A20-0310

This opinion is nonprecedential except as provided by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
A20-0305
A20-0310

State of Minnesota,
Respondent (A20-0305),
Appellant (A20-0310),

vs.

Dane Robert Mullen,
Appellant (A20-0305),
Respondent (A20-0310).

Filed March 1, 2021
Affirmed in part, reversed in part, and remanded
Florey, Judge

St. Louis County District Court
File No. 69DU-CR-19-398

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

Mark S. Rubin, St. Louis County Attorney, Nathaniel T. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Frisch,
Judge.

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NONPRECEDENTIAL OPINION
FLOREY, Judge
In this direct appeal, appellant argues that the evidence is insufficient to support his
convictions of first-degree criminal sexual conduct because the state failed to prove beyond
a reasonable doubt that he or his acco mplice used force or coercion to accomplish
penetration. The state also appeals the district court’s grant of a downward dispositional
departure. We affirm one of the force -based conviction s and Mullen’s probationary
sentence. But because the district court erroneously adjudicated multiple convictions based
on the same act , we reverse and remand to the district court to vacate the physical -
helplessness-based conviction and one of the force-based convictions.
FACTS
The state charged appellant Dane Robert Mullen with three counts of first -degree
criminal sexual conduct based on an incident occurring on June 21, 2008. See Minn. Stat.
§ 609.342, subd. 1 (2006) (defining first-degree criminal sexual conduct). The complaint
was filed approximately ten years after the incident. The first count alleged that Mullen
used force or coercion to accomplish sexual penetration. See id. (e)(i). The second count
alleged that Mullen knew or should have known that the victim was mentally impaired,
mentally incapacitated, or physically helpless at the time of sexual conduct and therefore
unable to consent. See id. (e)(ii). The third count alleged that Mullen’s accomplice used
force or coercion to accomplish sexual penetration. See id. (f)(i). All three counts alleged
that Mullen caused the victim personal injury. All three counts also alleged accomplice
liability pursuant to Minn. Stat. §609.05 (2006). The case proceeded to a jury trial.

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The victim, A.B., testified that in J une 2008 she went to a beach party with two
friends. Three men that she did not know joined the party . A.B. accepted a drink from
someone she did not know. A.B. testified that at that point “things get hard to remember,”
but that she remembered being “b etween two people” who were her helping her walk
because her feet felt “really, really heavy. ” She knew “something was very much not
okay.”
The next thing A.B. remembered was waking up on her back on the b each with a
man on top of her, penetrating her with his penis. She put up her hand to touch his face,
and somebody grabbed her arm and held it down against the sand. She remembered
feeling that the arm couldn’t be that person that was on top of
[her] because the thumb was towards [her] body and not away
from [her] body —or just the angle of the arm had to be
somebody who was above [her] and not on top of [her]. So at
that point [she] knew that there was more than one person there
and that—that [she] had no control over what was happening
at that point.

She testified feeling that she could not “make this stop and that felt really, really scary.”
A.B. was found on the beach the following morning and transported to detox. Her
vagina was full of sand an d “really raw.” When she got out of detox the following day,
she reported the assault to the police and was examined at the hospital by a sexual-assault
nurse examiner. The examiner discovered that A.B. had scrapes on her legs, knees and
lower back, and bruises on her hips, as well as two tears in her labia minora. DNA evidence
obtained from A.B.’s perineal swab matched Mullen’s DNA profile. Mullen testified that
he had consensual sex with A.B. on the night of the offense.

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The jury found Mullen guilty o f all three charges. According to the warrant of
commitment, the district court entered convictions for all three charges.
At sentencing, Mullen moved the district court for a downward dispositional
departure. Mullen argued, in part, that he was amenab le to probation because he had
successfully completed a period of supervision in Wisconsin between 2007 and 2017
without any violations. The district court granted the departure, and on c ount one,
sentenced Mullen to 216 months in prison stayed for a peri od of 15 years. In making its
decision to grant the downward dispositional departure, th e district court stated, “I don’ t
feel like a lengthy period of incarceration is going to make society any safer, and that’s
where my focus is.” The district court st ated that Mullen’s period of supervision for his
Wisconsin conviction in the years preceding this current conviction “made [him] the person
that we would want to be out in society.” In the departure report, the district court further
explained its decision to grant a downward dispositional departure:
This was an old case charged out more than 10 years aft er the
offense. In that time [Mullen] successfully completed a
lengthy period of parole supervision, had no other offenses,
stopped using illici t chemicals, has been consistently
employed, gained custody of his daughter through social
services and has been in a positive committed relationship for
many years. The psychosexual evaluation indicates that he has
many protective factors that decrease h is risk of recidivism
despite the nature of this offense and recommend s individual
or group therapy. For all of these reasons he is particularly
amenable to probation and sex offender treatment in a local
correctional setting rather than with the DOC.

Mullen now appeals his convictions, and the state appeals the downward
dispositional departure.

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DECISION
I. The evidence is sufficient to prove that Mullen used force d or coercion to
penetrate A.B.
Mullen contends that his conviction for count one must be reversed because the state
failed to prove beyond a reasonable doubt that he used force or coercion to penetrate A.B.
When considering a sufficiency-of-the-evidence challenge, we carefully review the
record “to determine whether the evidence and reasonable inferences drawn therefrom,
viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its
verdict.” Lapenotiere v. State , 916 N.W.2d 351, 360 (Minn. 2018) (quotation omitted).
“We assume the jury believed the [s]tate’ s witnesses and disbelieved any evidence to the
contrary.” State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012). “This is especially true
where resolution of the case depends on conflicting testimony, because weighing the
credibility of witnesses is the exclu sive function of the jury.” State v. Pieschke , 295
N.W.2d 580, 584 (Minn. 1980). “[W]e 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 doubt, could reasonably conclude that the defendant was guilty of the charged
offense.” Ortega, 813 N.W.2d at 100.
To convict Mullen of count one, the state had to prove that he used force or coercion
to accomplish the penetration of A.B. , causing personal injury to her . See Minn. Stat.
§ 609.342, subd. 1(e)(i).
“Force” means the infliction, attempted infliction, or
threatened infliction by the actor of bodily harm or commission
or threat of any other crime by the actor against the
complainant or another, which (a) cause s the complainant to

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reasonably believe that the actor has the present ability to
execute the threat and (b) if the actor does not have a significant
relationship to the complainant, also causes the complainant to
submit.

Minn. Sta t. § 609.341, subd. 3 (2 006). “ ‘Bodily harm’ means physical pain or injury,
illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7 (2006).
“Coercion” means the use by the actor of words or
circumstances that cause the complainant reasonably to fear
that the actor will inflict bodily harm upon the complainant or
another, or the use by the actor of confinement, or superior size
or strength, against the complainant that causes the
complainant to submit to sexual penetration or contact against
the complainan t’s will. Proof of coercion does not require
proof of a specific act or threat.

Minn. Stat. § 609.341, subd. 14 (2006).

Mullen does not challenge the sufficiency of the evidence establishing sexual
penetration or personal injury to A.B. Instead, Mullen argues that there is insufficient
evidence to prove that he used force or coercion to penetrate A.B. Specifically, he contends
that “the penetration began be fore any act that could have arguably constituted force of
coercion occurred.” In response, the state contends that “[t]his argument ascribes a non -
existent temporal predicate to the language of Minn. Stat. § 609.342, subd. 1(e)(i) by
suggesting that the use of force or coercion after the moment of penetration is exempted
from criminal liability.” We agree.
The supreme court rejected Mullen’s argument in State v. Middleton, 386 N.W.2d
226 (Minn. 1986). Middleton involved a charge of fourth-degree criminal sexual conduct
which required the jury to find that the “[t]he actor use[d] force or coercion to accomplish
the sexual contact.” Minn. Stat. § 609.345, subd. 1(c) (1984). There, the appellant claimed

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the language of the statute required the state to prove that coercion was used before the
sexual contact occurred. Middleton, 386 N.W.2d at 229 -30. The supreme court rejected
this interpretation of the statutory language, holding:
The coercion required by the statute need not precede or be
separate from the sexual contact. It is enough that the coercive
words or conduct, and the fear they produce in the victim, are
an aspect of, that is, they happen concurrently with, the sexual
contact.

Middleton, 386 N.W.2d at 230.
The language of Minn. Stat. § 609.342, subd. 1(e)(i) , is nearly identical to the
statutory language at issue in Middleton, and its holding also applies here; namely, that the
force or coercion used against A.B. need not precede or be separate from the sexual
penetration. Rather, it is sufficient if the force or coercion occur red concurrently with the
sexual penetration.
Here, A.B. testified that she woke up on her back in the sand with someone on top
of her having sex with her. When she put her hand up to touch the person’s face, another
person pushed it back down to the sand. She knew it was a different person due to the
angle of that person’s thumb on her arm. She did not have control over what was happening
to her and felt “really, really scared.” Further, although corroboration of a victim's
testimony is not required in a first-degree criminal-sexual-conduct prosecution,1 the record
contains ample evidence to corroborate A.B.’s direct testimony that Mullen used force or
coercion to commit the charged offense. The state presented extensive evidence of A.B.’s

1 See Minn. Stat. § 609.347, subd. 1 (2020).

8
physical injuries, which included the report of the sexual -assault nurse examiner noting
that A.B. had scratches throughout her body, bruising on her thighs, abdomen, and shins ,
and two tears of A.B.’s labia minora “consistent with sexual assault.” Based on this
evidence, we conclude that there is sufficient evidence with regard to the force or coercion
element to sustain the jury’s guilty verdict beyond a reasonable doubt.
Because the state presented sufficient direct evidence that Mullen and his
accomplice used force to accomplish penetration, we affirm Mullen’s conviction under
Minn. Stat. § 609.342, subd. 1(e)(i).
II. The district court erred by entering convictions for more than one count of
first-degree criminal sexual conduct.

Mullen also challenges his convictions for counts tw o and three, arguing that he is
entitled to a new trial because the district court incorrectly instructed the jury on count two
and because the state presented insufficient evidence to support his conviction on count
three. We need not address the merits of these arguments because we conclude that the
district court erroneously adjudicated multiple convictions based on the same act or course
of conduct. See State v. Balandin, 944 N.W.2d 204, 221 -22 (Minn. 2020) (remanding to
the district court to vacate m ultiple convictions arising out of the same act); State v.
Ashland, 287 N.W.2d 649, 650 (Minn. 1979) (stating the appellate courts need not decide
legal issues related to claims that are not adjudicated or sentenced).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 ( 2020). The
Minnesota Supreme Court has interpreted that provision as follows:

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When the defendant is convicted on more than one charge for
the same act the court is to adjudicate formally and impose
sentence on one count only. The remaining conviction(s)
should not be formally adjudicated at this time. If the
adjudicated conviction is later vacated for a reason not relevant
to the remaining unadjudicated conviction(s), one of the
remaining unadjudicated convictions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for time already served on the vacated sentence.

Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted). Whether multiple
convictions violate Minn. Stat. 609.04 is a legal question that [we] review de novo. State
v. Cox , 820 N.W.2d 540, 552 (Minn. 2012) . We look to the “ official judg ment of
conviction” in the district court record “as conclusive evidence of whether an offense has
been formally adjudicated.” See Spann, 740 N.W.2d at 573 (quotation omitted).
Here, it is undisputed that Mullen’s convictions arose out of the same act. Thus, our
review is de novo. The jury found Mullen guilty of three counts of first -degree criminal
sexual conduct against A.B. The district court sentenced Mullen to 216 months in prison
stayed for fifteen years for count one, and stated on the record that it would not be entering
convictions for counts two or three. The warrant of c ommitment, however, notes that
Mullen was convicted of all three counts. See Spann , 740 N.W.2d at 573 (instructing
appellate courts to look at offici al judgment or sentencing order in district court record to
determine what counts have been adjudicated).
Because all of the offenses pertain to the same criminal act, only one conviction
under Minn. Stat. § 609.342, subd. 1, was appropriate. See State v. Grampre, 766 N.W.2d
347, 354 (Minn. App. 2009) (vacating one of two conviction s for first -degree criminal
sexual conduct based on same incident) , review denied (Minn. Aug. 26, 2009) ; see also

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State v. Folley , 438 N.W.2d 372, 373 (Minn. 1989) (interpreting Minn. Stat. § 609.04,
subd. 1, to mean that “a defendant may not be convicted of two counts of criminal sexual
conduct . . . on the basis of the same act” ). Thus, we reverse and remand to the district
court to vacate Mullen’s convictions under subdivision 1( e)(ii), and subdivision 1( f)(i),
while leaving in place the jury verdict s. See State v. LaTourelle, 343 N.W.2d 277, 284
(Minn. 1984). Because the district court imposed sentence on count one, we leave that
conviction in place. Only if that conviction is later vacated may the district court formally
adjudicate a conviction under subdivision 1(e)(ii) or 1(f)(i). See id.
III. The district court did not abuse its discretion by granting a downward
dispositional departure.

Finally, we must finally address t he state’s argument that the district court abused
its discretion when it sentenced Mullen to probation because (1) the reasons offered by the
district court for the downward dispositional departure were not legally permissible and
(2) the record does not show that Mullen was particularly amenable to probation. “We
afford the [district] court great discretion in the imposition of sentences and reverse
sentencing decisions only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303,
307-08 (Minn. 2014) (quotation omitted). “A district court abuses its discretion when its
reasons for departure are legally impermissible and insufficient evidence in the record
justifies the departure.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
“A defendant’s particular amenability to probation justifies a district court’s
decision to stay the execution of a presumptively executed sentence.” State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006). A “defendant’s age, his prior record, his remorse, his

11
cooperation, his attitude while in court, and the support of friends and/or family , are
relevant to a determination whether a defendant is particular ly suitable to individualized
treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Here, the district court found that Mullen was particularly amenable to probation in
the sentencing report, stating:
This was an old case charged out more than 10 years after the
offense. In that time [Mullen] successfully complet ed a
lengthy period of parole supervision, had no other offenses,
stopped using illicit chemicals, has been consistently
employed, gained custody of his daughter through social
services and has been in a positive committed relationship for
many years. The psychosexual evaluation indicates that he has
many protective factors that decrease his risk of recidivism
despite the nature of this offense and recommend individual or
group therapy. For all of these reasons he is particularly
amenable to probation and sex offender treatment in a local
correctional setting rather than with the DOC.

Given our deferential standard of review, we conclude that the district court’s reasons for
the departure, which took into consideration appropriate factors and found Mullen
particularly amenable to probation, were proper and sufficiently supported by the record in
this case. See State v. Stempfley, 900 N.W.2d 412, 419 (Minn. 2017) (“ Even if we might
have come to a different conclusion had we been weighing the evidence ourselves, that is
not the applicable standard upon appellate review”).
Affirmed in part, reversed in part, and remanded.