State of Minnesota, Respondent

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0105

State of Minnesota,
Respondent

vs.

Curtis Lablanche Vanengen,
Appellant.

Filed December 19, 2022
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-21-6415

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and
Jesson, Judge.
SYLLABUS
An aggravated sentence for criminal sexual conduct against a sleeping victim may
be based on the offense occurring within the victim’s zone of privacy when it is committed
in the victim’s own bedroom.
2
OPINION
JESSON, Judge
On a morning in October 2020, A.F. awoke in her own bed to appellant Curtis
Lablanche Vanengen sexually penetrating he r. Vanengen argues that the district court
erred in admitting evidence of a similar prior incident between him and A.F. as relationship
evidence at his trial. He also asserts that the district court abused its discretion by granting
an upward durational departure at his sentencing hearing after the jury found the offense
occurred in A.F.’s zone of privacy. Because the prior incident constituted appropriate
relationship evidence and the district court acted within its discretion in granting the
departure, we affirm.
FACTS
Respondent State of Minnesota charged Vanengen with one count of felony
third-degree criminal sexual conduct against a physically helpless victim 1 based on an
allegation that on October 10, 2020, Vanengen entered A.F.’s bedroom while she was
sleeping and penetrated her vagina with his penis. The presumptive sentence for this
offense with Vanengen’s criminal-history score was 65 to 91 months’ imprisonment. The
state moved for a 29-month upward durational departure to 120 months’ imprisonment.
Vanengen pleaded not guilty to the offense and the matter proceeded to trial. The district
court held a unitary trial on the allegations and, after the conviction, the aggravating factors
that would warrant an upward durational departure.

1 In violation of Minnesota Statutes section 609.344, subdivision 1(d) (2020).
3
The following facts summarize the evidence established at trial. The offense
occurred at a residence in Minneapolis. The owner of the residence (the homeowner) often
let people without a home rent a room or stay on one of her couches. The house was
characterized by A.F. and other witnesses at trial as a restroom, gas station, or drug house
because people were always coming in and out, rent was paid in varying amounts by each
occupant, and no one had keys to the house. And it was common that individuals staying
in the home would use drugs there.
In 2018, A.F. met the homeowner and rented a place to sleep on a couch in the house
for a few months. Then, in March 2020, A.F. began renting an upstairs bedroom from the
homeowner on a more permanent basis. Sometime after she moved in, A.F. met Vanengen
because he frequently stayed on a couch on the upstairs level of the residence. Vanengen
did not pay rent to stay at the residence, but he came and went as he pleased and was at the
house about six days a week. The homeowner testifed that Vanengen was basically living
at the house.
Vanengen and A.F. became friends, but there were differing accounts on whether
there were romantic aspects to their friendship. A.F. testified that Vanengen sometimes
would give her massages and they would occasionally fall asleep in her bed together after
watching a movie, but they never kissed or had sex. A.F.’s housemate agreed with A.F.
and testified that there were no romantic feelings between Vanengen and A.F. On the other
hand, the homeowner said that A.F. and Vanengen acted like a couple—slept in the same
bed, cuddled, and ran errands together.
4
Prior to the charged offense, a similar incident occurred between A.F. and
Vanengen. According to A.F., she awoke in her bed to her hair getting pulled while
Vanengen was moving her body, specifically her hips, in different positions, while he was
under her covers in only his boxer shorts. She testified that it felt like Vanengen was trying
to push his penis between her “butt cheeks” through his boxer shorts. A.F. reacted strongly
and “made a huge fuss” about this incident because she felt violated. Specifically, A.F.
yelled at Vanengen that he cannot come into her room while she was sleeping, that he
violated her, and that he cannot touch women when they are sleeping. Her reaction was so
loud, everyone in the house woke up and found out what had happened. A.F. asked the
homeowner to kick Vanengen out of the house after this incident, but the homeowner did
not kick him out, and the other housemates did not take the incident very seriously.
About six weeks later, A.F. awoke with her leggings pulled down and felt a penis
penetrating her vagina. A.F. said that she felt Vanengen’s penis behind her with her hand
and pushed him out of her. A.F. abruptly left her bedroom in tears. A housemate saw
Vanengen go into A.F.’s bedroom that morning, and the housemate confronted Vanengen
after the offense took place and asked him why he did not stop when A.F. said no.
According to the housemate, Vanengen replied, “[S]he didn’t say no. She was sleeping
and I put my dick in her.”
During trial, the district court gave two limiting instructions for the prior-incident
evidence. The first limiting instruction was given before A.F. testified about the prior act.
5
The second was read before jury deliberations:
Receipt of testimony of conduct on a prior occasion. The state
has introduced evidence of conduct by the defendant with
[A.F.] on a prior occasion. As I told you at the time this
evidence was offered, it was admitted for the limited purpose
of demonstrating the nature and extent of the relationship
between the defendant and [A.F.] in order to assist you in
determining whether the defendant committed the act with
which the defendant is charged in the complaint. The
defendant is not being tried for and any [sic] may not be
convicted of any behavior other than the charged offense. You
are not to convict the defendant on the basis of similar conduct
on a prior occasion.

The jury found Vanengen guilty of third-degree criminal sexual conduct against a
physically helpless victim. The district court then instructed the jury to deliberate on
whether the offense occurred in the victim’s zone of privacy to determine the existence of
an aggravating factor, which could be used to justify an upward durational departure from
the sentencing guidelines. Vanengen argued to the jury that he was allowed in A.F.’s
bedroom because the bedroom was “transient,” and he was “regularly in that room.” The
jury found that the offense of criminal sexual conduct against a physically helpless person
was committed in A.F.’s zone of privacy
2 because it occurred in a location in which she
had an expectation of privacy.
Vanengen was sentenced to 120 months of imprisonment after the district court
granted the state’s request for an upward durational departure. The district court relied on
the jury’s zone-of-privacy finding and its evaluation that the “victim should have been able

2 The district court provided the jury with the definition for zone of privacy—the interior
of the home and the area that surrounds the victim’s home.
6
to expect safety and security in her own home . . . considering that the prior incident took
place, which should have given Mr. Vanengen more than enough warning that his . . . acts
were uninvited and not wanted in any way.”
Vanengen appeals.
ISSUES
I. Did the district court abuse its discretion when it admitted evidence of a similar prior
incident between A.F. and Vanengen as relationship evidence?

II. Did the district court abuse its discretion when it granted an upward durational
departure at sentencing based on the jury’s finding that the offense occurred in
A.F.’s zone of privacy?

ANALYSIS
I. The district court properly exercised its discretion when it admitted evidence
of a prior incident between A.F. and Vanengen as relationship evidence.

Vanengen argues that the district court abused its discretion in admitting testimony
regarding a prior incident between A.F. and himself because (1) it did not meet the elements
of relationship evidence under Minnesota Statutes section 634.20 (2022) because A.F. and
Vanengen were not household members, and (2) any probative value the evidence may
have had was substantially outweighed by the danger of unfair prejudice.
Evidence of a defendant’s prior acts of domestic conduct that may illuminate the
history of the relationship between the accused and the alleged victim and place the crime
charged in the context of their relationship may be admitted at trial. State v. Zinski ,
927 N.W.2d 272, 278 (Minn. 2019); State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).
7
Specifically, in a prosecution:
Evidence of domestic conduct by the accused against the
victim of domestic conduct, or against other family or
household members, is admissible unless the probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

Minn. Stat. § 634.20. Evidence admitted pursuant to section 634.20 is commonly known
as “relationship evidence.”3 Zinski, 927 N.W.2d at 273.
Here, for evidence of the prior act to have been admissible as relationship evidence,
the incident must have been (1) domestic conduct by Vanengen (2) against a household
member, and (3) its probative value could not have been substantially outweighed by the
danger of unfair prejudice to Vanengen. Minn. Stat. § 634.20. Because the conduct alleged
in the prior incident was not challenged, we turn to whether A.F. and Vanengen were
household members under the statute and whether the probative value of the relationship
evidence was substantially outweighed by the danger of unfair prejudice to Vanengen. The
district court found that A.F. and Vanengen were household members and that the
probative value of the relationship evidence was not outweighed by the danger of unfair
prejudice.

3 This court has held that the relationship-evidence statute is not applicable outside of
domestic-abuse prosecutions. State v. McCurry, 770 N.W.2d 553, 560 (Minn. App. 2009),
rev. denied (Minn. Oct. 28, 2009). On appeal, the parties do not argue that the
relationship-evidence statute should not have been used in the prosecution for criminal
sexual conduct. As a result, we do not create an exception to the general rule but defer to
the district court’s application in a criminal sexual conduct case and the parties’ concession
of its use as such.
8
We review the district court’s decision to admit relationship evidence for an abuse
of discretion. McCoy, 682 N.W.2d at 161. And a district court abuses its discretion when
its “ruling is based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Bustos, 861 N.W.2d 655, 666 (Minn. 2015) (quotation omitted). This
court “will reverse the district court’s ruling if the error substantially influenced the jury’s
decision.” State v. Loving, 775 N.W.2d 872, 879 (Minn. 2009).
We begin our review with an examination of the district court’s household-member
determination. A household member can be “persons who are presently residing together
or who have resided together in the past.” Minn. Stat. § 518B.01, subd. 2(b)(4) (2022). It
is not disputed that A.F. was residing in the Minneapolis residence. The issue is whether
Vanengen was too. According to trial testimony, Vanengen was sleeping on the couch in
the upstairs area of the residence (on the same level as the bedroom A.F. was renting) about
six nights per week, he did not pay rent, he came and went as he pleased, and the
homeowner said that Vanengen was “basically living at the house.” Additionally, the
nature of the residence was such that the tenants or occupants would come and go as they
pleased, rent was paid in varying amounts by each person, and no one had keys to the
house. Given the nature of the residence, the type of occupants, and Vanengen’s consistent
presence at the household, the factual record supports the district court’s finding that
Vanengen was residing at the Minneapolis home.
Still, Vanengen argues that he did not reside at the house because he was not paying
rent at the residence and had another place to stay, relying on Elmasry v. Verdin,
727 N.W.2d 163, 166 (Minn. App. 2007) (holding that persons may not be “residing
9
together” when one person is a guest or merely staying at another’s home for a limited
period of time). But Elmasry also held that residing is living in a given place for some
time. 727 N.W.2d at 166. The testimony confirmed that Vanengen resided at the house
because he had been living there for “some time.” Id. And Vanengen himself relies upon
his presence at the home when he asserts that he and A.F. had a consensual relationship—
falling asleep in A.F.’s bed after watching movies, cuddling, and running errands together.
In view of these facts, Vanengen met the statutory definition of a household member to
A.F. See Minn. Stat. § 518B.01, subd. 2(b)(4). Thus, the district court did not abuse its
discretion by concluding that Vanengen and A.F. were household members.
Nor did the district court err in weighing the probative value of this evidence. When
balancing the probative value of the relationship evidence against potential for unfair
prejudice to Vanengen, “unfair prejudice is [seen as] not merely damaging evidence, even
severely damaging evidence; rather, unfair prejudice is evidence that
persuades by illegitimate means, giving one party an unfair advantage .”
State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted ). In reviewing the
district court’s assessment in this regard, we recognize that there was likely some prejudice
toward Vanengen from the admission of this prior incident because it has similarities to the
charged offense: A.F. was asleep and in her bed. But “[a]ll evidence offered against
defendants in criminal trials is prejudicial to some extent.” State v. Spaeth,
552 N.W.2d 187, 195 (Minn. 1996). This does not mean that this prejudice substantially
outweighed the relationship evidence’s high probative value. As we will discuss in turn,
its probative value was high, given the contradicting characterizations of Vanengen and
10
A.F.’s relationship. And in light of the limiting instructions that accompanied the minimal
references to the prior incident, its prejudice to Vanengen was low.
The evidence’s probative value was high because the prior incident provided
relevant and material context into the boundaries set by A.F. with Vanengen and what
Vanengen should have known to be acceptable, consensual contact.4 See State v. Lindsey,
755 N.W.2d 752, 756 (Minn. App. 2008) (“Evidence that helps to establish the relationship
between the victim and the defendant or which places the event in context bolsters its
probative value.”), rev. denied (Minn. Oct. 29, 2008). A.F.’s negative reaction to being
woken up by Vanengen in his boxers while she was in her bed demonstrated these
boundaries. She testified that she felt violat ed after this incident, and the homeowner
reiterated that the entire household was aware that A.F. did not like that Vanengen came
into her bedroom and into her bed without her knowledge or consent, because A.F.’s
yelling woke up the entire household. The probative value of the prior incident serves to
clarify the contradicting accounts of the relationship between Vanengen and A.F. by the
witnesses and the parties. See McCoy, 682 N.W.2d at 161 (holding that evidence of
domestic abuse that illuminates the history of the relationship between an accused and a
victim is treated differently because it typically occurs in the privacy of the home, involves
a pattern of activity that may escalate over time, and is often underreported).

4 Vanengen argued that since he would give A.F. massages and that they would fall asleep
together in her bed after watching a movie, the prior incident and the fact he was in her
bedroom without her explicitly inviting him was within what was expected in their
relationship.
11
Further, since this evidence was not emphasized by the state in its case and it was
mitigated by the district court’s cautionary instructions, there is no reasonable probability
that the admitted evidence prejudiced Vanengen or significantly affected the verdict.
State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006). Given that the prior incident was
mentioned by only two of the eleven witnesses (A.F. and the homeowner), one time in the
state’s ten-page opening statement, and three times in the state’s approximately 20-page
closing argument, the prior incident was not a critical part of the state’s theory of the case.
And, since the district court gave two limiting instructions to the jury regarding the
relationship evidence, instructing them to not use the prior incident to determine
Vanengen’s guilt, Vanengen’s contention that the jury must have found him guilty because
of the admission of the relationship evidence does not persuade this court. This is
especially true when we are to assume the jury followed the limiting instructions “not to
convict the defendant on the basis of similar conduct on a prior occasion.”
State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005); see State v. Ware,
856 N.W.2d 719, 729 (Minn. App. 2014) (stating that a district court’s limiting instruction
mitigates the risk that a jury may give undue weight to relationship evidence).
In sum, the district court was within its discretion in admitting the prior incident as
relationship evidence because A.F. and Vanengen were household members and the
evidence’s high probative value was not substantially outweighed by the danger of unfair
prejudice.
12
II. The district court properly exercised its discretion when it imposed an upward
durational departure at sentencing based on the offense having been
committed within the victim’s zone of privacy.

We review a district court’s decision to depart from the presumptive guidelines
sentence for an abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). If
the reasons given for an upward departure are legally permissible and factually supported
by the record, the departure will be affirmed. Id. But if the district court’s reasons for
departure are improper or inadequate, the departure will be reversed. Id.
Before the district court may impose an upward departure, a jury must determine
whether aggravating factors are present beyond a reasonable doubt. See
Blakely v. Washington, 542 U.S. 296, 301 (2004); see also State v. Shattuck,
704 N.W.2d 131, 135 (Minn. 2005). And a single aggravating factor may support an
upward sentencing departure. Hicks, 864 N.W.2d at 159. The Minnesota Sentencing
Guidelines contain a nonexclusive list of aggravating factors that may be used as reasons
for departure. Minn. Sent’g Guidelines 2.D.3 (2020). One of those factors is that “[t]he
offense was committed in a location in which the victim had an expectation of privacy,”
also called the zone-of-privacy aggravating factor. Minn. Sent’g Guidelines 2.D.3.b.14.
But even when the jury finds the presence of one of these factors, the district court must
then determine that it constitutes a “substantial and compelling” circumstance that renders
the offense significantly more serious than a typical offense. Minn. Sent’g Guidelines
2.D.1 (2020); State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).
Turning to the circumstances here, the jury found that Vanengen committed the
offense in A.F.’s zone of privacy because it occurred in a location in which she had an
13
expectation of privacy—her bedroom. The district court then determined that, due to this
finding, the offense justified an upward departure because “the victim should have been
able to expect safety and security in her own home.”
Vanengen assigns three errors to these conclusions. First, he argues that the
zone-of-privacy aggravating factor requires an invasion of a victim’s privacy. See
State v. Johnston, 390 N.W.2d 451, 457 (Minn. App. 1986) (explaining that a defendant is
normally a stranger to the household where the crime was committed when an invasion of
a victim’s zone of privacy is used to justify a sentencing departure), rev. denied (Minn.
Aug. 27, 1986).5 Next, Vanengen argues that given he was not a stranger to the house or
A.F.—indeed, they were friends—no zone of privacy existed here. To the jury, Vanengen
argued that since A.F.’s room was “a pretty transient room,” and that he was, in fact,
“regularly in that room,” his presence in her room when she was sleeping was “allowed”
and, as a result, A.F. did not have a zone of privacy in her bedroom. But the jury rejected
this argument and found that A.F. did have a zone of privacy in her bedroom. We defer to
that finding. See State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010) (granting great
deference to a jury’s findings of fact and holding that appellate courts shall not set those
findings aside unless they are clearly erroneous). It is reasonable that the jury made this
finding given the evidence at trial—A.F. established that Vanengen was not allowed in her

5 Vanengen did not make this argument on invasion at trial or at sentencing. Generally,
“litigants are bound [on appeal] by the theory or theories, however erroneous or
improvident, upon which the action was actually tried below,” Annis v. Annis,
84 N.W.2d 256, 261 (Minn. 1957), and an appellate court will not consider matters not
argued to and considered by the district court, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988).
14
bedroom when she was sleeping without her permission from the prior incident, and on the
day of the offense, her door was closed. This evidence could reasonably lead a jury to
determine A.F. expected privacy in her bedroom. See State v. Evans, 756 N.W.2d 854,
870 (Minn. 2008) (holding that if the jury’s findings are supported by reasonable evidence,
the appellate court will not disturb those findings).
Finally, Vanengen contests the district court’s determination that his offense was
significantly more serious than a typical offense. In deciding whether the district court
abused its discretion in this regard, we must ascertain what is “typical” for a
criminal-sexual-conduct charge with a physically helpless, sleeping victim. Vanengen
argues that his offense is not significantly more serious than a typical crime of this nature
because most criminal -sexual-conduct cases with sleeping victims occur in a bedroom,
citing to several cases to describe this as a “typical” offense. But the cases Vanengen relies
upon involve offenses that occurred in a friend’s bedroom, in a coworker’s bedroom, and
in a boyfriend’s bedroom. See, e.g., State v. Cao, 788 N.W.2d 710, 713 (Minn. 2010)
(criminal sexual conduct occurred when victim was sleeping in her friend’s bedroom at a
party); State v. Berrios, 788 N.W.2d 135, 137 (Minn. App. 2010) , rev. denied (Minn.
Nov. 16, 2010) (criminal sexual conduct occurred when victim was sleeping in coworker’s
bedroom); State v. Perkins, 395 N.W.2d 729, 730 (Minn. App. 1986) (criminal sexual
conduct occurred when victim was sleeping in boyfriend’s bedroom). 6 These situations
illustrate the dichotomy here. In the referenced cases, the victims could choose not to

6 None of these cases discuss aggravating factors in the context of sentencing or what is
“typical” for a criminal-sexual-conduct offense with a sleeping victim.
15
return to the scene of their assault. A.F. had no such choice. She returned to the location
of her assault daily. This supports the district court’s conclusion that Vanengen’s offense
was more serious than typical because “the victim’s home [was] no longer the island of
security upon which the victim has previously relied, thereby making the offense
particularly cruel.” State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991).7
For these reasons, we conclude that the jury and the district court did not err because
an aggravated sentence for criminal sexual conduct against a sleeping victim may be based
on the offense occurring within the victim’s zone of privacy when it is committed in the
victim’s own bedroom.
DECISION
The district court did not abuse its discretion in allowing testimony, as relationship
evidence, on a prior incident between Vanengen and A.F. because Vanengen and A.F. were
household members and the evidence’s probative value was not substantially outweighed
by prejudice to Vanengen. Also, for a criminal-sexual-conduct crime with a sleeping
victim, the zone-of-privacy aggravating factor applies when the offense is committed in
the victim’s own bedroom. And a district court has sufficient grounds to grant an upward
durational departure, at its discretion and after considering the seriousness of the offense,
on this basis.

7 The state requested that this opinion be precedential under Minnesota Rule of Civil
Appellate Procedure 128.02, subdivision 1(f), because of the lack of precedential opinions
regarding the zone-of-privacy aggravating factor in criminal- sexual-conduct cases with a
victim sleeping in their own bedroom.
16
We recognize that the commission of a criminal-sexual-conduct offense with a
sleeping victim when the victim is in their own bedroom may not always demonstrate that
the offense was committed in a particularly serious way. In each case, the district court
will need to determine if the particular facts of the offense, as found by a sentencing jury
or admitted by the defendant, demonstrate that the offense was committed in a particularly
serious way. See Hicks, 864 N.W.2d at 162. But here, the district court was well within
its discretion to grant the upward durational departure and sentence Vanengen to
120 months of imprisonment on the single zone-of-privacy aggravating factor because the
criminal sexual conduct occurred in A.F.’s personal bedroom.
Affirmed.