State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0159

State of Minnesota,
Respondent,

vs.

Joseph Earl Robinson,
Appellant.

Filed February 8, 2021
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-19-191

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

Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathyrn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal fro m final judgment of convic tion, appellant Joseph Earl
Robinson argues that his convi ction for first-degree crimin al sexual conduct must be
reversed because respondent State of Minnesota failed to prove beyond a reasonable doubt

2
that he sexually penetrated his then-girlfriend’s daughter. In the alternative, Robinson
argues that the district court abused its di scretion by denying his motion for a downward
dispositional departure at sentencing. We conclude that the direct evidence is sufficient to
prove Robinson’s guilt beyond a reasonable doub t and that the district court acted within
its discretion at sentencing. Therefore, we affirm.
FACTS
The evidence at Robinson’s bench trial esta blished the following facts. In January
2019, Robinson lived in Duluth with his girlfriend of three years and her children, including
her 12-year-old daughter, A.L. One evening, Robinson called A.L. into the living room of
their apartment just after A.L. finished showering. Robinson was sitting in a chair, and A.L.
came into the room next to hi m. A.L. was wearing a t-shirt and a new pair of underwear
that Robinson had recently bought for her. A.L. found that the underwear was too small for
her. Robinson told A.L. to turn around so he could stretch the underwear. He first pulled
the waist of the underwear from behind and then told A.L. to turn around so he could stretch
them from the front. After he pulled at the waist of the underwear from the front, he moved
his hands down to the leg openings and put his hands inside A.L.’s underwear. This made
A.L. uncomfortable, and she “froze.” A.L. felt Robinson’s finger go inside her. Robinson
had longer fingernails, and A.L. felt a scratch inside her vagina. A.L. testified at trial that
Robinson had his index finger inside her for around 15 to 20 minutes.
Right after the incident, A.L. went to the bathroom. She testified that “the inside of
[her] smelled like cigarette ashes” and that the toilet paper she used was gray like cigarette

3
ashes. Robinson had just finished smoking a cigarette when he called A.L. into the living
room.
The next morning, A.L. told her middl e-school counselor what had happened, and
the counselor informed child protective services. A.L. then met with a soci al worker and
an investigator from the Duluth Police Department. A.L. confirmed that Robinson put his
hand “down there,” that it was “inside” her for 15 to 20 minutes, and that she smelled like
cigarette smoke afterwards. A.L. also said that Robinson made her hurt “inside [her] body.”
In a second interview, A.L. clarified that “down there” meant her vagina and that she
thought Robinson’s conduct was an accident. A.L. underwent a sexual-assault examination
two days after the incident, which did not exclud e or include the po ssibility that A.L.
suffered an injury during the incident.
After the examination, two investigators interviewed Robinson. Robinson said that
he pulled on A.L.’s underwear to stretch them and he “guess[ed] [his] hand poked her.” He
described putting his hands “inside her thighs” and said his “finger probably went in a little
bit” but not “far enough to do anything.” He denied penetrating A.L.’s vagina. He did ask
A.L. if he had hurt her because of “[his] nails.”
The state charged Robinson with first-de gree criminal sexual conduct in violation
of Minn. Stat. § 609.342, subd. 1(a) (2018). At the bench trial, the state presented testimony
from A.L., the counselor, two investigators from the Duluth Police Department, and the
nurse who conducted the sexual-assault examin ation. The district court found Robinson
guilty.

4
Before sentencing, Robinson moved fo r a downward dispositional departure,
arguing that he was particularly amenable to probation. The district court denied the
motion, finding that there were not substan tial and compelling reasons to depart from the
sentencing guidelines. The district court sentenced Robinson to a presumptive sentence of
144 months in prison.
Robinson appeals.
DECISION
Robinson raises two arguments. He conte nds that the evidence was insufficient to
prove beyond a reasonable doubt that he sexua lly penetrated A.L., as required to sustain
his first-degree conviction. In the alternative, he argues that the district court abused its
discretion at sentencing by denying his motion for a downward dispositional departure.
I. The evidence is sufficient to convict Robinson of first-degree criminal sexual
conduct.

The state presented direct evidence to prove that Robinson sexually penetrated A.L.
We review challenges to the sufficiency of direct evidence by determining whether the
evidence—when viewed in the light most favorable to the conviction—allows the fact-
finder to have reached a guilty verdict. See State v. Webb , 440 N.W.2d 426, 430 (Minn.
1989). We will not disturb a verdict if the fact-finder, acting with due regard for the
presumption of innocence and the requirement for proof beyond a reasonable doubt, could
have reasonably concluded that the defendant was guilty. See State v. Alton, 432 N.W.2d
754, 756 (Minn. 1988). We “use the same standa rd of review in bench trials and in jury

5
trials in evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733
(Minn. 2011).
For the district court to find Robinson guilty of first-degree criminal sexual conduct,
the state had to prove four elements beyond a reasonable doubt: (1) that Robinson sexually
penetrated A.L., (2) that A.L. was under 13 years old at the time of the penetration, (3) that
Robinson was more than 36 mont hs older than A.L., and (4) that the act took place in
St. Louis County. See Minn. Stat. § 609.342, subd. 1( a). Robinson argues only that the
evidence was insufficient to prove that he sexually penetrated A.L.
Robinson’s argument centers on the statutory definition of “sexual penetration.” See
Minn. Stat. § 609.341, subd. 12(2)(i) (2018). “Sexual penetration” is defined by statute as
“any intrusion however slight in to the genital or anal openi ngs . . . of the complainant’s
body by any part of the actor’s body or any object used by the actor for this purpose.” Id.
Robinson observes that the legislature has not defined “genital or anal openings.” To arrive
at a definition of “genital opening,” Robinson notes that the legislature has distinguished
“sexual penetration” from “sexual contact”; that “sexual contact” is statutorily defined as
touching a person’s “intimate parts”; and that “intimate parts” by statute includes a person’s
“primary genital area.” See id., subds. 5, 11(a)(i) (2018). Robinson then turns to dictionary
and other definitions to conclude that a female ’s primary genital area must mean the area
around the vaginal opening and the “genital opening” must mean only the vaginal opening.
Robinson argues that the state “never reviewed with A.L. her understanding of female
genitalia” and that A.L.’s use of terms such as her “private area” and “down there” failed
to distinguish between her vaginal opening and the parts of her genitalia immediately

6
surrounding it. Because of this, Robinson argues, the evidence did not exclude the
reasonable possibility that Robinson only touc hed A.L.’s external genitalia and did not
sexually penetrate her. Id., subd. 11(a)(i).
Robinson’s argument is unpersuasive. In State v. Shamp , we addressed the
sufficiency of the evidence to prove “sexual penetration.” 422 N.W.2d 520, 524-25 (Minn.
App. 1988), review denied (Minn. June 10, 1988). 1 We concluded that the child-victim’s
testimony proved “sexual pene tration” when the testimony indicated that the defendant
“would rub his fingers between the folds of sk in over [the victim’s] vagina, but not insert
his fingers ‘all the way.’” Id. at 526. We did not demand the specific anatomical language
that Robinson argues for here. Similarly, in State v. Mosby, we relied on Shamp in holding
that the evidence was sufficient to prove sexual penetration when the child-victim testified
that the defendant “took his hand and stuck it in [her] private,” which she described as her
“middle” or the part she uses “to go the bath room.” 450 N.W.2d 629, 632 (Minn. App.
1990).
Consistent with Shamp, we conclude that the state presented sufficient evidence for
the district court to find beyond a reasonable doubt that Robinson sexually penetrated A.L.
A.L. testified multiple times th at Robinson put his fi nger or hand “inside” her. First, she
stated that, as Robinson was stretching her underwear, “he put his finger inside of [her].”
She later clarified that Robinson put his index finger inside he r “private area,” which she

1 Although Shamp analyzes the definition of “sexual penetration” as then codified in Minn.
Stat. § 609.341, subd. 12 (1986), Shamp, 422 N.W.2d at 526, th e relevant statutory
language mirrors the current version of the statute. See Minn. Stat. § 609.341, subd.
12(2)(i).

7
agreed meant her “vagina,” and that Robinson scratched the inside her vagina with his
fingernails. A.L. also testified that, when she was in the bathroom just after the incident,
“the inside of [her] smelled like cigarette ashes, ‘cause that’s—he just got done smoking a
cigarette” and that the toilet paper she used was gray from the ashes.
The state did not need to corroborate A.L.’s testimony in this case. See Minn. Stat.
§ 609.347, subd. 1 (2018) (providing that “t he testimony of a victim need not be
corroborated” in a prosecution for criminal sexual conduct). Even still, witness testimony
regarding A.L.’s prior statements supported A.L.’s trial testimony. A.L.’s school counselor
testified that A.L. told her that A.L. smel led like cigarettes from Robinson’s hands. The
nurse who conducted the sexual assault examination testified that A.L. told her:
His hand was down there . . . and he asked me, Are you
uncomfortable? And I said, no. . . . He has long fingernails and
they were kind of scratching me . . . And then I was in the
bathroom. It smelled like cigarettes, and it was hurting. . . . It
hurt for about 15 minutes.

And an investigating officer from the Duluth Police Office testified that A.L. said
Robinson’s hand was “inside” her body for 15 to 20 minutes. A.L. later told investigators
that this hurt her “inside [her] body.”
Construing the evidence in the light most favorable to the verdict, we conclude that
the evidence was suffici ent for the district court to fi nd Robinson guilty of first-degree
criminal sexual conduct.

8
II. The district court did not abuse its di scretion by denying Robinson’s motion
for a downward dispositional departure.

Robinson alternatively argues that the district court abused its discretion by denying
his motion for a downward dispositional departure from the sentencing guidelines.
District courts have broad discretion in sentencing. State v. Soto, 855 N.W.2d 303,
305 (Minn. 2014). We review a district c ourt’s sentencing decision for an abuse of
discretion. See id. at 307-08. A district court “abuses its discretion when its decision is
based on an erroneous view of the law or is against logic and the facts in the record.” Riley
v. State, 792 N.W.2d 831, 833 (Minn. 2011).
The district court’s sentencing discre tion is limited by the Minnesota Sentencing
Guidelines, which prescribe a se ntence that is “presumed to be appropriate.” Minn. Sent.
Guidelines 2.D.1 (2018). See Soto , 855 N.W.2d at 308 (citing this provision of the
Minnesota Sentencing Guidelines). A distri ct court may depart from the presumptive
sentence only if “identifiable, substantia l, and compelling circumstances” warrant
departure. State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016) (quoting Minn. Sent.
Guidelines 2.D.1). To maintain uniformity and proporti onality in sentencing, departures
from the guidelines sentence are discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn.
2017) (quotation omitted).
If a defendant requests a downward dispositi onal departure, a district court must
determine whether “mitigating circumstances are present” and, if so, whether “those
circumstances provide a substantial and co mpelling reason not to impose a guidelines
sentence.” Soto, 855 N.W.2d at 308 (quotations omitte d). A district court may consider

9
“both offender- and offense-related factors” for a downward dispositional departure. State
v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018). But “the mere fact that a mitigating
factor is present in a particular case does not obligate the court to place [a] defendant on
probation.” State v. Pegel , 795 N.W.2d 251, 253-54 (M inn. App. 2011) (quotation
omitted). The district court is not required to explain its decision to impose a presumptive
sentence if it considers reasons for de parture but elects not to depart. State v. Van Ruler ,
378 N.W.2d 77, 80 (Minn. App. 1985). We will reverse a district court’s refusal to depart
only in a “rare” case. Walker, 913 N.W.2d at 468.
The guidelines provide a nonexclusive list of mitigating factors that can justify a
downward dispositional departure. One mitiga ting factor is that “[t]he offender is
particularly amenable to probation.” Minn . Sent. Guidelines 2. D.3.a.(7) (2018). The
qualifier “particularly” limits the number of departures, promoting the guidelines’ purpose
of fostering uniformity in sentencing. See Soto, 855 N.W.2d at 308-09. In determining
whether a defendant is particular ly amenable to probation, di strict courts consider “the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
That said, the district court is not required to cite each Trog factor in its decision but need
only consider the circumstances both for a nd against departure before exercising its
discretion. See, e.g., Pegel, 795 N.W.2d at 254 (concluding th at the district court did not
abuse its discretion because it considered the circumstances for and against departure).
The district court here sentenced Robinson to a presumptive prison sentence of 144
months. Robinson argues this was an abuse of discretion as he is particularly amenable to

10
probation. While the district court did not explicitly analyze all of the Trog factors during
sentencing, it reviewed the presentence i nvestigation report (PSI), the psychosexual
evaluation report, the sentencing worksheet, a victim-impact statement, and a statement
from Robinson, and heard arguments on th e motion for a downward dispositional
departure.
The district court determined there wa s no substantial and compelling reason to
depart from the presumptive sentence. It addressed several of the Trog factors. It spoke to
Robinson’s cooperation and attitude in court when it observed that Robinson had shown
up for court during pretrial re lease and had been “very polite, very pleasant.” But the
district court also observed that Robinson was still maintaining that he did not do anything
wrong—in other words, he was not showing remorse. And, although the district court did
not expressly discuss the other Trog factors, the briefing from both parties on the
dispositional departure motion addressed the remaining Trog factors (e.g., Robinson’s age
of 36 years and his lack of a serious crim inal history). The district court therefore
considered the circumstances for and agains t departure in exercising its discretion and
ultimately determined that there were not substantial and compelling reasons to depart from
the presumptive sentence. The district cour t therefore did not abuse its discretion in
declining to depart from the guidelines.
Robinson also argues that the district c ourt mistakenly applied the standard for
durational rather than dispositional departur es, as evidenced by the district court’s
statement at sentencing that it “can’t get past the fact that the Sentencing Guidelines are
basically what . . . the state has said, which is you don’t get a free pass. You—you sexually

11
assault somebody, you go to prison.” This st atement, Robinson argues, shows that the
district court did not understa nd that it had the discretion to dispositionally depart. The
argument is unpersuasive. The sentencing tr anscript shows that the district court
recognized that substantial and compelling reasons could justify a dispositional departure;
indeed, the district court explained that the issue was “whether or not [Robinson] go[es] to
prison” and that it had been reviewing the case for the “last couple of days trying to figure
out what” to do. In the end, it concluded that , despite some favorable considerations for
Robinson, there were not subs tantial and compelling reasons justifying departure. The
district court thus exercised its discretion, and this is not the rare case warranting reversal
of the imposition of a presumptive sentence.
Affirmed.