnesses testified about A.W.’s prior reports of the sexual assaults,
the circumstances on the nights when the sexual assaults occurred, and Janish’s statements
about his conduct on the nights when the sexual assaults occurred. The state then rested.
Janish’s attorney moved for a judgment of acquittal, arguing that no reasonable jury
could find Janish guilty because A.W. never specifically said t he word “penis” when
reporting the abuse or when tes tifying and because A.W.’s paren ts testified to having
doubts about whether the sexual assaults had happened. The dist rict court denied the
motion.
Several witnesses testified in Janish’s defense, stating that Janish had not been alone
with A.W. and that they had not seen any abuse. Janish also testified; he denied having any

5
sexual contact with A.W. and said that other people were in the room on each of the nights
he was alleged to have sexually assaulted A.W.
Before the last day of trial, Janish moved to dismiss counts th ree through six,
arguing that the crimes had not occurred in Anoka County and th at A.W. could not be
found in Anoka County for purposes of Minn. Stat. § 627.15. The district court heard the
motion orally and took it under advisement. After the defense r ested, the district court
denied Janish’s motion to dismiss. It ruled that venue was appropriate for counts five and
six because Anoka County was where the offenses began. And the district court ruled that
venue was appropriate for counts three and four because A.W. co uld be found in Anoka
County since investigation of the Cass County allegations of child abuse occurred in Anoka
County.1
The jury returned guilty verdicts on all six counts. After the verdicts, Janish moved
for a judgment of acquittal or a new trial, arguing that the ev idence was insufficient to
support a conviction on any count and arguing, in the alternati ve, that the district court
lacked jurisdiction over counts three through six. As a subargu ment of his jurisdictional
argument, Janish also contended that he was entitled to a new t rial because the state, by
introducing evidence on the counts over which the district cour t lacked jurisdiction, had
introduced prior-bad-acts evidence without providing Spreigl notice.2 The district court

1 The district court cited State v. Krejci, 458 N.W.2d 407, 410 (Minn. 1990) (concluding
that venue was appropriate in the county where a child-abuse victim was hospitalized and
the abuse was investigated).

2 “[E]vidence of other crimes, wrongs or acts . . . commonly known as Spreigl evidence, is
inadmissible to prove a defendant’s character but may be admitted to show motive, intent,

6
denied a judgment of acquittal or a new trial, ruling that the evidence was sufficient to
support the jury’s verdict. The district court reversed its determination that A.W. could be
“found” in Anoka County for purposes of Minn. Stat. § 627.15 an d therefore dismissed
counts three and four. But the district court refused to dismiss counts five and six because,
it ruled, Minn. Stat. § 609.53 (2016) permits criminal-sexual-c onduct cases to be
prosecuted “in any jurisdiction in which the violation originates or terminates” and counts
five and six depended on multiple a cts, the first of which took place in Anoka County.
Finally, the district court denied Janish’s motion for a new tr ial based on the dismissal of
counts three and four, reasoning that the evidence of the Cass County acts was not improper
Spreigl evidence because those acts were p art of what the state had to prove to establish
counts five and six.
The district court entered a conviction on count five—one of th e two remaining
first-degree offenses—and did not enter convictions on the other first-degree offense or the

absence of mistake, identity, or plan.” State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015)
(citing State v. Spreigl, 139 N.W.2d 167, 169 (Minn. 1965)); see also Minn. R. Evid. 404(b)
(defining other-acts evidence). Th ere are five requirements for the admission of Spreigl
evidence:
(1) notice is given that the stat e intends to use the evidence;
(2) the state clearly indicates what the evidence is being
offered to prove; (3) the evidence is clear and convincing that
the defendant participated in the other offense; (4) the Spreigl
evidence is relevant and material to the state’s case; and (5) the
probative value of the Spreigl evidence is not outweighed by
its potential for unfair prejudice.
Campbell, 861 N.W.2d at 102 (quoting State v. Kennedy , 585 N.W.2d 385, 389 (Minn.
1998).

7
two lesser-included offenses. At s entencing, the district court granted a downward
dispositional departure, sentencing Janish to the presumptive d uration of 144 months but
granting a stay of execution with 20 years’ probation.
Janish appealed and was granted a stay to allow him to file a postconviction petition
with the district court. Janis h’s postconviction petition claim ed ineffective assistance of
counsel—identifying seven ways in which his trial counsel was allegedly ineffective—and
sought an evidentiary hearing. Following argument on the postco nviction petition, the
district court denied the petition without an evidentiary hearing.
Janish brings this combined direct and postconviction appeal.
D E C I S I O N
I. The district court did not err by denying a postconviction e videntiary hearing.
Appellate courts review the denial of a request for an evidenti ary hearing on a
postconviction petition for an abuse of discretion. Taylor v. State, 874 N.W.2d 429, 430
(Minn. 2016). Legal issues are reviewed de novo, but factual matters are reviewed only to
determine “whether there is sufficient evidence in the record to support the postconviction
court’s findings.” Brown v. State , 863 N.W.2d 781, 786 (Minn. 2015). Reversal is not
warranted “unless the postconviction court exercised its discre tion in an arbitrary or
capricious manner, based its ruling on an erroneous view of the law, or made clearly
erroneous factual findings.” Id. (quoting Reed v. State , 793 N.W.2d 725, 729 (Minn.
2010)).
The postconviction court must grant an evidentiary hearing on a postconviction
petition “[u]nless the petition and the files and records of the proceeding conclusively show

8
that the petitioner is entitled to no relief.” Minn. Stat. § 59 0.04, subd. 1 (2018); Brocks v.
State, 753 N.W.2d 672, 674 (Minn. 20 08) (construing the hearing requ ired by
section 590.04 to be an evidentiary hearing).
Before the postconviction court, Janish identified seven bases for his claim that he
received ineffective assistance of counsel. Here, Janish relies on none of them3 and instead
asserts a new basis on which the district court should have granted an evidentiary hearing:
that trial counsel was ineffective because he failed to move to sever the Cass County counts
from the other counts before trial.
The general rule against appella te consideration of claims rais ed for the first time
on appeal applies to postconviction petitions. Andersen v. State, 913 N.W.2d 417, 428 n.11
(Minn. 2018) (declining to consider claims not raised before th e postconviction court).
Because Janish did not argue to the postconviction court that his trial counsel should have
moved to sever the Cass County counts before trial, he has forf eited that argument for
purposes of this appeal.
Even if we were to consider his claim on its merits, it would f ail. Criminal
defendants have a right to the e ffective assistance of counsel. U.S. Const. amend. VI;
McMann v. Richardson, 397 U.S. 759, 772, 90 S. Ct. 1441, 1449 n.14 (1970). To show that

3 At oral argument, Janish’s couns el argued that, because the po stconviction petition was
included in the addendum to the brief, all seven arguments in the petition were incorporated
by reference into the brief itself. But “an issue that is not r aised in the ‘argument portion’
of a brief is deemed waived on appeal.” State v. Jackson , 655 N.W.2d 828, 837 (Minn.
App. 2003) (quoting In re Application of Olson, 648 N.W.2d 226, 228 (Minn. 2002)). Thus,
we decline to address the arguments that Janish raised to the p ostconviction court but did
not brief to this court.

9
the Sixth Amendment right has been denied because counsel was ineffective, an appellant
must show two things: first, “that counsel’s performance was deficient,” and, second, “that
the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984 ). A court “need not analyze bo th elements of the
Strickland test if one or the other is determinative.” Sanchez v. State, 890 N.W.2d 716, 720
(Minn. 2017). To show prejudice, a defendant must show “a reasonable probability . . . that
the outcome would have been different, but for counsel’s errors .” State v. Mosley , 895
N.W.2d 585, 591 (Minn. 2017) (q uotation omitted). “A ‘reasonabl e probability’ is a
probability sufficient to undermine confidence in the outcome of the case.” Id. (quotation
omitted).
The second Strickland element is determinative here. The factual basis of counts
five and six included the facts supporting counts three and fou r. To show that Janish
committed multiple acts “over an e xtended period of time,” the state needed to introduce
evidence of the Cass C ounty sexual assault. See Minn. Stat. §§ 609.3 42, subd. 1(h)(iii),
.343, subd. 1(h)(iii). Thus, the same evidence would have been introduced at trial
regardless of whether counts three and four were severed. Trial counsel’s failure to seek
pretrial severance of those charges could not have prejudiced Janish.
Because the petition and the reco rd conclusively show that Jani s h c o u l d n o t
establish the prejudice element of Strickland, the district court did not abuse its discretion
by denying his postconviction petition without an evidentiary hearing.

10
II. The district court did no t err by improperly admitting Spreigl evidence.
Janish argues that the district court erred by admitting eviden ce of another crime,
wrong, or act, in violation of Minn. R. Evid. 404(b). Janish’s objection is to A.W.’s
testimony that Janish sexually assaulted her a second time—not just once—on the night of
the charged sexual assault in Ano ka County. Janish also objects to T.W.’s testimony that
A.W. previously said that she did not recall whether the additional sexual assault in Anoka
County took place at the home Janish lived in at the time of th e charged Anoka County
sexual assault or in the home Janish lived in before that.
When “a defendant fails to object to the admission of evidence, our review is under
the plain-error standard.” State v. Drew, 889 N.W.2d 323, 330 (Minn. App. 2017). Because
Janish’s trial counsel did not o bject to A.W.’s testimony, and actually elicited T.W.’s
testimony during cross-examination, the plain-error standard of review applies. See State
v. Gisege, 561 N.W.2d 152, 158 n.5 (Minn. 1997) (stating that plain error applies equally
to invited error and unobjected-to-error). To establish plain error, an appellant must show
“(1) error, (2) that was plain, and (3) that affected the defendant’s substantial rights.” State
v. Brown, 792 N.W.2d 815, 820 (Minn. 2011). If all three factors are shown, the appellate
court determines “whether the e rror seriously affected the fair ness, integrity, or public
reputation of judicial proceedings.” Id. at 821 (quotation omitted).
Janish fails to establish the first prong. The district court d id not err by admitting
evidence that Janish had committ ed a second sexual assault agai nst A.W. at his house in
Anoka County on the same night a s the offense charged in counts one and two. Evidence
of the additional sexual assault in Anoka County tended to prov e that Janish’s “sexual

11
abuse involved multiple acts co mmitted over an extended period of time,” an element of
the crimes charged by counts five and six. See Minn. Stat. §§ 609.342, subd. 1(h)(iii), .343,
subd. 1(h)(iii). Because evidenc e of the additional sexual assa ult was evidence of the
charged multiple-acts crime, it was not “[e]vidence of another crime, wrong, or act” and
Minn. R. Evid. 404(b) does not apply.
III. The district court did not e rr by accepting a verdict that was not unanimous.
Janish next argues that the district court erroneously accepted a verdict that was not
unanimous because evidence of thr ee different acts was introduc ed but the jury was not
specifically instructed that they had to agree on which of the acts he had committed in order
to find that he had engaged in “multiple acts” of sexual abuse as charged in counts five and
six.
Janish’s argument is incorrect. The jury found Janish guilty of all counts. That
means that the jurors unanimously agreed that Janish had engage d in both sexual
penetration and sexual contact at his home in Anoka County—coun ts one and two—and
that he had engaged in both sexua l penetration and sexual contact several months later in
Cass County—counts three and four. Thus, the jury unanimously a greed that Janish had
committed multiple acts over an ext ended period of time. While Janish suggests that the
subsequent dismissal of the Cass County counts makes the jury’s verdict nonunanimous, it
is unclear how that can be so. The fact that the court dismisse d counts three and four
because it concluded that venue w as improper does not change th e jury’s unanimous
finding: Janish committed the acts underlying those counts.

12
Even if the dismissal of counts three and four somehow erases the jury’s unanimous
determination on those counts, Janish’s argument still fails. Janish did not request a specific
unanimity instruction at trial. Thus, this court reviews for plain error. See State v. Wenthe,
865 N.W.2d 293, 299 (Minn. 2015) (applying plain-error review i n the context of a
challenge to the lack of a specific unanimity instruction). Jan ish cannot establish that the
district court erred—much less plainly—by not sua sponte giving a specific unanimity
instruction.
Janish relies on Richardson v. United States in asserting plain error. 526 U.S. 813,
824, 119 S. Ct. 1707 , 1713 (1999). In Richardson, the Supreme Court held that a statute
which required proof of a “continuing series of violations,” required “unanimity in respect
to each individual violation” rather than unanimity with respect to the fact that there was a
series of violations. Id. at 815-16, 119 S. Ct. at 1709. There can be no dispute that a jury is
required to unanimously find each element of an offense. State v. Dalbec, 789 N.W.2d 508,
511 (Minn. App. 2010) (“A jury cannot convict a defendant unles s it unanimously finds
that the government has proved each element of the charged offe nse.”). But Richardson
and Minnesota law distinguish between situations where a series of acts is a single element
and situations where each act in a series is an element. Richardson, 526 U.S. at 817-18,
119 S. Ct. at 1710 (“[W]e must d ecide whether the statute’s phr ase ‘series of violations’
refers to one element, namely a ‘series,’ in respect to which the ‘violations’ constitute the
underlying brute facts or means, or whether those words create several elements, namely
the several ‘violations,’ in respect to each of which the jury must agree unanimously and

13
separately.”); Dalbec, 789 N.W.2d at 511 (“[A] jury must reach a unanimous verdict on all
elements of the crime but need not agree on the underlying facts.”).
Thus, the critical question is whether the phrase “the sexual abuse involved multiple
acts,” Minn. Stat. § 609.342, s ubd. 1(h)(iii), defines a single element of first-degree
criminal sexual conduct on which the jury must unanimously agree or whether each of the
multiple acts is an independent element on which the jury must unanimously agree. While
several unpublished cases indicate that “multiple acts” is a si ngle element, 4 published
caselaw has not answered this question.
But there is precedential caselaw on similar issues. As a general rule, the state need
not prove the specific dates of sexual abuse. State v. Rucker , 752 N.W.2d 538, 547-48
(Minn. App. 2008) (“Generally, sp ecific dates need not be prove d in cases charging
criminal sexual conduct over an extended period of time.”), review denied (Minn. Sept. 23,
2008); see also State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (stating that the statute
did not “make a particular time period a material element of th e offense”); State v. Poole,
489 N.W.2d 537, 544 (Minn. App. 1992) (“[S]pecific dates need not be charged or proven
in a sexual abuse case.”). This general rule has led to conclusions that undermine Janish’s
argument. For example, in Rucker, this court held that a district court “did not err in not

4 See State v. Schauer , A13-0500, 2014 WL 6608790, at *4 (Minn. App. Nov. 14, 2014)
(“The district court was not required to instruct the jury to make findings on which specific
acts [the defendant] committed under this count, only that [the defendant] committed
‘multiple acts’ . . . .”); State v. Derosier , A03-1718, 2005 WL 1331078, at *2-3 (Minn.
App. June 7, 2005) (holding that the district court was not required to instruct the jury that
they must agree on which of 11 acts of criminal sexual conduct the defendant had
committed against the victim), aff’d on other grounds, 719 N.W.2d 900 (Minn. 2006).

14
instructing the jury that it must unanimously agree on which specific incidents formed the
basis of appellant’s convictions ” for criminal sexual conduct a g a i n s t a c h i l d t h a t w a s
alleged to have occurred over a multi-year period of time. 751 N.W.2d at 548. While
Rucker differs from this case in certain respects, it certainly does n ot make plain that a
specific unanimity instruction is required when, as here, a def endant is charged with
committing multiple acts of sexual assault over an extended period of time.
IV. The district court did not c ommit reversible error by not s evering the Cass
County counts before trial.
Janish next argues that he is e ntitled to reversal because the district court failed to
sever counts three and four before trial. Janish’s counsel asked the district court to dismiss
counts three and four before trial but did not specifically move for severance. If we construe
Janish’s request to dismiss as a motion to sever, we apply a de novo standard of review to
the district court’s decision not to sever. See State v. Fitch, 884 N.W.2d 367, 378 (Minn.
2016) (“[Appellate courts] review a district court’s decision r egarding whether to sever
charges or offenses de novo.”).
“On motion . . . , the court must sever offenses or charges if: (a) the offenses or
charges are not related.” Minn. R. Crim. P. 17.03, subd. 3(1). “Offenses are ‘related,’ and
severance is not required . . . if the offenses arose out of a single behavioral incident.” State
v. Kendell, 723 N.W.2d 597, 607 (Minn. 2006). In considering severance, “ courts should
evaluate the temporal and geographic proximity of the offenses and assess whether the
conduct was motivated by an effo rt to obtain a single criminal objective.” Id. at 607-08.
The fact a defendant committed “multiple crimes over time for the same criminal objective

15
does not mean that he committed those crimes to attain a single criminal objective.” State
v. Bakken, 883 N.W.2d 264, 271 (Minn. 2016). Further, if a defendant com mits multiple
crimes that are unrelated to each other, but each of which is i ndependently related to an
additional crime, joinder of the unrelated crimes will nonethel ess be improper. State v.
Ross, 732 N.W.2d 274, 280 (Minn. 2007).
Consistent with these principles, counts one and two (the Anoka County offense)
were not properly joined with counts three and four (the Cass County offense). The conduct
underlying the two pairs of count s was separated temporally by several months and
geographically by several countie s. That separation means that, even if Janish was
motivated by the same sexual in tent when committing the Anoka C ounty offense and the
Cass County offense, his motivation does not constitute a singl e criminal objective.
Because the Anoka County offense was among the “multiple acts” charged by counts five
and six, counts one and two could be joined with counts five and six. And because the Cass
County offense was among the “multiple acts” charged by counts five and six, counts three
and four could also be joined with counts five and six. But bec ause the Anoka County
offense and the Cass County offense did not arise out of the same behavioral incident, those
counts could not be joined with each other.
“But the ultimate question in a severance claim is one of preju dice.” Fitch, 884
N.W.2d at 379 (quotation omitted). As discussed above, evidence of the Cass County act
was admissible because it was on e of the “multiple acts” charge d by counts five and six.
Thus, admission of evidence relevant to the improperly joined c ounts could not be
prejudicial to Janish. Had count s three and four been severed b efore trial, the exact same

16
evidence would have been admissible in order to prove counts fi ve and six. Thus, Janish
could not have been prejudiced by the joinder in this case. Cf. id. (“[J]oinder is not
prejudicial if evidence of each offense would have been admissible Spreigl evidence in the
trial of the other.” (quotation omitted)).
Janish makes two arguments against this conclusion. First, he a rgues that the Cass
County conduct would not have been admissible because “multiple acts” under Minn. Stat.
§§ 609.342, subd. 1(h)(iii), .343, subd. 1(h)(iii), does not re fer to “distinct acts separated
by space and time” but rather to “different types of sexual con duct committed within the
same temporal/spatial topography.” But we construe statutes as a whole, to give effect to
all provisions. State v. Henderson , 907 N.W.2d 623, 625 (Mi nn. 2018). The phrase
immediately following “multiple acts” in the statute is “committed over an extended period
of time.” Minn. Stat. §§ 609.342, subd. 1(h)(iii), .343, subd. 1(h)(iii). The requirement of
“an extended period of time” is inconsistent with Janish’s asserted “same temporal/spatial
topography” interpretation, which we therefore reject.
Second, he argues that the statute itself violates due process by allowing the state to
charge as a single crime multiple acts that, if charged separat ely, would not be subject to
joinder. He argues that this allows the state to introduce what is, in effect, propensity
evidence because multiple bad acts have been combined into a single crime.
But there are several problems with Janish’s argument. First, J anish identifies no
caselaw suggesting that a defendant has a due-process right to an offense consisting only
of a single act. Second, comparable statutes, in which several distinct bad acts are elements
of the crime, have been upheld against similar challenges. See, e.g., State v. Cross , 577

17
N.W.2d 721, 724-25 (Minn. 1998) (rejecting, in an appeal from a conviction of domestic-
abuse murder, the defendant’s argument that “past pattern of do mestic abuse” was prior-
bad-acts evidence subject to Spreigl, reasoning the past abuse was an element of the offense
and was subject to proof beyond a reasonable doubt). Third, even the erroneous admission
of evidence of prior bad acts does not violate the Due Process Clause because it is not
“fundamentally unfair.” Dowling v. United States , 493 U.S. 342, 352-54, 110 S. Ct. 668,
674-75 (1990). We see no due-process problem with a statute that permits conviction only
if a jury is persuaded beyond a reasonable doubt that the defendant has committed multiple
acts of sexual abuse.
Thus, because the Cass County conduct was part of the actus reus charged by counts
five and six, Janish suffered no prejudice due to the joinder o f counts three and four for
this trial.
V. The evidence was sufficient to support the verdict.
Janish’s final argument is that, because A.W. never said the wo rd “penis” while
testifying, there was insufficient evidence for the jury to hav e found that he committed
sexual penetration. He argues that A.W. only used the phrase “front potty” to describe the
organ she was talking about and claims that the jury could only have “speculated” as to
what that meant.
When reviewing a challenge to the sufficiency of the evidence, “[t]he verdict will
not be overturned if, giving due regard to the presumption of i nnocence and the
prosecution’s burden of proving guilt beyond a reasonable doubt , the [factfinder] could
reasonably have found the defendant guilty of the charged offen se.” State v. Palmer, 803

18
N.W.2d 727, 733 (Minn. 2011) (second alteration in original) (quoting State v. Leake, 699
N.W.2d 312, 319 (Minn. 2005)). In performing this analysis, we will “view the evidence
in a light most favorable to the verdict and assume the jury be lieved the state’s witnesses
and disbelieved contrary evidence.” State v. Stein , 776 N.W.2d 709, 714 (Minn. 2010)
(quotation omitted).
To obtain a conviction for first-degree criminal sexual conduct, the state needed to
prove that Janish engaged in “sexual penetration” with A.W, mea ning, in this case, that
there was any contact between Janish’s penis and her mouth. Min n. Stat. § 609.342,
subd. 1; see also Minn. Stat. § 609.341, subd. 12 (2016) (defining “sexual penetration” to
include “fellatio”); State v. Ptacek, 766 N.W.2d 355, 359 (Minn. App. 2009) (holding that
“fellatio,” as used in section 609.341, means “any contact between the penis of one person
and the mouth, tongue, or lips of another person”), review denied (Minn. Aug. 26, 2009).
Janish’s argument is that A.W.’s testimony was not sufficiently specific to allow the
jury to find that there had been any contact between his penis and A.W.’s mouth. But A.W.
testified that Janish “stuck his private part in [her] mouth,” “rubbed something up against
[her] bottom,” and “put [her] hand around his private part.” She described Janish’s “private
part” as being “bigger than his thumb.” The jury also heard abo ut A.W.’s prior reports of
the abuse. A.W. told her mother that she knew that the object inserted into her mouth was
Janish’s “potty area” because “it tasted like pee” and “it was hard to breathe” during the
sexual assault. And A.W. described the object to the MCRC nurse as being “a cylinder”
and “smooth.” Viewing this evide nce in the light most favorable to the verdict, the jury

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could reasonably have concluded that the object inserted into A .W.’s mouth was Janish’s
penis.
Further, Janish cites no authority requiring particular languag e or specificity in
describing sexual assault. He does not point to any case sugges ting that the word “penis”
or the use of an anatomical doll or illustration is required. And the use of developmentally
appropriate language to describe s exual assault is a common the me of cases involving
criminal sexual conduct against children; those cases do not express concern over the lack
of medically specific terminology, and some explicitly affirm c hildren’s testimony using
nonmedical terminology against a sufficiency-of-the-evidence challenge. See, e.g., State v.
Myers, 359 N.W.2d 604, 607 (Minn. 1984) (complainant said that the d efendant would
“touch her on her ‘chest’ and between her legs”); State v. Duncan, 608 N.W.2d 551, 554
(Minn. App. 2000) (child/juvenile victims referred to different parts of anatomy by various
euphemisms); State v. Wilbur, 445 N.W.2d 582, 583 (Minn. App. 1989) (victim stated that
defendant had “touched her with h imself” and that he hurt her w ith “his weiner”), review
denied (Minn. Oct. 19, 1989).
There is no serious question that A.W.’s testimony was sufficiently specific for the
jury to have found that Janish engaged in sexual penetration. The evidence was sufficient
to support the conviction beyond a reasonable doubt.
Affirmed.