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This opinion is nonprecedential except as provided by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
A21-1223

State of Minnesota,
Respondent,

vs.

Sean William Roulo,
Appellant.

Filed January 9, 2023
Affirmed
Johnson, Judge

St. Louis County District Court
File No. 69DU-CR-20-1977

Keith Ellison, Attorney General, Lydia Villalva Lijo, Assistant Attorney General, St. Paul,
Minnesota; and

Kimberly J. Maki, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Sean William Roulo, Faribault, Minnesota (pro se appellant)

Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Klaphake,
Judge.∗

∗Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
A St. Louis County jury found Sean William Roulo guilty of criminal sexual
conduct based on evidence that he sexually abused his two stepdaughters when they were
young. We conclude that the district court did not err by granting the state’s motion to
amend the complaint during trial. We also conclude that the district court did not err by
imposing two sentences on two counts of criminal sexual conduct involving the same
victim. Therefore, we affirm.
FACTS
In July 2020, the state filed a criminal complaint against Roulo based on reports by
two adult stepdaughters, who then were 25 and 21 years old, that he had sexually abused
them when they were much younger. The complaint alleged the following counts: (1) first-
degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(g) (2004),
based on the allegation that Roulo engaged in sexual penetration of S.H. between May
2006 and May 2008, when she was between 10 and 12 years of age; (2) first-degree
criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii), based on the
allegation that Roulo engaged in multiple acts of sexual penetration of S.H. between May
2006 and May 2011, when she was between 10 and 15 years of age; (3) second-degree
criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2004), based
on the allegation that Roulo engaged in multiple acts of sexual contact with B.H. between
May 2001 and May 2015, when she was between 2 and 15 years of age; and (4) fourth-
degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(g)(iii)
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(2004), based on the allegation that Roulo engaged in multiple acts of sexual contact with
B.H. between May 2015 and May 2017, when she was between 15 and 17 years of age.
Before Roulo’s first appearance, the state amended the complaint so that the date range for
count 3 started in May 2007 rather than May 2001.
The case was tried to a jury on six days in April 2021. At the outset of trial, the
state moved to amend the complaint for a second time by changing the date ranges for
counts 2 and 3 and by alleging second-degree criminal sexual conduct, instead of fourth-
degree criminal sexual conduct, in count 4. The district court granted the motion with
respect to counts 2 and 3 but denied the motion with respect to count 4 on the ground that
the second-degree charge would have “a significantly different character” than the fourth-
degree charge. T he prosecutor then elected to withdraw the amendment with respect to
count 3 and to dismiss count 4.
The state’s first two witnesses were S.H. and B.H. S.H. testified that she
remembered two specific incidents in which Roulo engaged in sexual contact with her. In
the first incident, she awoke in her bed during the night because Roulo was fondling her
vagina with his hand, over her underwear. In the second incident, she awoke in her bed
during the night because Roulo was rubbing her vaginal area with his hand, under her
underwear. S.H. could not remember the date or period of time of either incident but
testified that both incidents occurred when she was in either eighth grade or high school.
B.H. testified about her first incident of sexual abuse, which occurred when she was
approximately seven years old. She awoke in her bed during the night because Roulo was
rubbing her butt, legs, and vaginal area with his hand, over her clothes. She also testified
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that, after the first incident, Roulo frequently entered her bedroom at night when she was
between the ages of 13 and 18 and rubbed her thighs and legs but never again touched her
between her legs.
The state proceeded to call nine additional witnesses. On the fifth day of trial, the
state moved to amend the complaint for a third time. The state sought leave to allege
second-degree criminal sexual conduct, not first-degree criminal sexual conduct, in counts
1 and 2, on the ground that such an amendment would conform to S.H.’s testimony that
Roulo engaged in sexual contact but not sexual penetration. The state also sought leave to
allege two counts , instead of one count, of second-degree criminal sexual conduct with
respect to B.H. Specifically, the state sought to renumber count 3, which alleged multiple
acts of sexual contact over an extended period of time, to count 4 and to slightly change
the applicable date range. The state also sought to insert a new count 3 to allege a single
act of sexual contact, in violation of Minn. Stat. § 609.343, subd. 1(g), with the same date
range as the new count 4. Roulo opposed the motion, primarily on the ground that the
amendment would require his attorney to change his plans for examining th e remaining
witnesses and making closing argument. The district court granted the motion.
The state called one additional witness and rested. Roulo called one witness and
testified in his own defense.
The jury found Roulo guilty of the charges in counts 1, 2, and 3 but not guilty of the
charge in count 4. The district court imposed a stayed sentence of 21 months of
imprisonment on count 1, a stayed sentence of 27 months of imprisonment on count 2, and
an executed sentence of 46 months of imprisonment on count 3. Roulo appeals.
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DECISION
As an initial matter, we will identify the arguments that have been properly
presented on appeal. Roulo initially was represented by an assistant state public defender,
who filed a notice of appeal on his behalf and a principal brief. Roulo later sought leave
to file a supplemental pro se brief. Thereafter the assistant state public defender moved to
withdraw as counsel, and we granted that motion. Between March and August of 2022,
Roulo filed five motions for extension of time, four of which were granted and the last of
which was denied. Roulo never filed a complete supplemental pro se brief. We ultimately
filed an order stating that no further briefing would be allowed. Thus, the issues on appeal
are the two issues that are presented in the brief that was filed by the assistant state public
defender.
I. Amendment of Complaint
Roulo first argues that the district court erred by granting the state’s mid-trial motion
to amend the complaint by adding new count 3, which alleged second-degree criminal
sexual conduct based on a single act of sexual contact within the same date range as new
count 4, which alleged second-degree criminal sexual conduct based on multiple acts of
sexual contact over an extended period of time.
After the commencement of trial, a district court generally may not allow the state
to add “new and different charges.” State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997).
But a district court may allow the state to amend a complaint “at any time before verdict
. . . [1] if no additional or different offense is charged and [2] if the defendant’s substantial
rights are not prejudiced.” Minn. R. Crim. P. 17.05 (alterations added). This court applies
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an abuse-of-discretion standard of review to a district court’s grant of a motion to amend
pursuant to rule 17.05. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982); State v. Baxter,
686 N.W.2d 846, 850 (Minn. App. 2004).
Roulo argues that the district court erred for two reasons, which correspond to the
two requirements in the text of the rule.
A. Additional or Different Offense
Roulo first contends that the district court allowed the state to add an additional or
different offense. The first requirement of rule 17.05—that “no additional or different
offense is charged”—is violated if an amendment “affects an ‘essential element’ of the
charged offense,” State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997), or “add[s] new
charges with different elements,” State v. Caswell, 551 N.W.2d 252, 255 (Minn. App.
1996). But the first requirement of rule 17.05 is not violated if an amended complaint
merely adds a lesser-included offense. Gisege, 561 N.W.2d at 157 (citing Minn. Stat.
§ 631.14 (1996)). An offense is a lesser-included offense “if it is impossible to commit the
greater offense without committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660,
664 (Minn. 2006). To determine “whether one offense is necessarily proved by the proof
of another, ‘the trial court must look at the statutory definitions rather than the facts in a
particular case.’” Gisege, 561 N.W.2d at 156 (quoting State v. Gayles, 327 N.W.2d 1, 3
(Minn. 1982)). Whether an offense is a lesser-included offense is a question of law. State
v. Degroot, 946 N.W.2d 354, 364 (Minn. 2020).
Before the third amendment, the state alleged, as count 3, a charge of second-degree
criminal sexual conduct, in violation of section 609.343, subdivision 1(h)(iii), based on the
7
allegation that Roulo engaged in multiple acts of sexual contact with B.H., between May
2007 and May 2015. After the amendment, the state alleged, in new count 3, a charge of
second-degree criminal sexual conduct, in violation of a different subdivision of
section 609.343, subdivision 1(g), based on the allegation that Roulo engaged in only a
single act of sexual contact with B.H. during the same approximate date range. The only
factual difference between the two charges is that new count 3 alleged only a single act
instead of multiple acts. Consequently, new count 3 is a lesser- included offense when
compared to former count 3 (which was renumbered count 4) because “it is impossible to
commit the greater offense,” which alleged multiple acts under subdivision 1(h)(iii) ,
“without committing the lesser offense,” which alleged a single act under subdivision 1(g).
See Bertsch, 707 N.W.2d at 664.
Roulo also contends that the district court erred because it allowed the state to add
an offense that is identical to the offense that the district court did not allow the state to add
at the outset of trial. In response, the state asserts that, at the outset of trial, the prosecutor
sought to amend then- existing count 4 by increasing the severity of the charged offense
from fourth-degree criminal sexual conduct to second-degree criminal sexual conduct. The
state also asserts that, at the o utset of trial, the prosecutor sought to allege a violation of
subdivision 1(a), which would have required proof that is not required by subdivision 1(g),
namely, proof that the victim was under 13 years of age and that Roulo was more than 36
months older. See Minn. Stat. § 609.343, subd. 1(a) (2004). The state is correct that the
offense in new count 3 is different from the offense that the state was not allowed to add at
the outset of trial.
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Thus, the offense alleged in new count 3 is not an additional or different offense.
B. Prejudice
Roulo also contends that the amendment prejudiced his defense . Specifically, he
contends that he did not have proper notice and that, by the time of the amendment, it was
impossible or impractical to cross-examine the state’s multiple witnesses. In response, the
state contends that Roulo was given advance notice of the amendment soon after S.H.
testified and that the essential nature of the allegations—that he engaged in sexual contact
against S.H. and B.H.—remained constant throughout the trial.
A defendant may be prejudiced by an amendment pursuant to rule 17.05 if the
amendment adversely affects “the opportunity to prepare a defense.” State v. DeVerney,
592 N.W.2d 837, 846 (Minn. 1999); see also State v. Alexander, 290 N.W.2d 745, 748
(Minn. 1980) (stating that rule 17.05 protects against “violating due process notions of
timely notice” and “adversely affecting the trial tactics of the defense”).
In this case, the prosecutor stated his intention to amend the complaint, shortly after
S.H. testified on the first day of trial. The amendment that the prosecutor later sought did
not expand on the allegations that previously had been made; the amendment merely
alleged a single act of sexual contact instead of multiple acts over an extended period of
time. Roulo does not contend that, before the amendment, his defense was focused on the
state’s lack of evidence of multiple acts. Rather, Roulo’s theory at trial was that he never
engaged in any sexual contact with either S.H. or B.H. The district court did not abuse its
discretion by rejecting Roulo’s argument that he would be prejudiced if the state were
allowed to narrow its allegations with respect to B.H. by adding new count 3.
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In sum, the district court did not err by granting the state’s mid-trial motion to amend
the complaint by adding new count 3.
II. Multiple Sentences
Roulo also argues that the district court erred by imposing two sentences on counts
1 and 2, both of which alleged second-degree criminal sexual conduct with respect to S.H.
Roulo contends that two sentences are prohibited on the ground that the two offenses arose
from a single behavioral incident.
In a criminal case, “if a person’s conduct constitutes more than one offense under
the laws of this state, the person may be punished for only one of the offenses.” Minn.
Stat. § 609.035, subd. 1 (2004 ). Consequently, “multiple sentences for multiple offenses
committed as part of the same behavioral incident are prohibited.” State v. Barthman, 938
N.W.2d 257, 265 (Minn. 2020). “To determine whether two or more offenses were
committed during a single behavioral incident, we examine two factors: (1) whether the
offenses occurred at substantially the same time and place, and (2) whether the conduct
was motivated by an effort to obtain a single criminal objective.” Id. (quotations omitted).
The state bears the burden of proving, by a preponderance of the evidence, that multiple
offenses did not arise from a single behavioral incident. Id. at 266. This court applies a
clear-error standard of review to a district court’s findings of fact and a de novo standard
of review to the district court’s application of the law to given facts. Id. at 265.
At the sentencing hearing, the state argued th at Roulo’s first and second offenses
were not committed during a single behavioral incident. But the district court did not make
any express findings of fact on the issue. Accordingly, we will review the evidence
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presented at trial to determine whether it supports the implied finding that Roulo’s first and
second offenses we re not committed during a single behavioral incident. See id. at 266-
67.
In Barthman, the supreme court considered this issue in the context of an evidentiary
record that is remarkably similar to the evidentiary record in this case. The appellant in
Barthman was found guilty of two counts of first-degree criminal sexual conduct toward a
daughter who was between 10 and 12 years old during the charged period. Id. at 262. With
respect to the first factor, the parties did not dispute that both offenses occurred in the
family’s home, but they disputed whether the two incidents occurred at substantially the
same time. Id. at 266. The victim’s testimony was not crystal clear about the date or time
period of either incident. Id. Nonetheless, the supreme court determined that it was
sufficiently clear, based on the victim’s descriptions of the distinguishing features of two
different incidents, that the incidents were separate. Id. at 266-67.
Similarly, in this case, S.H. testified that she did “not know the exact time frame”
of each incident, but she stated that the incidents occurred “somewhere between at least
eighth grade . . . and high school.” She described the two incidents differently: in the first
incident, Roulo touched her vagina with his hand over her underwear, and in the second
incident, he touched her vagina beneath her underwear. Furthermore, S.H. referred to the
first incident as “the first time” and later stated, in reference to both the first and second
incidents, that “those are the only two.” As in Barthman, S.H.’s testimony indicates that
the two incidents did not occur at substantially the same time. See id. at 267.
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With respect to the second factor, Roulo contends that the two incidents were
motivated by a single criminal objective: to exploit his position as a caretaker of S.H. by
sexually abusing her. The appellant in Barthman made a similar argument. Id. The
supreme court rejected the argument by stating that “broad statements of criminal purpose
do not unify separate acts into a single course of conduct.” Id. (quotation omitted). Rather,
the supreme court inquired “‘whether all of the acts performed were necessary to or
incidental to the commission of a single crime and motivated by an intent to commit that
crime.’” Id. (quoting State v. Krampotich, 163 N.W.2d 772, 776 (Minn. 1968)). The
supreme court answered that question by stating that the appellant’s conduct in the first
incident was “not in furtherance of, or incidental to, his successful completion” of the
second incident, and vice versa. Id. The same is true here. Roulo’s conduct in each
incident described by S.H. was not in furtherance of or incidental to his conduct in the other
incident.
Thus, the district court did not err by imposing two sentences on counts 1 and 2
because those two offenses did not arise from a single behavioral incident.
Affirmed.