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This opinion will be unpublished and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
A19-1035

State of Minnesota,
Respondent,

vs.

Dirk Udo McHugh,
Appellant.

Filed May 26, 2020
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Anoka County District Court
File No. 02-CR-18-3821

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from multiple convictions of criminal sexual conduct, appellant
argues that the evidence is insufficient to sustain a conviction for first-degree criminal

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sexual conduct because the only evidence of the child-victim’s age was her pretrial
statements to an investigator and her trial testimony. Alternatively, appellant argues that
the district court committed reversible error by allowing the state to repeatedly admit
relationship evidence regarding a prior incident of sexual conduct with a different child.
Appellant also argues that his three lifetime conditional release terms must be reduced to
three ten-year terms because the district court simultaneously entered the three convictions
in a single hearing. We affirm in part, reverse in part, and remand to the district court with
instructions to correct appellant’s warrant of commitment.
FACTS
On June 6, 2018, the Anoka County Sheriff’s Office received a report that appellant
Dirk McHugh engaged in criminal sexual conduct with his 17 -year-old daughter. Two
days before the police received this report, the victim gave her mother a letter informing
her that McHugh had been sexually abusing h er for seven years . The letter described a
pattern of abuse that began in approximately 2010 when the victim was 10 years old. The
abuse worsened as the victim aged, culminating with McHugh’s vaginal rape of the victim
on April 12, 2018 . Following the vaginal rape, McHugh told the victim that “he would
make her regret it” if she ever told anyone.
The next day, the victim participated in a foren sic interview regarding the abuse.
During the interview, the victim told the investigator about the first time McHugh assaulted
her when she was 10 years old . Shortly after the victim returned home from school,
McHugh told her to lay down on her bed and that he “was going to do something to her.”
McHugh touched the victim’s upper thighs and vaginal area over her clothes. After this

3
incident, McHugh told the victim that it was “okay” that he touched her in this way. The
victim reported to the investigator that McHugh touched her in this way on several
occasions.
In approximately 2012, when the victim was 12 years old, McHugh began to put his
hands under her clothing. The victim recounted to the investigator the first time that
McHugh touched her genitals under her clothes. The victim struggled against his actions,
but McHugh called her a “whore” and a “slut,” and then slapped her when she cried. When
asked by the investigator if “any part of [McHugh’s] body [went] inside of [her] body,” the
victim initially responded not until she was raped when she was 17. However, later in the
interview, the victim stated that McHugh put his finger inside of her vagina when she was
“younger.”
McHugh continued this conduct until April 12, 2018, when the victim was 17 years
old. The victim told the investigator that on that day McHugh came into the victim’s room,
took off her clothes and underwear, and then took off his pa nts and started to masturbate.
McHugh made the victim touch his penis with her hand. He then told the victim to lay on
her back and “spread her legs.” The victim recalled the sickly scent of McHugh’s body
odor and the alcohol on his breath as he climbed on top of her. Crying, the victim told the
investigator how it felt to have her father’s bodyweight pressing down on her while
listening to his grunts as he raped her. Leaving semen spilled across her stomach, McHugh
stood up, told the victim to “clean herself up” and to “wash the sheets,” and then exited the
room as if “nothing happened.”

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The victim had not told her mother about the abuse in part due to her mother’s
reaction after McHugh’s stepdaughter, t he victim’s older half-sister, reported a similar
incident of abuse from McHugh when she was eight or nine years old. The sister told their
mother that McHugh had drunkenly entered her room and climbed into bed with her late
one night. The sister stated that McHugh forced her hands to touch his penis and told her
to open her mouth so that he could kiss her. Shortly after, McHugh passed out on her bed
and the sister went to find their mother and report what happened. After that night, neither
McHugh nor their mother spoke of the event until approximately 2016, when their mother,
while discussing the incident with her sister, asked the victim if anything similar had ever
happened to her. The victim later admitted in the letter to her mother that she had lied to
her mother and sister in 2016 when she denied that anything occurred.
McHugh was charged with three counts of criminal sexual conduct. For the conduct
that occurred from 2010–2012, McHugh was charged with second-degree criminal sexual
conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2010), where the actor had a
significant relationship with the complainant, who was under the age of 16, and the sexual
abuse involved multiple acts committed over an extended period of time. For the conduct
that occurred in 2012–2016, McHugh was c harged with first -degree criminal sexual
conduct in vi olation of Minn. Stat. § 609.342 , subd. 1(h)(iii) (201 2), where the actor
engaged in sexual penetration and had a significant relationship with the complainant, who
was under the age of 16, and the sexu al abuse involved multiple acts committed over an
extended period of time . For the vaginal rape that occurred on April 12, 2018, McHugh
was charged with third -degree criminal sexual conduct in violation of Minn. Stat.

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§ 609.344, subd. 1(f) (2016), where the actor engaged in penetration and had a significant
relationship to the complainant who was at least 16 years old but under 18 years old.
At trial, the victim, her sister , their mother, the victim’s boyfriend, and two police
investigators all testified. The victim’s letter to her mother was admitted into evidence.
McHugh’s conduct with the victim’s sister was admitted as relationship evidence over
McHugh’s objection. The jury was also shown a video of the victim’s forensic interview,
which detailed the above facts.
The victim’s testimony on the stand largely mirrored her statements to the police at
the forensic interview. She testified that the sexual conduct began when she was “about
10” and that McHugh would begin to touch her stomach before moving to her vaginal area
and chest. She reported that the instances of sexual conduct occurred every few weeks and
escalated from touching her over her clothes to touching her and rubbing her under her
clothes—“bare skin to bare skin” —when she was “mayb e 11 or 12,” and eventually to
“more intense” and “faster” rubbing and inserting a finger into her vagina when she was
“maybe 14.” The victim testified that McHugh’s abuse occurred multiple times per week,
and at one point, the victim asked McHugh to stop but he refused.
The letter that the victim wrote to her mother, which included a reference to the
incident between McHugh and her sister, was introduced into evidence. The district court
offered a limiting instruction regarding evidence of the abuse of the sister and instructed
the jury that the evidence was being admitted to assist the jury in determining the nature
and extent of the relationship between McHugh and his family members and to help the
jury decide whether McHugh committed the identified a cts with the victim. In their

6
testimony, the sister and the mother also testified about the incident between the sister and
McHugh. Prior to the sister and the mother’s testimony, the state requested that the district
court read the limiting instruction again; the district court readily complied.
McHugh also testified in his own defense. When asked about the incident with his
stepdaughter, McHugh simply stated that he did not remember it occurring or any details
about the event. When asked about any incident of sexual abuse with the victim, McHugh
denied any wrong doing. The jury found McHugh guilty of all three counts of crimi nal
sexual conduct.
At sentencing, McHugh’s attorney acknowledged that McHugh was subject to a
lifetime conditional release term as all three counts on which he was convicted arose from
different incidences of conduc t. The district court confirmed by asking “[e]ven though
they’re announced or accepted contemporaneously like that?” McHugh’s attorney agreed
and stated “even if there’s, like, a second in between, they do count as separate actions. ”
Accordingly, the district court sentenced McHugh on three separate convictions to be
served concurrently: 90 months in prison and a 10-year conditional release for the second-
degree criminal sexual conduct, 168 months in prison and a lifetime conditional release for
the first-degree criminal sexual conduct, and 140 months in prison and a lifetime
conditional release for the third-degree criminal sexual conduct. However, the warrant of
commitment indicates that McHugh was ordered to serve a lifetime conditional release for
each count.
McHugh appeals.

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D E C I S I O N
I. The state’s evidence regarding the victim’s age was sufficient to support a
finding of guilt.

McHugh argues that the state’s eviden ce was insufficient to convict M cHugh of
first-degree criminal sexual conduct as a matter of law because the evidence was
insufficient to prove that McHugh sexually penetrated the victim before she turned 16 years
old.
When reviewing the sufficiency of the evidence, this court conducts “a painstaking
analysis of the record to determine whether the evidence, when viewed in a light most
favorable to the conviction, was sufficient to permit the jurors to reach the verdict which
they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). “A reviewing court will not
disturb the verdict if the jury, acting with due regard for the presumption of innocence and
the requirement of proof beyond a reasonable d oubt, could reasonably conclude that the
defendant was guilty of the charged offense .” State v. Brandes , 781 N.W.2d 603, 606
(Minn. App. 2010). We first identify the circumstances proved, then “determine whether
the circumstances proved are consistent with guilt and inconsistent with any ration al
hypothesis except that of guilt.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013).
Direct t estimonial evidence is evidence “based on personal knowledge or
observation and that, if true, proves a fact without inference or presumption.” State v.
Harris, 895 N.W.2d 592, 599 (Minn. 2017). Importantly, “a conviction can rest on the
uncorroborated testimony of a single credible witness. ” State v. Foreman , 680 N.W.2d
536, 539 (Minn. 2004). Even when conflicting evidence exists, a reviewing court m ust

8
assume that a jury believed a witness and disbelieved any conflicting evidence. State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989).
To be convicted of first-degree criminal sexual conduct in violation of Minn. Stat.
§ 609.342, subd. 1(h)(iii), the acto r must have engaged in multiple acts of sexual
penetration over an extended period of time with a child under the age of 16 and with whom
the actor had a significant relationship. The only element which McHugh takes issue with
on appeal is the age of the victim when he repeatedly penetrated her with his finger.
The circumstances proved regarding the victim’s age were as follows: the victim
testified that McHugh’s sexual conduct occurred frequently and progressed from touching
her over her clothes, to rubbing her under her clothes—“bare skin to bare skin”—when she
was “maybe 11 or 12.” The victim further testified that the rubbing became “more intense”
and “faster” when she was “maybe 14,” at which time McHugh began inserting a finger
into her vagina.
The jury was shown the victim’s interview with the police investigator. In the
interview, the victim stated that McHugh touched her under her clothes when she was in
middle school. However, when asked by the investigator if “any part of [McHugh’s] body
[went] inside of [her] body,” the victim responded not until McHugh put his penis inside
of her vagina when she was 17 years old. Nevertheless, the jury saw that the victim
subsequently told the investigator later during the same interview that McHugh would put
his finger inside of her vagina when she was “younger.” When the investigator testified,
McHugh’s attorney drew the jury’s attention to this purportedly inconsistent statement.

9
The jury listened to this testimony, heard the purportedly inconsistent statement
about the age at which McHugh first penetrated the victim and the qualifier used by the
victim when she stated the age at which McHugh first penetrated her , and still convicted
McHugh of first-degree criminal sexual conduct.
When we consider th e evidence in the light most favorable to the verdict, we
conclude that the victim’s direct testimony as to her age was sufficient to support the jury’s
determination that the victim was under the age of 16 when McHugh penetrated her with
his finger so as to sustain a conviction of first-degree criminal sexual conduct. At trial, the
victim testified that she was “maybe 14” when McHugh first put his finger into her vagina.
This direct testimonial evidence on the age element, though qualified with a “maybe,” was
presented to the jury. And although the victim told the investigator that she had not been
penetrated by McHugh until she turned 17 years old, the victim subsequently stated in the
very same interview that McHugh put his finger inside of h er vagina when she was
“younger.” Most significantly, this purported inconsistent statement was highlighted for
the jury by McHugh’s attorney , and the jury still determined that some form of sexual
penetration occurred before the victim turned 16 years old.
As the victim was the sole source of evidence on the age element, the jury’s decision
was made after weighing the relative credibility of the victim and McHugh. As it is the
jury’s prerogative to make determinations regarding credibility, State v. Daniels , 36 1
N.W.2d 819, 826 (Minn. 1985) , even in light of the victim’s purportedly inconsistent
statement regarding her age at the first time she was penetrated , we conclude that the
evidence is sufficient on the age element to sustain McHugh’s conviction.

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II. The district court did not commit reversible error when it allowed evidence
of a prior sexual assault to be admitted as relationship evidence.

McHugh argues that the district court committed reversible error when it allowed
evidence of McHugh’s prior sexual ass ault of his stepdaughter to be admitted as
relationship evidence. As evidentiary rulings are firmly within the discretion of the district
court, a district court’s decision to admit relationship evidence is reviewed for an abuse of
discretion. State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).
A. Evidence of the prior sexual assault is admissible relationship evidence under Minn.
Stat. § 634.20 (2018).

“Evidence of domestic conduct by the accused against the victim of domestic
conduct, or against other family or household members, is admissible unless the probative
value is substantially outweighed by the danger of unfair prejudice . . . .” Minn. Stat.
§ 634.20. “Domestic abuse” includes criminal sexual conduct . Minn. Stat. § 518B.01,
subd. 2(a)(3) (2018).
The supreme court has stated that the rationale for admitting relationship evidence
is to illuminate the relationship between the defendant and the victim, as well as to put the
crime in the context of that relationship. McCoy, 682 N.W.2d at 159. Therefore, evidence
as to how a defendant treats his family and “interacts with those close to him” sheds light
on how the defendant may treat the victim. State v. Valentine, 787 N.W.2d 630, 637 (Minn.
App. 2010), reviewed denied (Minn. Nov. 16, 2010).
At a pretrial hearing, the state sought to admit evidence of McHugh’s conduct with
his stepdaughter as relationship evidence. The district court concluded that the evidence
was admissible in part because the victim included a refere nce to her sister’s incident in

11
her letter to her mother, and because the evidence would illuminate the relationship
between McHugh and not only the victim, but also the victim and any other family
members also subject to abuse. Over McHugh’s objection, the district court acknowledged
that this evidence was not Spreigl1 evidence but that, in the context of relationship
evidence, the “door swings pretty wide.” Although the district court allowed the testimony,
it stated that it may “put the brakes on at some point in questioning and be sympathetic or
at least listen closely to objections” and “might put some limit” on the testimony.
Additionally, the district court agreed to offer a jury instruction outlining the illuminative
nature of relationship evidence.
At the time of the alleged assault, the sister, along with the victim and their mother,
resided in McHugh’s home. Therefore, this evidence shows how McHugh “interacts with
those close to him” so as to illuminate and put into context the relationship between
McHugh and the victim. See id. at 637 (stating that relationship evidence allows the jury
to see how a defendant “interacts with those close to him”); see also McCoy, 682 N.W.2d
at 159 (stating that relationship evidence provides the context of a familial relationship) .
Therefore, evidence of McHugh’s prior interaction with his stepdaughter, though sexual in
nature, is plainly admissible relationship evidence under Minn. Stat. § 634.20.
B. The danger of unfair prejudice to McHugh does not substantially outweigh the
probative value of the relationship evidence regarding the prior sexual assault.

Even if evidence qualifies as relationship evidence under Minn. Stat. § 634.20, the
statute still prohibits the admission of relationship evidence when “ the probative value is

1 State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

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substantially outweighed by the danger of unfair prejudice .” Minn. Stat. § 634.20.
However, limiting instructions as to the narrow and contextual nature of relationship
evidence may decrease the risk that a jury uses the evidence in a manner in which its
prejudicial nature substantially outweighs any probative value. See, e.g., State v. Lindsey,
755 N.W.2d 752, 757 (Minn. App. 2008), review denied (Minn. Oct. 29, 2008) (stating that
limiting instructions may decrease the likelihood of unfair prejudice). This is because
reviewing courts presume that juries follow the instruction s given to them by the district
court. State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). Therefore, the existence of
limiting instructions, along with other evidence of guilt, are important considerations when
we assess whether the admission of evidence substantially affected a jury’s verdict. State
v. Fraga, 898 N.W.2d 263, 274 (Minn. 2017).
McHugh argues that the prejudicial nature of his sexual assault of his stepdaughter
substantially outweighed any probative value of the evidence because it was discussed
multiple times and thus the cumulative effect of the testimony substantially prejudiced him.
However, the state requested, and the district court freely gave, limiting instructions to the
jury before the testimony of his stepdaughter, the victim , and their mother regarding the
alleged sexual assault of his stepdaughter.2 The limiting instruction was as follows:

2 McHugh claims that th e state introduced evidence of the incident with his stepdaughter
through questioning five witnesses. However , a review of the record only shows that the
victim, her sister, their moth er, and McHugh were questioned in any detail about the
incident. Additionally, a limiting instruc tion was requested before the testimony of each
of the victim, her sister, and the mother. McHugh denied memory of any incident involving
his stepdaughter. When an investigator was asked about the incident, the district court
limited the question to simply repeating what McHugh himself had said about the incident
and no additional limiting instruction was given.

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You are about to hear evidence of conduct by the
defendant. This evidence is being offered for the limited
purpose of demonstrating the nature and extent of the
relationship between the defendant and family or household
members, done in order to assist you in determining whether
the defendant committed those acts which the defendant is
charged with in the Complaint.
The defendant is not b eing tried for and may not be
convicted of any behavior other than the charged offenses with
[the victim]. You are not to convict the defendant on the basis
of conduct against [his stepdaughter ] in the past. To do so
might result in unjust double punishment.

The limiting instruction specifically stated that the incident was being admitted to
assist the jury in determining the nature and extent of the relationship between McHugh
and his family members and to help the jury decide whether McHugh committed the
identified acts with the victim . The district court warned the jury not to draw any
impermissible inferences from this evidence, and instead this evidence was only being
presented to provide context for McHugh’s relationship with the victim and to shed light
on his relationship with his family. Furthermore, the district court reiterated the limiting
instruction prior to jury deliberations.
As a reviewing court presumes that juries follow the instructions given to them by
a district court , Ferguson, 581 N.W.2d at 833, and in light of the extensive testimonial
evidence of McHugh’s guilt with regard to his sexual abuse of the victim, McHugh’s
argument regarding the prejudicial effect of the cumulative admission of evide nce of the
sexual assault of his stepdaughter is unpersuasive. See Fraga, 898 N.W.2d at 274 (noting
that limiting instructions and other evidence of guilt are important considerations when
determining whether the admission of evidence substantially affected a verdict).

14
Therefore, because evidence of McHugh’s assault of his stepdaughter was
admissible relationship evidence under Minn. Stat. § 634.20, and the district court gave the
jury multiple limiting instructions regarding the nature, purpose, and narrow focus of the
evidence regarding his stepdaughter, we conclude that the district court did not abuse its
discretion when it admitted evidence regarding the sexual assault of her stepdaughter so as
to shed light on how McHugh treats his daughters.
III. The district court erred when it i mposed a lifetime conditional release for
McHugh’s violation of Minn. Stat. § 609.343, subd. 1(h)(iii).

Finally, McHugh argues that his three lifetime conditional release terms must be
reduced to ten-year terms because the district court entered simultane ous convictions for
all three charges. Although the district court sentenced McHugh to a lifetime conditional
release on two counts, t he warrant of commitment currently lists lifetime conditional
release terms for all three of his convictions.
In general, when a defendant is adjudicated guilty and committed to the custody of
the commissioner of corrections for a violation of Minn. Stat. § 609.343, the defendant
must also serve a mandatory ten-year conditional release term upon release from prison.
Minn. Stat. § 609.3455, subd. 6 (2018). However, when a defendant has a previous sex
offense conviction, the defendant must be placed “on conditional release for the remainder
of the offender’s life.” Minn. Stat. § 609.3455, subd. 7(b) (2018). Furthermore, a
conviction occurs once the dist rict court pronounces that the defendant is adjudicated
guilty. State v. Nodes, 863 N.W.2d 77, 82 (Minn. 2015). Even if a defendant is convicted
and adjudicated guilty of multiple sex offenses in a single proceeding, so lo ng as the

15
convictions are entered sequentially and not simultaneously, a district court must impose a
lifetime conditional release term on any adjudications following the first. Id. Finally,
“[w]hen an orally pronounced sentence varies from a written sen tencing order, the orally
pronounced sentence controls.” State v. Staloch, 643 N.W.2d 329, 329 (Minn. App. 2002).
At sentencing, the district court stated that “we’re going to enter these convictions
as three convictions.” (Emphasis added.) McHugh claims that this statement indicates that
the district court entered McHugh’s convictions simultaneously, and not sequentially.
However, not only does this phrase indicate that it was the intention of the district court to
enter the conviction s as three sepa rate convictions in the future, but the district court
subsequently convicted and sentenced McHugh on each of the counts sequentially.
Although the district court asked McHugh’s attorney if McHugh would be subject
to lifetime conditional release terms “[ e]ven though they’re announced or accepte d
contemporaneously like that,” McHugh’s attorney acknowledged, and the district court
accepted, that lifetime conditional releases still apply “even if there’s, like, a second in
between,” because they still “count as separate actions.” See Nodes, 863 N.W.2d at 82
(stating that sequential entering of convictions allows for the imposition of lifetime
conditional release terms). Accordingly, the district court clearly sequentially entered
convictions and sentenced McHugh to three separate counts of criminal sexual conduct to
be served concurrently. Therefore, the district court did not err when it imposed lifetime
conditional release terms for McHugh’s convictions for first -degree criminal sexual
conduct and third -degree criminal sexual conduct, as both of these convictions were
adjudicated following McHugh’s conviction for second-degree criminal sexual conduct.

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However, as McHugh’s conviction for second-degree criminal sexual conduct was
the first conviction adjudica ted, and McHugh did not have any prior eligible convictions
so as to warrant the imposition of a lifetime conditional release term under Minn. Stat.
§ 609.3455, subd. 7(b) , the warrant of commitment should be corrected to impose a ten-
year conditional release term for his conviction of second-degree criminal sexual conduct.
Affirmed in part, reversed in part, and remanded.