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This opinion will be unpublished and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
A18-0318

State of Minnesota,
Respondent,

vs.

John Thomas Owen,
Appellant.

Filed December 3, 2018
Affirmed in part, reversed in part, and remanded
Smith, John, Judge*

Blue Earth County District Court
File No. 07-CR-16-3607

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

Patrick R. McDermott, Blue Earth County Attorney, Mankato, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Joseph A. Gangi, Farrish Johnson Law Office, Chtd., Mankato, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Bratvold, 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’s conviction of third -degree criminal sexual conduct because
the record evidence is sufficient to sustain the conviction , the district court did not abuse
its discretion by admitting evidence that a ppellant had completed the college required
training on sexual consent, and the prosecutor did not commit misconduct. We also affirm
appellant’s sentence because the district cour t did not abuse its discretion by denying his
motion for a downward durational departure. But we reverse appellant’s convictions of
fourth- and fifth-degree criminal sexual conduct, which are lesser included offenses, and
remand for vacation of those sentences.
FACTS
Sixteen-year-old N.D. went to visit her sister A.D. at college. A.D. had to work, so
N.D. spent the evening with two of A.D.’s friends. One of them gave N.D. two standard
20-ounce Gatorade bottles filled with two-thirds Gatorade and one-third vodka. She drank
one in the dorm and the other “throughout the night” as they went to a party and then
walked around an area of student housing.
N.D. became very intoxicated. She felt increasingly “heavy” and “dizzy” and
experienced “black spots” or “blackout spots,” where she does not remember anything at
all. She could not walk on her own and kept closing her eyes and “tilting her head all over
the place.” Her companions expected her to vomit.
N.D. did not remember how she got back to her sister’s dorm but remembers lying
down on a futon in the room of one of her companions. Her sister put a blanket on her and

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placed a garbage can near her head “in case she threw up.” Then her sister left, and she
“passed out again.”
The next thing N.D. remembers is a male she did not know sitting on the futon next
to her, followed by a blackout spot. And then he had his arm around her and was holding
her up. They conversed, but she does not remember the conversation. He maneuvered her
over so she was straddling him, then moved her hips back and forth and kissed her neck
while she “droop[ed]” over his shoulder and laid her head against the back of the futon.
N.D. perceived his actions “kind of like a dream,” as though “it wasn’t really happening to
me.” Then she had another blackout spot. N.D. next remembers that she was lying down
on the futon with him sitting over her and kissing her neck. She noticed a sudden “flood
of light” as her sister opened the door to check on her, and the male stopped and “shot up.”
N.D. was uncertain what was going on and then had another blackout spot ; her sister
observed that she was “passed out .” N.D. next remembers the male kissing her neck,
“positioning” her legs, and getting on top of her. Then another blackout spot, followed by
her discovering that he had removed her pants and was moving on top of her. When he
went to remove his own pants, she said, “[N]o, no, no, I can’t.” He asked her why not, but
she did not remember what followed because she had another blackout spot. She next
remembers him whispering, “[W]elcome to college,” and putting his penis into her vagina.
He “did two strokes ” then stopped, and she had another blackout spot. The encounter
lasted approximately 20 minutes.
Afterward, she remembers being in the bathroom with him. He handed her pants to
her and told her to put them on, but she did not understand why. He led her back to the

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futon, climbed into his lofted bed above, and told her they would “finish this next weekend”
if she returned. She then “fully passed out.”
The next morning, N.D. discovered that the male was appellant John Owen, the
roommate of one of her companions. At breakfast, she started crying and told her sister
what happened, explaining that “everything was super fuzzy” but she remembered that she
kept trying to push Owen off or say no but could not. N.D. reported the incident to police
and went to the hospital for a sexual-assault examination. Owen gave a statement to police
acknowledging that he had sex with N.D. even though he knew she was “too drunk” and
had objected to sex, explaining that she thereafter grabbed him and initiated it.
Owen was charged with third -, fourth-, and fifth -degree criminal sexual conduct.
After a jury trial, Owen was convicted of all three offenses. The district court denied
Owen’s motion for a downward dispositional or durational departure and sentenced him to
48 months in prison.
D E C I S I O N
I. The record evidence is sufficient to sustain Owen’s convictions.
In reviewing a claim of insufficient evidence, we view “the evidence in a light most
favorable to the verdict to determine whether the facts in the record and the legitimate
inferences drawn from them would permit the jury to reasonably c onclude that the
defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”
State v. Hanson , 800 N.W. 2d 618, 621 (Minn. 2011) (quotations omitted). When
reviewing a conviction based on circumstantial evidence, we apply a two-step analysis.
State v. Harris , 895 N.W.2d 592, 598 -601 (Minn. 2017) . First, we identify the

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circumstances proved “by resolving all questions of fact in favor of the jury’s verdict.” Id.
at 600. In doing so, we are mindful that the jury, as fact -finder, is in the best position to
determine witness credibility and may accept part and reject part of a witness’s testimony.
Id. We also assume “the jury believed the state’s witnesses and disbelieved any evidence
to the contrary” and defer to those credibility determinations. State v. Moore, 438 N.W.2d
101, 108 (Minn. 1989). Second, we independently consider the “reasonable inferences that
can be drawn from the circumstances proved.” Harris, 895 N.W.2d at 601. “To sustain
the conviction, the circumstances proved, when viewed as a whole, must be consistent with
a reasonable inference that the accused is guilty and inconsistent with any rational
hypothesis except that of guilt.” Id. “But we will not overturn a guilty verdict on
conjecture alone.” State v. Hayes, 831 N.W.2d 546, 553 (Minn. 2013).
To convict Owen of third-degree criminal sexual conduct,1 the state was required to
prove that he engaged in sexual penetration while he knew or had reason to know that N.D.
was “physically helpless.” Minn. Stat. § 609.344, subd. 1(d) (2016). Owen disputes the
sufficiency of the evidence establishing that (1) N.D. was physically helpless and (2) he
knew or had reason to know of this condition. Because no direct evidence proves either
element, we apply the circumstantial-evidence standard to each element in turn.

1 Fourth-degree criminal sexual conduct is a lesser included offense, as discussed below ,
and Owen does not challenge his fifth-degree conviction. We therefore focus our analysis
on the third-degree conviction.

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Physically Helpless
A person is physically helpless if she “is (a) asleep or not conscious, (b) unable to
withhold consent or to withdraw consent because of a physical condition, or (c) u nable to
communicate nonconsent and the condition is known or reasonably should have been
known to the actor. ” Minn. Stat. § 609.341, subd. 9 (2016). “‘Consent’ means words or
overt actions by a person indicating a freely given present agreement to perform a particular
sexual act with the actor.” Id., subd. 4(a) (2016).
When viewed in the light most favorable to the conviction, the evidence of N.D.’s
physical helplessness is as follows. Everyone around N.D., including Owen, perceived
that she was extremely intoxicated. She was unable to move independently, keep her eyes
open, or clearly perceive what was occurring, including whether she was awake or not.
She cannot remember what was happening for periods of time. During one such “blackout”
period, her sister observed her “passed out” on the futon next to Owen. Owen manipulated
her body throughout the entire encounter —placing her on top of him, moving her hips,
positioning her legs, and removing her pants. When he went to remove his own pants, she
objected. She does not remember what happened afterward, but Owen continued his
attentions. The next thing she knew, he was whispering in her ear and penetrating her.
Owen contends that these facts establish that N.D. was not physically helpless
because she was able to verbally communicate her nonconsent, like the complainant in
State v. Blevins, 757 N.W.2d 698 (Minn. App. 2008). We disagree. The complainant in
Blevins was intoxicated but awake throughout the encounter and communicated

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nonconsent, then consciously acquiesced in the sex act because she felt ill, uncomfortable,
and afraid. 757 N.W.2d at 701. That is not the scenario before us.
This case is more akin to State v. Berrios, in which the complainant was “extremely
intoxicated,” fell unconscious, awoke to discover the defendant removing her pants and
told him “no,” but passed out again and awoke to find him on top of her with his penis
inside her vagina and could not move her body. 788 N.W.2d 135, 142 (Minn. App. 2010),
review denied (Minn. Nov. 16, 2010) . N.D. was similarly in and out of consciousness ,
unable to move her own body , or remember what was happening to her . See id. (noting
that the complainant’s memory gaps “are consistent with the testimony that [she] was
severely intoxicated and experienced intermittent periods of unconsciousness”). N.D. was
able to object once during the roughly 20 -minute encounter , but she was consistently
unable to withhold consent as Owen undressed her, manipulated her body, and penetrated
her. Accordingly, we conclude that sufficient evidence supports the jury’s finding that
N.D. was physically helpless.
Knew or Had Reason to Know
When viewed in the light most favorable to the conviction, the evidence that Owen
knew or had reason to know of N.D.’s physical helplessness is as follows. He knew she
was extremely intoxicated and that she was specifically “too drunk” to be having sex. N.D.
was able to communicate with him at points during the encounter, including once objecting
to sex, but he would have been aware that he was moving her body around throughout the
encounter and that she lapsed into periods of unconsciousness. On this record, we conclude

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that sufficient evidence supports the jury’s finding that Owen knew or should have known
of N.D.’s physical helplessness.
II. The district court did not abuse its discretion by admitting evidence that Owen
received training on consent.

We review evidentiary rulings for an abuse of discretion. State v. Bartylla , 755
N.W.2d 8, 20 (Minn. 2008) . Appellant has the burden of demonstrating that the district
court abused its discretion and that he was thereby prejudiced. State v. Amos, 658 N.W.2d
201, 203 (Minn. 2003).
The district court admitted evidence, over Owen’s objection, that Owen completed
the college’s required training on sexual consent. The training included information about
“how alcohol impacts consent,” potential risks, and statistics about alcohol use and impact.
The training also included a true/false question about whether a person who is “asleep,
drugged, or unconscious or blacking out” is capable of giving consent. The district court
reasoned that the evidence is relevant to Owen’s “knowledge about consent” and whether
he “knew or had reason to know” N.D. was unable to consent.
Owen contends this evidence was irrelevant because consent is not an element of
the charged offenses and his knowledge that a person cannot consent if she is asleep or
unconscious “does not have anything to do with ” whether he knew N.D. was actually
asleep or unconscious. This argument is unavailing. All three of the charged offenses
involve elements of whether N.D. consented or not, see Minn. Stat. § 609.3451, subd. 1(1)
(2016), or whether she was able to consent or not and whether Owen was aware of that
state, see Minn. Stat. §§ 609.341, subd. 9, .344, subd. 1(d), .345, subd. 1(d) (2016). Owen’s

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awareness that an extremely intoxicated person may not be able to consent to sex is relevant
because it tends to make it more probable that these elements are satisfied. See Minn. R.
Evid. 401. In fact, the district court’s concern in admitting the evidence was precisely that
the issue of consent is so central to the case that it wanted to ensure the evidence of Owen’s
training would not confuse the jury about the legal definition of consent.
Owen also argues that any probative value was outweighed by the potential for
unfair prejudice or confusion. He contends the evidence, and the prosecutor’s argument
on the evidence, misled the jury “into believing that the issue was whether Owen knew the
definition of consent.” Because either consent or ability to consent (or not) was an element
of each of the ch arged offenses, there was nothing misleading about presenting evidence
and argument that Owen had been trained on a definition of consent that is not inconsistent
with applicable law. The district court did not abuse its discretion by admitting the
evidence.
III. The prosecutor did not commit misconduct.
We review unobjected-to claims of prosecutorial misconduct under a modified
plain-error analysis. State v. Peltier, 874 N.W.2d 792, 803 (Minn. 2016). The defendant
has the burden to demonstrate both that error occurred and that the error was plain. Id. If
the defendant meets this burden, the state then must show that the misconduct did not affect
the defendant’s substantial rights. Id.
The prosecutor is an officer of the court who must balance advocacy for the state’s
position with an “obligation to achieve justice and fair adjudication .” State v. Fields, 730
N.W.2d 777, 782 (Minn. 2007) ; see also State v. Graham , 764 N.W.2d 340, 349 (Minn.

10
2009) (stating that “a prosecutor must be more than just an advocate for” the state). During
closing argument, the state may “ present all legitimate arguments on the evidence and all
proper inferences that can be drawn from that evidence ” but may not “misstate the
evidence.” State v. Munt , 831 N.W.2d 569, 587 (Minn. 2013) (quotation omitted).
Likewise, the prosecutor also may “reference the law” but should exercise caution not to
misstate the law. State v. Cao , 788 N.W.2d 710, 716 (Minn. 2010) . And the prosecutor
“may argue as to the credibility of witnesses but may not throw his own opinion onto the
scales of credibility.” State v. McNeil, 658 N.W.2d 228, 235 (Minn. App. 2003) , review
denied (Minn. June 25, 2003). When reviewing whether a prosecutor’ s argument
overstepped these lines, we consider the argument as a whole, rather than focusing on
“particular phrases or remarks.” State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008).
Owen first contends that the prosecutor misstated the evidence by stating that N.D.
“was unconscious at the time” of the sexual act, and “there was no way for her to give any
overt action or any words.” The prosecutor was addressing the charge of fifth -degree
criminal sexual conduct based on Owen’s nonconsensual removal of clothing covering
N.D.’s intimate parts. See Minn. Stat. § 609.3451, subd. 1. And the argument that N.D.
was unconscious during this act, when she testified that it occurred during a “blackout
spot,” simply posits that N.D.’s blackout spots were periods of unconsciousness. Such an
argument is a reasonable inference from the evidence.
Owen also contends that the prosecutor misstated the law by telling the jury it could
find N.D. was physically helpless if “she couldn’t move her body, didn’t know where she
was, couldn’t open her eyes, she felt heavy, thought she was in a dream.” We disagree.

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The prosecutor did not misstate the law but recited the details of N.D.’s condition and
invited the jury to consider whether those details align with some part of the multifaceted
concept of physical helplessness: “What you have to determine is that she was physically
helpless. How you get there doesn’t matter.” And the jury repeatedly received an accurate
legal definition of physical helplessness during the court’s oral and written instructions and
throughout the prosecutor’s argument. The prosecutor did not commit mi sconduct in
arguing that N.D.’s condition satisfied the physically helpless element.
Finally, Owen contends the prosecutor improperly appealed to the jury’s passions
by evoking sympathy for N.D. and focusing on what she went through following the
incident—telling her story to strangers, undergoing a sexual-assault exam, taking a Plan B
pill, struggling emotionally in the year that followed, and then experiencing the trauma of
testifying at trial. But the prosecutor recited these facts merely as a means of demonstrating
N.D.’s credibility. The prosecutor asked the jury to consider why she would “make this
up” and whether she has “something to gain,” then after discussing N.D.’s experience
posited, “When you’re back there trying to decide whether [N.D.] is credible or not, think
about what she’s gone through. Would she do that if she didn’t have to? ” Overall, the
prosecutor did not endorse N.D.’s credibility or appeal to the jury’s passions but recognized
that the jury had to decide whether to believe Owen or N.D. and argued, based on properly
admitted evidence, that N.D.’s experience supports finding her credible. Cf. McNeil, 658
N.W.2d at 235 (holding that argument about child victim’s loss of virginity and loss of
childhood was “made to play on the sympathies of the jury and had nothing to do with the

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facts of the case ”). Such argument is not misconduct. Accordingly, Owen’s plain -error
claim of prosecutorial misconduct fails.
IV. The district court did not abuse its discretion by denying Owen’s motion for a
downward durational departure.

A district court “must pronounce a sentence of the applicable disposition and within
the applicable range unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (2016). Substantial
and compelling circumstances for a durational departure are those that demonstrate the
defendant’s conduct was significantly more or less serious than that typically involved in
the commission of the offense in question. State v. Rund , 896 N.W.2d 527, 532 (Minn.
2017). A district court’ s decision whether to depart from the presumptive guidelines
sentence is subject to an abuse -of-discretion standard of review . State v. Solberg , 882
N.W.2d 618 , 623 (Minn. 2016) . “ Only in a rare case will a reviewing court reverse a
district court’s imposition of the presumptive sentence.” State v. Olson, 765 N.W.2d 662,
664 (Minn. App. 2009).
Owen moved for a downward dispositional departure or, in the altern ative, a
downward durational departure . In support of a durational departure, Owen urged only
(1) that his conduct was less serious than typically involved in the commission of the
offense because he was not initially aware of N.D.’s level of intoxication and promptly
stopped “once [he] realized his conduct was ‘wrong’” and (2) that he spent the remainder
of the night treating N.D. “with particular care,” which he reasoned is the opposite of

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particular cruelty. The district court determined that this is not the “rare” case warranting
either downward departure.
Owen does not challenge the district court’s decision to sentence him to prison but
argues that the district court abused its discretion by denying a downward durational
departure because his condu ct was less serious than the ordinary case and he expressed
remorse. See Solberg, 882 N.W.2d at 625-26 (recognizing that a defendant’s remorse could
justify a durational departure if it “ relate[s] back” and remediates the conduct). But the
district court considered and rejected these arguments. It noted the seriousness of Owen’s
conduct, that he physically manipulated and took sexual advantage of a girl who “had an
awful lot to drink.” It reasoned that Owen stopping promptly did not materially mitigate
the seriousness of his conduct because “it was complete upon the act of penetration.” And
it expressly rejected Owen’s claim of remorse, finding “a disappointing lack of empathy.”
On this record, we conclude the district court did n ot abuse its discretion by denying
Owen’s motion for a downward durational departure.
V. Owen’s conduct supports only one conviction.
Minnesota law prohibits a criminal defendant convicted of one offense from also
being convicted of any included offenses. Minn. Stat. § 609.04, subd. 1 ( 2016). An
included offense is “a crime necessarily proved if the crime charged were proved.” Id.,
subd. 1(4). When a jury finds a defendant guilty of more than one offense from a single
course of conduct, the district court should “adjudicate formally and impose sentence on
one count only.” State v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999 ). The warrant of
commitment plainly indicates that the district court entered convictions on each of the three

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guilty verdicts. The record indicates and the state does not dispute that all three charges
against Owen were based on the same act. Accordingly, the district court should vacate
the convictions for fourth- and fifth-degree criminal sexual conduct on remand.
Affirmed in part, reversed in part, and remanded.