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This opinion will be unpublished and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
A19-0117

State of Minnesota,
Respondent,

vs.

Peter Roy Byrnes,
Appellant.

Filed January 21, 2020
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-17-6439

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

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Christa J. Groshek, Lucas J.M. Dawson, Kindra M.S. Szymanski, Groshek Law, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from his conviction of and sentence for attempted second -
degree criminal sexual conduct, appellant argues that (1) the district court erred by denying
his motion for a judgment of acquittal because the state failed to present sufficient evidence
to prove beyond a reasonable doubt t hat he attempted sexual contact and (2) the district
court abused its discretion by denying his motion for a downward durational departure.
We affirm.
FACTS
R.R. and A.R. are teenage sisters and step -granddaughters of appellant Peter Roy
Byrnes. A 15-year-old A.R. told a camp counselor that appellant sexually touched her
years ago. The camp counselor contacted law enforcement, who interviewed A.R. E.R.,
father to both R.R. and A.R., asked a 12 -year-old R.R. if appellant also interacted
inappropriately with her. R.R. confirmed that he had. The Midwest Children’s Resource
Center then interviewed R.R., who stated that, since she was around six years old, appellant
repeatedly exposed his penis and asked her to hold it and check underneath to see if it was
blue. R.R. always refused. Sometimes appellant would immediately desist, but other times
he would keep asking her and would reassure her that her siblings held his penis so it was
okay for her to do so . Appellant never touched R.R. sexually, and she never touched his
penis.
Respondent S tate of Minnesota charged appellant with one count of attempted
second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a)

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(2018),1 for his o ffenses against R.R., and one count of second -degree criminal sexual
conduct in violation of Minn. Stat. § 609.343 , subd. 1(a), for his offenses against A.R.
Only the charge related to R.R. is at issue here. The district court held a two -week jury
trial at which appellant testified and offered evidence of his good character through his
wife and two daughters. Appellant’s expert in memory retention characterized R.R.’s
version of events as unreliable. R.R., A.R., their parents, the camp counselor, and various
police agents involved with interviewing R.R. all testified.
After the jury found appellant guilty, he filed motions for judgment of acquittal or,
alternatively, a new trial. The district court denied these motions, convicted appellant, and
imposed the presumptive sentence of 18 months in prison. This appeal follows.
D E C I S I O N
I. The district court did not err by denying appellant’s motion for a judgment of
acquittal because sufficient evidence supports the jury’s verdict.

Appellant arg ues that (1) he did not act with specific intent for second -degree
criminal sexual conduct; (2) his actions did not constitute a substantial step; and (3) in the
alternative, he abandoned his attempt.2 We address each issue in turn.

1 The state charged appellant under this version of the statute, and the statute has not
changed since 2007, but the alleged conduct occurred from 2011 to 2018.
2 We note that, even though appellant did not argue the lack of attempt elements at trial, a
defendant may always challenge sufficiency for the first time on appeal. State v. Pakhnyuk,
926 N.W.2d 914, 918 -919 (Minn. 2019) (explaining that defendant who challenges
sufficiency of evidence raises essentially same argument on appeal as presented to jury at
trial, that he was not guilty).

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A. Standard of Review
As an initial matter, a ppellant objects to using either a direct or circumstantial
sufficiency of the evidence standard of review and contends that the de novo standard of
review should apply to determining whether the district court erred by denying his motion
for judgment of acquittal. Although appellant correctly asserts that the de novo standard
controls our review of a judgment of acquittal, a district court properly denies the motion
when sufficient evidence sustains a conviction. State v. DeLaCruz, 884 N.W.2d 878, 890
(Minn. App. 2016), review denied (Minn. Aug. 7, 2018).
When analyzing the sufficiency of the evidence, we apply the traditional direct-
evidence standard of review when the state presents direct evidence of an offense based on
personal knowledge or observation . State v. Olson , 887 N.W.2d 692, 700 (Minn. App.
2016). A heightened, two-step circumstantial standard of review applies when the direct
evidence is insufficient to independently prove the commission of the crime . Loving v.
State, 891 N.W.2d 638, 643 (Minn. 2017). Under the circumstantial-evidence standard of
review, we first determine the circumstances proved and all reasonable inferences ,
construing the evidence in the ligh t most favorable to the verdict. State v. Silvernail, 831
N.W.2d 594, 598-99 (Minn. 2013). Second, giving no deference to the factfinder’s choice
between reasonable inferences, we determine whether these circumstances proved are
consistent with guilt and inconsistent with any reasonable alternative hypothesi s. Id. at
599.
We may apply different evidentiary standards of review to different elements of the
same statute. State v. Al -Naseer, 788 N.W.2d 469, 474 (Minn. 2010 ) (noting previous

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application of circumstantial standard to element of premeditation, despite direct evidence
establishing other elements of offense) (citing State v. Leake, 699 N.W.2d 312, 320 (Minn.
2005)). Here, the circumstantial -evidence standard applies to determining whether
appellant had the requisite i ntent to commit second-degree criminal sexual conduct , as it
requires ascertaining his state of mind, which generally must be inferred from the nature
of a defendant’s actions. State v. Austin, 788 N.W.2d 788, 792 (Minn. App. 2010), review
denied (Minn. Dec. 14, 2010 ); see also State v. McAllister , 862 N.W.2d 49, 53 (Minn.
2015) (noting rarity of being able to establish defendant’s state of mind through direct
evidence). However, the direct-evidence standard of review applies to whether appellant’s
actions constituted a substantial step towards commission of the crime or abandonment
based on R.R.’s testimony that she observed appellant stand by her bed, expose his penis,
and ask her to touch it. See Loving, 891 N.W.2d at 638, 643.
B. Attempt Elements
“A person who engages in sexual contact with another person is guilty of criminal
sexual conduct in the second degree if ” the victim is under 13 years old and the person is
more than three years older than the victim. Minn. Stat. § 609.343 subd. 1(a). The statute
for attempt provides that “[w]hoever, with intent to commit a crime, does an act which is
a substantial step toward, and more than preparation for, the commission of the crime is
guilty of an attempt to commit that crime.” Minn. Stat. § 609.17, subd. 1 (2018) (emphasis
added). We examine intent, substantial step, and abandonment in turn.

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1. Intent

Appellant correctly asserts that second-degree criminal sexual conduct requires a
specific intent to have “sexual contact,” which includes “the touching by the complainant
of the actor’s . . . intimate parts” with “sexual . . . intent.” Minn. Stat. § 609.341, subd.
11(a) (2018). Sexual intent is an “actor perceiv[ing] himself to be acting based on sexual
desire or in pursuit of sexual gratification.” Austin, 788 N.W.2d at 792. Therefore, under
the circumstantial -evidence standard of review, we look at whether the nature of
appellant’s actions sufficiently indicated this specific, sexual intent. Id.
The circumstances proved include appellant (1) tucking R.R. into her bed at night ;
(2) opening his bath robe and exposing his penis ; (3) asking R.R. to touch his penis ;
(4) asking R.R. to check to see if underneath his penis was blue; (5) telling R.R. that it was
okay for her to hold his penis because her siblings had done so previously; (6) insisting that
R.R. touch his penis by asking her repeatedly during the same encounter ; and (7) doing
these acts over a span of years.
These circumstances proved are consistent with the jury finding that appellant
intended to attempt to engage in sexual contact with R.R. by asking her to touch his penis.
Further, the circumstances proved are inconsistent with any other reasonable alternative
hypothesis. See Silvernail, 831 N.W.2d at 598-99.
Appellant argues that the established facts demonstrate only an intent to commit
fifth-degree criminal sexual conduct because his request to R.R. to touch his penis is
insufficient to establish a specific intent to have sexual contact with R.R. We disagree.

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A person is guilty of fifth-degree criminal sexual conduct if they engage in “lewd
exhibition of the genitals in the presence of a minor under the age of 16, knowing or having
reason to know the minor is present.” Minn. Stat. § 609.3451 (2018 ). But appellant did
more than expose his genitals. After exposing himself, he asked R.R. to touch his penis.
Appellant offers no argument as to why his additional request does not escalate this conduct
beyond fifth -degree criminal sexual conduct. For the first time, during oral argument ,
appellant argues that asking R.R. to touch his penis was a joke made in poor taste. This
court may only consider issues presented to and assessed by the district court. Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988 ). Even if we were to consider th is argument, it
is not a reasonable alternative hypothesis based on the circumstances proved . There is no
evidence of appellant laughing, smiling, or joking when he posed his question. He plainly
asked R.R. to touch his penis and waited for her reply. Moreover, appellant did not desist
after making the inquiry, as one would expect someone joking to do, and made the request
on multiple separate occasions.
2. Substantial Step
Appellant argues that he merely solicited another to commit the crime, which is an
insufficient form of preparation to establish a substantial step. State v. Lampe, 154 N.W.
737, 739 (Minn. 1915). Appellant’s argument is not convincing.
The Minnesota S upreme Court has stated that each case invol ving whether a
defendant took a substantial step establishing attempt must be decided on its particular
facts. State v. Dumas, 136 N.W. 311, 314 (Minn. 1912). It declined to adopt a broad rule.
Id. Instead, the Dumas court provides a general principle defining attempt as

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an intent to commit [a crime], followed by an overt act or acts
tending, but failing, to accomplish it. The overt acts need not
be such that, if not interrupted, they must result in the
commission of the crime. They must, however, be something
more than mere preparation, remote from the time and place of
the intended crime; but if they are not thus remote, and are done
with the specific intent to commit the crime, and directly tend
in some substantial degree to accomplish it, they are sufficient
to warrant a conviction.

Id. Here, the district court instructed the jury that “substantial step” means “an act by a
person who intends to commit a crime . . . if the act itself clearly indicates the intent to
commit that specific crime.”
The most relevant case appellant cites is State v. Meemken, involving a conviction
of attempted second-degree criminal sexual conduct because defendant placed his hand on
a child’s leg and asked the child if he could touch her. 597 N.W.2d 582, 586 (Minn. App.
1999), review denied (Minn. Sept. 28, 1999). This court held that asking to touch the child
was more than mere solicitation because the question involved the act of touching the child.
Id. Appellant argues that because he asked R.R. to touch his penis, without touching her,
his action qualifies as preparation and not attempt. We are not persuaded.
Under a pla in reading of the relevant statutes, physical contact is not required to
conclude that appellant took a substantial step toward having sexual contact with R.R.
Second-degree criminal sexual conduct requires appellant to engage in “sexual contact”
with R.R. See Minn. Stat. § 609.343, subd. 1(a). The attempt statute does not require
sexual contact, but only an attempt to have sexual contact. See Minn. Stat. § 609.17,
subd. 1. Moreover, the nature of appellant’s conduct required no further action on his part
to complete the crime. Appellant stood by R.R.’s bed, exposed his penis, and then asked

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her to touch it. The sole factor preventing the completion of appellant’s request was R.R.’s
refusal to touch appellant’s penis. Because appellant had to act no further for R.R. to touch
his penis and accomplish second -degree criminal sexual conduct , we conclude that there
was sufficient evidence for the jury to reasonably find that appellant’s actions constituted
a substantial step toward engaging in sexual contact with R.R.
3. Abandonment
Abandonment is an affirmative defense to attempt that appellant forfeited by not
arguing it at trial. See Minn. Stat. § 609.17, subd.3 (2018); Thiele, 425 N.W.2d at 582; see
also State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (clarifying that “forfeiture”
describes failure to make timely assertion of a right). By not arguing abandonment at trial
for strategic purposes, appellant never shifted the burden to the state to prove the absence
of abandonment, and, as a result, the jury never considered this argument, and neither will
we. See State v. Yang, 644 N.W.2d 808, 819 (Minn. 2002).
II. The district court did not abuse its discretion by denying appellant’s request
for a downward durational departure.

Appellant argues that the district court abused its discretion by denying his motion
for a downward durational departure because this case presented relatively less-serious
facts than a typical second-degree criminal-sexual-conduct case. Appellant’s argument is
misguided.
Appellant cites a supreme court case upholding the district court’s grant of a
downward durational departure as within the bounds of its discretion because the
defendant’s acts of grabbing a victim’s breast and profess ing his desire to have sex with

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her was less serious than the typical case. State v. Mattson, 376 N.W.2d 413, 415 (Minn.
1985). Appellant also distinguishes the present case from a more egregious situation in
which, because the defendant used coercion and violence to have sex with his victim , the
supreme court denied his appeal seeking a downward departure. See State v. Solberg, 882
N.W.2d 618, 627 (Minn. 2016).
This court reviews a district court’s denial of a request for a downward durational
departure for an abuse of discretion. State v. Oberg , 627 N.W.2d 721, 724 (Minn. App.
2001), review denied (Minn. Aug. 22, 2001). As long as the district court had valid reasons
to impose a presumptive sentence, we will not disturb its decision, even if there were
reasons to depart from it. State v. Kindem, 313 N.W.2d 6, 7 -8 (Minn. 1981). We must
affirm its decision if the record shows it carefully evaluated the testimony and information
presented. State v. Van Ruler , 378 N.W.2d 77, 80 , 81 (Minn. App. 1985 ). The district
court need not explain its decision to impose the presumptive sentence . Id. at 80. “ [I]t
would be a rare case which would warrant reversal of the refusal to depart.” Kindem, 313
N.W.2d at 7.
Here, t he district court carefully considered appellant’s arguments and remained
flexible with timing to allow appellant to fully present his case. We see no reason to disturb
the deference we usually accord to district courts in making a departure decision. See Van
Ruler, 378 N.W.2d at 80-81; Kindem, 313 N.W.2d at 6. We conclude that the district court
did not abuse its discretion by not granting the departure.
Affirmed.