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This opinion is nonprecedential except as provided by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
A21-1536

State of Minnesota,
Respondent,

vs.

Dorell Monte Young,
Appellant.

Filed December 12, 2022
Affirmed
Reilly, Judge

Washington County District Court
File No. 82-CR-19-476

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

Kevin Magnuson, Washington County Attorney, Nicholas A. Hydukovich, Assistant
County Attorney, Stillwater, Minnesota (for respondent)

Karen V. Bryan, KB Law P.L.L.C., Minnetonka, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin , Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this direct appeal from the final judgments of conviction for two counts of first -
degree criminal sexual conduct, appellant argues that the district court abused its discretion
by (1) admitting evidence of an uncharged offense involving the same victim and
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(2) imposing consecutive sentences of 172 months for an aggregate sentence of 344
months’ imprisonment. We affirm.
FACTS
Respondent State of Minnesota charged appellant Dorell Monte Young with two
counts of first -degree criminal sexual conduct. The state alleged that Young sexually
assaulted 12-year-old Z.S. two times within the course of one month. Young pleaded not
guilty to the charges and the district court scheduled a jury trial.
The state filed a pretrial motion to introduce evidence of a n attempted third sexual
assault on Z.S. by Young which occurred after the first two sexual assaults and two weeks
before his arrest, arguing that it was relationship evidence under Minn. Stat. § 634.20
(2020) or otherwise relevant evidence to establish a continuing course of conduct. The
defense objected to the introduction of relationship evidence, arguing that the evidence
would be more prejudicial than probative. The district court granted the state’s motion to
introduce the evidence of an attempted sexual assault, finding that the evidence was
“generally relevant evidence about what was going on between these two people at the
time.” The district court also determined that the attempted sexual assault would be
admissible under Minn. Stat. § 634.20 because Z.S. and Young were in a domestic
relationship, the sexual conduct involved domestic abuse, and the evidence was more
probative than prejudicial in “understanding what was happening at the time.”
At t he jury trial, t he state presented testimony and evidence that established that
Young and Z.S. lived in the same apartment complex and that Young was in a romantic
relationship with Z.S.’s mother. Z.S. lived in an apartment unit with her mother and
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siblings, while Young lived in the same building in a separate unit with his son. Z.S.
testified that on December 29, 2018, Z.S. and Young were alone in her apartment when
Young started massaging her. Young then pulled down Z.S.’s shorts and underwear , “put
his mouth on [her] vagina ,” and put his fingers inside her vagina. Afte rward, Young told
Z.S. to go take a shower and to not tell her mom what happened. A week later on January
5, 2019, Young took Z.S. to the pet store and when they returned to Z.S.’s apartment they
were alone. Young again performed oral sex on Z.S. for about ten minutes. Z.S. also
testified about a third attempted sexual assault which was the subject of the state’s pretrial
evidentiary motion. Z.S. testified that she was at Young’s apartment asleep when Young
started rubbing her legs and tr ied to take the covers off of her. Z.S. testified that she said
“no,” and left the apartment.
Following the close of the case and deliberations, the jury reached a verdict. When
Young learned that the jury verdict would be read, he left the courthouse. The district court
proceeded without Young, finding that Young was in direct contempt of the district court’s
authority and that, if he failed to appear by the end of the day, the district court would issue
an arrest warrant, regardless of the verdict. The district court brou ght the jury into the
courtroom and they announced a guilty verdict on both counts of first -degree criminal
sexual conduct. The jury also found the following aggravating factors : (1) the assault
involved multiple penetrations and multiple types of penetra tion, (2) Young was in a
position of trust with the victim, (3) the assault occurred in the victim’s zone of privacy,
and (4) Young coerced the victim into not disclosing the sexual assault. Young did not
appear for the reading of the verdict.
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Almost two years after the jury returned its guilty verdict, law enforcement arrested
Young and transferred him to Washington County. Based on the presentence investigation,
Washington County Community Corrections recommended a sentence at the upper range
of the sentencing guidelines of 172 months’ imprisonment.1 The state requested that the
district court grant an upward departure and sentence Young to 215 months on each count,
to be served consecutively for a total of 430 months’ imprisonment. Young, through his
counsel, requested a total aggregate sentence of 172 months. The district court noted that
aggravating factors were present in the case but imposed the presumptive guidelines
sentence of 172 months’ imprisonment on each count, to be served consecutively for an
aggregate sentence of 344 months. Young appeals.
DECISION
I. The district court did not abuse its discretion by admitting evidence of the third
attempted sexual assault.

Young argues that the district court abused its discretion in admitting additional
evidence of Young’s attempted sexual assault against Z.S. which occurred shortly after
Young had previously sexually assaulted Z.S. two times. He requests that this court grant
him a new trial because there is a reasonable probabi lity that the testimony unfairly
influenced the jury’s determinations.
Generally, “[e]vidence of another crime, wrong, or act is not admissible to prove
the character of a person in order to show action in conformity therewith,” though it may

1 The presumptive sentence following a conviction for first-degree criminal sexual conduct
for an individual with a criminal- history score of zero is between 144 and 172- months’
imprisonment. Minn. Sent’g Guidelines 4.B (Supp. 2020).
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be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b).
Evidence of other crimes or bad acts is known in Minnesota as “ Spreigl evidence.” State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (citing State v. Spreigl, 139 N.W.2d 167
(Minn. 1965) ). When analyzing whether to admit Spreigl evidence, the district court
considers: (1) whether the state has given “notice of its intent to admit the e vidence”;
(2) whether the state has “clearly indicate[d] what the evidence will be offered to prove”;
(3) whether there is “clear and convincing evidence that the defendant participated in the
prior act”; (4) whether the evidence is “relevant and material to the state’s case”; and
(5) whether the probative value of the evidence is “outweighed by its potential prejudice
to the defendant.” State v. Ness , 707 N.W.2d 676, 685- 86 (Minn. 2006). An individual
claiming that the district court abused its discret ion in admitting the evidence has the
burden of showing the error and any resulting prejudice. Id. at 685.
Evidence of prior conduct may also be admitted as “relationship evidence” when it
shows “conduct by the accused against the victim of domestic conduct, or against other
family or household members . . . unless the probative value is substantially outweighed
by the danger of unfair prejudice.” Minn. Stat. § 634.20. We review the district court’s
decision to admit evidence under Minn. R. 404(b) or Minn. Stat. § 634.20 for an abuse of
discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016) (Spreigl evidence); State
v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008) ( relationship evidence), rev. denied
(Minn. Oct. 29, 2008).
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Z.S. testified about the contested evidence by describing Young’s attempted sexual
assault. In her testimony, Z.S. stated that about one week after the second sexual assault,
she fell asleep in Young’s apartment. Z.S. awoke to find Young rubbing her legs and trying
to take the covers off her so that he could “do it again.” Z.S. testified that she told Young
“no” and left his apartment. Young argues this testimony was highly prejudicial because
it made Young seem like a repeat offender and the conduct was not similar to the conduct
he was charged with because it was an attempted —not completed —sexual assault. We do
not agree.
During the pretrial motions, the district court ruled that the evidence of the third
attempted sexual assault against Z.S. was generally relevant evidence and met the
requirements of Minn. Stat. § 634.20 to be admissible as relationship evidence. We note
that the district court abused its discretion in finding that this evidence constitute d
relationship evidence because Minn. Stat. § 634.20 “requires that the evidence address
similar conduct by the accused against ‘the victim of domestic abuse.’” State v. Barnslater,
786 N.W.2d 646, 651 (Minn. App. 2010). The term “domestic abuse” under the statute
includes physical harm, fear of harm, or threats where such conduct is “committed against
a family or household member by a family or household member.” Minn. Stat. § 518B.01,
subd. 2(a) (2020). “Family or household member” is defined as:
(1) spouses and former spouses;
(2) parents and children;
(3) persons related by blood;
(4) persons who are presently residing together or who have
resided together in the pa st;
(5) persons who have a child in common regardless of whether
they have been married or have lived together at any time;
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(6) a man and woman if the woman is pregnant and the man is
alleged to be the father, regardless of whether they have
been married or have lived together at any time; and
(7) persons involved in a significant romantic or sexual
relationship.

Id., subd. 2(b) (2020). Z.S. and Young do not have a familial relationship as defined by
the statute . They do not live together and the “sexual relationship” in this case involved
sexual assault of a minor and therefore does not constitute a “significant sexual
relationship.” Thus, admitting evidence of a third attempted sexual assault by Young was
not permissible under Minn. Stat. § 634.20.
That said, we conclude that the evidence is admissible under Minn. R. Evid. 404(b)
as Spreigl evidence because it helped establish a common scheme or plan —that Young
sexually assaulted Z.S on the two earlier occasions . See State v. Wermerskirchen , 497
N.W.2d 235 (Minn. 1993) (other -crime evidence was admissible to prove the contested
issue of whether defendant sexually touched his pre -adolescent daughter); State v.
Anderson, 275 N.W.2d 554, 555- 56 (Minn. 1978) (evidence that the defendant sexually
abused complainant’s half -sister was admissible to establish that the defendant sexually
abused his 14- year-old stepdaughter). Common scheme or plan evidence may be
admissible to refute the defendant’s assertion that the victim fabricated their testimony or
is mistaken. Ness, 707 N.W.2d at 688. In Ness, the supreme court clarified that common
scheme or plan evidence must show a “marked similarity in modus operandi to the charge
offense.” Id.
Young denied ever sexual ly assaulting Z.S , and whether the two sexual assaults
occurred was the primary issue at trial . The evidence of the attempted sexual assault
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occurred within one week after Young sexually assaulted Z.S. the second time and involved
markedly similar conduct for which Young was standing trial. Young was charged with
two counts of first -degree criminal sexual conduct arising from two separate incidents in
which Young, when alone with Z.S., massaged her leg, pulled down her clothing, and
touched her vagina with his fingers and mouth. Z.S. testified that a week later when Young
and Z.S. were alone in his apartment, Young started massaging her leg and tried to take
covers away from her body before she told him no and left. We conclude that the evidence
of the a ttempted sexual assault was admissible as common scheme or plan evidence
because it had a “marked similarity in modus operandi to the charged offense [s],” and was
not offered for the improper purpose of showing that Young was a bad person. Id. Instead,
the evidence was highly relevant to whether the charged sexual assaults had occurred . Id.
at 687-88.
The prosecutor also followed the correct procedures by providing notice of the
state’s intent to present the evidence and describ ing the purposes for which the evidence
would be used. The district court found that in cases involving adults and minor children,
there are “often a whole series of events that occur before, during, and after specific
criminal acts that are then charged out.” Thus , the district court found the evidence of the
attempted assault to be relevant to show “what was happening between these two people”
before the charges were brought. The district c ourt noted that if any question came up
during Z.S.’s testimony about the attempted assault, the parties and the district court would
address them then. At trial, Z.S. testified in detail about both the sexual assaults and
attempted sexual assault. During her testimony about the attempted assault, no questions
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were raised. And on appeal, Young challenges only whether the probative value of the
evidence outweighed its prejudicial effect. We determine that the probative value of the
evidence outweighed an y danger of prejudice because the attempted assault evidence
showed an ongoing pattern of abuse by Young which helped disprove his defense that Z.S.
was fabricating the sexual contact. Thus, the district court did not abuse its discretion when
it admitted the testimonial evidence of an attempted sexual assault under Minn. R. Evid.
404(b).
II. The district court did not abuse its discretion by imposing consecutive
sentences.

Young also argues that the 344- month sentence imposed is excessive and
exaggerates the criminality of his conduct . Young claims there were no aggravating
circumstances to make his offense substantially different than other cases involving first -
degree criminal sexual conduct.
Generally, a district court’s decision to impose consecutive sentence s falls within
its “broad discretion.” State v. Perleberg, 736 N.W.2d 703, 705 (Minn. App. 2007), rev.
denied (Minn. Oct. 16, 2007). When a person is convicted of multiple current offenses,
“concurrent sentencing is presumptive.” Minn. Sent ’g Guidelines 2.F (Supp. 2020). But
when the district court sentences multiple felonies, consecutive sentences are permissive ,
meaning that they can be sentenced without departing from the guidelines if “the
presumptive disposition for the current offense(s) is commitment” and the felonies being
sentenced are on the list of offenses eligible for permissive consecutive sentencing. Id. at
2.F.2.a.1(ii). Young’s felony convictions for first -degree criminal sexual conduct carry
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presumptive sentences of commitment to the commissioner of corrections . Id. at 4.B
(showing first-degree criminal sexual conduct carries a presumptive prison commit ment,
even for an offender with no criminal -history points). And first-degree criminal sex ual
conduct is on the list of offenses eligible for permissive consecutive sentences. Id. at 6.A.
On appeal, we do not interfere with a district court’s discretion in sentencing “unless
the sentence is disproportionate to the offense or unfairly exaggerates the criminality of the
defendant’s conduct.” State v. Vang, 847 N.W.2d 248, 264 (Minn. 2014). We review a
district court’s sentencing decision for an abuse of discretion. State v. Solberg, 882 N.W.2d
618, 623 (Minn. 2016).
Here, the district court im posed a sentence of 172 months for each count of first -
degree criminal sexual conduct to be served consecutively , an aggregate sentence of 344
months’ imprisonment. Young’s sentencing worksheet showed he had a criminal -history
score of zero and thus a sentence of 172 months fell within the presumptive sentencing
guidelines of 144 to 172 months’ imprisonment. Young does not dispute that the
consecutive sentences imposed on him are permissive under the sentencing guidelines but
argues that the maximum statu tory sentence was not appropriate “because there were no
aggravating circumstances” to impose the sentence of 172 months on each count. And he
contends that the sentence is excessive when compared to similar cases involving first -
degree criminal sexual co nduct. We disagree.
Although aggravating factors were found by the jury to support an upward departure
in this case, the district court did not use the aggravating factors to grant an upward
departure. The district court did not depart from the sentencing guidelines. And this court
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does not interfere with a sentence in the presumptive range. See State v. Delk, 781 N.W.2d
426, 428 (Minn. App. 2010), rev. denied (Minn. July 20, 2010).
This case does not present rare or compelling circumstances to warrant reversal of
Young’s sentence. See id. For example, in Perleberg, appellant was charged with and
convicted of six counts of first -degree criminal sexual conduct after engaging in sexual
conduct with his daughter over several years. 736 N.W.2d at 704. The district court
sentenced appellant to three consecutive terms of 144 months ’ imprisonment based on the
six counts of first-degree criminal sexual conduct for an aggregate sentence of 432 months.
Id. at 704-705. This court determined that the 432- month sentence did not unduly
exaggerate the criminality of appellant’s conduct because “ [c]onsecutive sentences are
permissive for multiple offenses, even when the offenses involve a single victim.” Id. at
705. And this court determined that, in the context of a first-degree criminal sexual conduct
charge, “consecutive sentencing is not a departure from the sentencing guidelines.” Id. at
705-06.
Young was charged with two counts of first -degree criminal sexual conduct for
sexually assaulting 12-year-old Z.S . two times while they were alone in Z.S.’s apartment.
On these facts, Young’s permissive consecutive sentences do not unduly exaggerate the
criminality of his conduct. Thus, the district court did not abuse its discretion in sentencing
Young to an aggregate sentence of 344 months’ imprisonment.
Affirmed.