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This opinion will be unpublished and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
A19-1334

State of Minnesota,
Respondent,

vs.

Jeffrey Alan Korolchuk,
Appellant.

Filed September 8, 2020
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CR-18-3938

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Jeffrey Alan Korolchuk appeals his conviction for fourth-degree criminal
sexual conduct. He argues that the state provided insufficient evidence to establish the
nonconsensual element of the offense and that the district court plainly erred in instructing

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the jury . Because there exists sufficient direct evidence for the jury to have found
Korolchuk guilty of fourth -degree criminal sexual conduct and the district court properly
instructed the jury, we affirm.
FACTS
The state charged Korolchuk with fourth -degree criminal sexual conduct , in
violation of Minn. Stat. § 609.345, subd. 1(o) (2016), based on an allegation from victim
M.D. that he inappropriately touched her during a massage session on February 24, 2018.
The following facts derive from the jury trial.
M.D. purchased a membership from Massage Envy and she received one massage
from the facility and attempted to schedule subsequent massages with that same therapist.
Because the therapist she requested was unavailable, she scheduled a one -hour massage
with Korolchuk, who, she was told, had a similar massage style as her preferred masseuse.
M.D. arrived for her appointment and Korolchuk asked her to disrobe to her
underwear, cover herself with the provided blanket , and wait for him to reenter the room.
Most of the massage was normal with occasional small talk between M.D. and Korolchuk.
After approximately 50 minutes, Korolchuk asked M.D. to roll on to her back, and he began
massaging her neck. After “maybe 30 seconds,” Korolchuk’s “hands were on [her]
breasts” that were still under the blanket. He caressed her breasts “and then started playing
with [her] nipples.” She testified that she was in shock and froze. Korolchuk then moved
his right hand down her stomach, under the sheet, and he started rubbing “over [her]
underwear on [her] clitoris” for “probably five seconds.” He then asked her, “Do you want
me to finish?” Thinking he meant finish the massage, she answered “yes,” to which he

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answered, “Okay. You have t o be fast.” After realizing what he meant by “finish,” she
said, “no; we are done. The massage is over,” and pointed to a c lock on the wall.
Korolchuk left the room so she c ould get dressed. He met her in the hallway outside the
massage room, handed her a glass of water, and said, “Next time book an hour an d a half
massage.” M.D. left Korolchuk a tip because she “was on autopilot,” and then left the
building.
After leaving, she sat in her car and texted her son’s father. She texted, “This dude
just tried to give me a happy ending massage! I don’t even know how I’m feeling right
now! LOL.” He responded “Are you for real, that’s crazy,” and she replied, “Yeah dude,
I’m seriously in shock! That is so illegal, he could get in so much trouble for that!”
Korolchuk testified that he was massaging M.B.’s shoulders and asked her if she
wanted him to go lower, and she nodde d affirmatively. He went down to the fatty breast
tissue, but was still massaging above the nipples and above the blanket line. The massaging
exposed her right nipple, and M.D. did not move the blanke t back to cover herself.
Korolchuk asked M.D. again if she wanted him to go lower, and she again nodd ed
affirmatively. At this point he was fully massaging M.D.’s breasts and playing with her
nipples, which he did for “two whole minutes or so” while M.D. maintained her smile and
relaxed expression. He testified that, “I said, ‘is this okay?’ And she did nod again for the
third time.” He then flipped the blanket off with his wrist and did a “swim stroke” down
her stomach, with “the last couple strokes [ of his] fingertips grazing the top of her
underwear line.” Then he asked M.D., “Do you want m e to finish you?” She said “yes.”
He then lifted up the blanket and “told her that she would have to be really quick.” At this

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point, M.D. looked at the clock and commented that they were out of t ime and giggled.
Korolchuk testified that this “was the first indication I got that maybe she wanted to
discontinue the service.” Korolchuk admitted that his actions were done with sexual intent.
The jury found Korol chuk guilty of fourth -degree crimin al sexual conduct. The
district court sentenced Korolchuk to 24 months in prison which was stayed for seven years
subject to probationary conditions. Korolchuk appeals.
D E C I S I O N
I. The state provided sufficient evidence to establish that the sexual conduct was
nonconsensual.

Korolchuk argues that the state provide d insufficient circumstantial evidence to
establish that the sexual contact was nonconsensual.
A person is guilty of fourth -degree sexual conduct if “the actor performs massage
or other bodywork for hire, the complainant was a user of one of those services, and
nonconsensual sexual contact occurred during or immediately before or after the actor
performed or was hired to perform one of those services for the complainant.” Minn. Stat.
§ 609.345, subd. 1(o). Sexual con duct is a general intent crime and “includes any of the
following acts committed with sexual or aggressive intent: (i) the intentional touching by
the actor of the complainant’s intimate parts.” Minn. Stat. § 609.341, subd. 11(b) (2016);
see also State v. Bookwalter, 541 N.W.2d 290, 295-96 (Minn. 1995) (concluding that first-
degree sexual conduct is a general intent crime) . This includes “touching of the clothing
covering the immediate area of the intimate parts.” Minn. Stat. § 609.341, subd. 11(b)(4).

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“Intimate parts” includes the breast. Id. at subd. 5 (2016). “Corroboration of the victim’s
testimony is not required to show a lack of consent.” Id. at subd. 4(c) (2016).
We apply the direct-evidence standard in reviewing the sufficiency of evidence,
contrary to Korolchuk’s claim to do otherwise, because the elements of his conviction were
supported by direct testimony. “[D]irect evidence is evidence that is 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 (Mi nn. 2017) (quotation omitted). When applying
this standard, “our review on appeal is limited to a painstaking analysis of the rec ord 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. 198 9). “We will not disturb the verdict if the jury, acting with
due regard for the presumption of innocence and for the necessity of overcoming it by
proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven
guilty of the offense charged.” Bernhard v. State, 684 N.W.2d 465, 476-77 (Minn. 2004)
(quotation omitted). This standard aligns with the foundational principle that “credibility
of a witness is peculiarly within the competence of the jury, whose common experience
affords sufficient basis for the assessment of cr edibility.” State v. Morales -Mulato,
744 N.W.2d 679, 687 (Minn. App. 2008) (quotation omitted) , review denied (Minn. Apr.
29, 2008).
M.D. informed the jury that she did not consent to any of Korolchuk’s sexual
touching. M.D.’s testimony is sufficient evidence because the jury found her credible as
reflected by its guilty verdict. Her testimony is further strengthened by the prior consistent

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statements she made to three other witnesses: her aunt, the Massage Envy clinic
administrator, and the Ramsey Co unty Sheriff’s Office investigator. The jury heard
Korolchuk’s consent defense though, as again reflected by its guilty verdict, it did not find
it credible. We defer to the credibility determinations made by the jury. The state provided
sufficient evid ence to support the jury’s finding of Korolchuk’s guilt of fourth -degree
criminal sexual conduct.
II. The district court did not err with its jury instructions.

Korolchuk argues that the district court erred by not instructing the jury that it must
find that Korolchuk intended his sexual contact to be nonconsensual. Because fourth -
degree criminal sexual conduct is a general intent crime which requires the state to prove
that the victim did not consent, the district court did not err with its jury instructions.
A district court has “considerable latitude” in selecting the language for its jury
instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). But
a district court abuses its discretion if its jury instructions “confuse, mislead, or materially
misstate the law.” State v. Taylor, 869 N.W.2d 1, 14-15 (Minn. 2015) (quotation omitted).
Appellant did not object to the jury instruction s at trial. Unobjected -to jury instructions
are reviewed by appellate courts for “plain error affecting substantial rights or an error of
fundamental law.” State v. Gunderson , 812 N.W.2d 156, 159 (Minn. App. 2012)
(quotation omitted). “Under the plain -error standard, we review the jury instruct ions to
determine whether there was error, that was plain, and that affected [appellant’s]
substantial rights.” Id. If these three elements are met, then appellate courts can reverse if
“reversal is required to ensure fairness and the integrity of the judicial proceedi ngs.” Id.

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(quotation omitted). “Failure to properly instruct the jury on all elements of the offense
charged is plain error.” State v. Watkins , 820 N.W.2d 264, 268 (Minn. App. 2012)
(quotation omitted), aff’d on other grounds (Minn. Dec. 4, 2013). Appellate courts review
questions of statutory interpretation de novo. State v. Thonesavanh, 904 N.W.2d 432, 435
(Minn. 2017).
The district court instructed the jury based upon the pattern jury instructions which,
relevant to Korolchuk’s claimed error , includes the following two elements: “First, the
defendant intentionally touched M.D’s intimate parts or the clothing covering the
immediate area of M.D.’s intimate parts, ” and, “Sixth, M.D. did not consent to the sexual
contact.” This instruction follows Minn. Stat. § 609.345, subd. 1(o) and 10 Minnesota
Practice CRIMJIG 12.123 (2019) (following the statute’s language verbatim).
Korolchuk has provided no legal authority to suggest that the instruction provided
by the district court is improper.1 Because the instruction provided by the district court to
the jury required the state to prove that Korolchuk intentionally made sexual contact with
the victim and that the victim did not consent, the court did not err in its instructions.
Affirmed.

1 Korolchuk, in claiming the district co urt erred in its instructions, cites State v. Dorn, in
which our supreme court held that the mens rea requirement for assault -harm “requires
only that general intent to do the act that results in bodily harm.” 887 N.W.2d 826, 831
(Minn. 2016). Dorn supports the validity of the district court’s instructions in that the state
was required to prove that Korolchuk intended the sexual act with the requisite intent. The
state was not required to prove that he intended nonconsensual contact.