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This opinion will be unpublished and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
A19-1714

State of Minnesota,
Respondent,

vs.

Khammany Choulamontry,
Appellant.

Filed August 24, 2020
Affirmed
Bjorkman, Judge

Scott County District Court
File No. 70-CR-18-20172

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Robert A. Lengeling, Beito & Lengeling, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions and sentence s for first - and second -degree
criminal sexual conduct, arguing that (1) insufficient evidence supports the convictions and

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(2) the imposition of consecutiv e sentences unfairly exaggerates the criminality of his
conduct. We affirm.
FACTS
On November 16, 2018, 13-year-old L.P. indicated on a medical screening form that
someone had “hurt [her] physically or sexually.” She was reluctant to discuss her response
but explained that her stepfather, appellant Khammany Choulamontry, had been “coming
to her bed” for four years. Her medical provider reported the disclosure to Scott County
Health and Human Services.
Later that day, a police detective and a child-protection worker interviewed L.P. at
her school. L.P. told them that Choulamontry had been coming to her room at night for
four years, starting when she was in fourth grade and living in Brooklyn Park, and
continuing after her family moved to Shakopee for her sixth grade year. L.P. explained
that Choulamontry used his hand to touch her breasts and vagina under her clothes; he did
so more than ten times. When asked if he ever did “anything different,” she replied that he
“inserted” his penis into her vagina more than six times . She explained that he would
remove her shorts and underwear, then “[h]e would pull down his pants and he would put
it in me.” She also told the interviewers that she had kept Choulamontry’s conduct a secret,
and when her mother learned of her report she “got mad” at her and did not believe her.
Several days later, L.P. underwent a physical examination at Midwest Children’s
Resource Center (MCRC). During a brief interview with a nurse, L.P. restated that
Choulamontry touched her breast s and vagina . She added that she had seen a white
substance come from his penis that ended up on her underwear. During the exam, L.P.

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indicated that Choulamontry’s penis did not go inside of her but touched her “on the outside
of her vagina.” The exam revealed no signs of trauma.
To follow up on L.P.’s statements to the MCRC nurse, the d etective and child-
protection worker interviewed L.P. again. L.P. reiterated that she saw “white stuff” from
Choulamontry’s penis on her underwear and that his penis had gone “inside.” But when
the child-protection worker asked where, L.P. denied that it had gone in side her “body,”
stating that it went “inside of [her] legs.”
Choulamontry was charged with two counts of first-degree criminal sexual conduct
and four counts of second-degree criminal sexual conduct. L.P. testified at the May 2019
jury trial. She stated that Choulamontry came to her bedroom at night and reached under
her clothing to touch her breasts and vagina with his hand. This started when she was in
fifth grade in Brooklyn Park and continued into her eighth grade year in Shakopee. L.P.
testified that he put his penis “between [her] legs”—not inside of or touching her vagina—
and she did not know why she told the detective, child-protection worker, and MCRC nurse
differently. Sometimes, she later noticed “white stuff” on her underwear. Without
objection, the state presented L.P.’s three prior statements as substantive evidence. The
jury found Choulamontry guilty on all counts . The district court imposed consecutive
sentences for the two first -degree offenses, for a total of 320 months’ imprisonment.
Choulamontry appeals.

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D E C I S I O N
I. Sufficient evidence supports Choulamontry’s convictions.
When reviewing a claim of insufficient evidence, we
view the evidence in the 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 conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.

State v. Stewart , 923 N.W.2d 668, 673 (Minn. App. 2019) (quotation omitted) , review
denied (Minn. Apr. 16, 2019) . We assume the jury believed the state’ s witnesses and
disbelieved any contrary evidence. State v. Wright , 679 N.W.2d 186, 189 (Minn. App.
2004), review denied (Minn. June 29, 2004).
To convict Choulamontry of first -degree criminal sexual conduct, the state was
required to prove that he intentionally touched L.P.’s bare genitals with his bare genitals
with sexual or aggressive intent, when she was less than 13 years old. Minn. Stat.
§§ 609.341, subd. 11(c), .342, subd. 1(a) (2016).1
Choulamontry argues that the state presented insufficient evidence to prove the
element of genital-to-genital contact. He points to L.P.’s trial testimony that his penis went
only between her legs, not into or near her vagina. But the jury also heard L.P.’s prior

1 The record does not establish the precise dates of the offenses, only a range of
approximately November 2014 to November 2018, when L.P. reported the abuse. With
respect to the first -degree counts, t he state alleged that Choulamontry engaged in the
requisite conduct first when the family lived in Brooklyn Park (count 1), and again when
the family moved to Shakopee, but before L.P. turned 13 in February 2018 (count 2).
Because the 2016 version of the statute was in effect for most of that time frame, we cite
that version herein.

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statements, in which she indicated that he either inserted his penis into her vagina or
touched his penis to the outside of her vagina. Those statements are direct substantive
evidence of what happened and sufficient, if believed, to prove genital -to-genital contact.
See State v. Harris , 895 N.W.2d 592, 599 (Minn. 2017) (defining direct evidence). The
jury was free to believe those earlier statements and reject her trial testimony as the product
of trauma, conflicting emotions about losing a significant adult in her li fe, or the pressure
of knowing that her mother and brother did not believe her. See State v. Mems, 708 N.W.2d
526, 531 (Minn. 2006) (stating that a jury is free to accept part and reject part of a witness’s
testimony); see also State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (explaining
that inconsistencies in a witness’s testimony do not necessarily indicate falsehood but the
“fallibility of human perception,” particularly when the witness is describing “ the
particulars of a traumatic and extremel y stressful incident ” (quotation omitted) ).
Accordingly, Choulamontry’s challenge to his first-degree convictions fails.
Choulamontry also contends that insufficient evidence supports his convictions of
second-degree criminal sexual conduct. This argument is also unavailing. Choulamontry
was charged with four counts of second -degree criminal sexual conduct, all involving
“sexual contact” with a minor. See Minn. Stat. § 609.343, subd. 1(a) (complainant was
under 13 and actor more than 36 months older), (b) (complainant was between 13 and 16
and actor more than 48 months older and in a “position of authority”), (g) (actor had
“significant relationship” to complainant, who was under 16), (h)(iii) (actor has a
significant relationship to complainant, who was under 16, and the sexual abuse involved
multiple acts committed over an extended period of time) (2016). Sexual contact includes

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“the intentional touching by the actor of the complainant’s intimate parts.” Minn. Stat.
§ 609.341, subd. 11(a)(i) , (b)(i ) (2016). L.P. consistently indicated in her pretrial
statements and trial testimony that Choulamontry, her stepfather, touched her bare breasts
and vagina with his hand on many occasions from the time she was in fourth or fifth grade
until she reported the abuse in eighth grade. This evidence amply supports Choulamontry’s
convictions.
II. Choulamontry’s consecutive sentences do not exaggerate the criminality of his
conduct.

A district court may impose consecutive sentences, without a departure, for multiple
current convictions of first -degree criminal sexual conduct. Minn. Sent. Guidelines
2.F.2.a.(1)(ii), 6 (2016). We review imposition of permissive consecutive sentences for an
abuse of discretion. State v. Fardan , 773 N.W.2d 303, 322 (Minn. 2009). We will not
reverse consecutive sentences unless the total sentence “is disproportionate to the offense
or unfairly exaggerates the criminality of the defendant ’s conduct,” as determined by past
sentences imposed for similar offenses. Id. (quotations omitted) ; see also Minn. Sent.
Guidelines 2.F (2016) (requiring aggregation of consecutive sentences into “a single fixed
sentence”).
Choulamontry argues that his sentence is disproportionate and exaggerates the
criminality of his conduct. 2 We disagree. As L.P.’s trial testimony and multiple pretrial

2 The state contends Choulamontry forfeited this argument by failing to provide a
sentencing transcript. It is an appellant’s burden to provide a sufficient record for appellate
review, including any necessary transcripts. Minn. R. Civ. App. P. 110.02 , subd. 1(a) ;
State v. Heithecker , 395 N.W.2d 382, 383 (Minn. App. 1986) . A transcript would have

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statements establish, Choulamontry sexually abused his young stepdaughter at least a
dozen times over a four -year period. Such long-term abuse merits a substantial sanction.
See, e.g. , State v. Perleberg , 736 N.W.2 d 703, 707 (Minn. App. 2007) (upholding
permissive consecutive sentencing, resulting in total of 432 months’ imprisonment, for
three of six convictions of first -degree criminal sexual conduct as commensurate with the
defendant’s multi -year abuse of his dau ghter), review denied (Minn. Oct. 16, 2007) .
Moreover, Choulamontry cites no other cases to show that his consecutive sentences are
out of line compared to those imposed for similar offenses. On this record, we discern no
abuse of discretion by t he district court in imposing permissive consecutive sentences for
a total term of 320 months’ imprisonment.
Affirmed.

been helpful, but it is not necessary to our review, which looks to Choulamontry’s conduct
and any similar offenses. We therefore do not deem the sentencing challenge forfeited.