A18-1143

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1142
A18-1143

State of Minnesota,
Appellant,

vs.

Vincent Michael Gosewisch,
Respondent.

Filed December 31, 2018
Reversed and Remanded
Jesson, Judge
Dissenting, Smith, John, Judge
*

Brown County District Court
File No. 08-CR-17-699

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

Charles W. Hanson, Brown County Attorney, New Ulm, Minnesota (for appellant)

Melvin R. Welch, Welch Law Firm, LLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Jess on, Presiding Judge; Bratvold, J udge; and Smith,
John, Judge.

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

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S Y L L A B U S
Under Minnesota Statutes sectio n 609.349 (2016), an actor’s cr iminal sexual
conduct with a vulnerable complain ant is excused when the compl ainant “is the actor’s
legal spouse” at the time of the offense.
O P I N I O N
JESSON, Judge
In this consolidated appeal, the state challenges the pretrial dismissal of criminal
sexual conduct charges against re spondent Vincent Michael Gosew i s c h . T h e c h a r g e s
against Gosewisch stemmed from sexual conduct with a vulnerable adult. Shortly before
trial, Gosewisch married the alle ged victim and moved to dismis s the complaint. The
district court granted the motion after applying Minnesota Statutes section 609.349 (2016),1
which provides that an actor is excused from criminal liability for sexual conduct with a
mentally impaired complainant if the actor is married to the victim. Because we conclude
that the exception contained in the statute applies only if the actor is married to the victim
at the time of the offense, we reverse and remand.
FACTS
The state filed a criminal comp laint against respondent Vincent Michael Gosewisch
alleging one count of third-degree criminal sexual conduct (sex ual penetration) and one
count of fourth-degree criminal sexual conduct (sexual contact) for his sexual encounters

1 The charged conduct in this case occurred during two different time periods. Although
the earlier conduct would fall un der the 2014 version of the st atute, the later conduct is
encompassed by the 2016 statute. Given that there were no changes in statutory language,
we cite to the 2016 versions of relevant criminal statutes throughout the opinion.

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with G.H. that occurred on or about April 1, 2016 to June 30, 2016. G.H., who according
to psychological assessments functions at the mental capacity of a seven to eight-year-old
child, was alleged to be “menta lly impaired, mentally incapacit ated, or physically
helpless.”2 In a second complaint, the state alleged that Gosewisch engag ed in one count
of third-degree criminal sexual conduct (sexual penetration) and one count of fifth-degree
criminal sexual conduct (sexual contact) with G.H. during the e vening of May 12-13,
2017.3
Shortly before the trial scheduled for July 2018, Gosewisch and G.H. married, and
G o s e w i s c h m o v e d t o d i s m i s s a l l charges involving G.H. as the al leged victim, on the
ground that the two are in a volun tary relationship within the meaning of Minnesota
Statutes section 609.349. Gosewis ch argued that the statute ex cuses an actor’s criminal
culpability for some sexual contact with a vulnerable adult, in this instance because G.H.
“is the legal spouse of Mr. Gosewisch; they live together, and neither party has filed for
legal separation or divorce.”
Following a hearing, the district court dismissed both complaints as to G.H., relying
on the “unambiguous” language of Minnesota Statutes section 609.349. The district court
found that Gosewisch’s alleged conduct did not violate the crim inal statutes because

2 Third- and fourth-degree criminal sexual conduct charges may b e premised on sexual
conduct with a victim who is “m entally impaired, mentally incap acitated, or physically
helpless.” Minn. Stat. §§ 609.344, subd. 1(d), .345, subd. 1(d ) (2016). “Mentally
impaired” is defined for purposes of criminal sexual conduct as “lack[ing] the judgment to
give a reasoned consent to sexual contact or sexual penetration ” because the person has
“inadequately developed or impaired intelligence.” Minn. Stat. § 609.341, subd. 6 (2016).
3 In the second criminal action, the state also charged Gosewisc h with fourth-degree
criminal sexual conduct for sexual activity with a second victim.

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section 609.349 prohibits crimina l culpability “if the complain ant is the actor’s legal
spouse,” the provision includes “no temporal limitation” as to legally married spouses, and
Gosewisch is G.H.’s “legal spouse.” The district court also re jected the state’s challenge
to the constitutionality of the statute.
This appeal follows.
ISSUE
Did the district court err by in terpreting Minnesota Statutes s ection 609.349 to
excuse Gosewisch from criminal c ulpability for engaging in sexu al conduct because he
married the alleged victim shortly before trial?
ANALYSIS
The state contends that the di strict court’s interpretation of Minnesota Statutes
section 609.349 is erroneous and that the plain language of the statute excuses Gosewisch
from criminal liability only if he is married to the alleged victim at the time of the offense,
unless the couple is legally separated. Gosewisch also argues that the statute is
unambiguous, but reaches the opposite result: the legal spouse provision excuses criminal
sexual conduct if the defendant and victim marry at any time be fore the trial because the
statutory provision is silent on when the marriage must occur.
To resolve this dispute, we first consider whether the alleged district court error has
a critical impact on the trial outcome. We then turn to interp ret the statute itself. This
question of statutory interpretation is a question of law, subj ect to de novo review. State
v. Riggs , 865 N.W.2d 679, 682 (Minn. 2015 ). Because we conclude, given t h e t w o
reasonable interpretations of the provision, that the statute is ambiguous, we move to apply

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the tools of statutory construc tion. Through application of th ese tools, we conclude that
there is only one reasonable construction: the protections acc orded a legal spouse in
section 609.349 apply only if the actor is married to the vi ctim at the time of the alleged
offense, unless the couple is legally separated.
But we begin with an examination of critical impact. We only r each the issue of
statutory interpretation in a pretrial appeal from the state if the alleged district court error
has a critical impact on the trial outcome. State v. Underdahl, 767 N.W.2d 677, 681 (Minn.
2009); see Minn. R. Crim. P. 28.04, subd. 2(2). Here, the state met that threshold showing
because “[d]ismissal of a complaint satisfies the critical impact requirement.” State v. Trei,
624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001).
We next turn to the statute itself. In its entirety, Minnesota Statutes section 609.349
states:
A person does not commit criminal sexual conduct under
sections 609.342, clauses (a) and (b), 609.343, clauses (a) and
(b), 609.344, clauses (a), (b), (d), (e), and (n), and 609.345,
clauses (a), (b), (d), (e), and (n), 4 if the actor and complainant
were adults cohabiting in an ongoing voluntary sexual

4 Clauses (a) and (b) of Minnesota Statutes sections 609.342 and 609.343 (2016), defining
first- and second-degree criminal sexual conduct, prohibit cert ain sexual acts when “the
complainant is under 13 years of age and the actor . . . more than 36 months older” or “the
complainant is at least 13 years of age but less than 16 years of age and the actor is more
than 48 months older than the complainant and in a position of authority over the
complainant.” Clauses (a), (b), (d), (e), and (n) of Minnesota Statutes sections 609.344 and
609.345 (2016), defining third- a nd fourth-degree criminal sexu al conduct, also likewise
prohibit sexual conduct involving designated ages of minor complainants and adult actors,
sexual conduct between actors who provide special transportatio n services and a
complainant who uses those services either during or immediatel y before or after
transportation, and certain conduct when “the actor knows or ha s reason to know that the
complainant is mentally impaired, mentally incapacitated, or physically helpless.” Minn.
Stat. §§ 609.344, subd. 1(d), .345, subd. 1(d).

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relationship at the time of the alleged offense, or if the
complainant is the actor’s legal spouse , unless the couple is
living apart and one of them has filed for legal separation or
dissolution of the marriage. Nothing in this section shall be
construed to prohibit or restrai n the prosecution for any other
offense committed by one legal spouse against the other.

(Emphasis added.)
The key question before us is when to determine whether a couple “is” married for
purposes of section 609.349. The plain language of the statute controls when the meaning
is unambiguous, and we first cons ider whether that is the case. Lapenotiere v. State, 916
N.W.2d 351, 357 (Minn. 2018). Here, both parties contend that the statute’s plain language
supports their interpretation. And both of their interpretatio n s a r e r e a s o n a b l e . A s
Gosewisch points out, the statute explicitly provides that for cohabiting adults in a
voluntary sexual relationship, an actor does not commit crimina l sexual conduct with a
vulnerable adult if they are cohabitating “at the time of the alleged offense.” That explicit
temporal directive is missing from the provision exempting an a ctor from prosecution for
criminal sexual conduct with a vulnerable adult who is the actor’s spouse. But, as the state
contends, it is reasonable to read the initial wording of the s tatute (“A person does not
commit . . . .” (emphasis added)) to impose a present tense rea ding of the balance of the
statute. In that situation, an actor does not commit criminal sexual conduct at the time of
the offense if the actor is married to the victim.
Because there are two reasonable interpretations of the statute, we conclude that it
is ambiguous. This determination is bolstered by the lack of a temporal qualifier for the
legal-spouse exemption in the statute. In this regard, Marks v. Comm’r of Revenue i s

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i n s t r u c t i v e . 8 7 5 N . W . 2 d 3 2 1 ( M i n n . 2 0 1 6 ) . T h e r e , t h e s u p r e m e court evaluated an
income-allocation statute for tax purposes, determined that it was subject to two reasonable
interpretations because of a lack of “temporal precision” among its provisions, and ruled
that the resulting ambiguity permitted the court to ascertain legislative intent to resolve the
ambiguity. Id. at 326. The lack of a temporal qualifier in the legal-spouse provision of
section 609.349 creates a similar “temporal ambiguity.” Id.
When a statute is ambiguous, we look beyond the plain language of the statute to
determine legislative intent. Minn. Stat. § 645.16 (2018). In doing so, we may apply the
canons of statutory construction to discern the statute’s meani ng. State v. Nelson , 842
N.W.2d 433, 436 (Minn. 2014). In this effort, we first look at language of the entire statute
to determine whether it may be harmonized to clarify the ambiguity. We also examine the
purpose of the statute, consider its language in light of other crimes defined in the criminal
code, and consider the consequences of other interpretations.
First, with regard to the statutory language itself, the relevant language provides that
“[a] person does not commit criminal sexual conduct . . . if th e complainant is the actor’s
legal spouse.” Minn. Stat. § 609.349. Accordingly, we must determine whether an actor’s
marriage excuses criminal sexual conduct if the actor “is” married at the time of the alleged
criminal sexual conduct or at any time before trial. In doing so, we must discern whether
the initial portion of the statute, referring to the present te nse, can be reconciled with the
temporal qualifier applied to cohabitating couples. See Septran, Inc. v. Indep. Sch. Dist.
No. 271, 555 N.W.2d 915, 919 (Minn. App. 1996) (recognizing well-estab lished rule of

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statutory construction that re quires harmonizing apparently con flicting statutory
provisions), review denied (Minn. Feb. 26, 1997).
The beginning portion of the statute answers the question of when one “is” married.
Minnesota Statutes section 609.349 starts with “[a] person does not commit criminal sexual
conduct . . . if,” which focuses on the conduct of the actor at the exact time it occurs. That
focus applies to all of the exe mptions that follow the statemen t, including when a
complainant “is” the actor’s spouse. As a result, whether a vi ctim “is married” should be
determined at the time of the offense. The fact that the provi sion protecting certain
cohabiting couples from criminal sexual conduct includes an additional temporal qualifier
does not change this analysis. Cohabitation is generally a mor e fluid state than the
relatively constant state of ma rriage, and the differences in p ermanency underlying these
two statuses explain the different statutory wording applied to t h e m . C o n s t r u i n g t h e
provisions in harmony with each other, as we are directed to do, leads us to the conclusion
that the “at the time of the offense” language that specifically applies to cohabiting couples
is necessary in light of the more impermanent nature of cohabitation and a similar reference
is unnecessary with regard to married couples.
Second, support for this construction is garnered by the statute’s obvious purpose to
protect vulnerable adults. See Minn. Stat. § 645.16(1) (permitting consideration of the
“occasion and necessity for the law” in interpreting a statute). It is the public policy of this
state to protect vulnerable adults. Minn. Stat. § 626.557, subd. 1 (2018). Section 609.349
is designed to protect vulnerable persons while upholding their constitutional right to marry

9
whom they choose. 5 See State v. Perez , 779 N.W.2d 105, 110 (Minn. App. 2010)
(recognizing that the statute “creat[es] [an] exception to some criminal-sexual-conduct
offenses if [the] complainant is [the] actor’s legal spouse and [the] couple is not in [the]
process of separation or divorce”), review denied (Minn. June 15, 2010). Extending the
statutory exemption to an actor who marries a vulnerable adult before trial could permit or
even encourage an actor to marry in order to avoid culpability for criminal conduct, re-
victimizing the alleged victim. Here, Gosewisch married G.H. t wo years after the first
alleged offense and only six weeks before the scheduled trial.
Third, reading section 609.349 in light of the balance of the criminal code reinforces
our conclusion that the legal-spo use exemption is determined at the time of the alleged
offense, so that an actor is not excused by an after-the-fact marriage to a victim. See Am.
Family Ins. Grp. v. Schroedl , 616 N.W.2d 273, 278 (Minn. 2000) (directing courts to
“construe a statute as a whole and . . . interpret each section in light of the surrounding
sections to avoid conflicting in terpretations”). The criminal code nearly always defines
crimes with reference to prohibited conduct by the actor that occurs at a specific time, and
that is the time of the alleged offense. For example, criminal sexual conduct crimes are
defined with reference to an actor who “engages” in sexual acts with another person. See

5 The right to marry is a fundamental civil right. Loving v. Virginia, 388 U.S. 1, 12, 87 S.
Ct. 1817, 1824 (1967). But that right is subject to reasonable state regulation, In re
Guardianship of O’Brien, 847 N.W.2d 710, 714 (Minn. A pp. 2014), which may include
the restriction of an incapacitated person’s right to marry. See Minn. Stat. §
524.5-314(c)(6) (2018) (permitting a guardian “the duty and power to exercise supervisory
authority over the ward in a manne r which limits civil rights . . . o n l y t o t h e e x t e n t
necessary”).

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Minn. Stat. §§ 609.342, .343, .344, .345, .3451 (2016). Murder offenses are defined with
reference to an actor who “does” a specific act that causes the death of another person. See
Minn. Stat. §§ 609.185, .19, . 20 (2016). And assault offenses are defined with reference
to an actor’s “assault” of another person. See Minn. Stat. §§ 609.221, .222, .223 (2016).
Possible exceptions include the offenses of misdemeanor failure to possess proof of
insurance to drive a vehicle under Minnesota Statutes section 1 69.791, subd. 2 (2016),
which prohibits a conviction for the offense if a vehicle owner later produces timely proof
of insurance, Minn. Stat. § 169.7 91, subd. 2a (2016), and drivi ng while impaired under
Minn. Stat. § 169A.20, subd. 1(5) (2016), which defines the off ense to include
measurement of the person’s alcohol concentration “within two h ours of the time, of
driving, operating, or being in physical control of [a] motor v ehicle.” But even those
offenses are defined with reference to principal conduct that o ccurs at the time of the
offense. It would therefore be anomalous here to consider the actor’s marital status at any
time other than the time of the offense.
And finally, we consider the cons equences of Gosewisch’s interp retation of when
an actor “is” married to an alleged victim. Minn. Stat. § 645. 16(6) (permitting
consideration of the consequences of a particular interpretatio n). Not only, as discussed
above, would an after-the-fact marriage allow for re-victimization of a vulnerable adult, it
could lead to other troubling ap plications of the statute. As the state points out, an actor
could marry the complainant be fore trial, resulting in dismissa l of criminal charges, and
later divorce the complainant, leaving the state in a quandary about whether to recharge the
actor. Encouraging this sort of gamesmanship with respect to a statute intended to protect

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vulnerable adults could not have been what the legislature had in mind when drafting it.
Id.
For all of these reasons, we conclude that the ambiguity in Min nesota Statutes
section 609.349 is resolved by harmonizing the entire text of the statute and giving effect
to the legislature’s intent. The legal-spouse provision must b e interpreted to excuse
Gosewisch’s alleged criminal conduct only if he was married to G.H. at the time of the
offense.6 Because Gosewisch married G.H. after the alleged criminal con duct occurred,
the legal-spouse provision does not excuse his conduct.
D E C I S I O N
Given its language, its purpose, and its placement among other statutes in the
criminal code, the provision of Minnesota Statutes section 609.349 that excuses the actor’s
criminal sexual conduct if the a ctor is married to the complain ant applies only when the
complainant “is the actor’s legal spouse” at the time of the offense. We therefore reverse
the district court’s pretrial dismissal of charges against Gosewisch.
Reversed and remanded.

6 Because of this disposition, we decline to address the state’s other argument on appeal.

D-1

SMITH, Judge (dissenting)
I agree with the majority that Mi nn. Stat. § 609.349 (2016) is ambiguous, but I
would affirm the district court’s dismissal of charges because that ambiguity is not resolved
through applications of the canons of construction, and a person who is to be charged with
a crime should be given advance notice of prohibited conduct.
The section 609.349 provision th at excuses the actor’s conduct “if the actor and
complainant were adults cohabiting in an ongoing voluntary sexual relationship at the time
of the alleged offense” includes a past tense verb and a time q ualifier, both of which
identify exactly when the cohabiting actor’s conduct is excused . The provision that
immediately follows, “or if the c omplainant is the actor’s lega l spouse,” is written in a
grammatically similar style, but i ncludes a present-tense verb and omits a time qualifier.
As the majority notes, by writing in the manner it did, the leg islature could have intended
to treat married couples differently than cohabiting couples. Or, the legislature could have
intended to apply the same time restrictions to married and coh abiting couples but did so
i n a w k w a r d g r a m m a t i c a l f a s h i o n . See Minn. Stat. § 645.17(1) (2018) (stating that the
legislature “does not intend a result that is absurd, impossibl e of execution, or
unreasonable”). Allowing the actor who is charged with crimina l sexual conduct to be
excused from culpability by marryin g a mentally impaired compla inant after the offense
but before trial could also lead to a result that the legislature did not intend. See Minn. Stat.
§ 645.16(6) (2018) (allowing cour ts to consider “the consequenc es of a particular
interpretation” in determining statutory intent). But we are d irected not to “supply that
which the legislature purposely omits or inadvertently overlook s.” State v. Corbin , 343

D-2

N.W.2d 874, 876 (Minn. App. 1984) (quotation omitted). The majority’s interpretation of
the statute does not rectify the differences in the provisions— it merely “writes in” the
language that the legislature om itted when drafting the legal-s pouse provision. Further,
due to the infirm drafting of the statute, it is unclear whethe r the legislature intended the
legal-spouse provision to favor vulnerable adults’ constitutional right to marry or to favor
the statutory purpose of protecting vulnerable adults. The can ons of construction do not
assist us in resolving the statute’s ambiguity.
The majority acknowledges the reasonableness of the interpreta tion of the statute
proposed by respondent. Judges and lawyers struggle with the language and interpretation
of the statute, yet the majority suggests that a common person not be given the benefit of a
reasonable interpretation. Incom petent persons subject to guar dianship have the right to
marry unless it can be shown that they do not “understand[ ]the meaning, rights, and
obligations of marriage.” In re Guardianship of O’Brien , 847 N.W.2d 710, 715 (Minn.
2014). The result of the majority’s interpretation of the statute takes away the ability of a
vulnerable adult (incompetent per son) to have sexual relations prior to marriage without
making their sexual partner a criminal even though the couple intends to marry. The statute
seemingly intends to prevent the abuse of vulnerable adults; however, interfering with the
right of a vulnerable adult to have sexual relations with a partner they intend to marry raises
serious constitutional concerns as well as practical concerns. (One example of a practical
concern would be when two vulnerable adults not co-habiting have sexual relations.)

D-3

Children conceived prior to marriage provide instructive guida nce in this regard.
The law provides that children conceived prior to marriage who are otherwise considered
illegitimate receive the legal b enefit of legitimacy if a coupl e marries prior to the child’s
birth. See Minn. Stat. § 257.55, subd. 1 (2 018) (establishing a statutory presumption of
paternity if a man and woman marry and their “child is born dur ing the marriage”). The
marriage validates the legal status of the child in the eyes of the law. The interpretation
urged by the respondent legitimizes the status of a couple’s sexual relationship when they
marry. Despite the legislature’s deficient crafting of this statute, this interpretation makes
more sense than to make premarital sexual relations between two people who are in love
and intend to get married a criminal act.
The canon of construction known as the rule of lenity “applies . . . after the other
canons of construction have been exhausted and what remains is a grievously ambiguous
statute.” State v. Thonesavanh, 904 N.W.2d 432, 440 (Minn. 2017). The rule “vindicates
the fundamental principle that no citizen should be held accoun table for a violation of a
statute whose commands are uncertain, or subjected to punishmen t that is not clearly
prescribed.” Id. Such is the case here, and for this reason I would affirm the district court’s
dismissal of charges against Gosewisch.