State of Minnesota v. Marcus Lashawn Davis

This opinion is nonprecedential except as provided by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
A25-2112

State of Minnesota,
Respondent,

vs.

Marcus Lashawn Davis,
Appellant.

Filed August 31, 2026
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Dakota County District Court
File No. 19HA-CR-24-1057

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

Kathryn M. Keena, Dakota County Attorney, Evan W. Frazier, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and
Rasmusson, Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this direct appeal from convictions of first-degree criminal sexual conduct and
fifth-degree criminal sexual conduct, appellant argues that (1) the evidence presented at
trial is insufficient to sustain his conviction of first-degree criminal sexual conduct and

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(2) the district court erred by convicting appellant of the two offenses because fifth-degree
criminal sexual conduct is an included offense of first-degree criminal sexual conduct. We
affirm appellant’s conviction of first-degree criminal sexual conduct, but we reverse the
district court’s entry of judgment of conviction of fifth-degree criminal sexual conduct and
remand for the district court to vacate that conviction.
FACTS
In June 2024, respondent State of Minnesota charged appellant Marcus Lashawn
Davis with first-degree criminal sexual conduct for sexual penetration causing personal
injury and accomplished using coercion in violation of Minnesota Statutes section 609.342,
subdivision 1(c)(i) (2022) (count I). At trial, the district court granted the state’s request
to add a jury instruction for a lesser-included offense of fifth-degree criminal sexual
conduct for nonconsensual sexual penetration in violation of Minnesota Statutes section
609.3451, subdivision 1 (2022) (count II).
The following facts are based on the evidence presented at a jury trial, including
testimony from the victim of appellant’s offense, her neighbor, her medical providers, and
a law-enforcement officer. Because appellant challenges the sufficiency of the evidence
presented at trial, “we view the evidence in a light most favorable to the verdict” and
assume that the jury “disbelieved any testimony conflicting with that verdict.” State v.
Jones, 4 N.W.3d 495, 500 (Minn. 2024) (quotations omitted).
In early 2023, Dr. W. performed a total hysterectomy on victim, removing her uterus
and cervix. Approximately two months later, victim contacted appellant on social media
and mentioned that her child needed a haircut for an upcoming event. Because victim “was

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still under doctor’s orders” related to the hysterectomy, she was looking for someone who
could perform the haircut at her home. Appellant said that he could, so the two arranged
for him to perform the haircut that evening at victim’s home.
Victim told appellant about her hysterectomy multiple times, including over the
phone before he arrived at her home. She explained that, due to the surgery and a recent
move, she had not yet found a hair stylist.
After arriving at victim’s home, appellant interacted with victim’s child while
victim was in her bedroom doing household chores. After approximately 10 to 15 minutes,
appellant appeared in victim’s bedroom doorway. They “started talking,” eventually sitting
side-by-side on the edge of victim’s bed. Appellant tried to touch victim and get her to sit
on his lap. Victim “tr[ied] to laugh it off” and told appellant that she was “not really a
touchy-feely person” and that she was still sore from the hysterectomy. Appellant’s
behavior “came off” to victim “as if it wasn’t normal that [she] wasn’t reciprocating” his
affection. Feeling intimidated by appellant “looking right at [her]” while asking to perform
oral sex on victim, victim “told [appellant] just to go ahead.” Victim allowed appellant to
perform oral sex on her, but she “kept reiterating” that appellant could not penetrate her
vagina due to her recent hysterectomy.
After several minutes, appellant “straddled [victim] on to his lap” so they were
facing each other and appellant had “his arms around [victim].” When appellant put victim
on his lap, appellant penetrated victim’s vagina with his penis, injuring her. Appellant then
penetrated victim multiple times. Victim told appellant that the penetration hurt and asked

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him to stop, but appellant continued and said nothing in response. Victim testified that
appellant saw that she was in pain because “he was staring at [her].”
Victim tried to get off appellant’s lap, but appellant was stronger than her, had his
arms wrapped around her, and she was weakened by the pain. “[A]t some point [she] just
stopped fighting, and [she] just fell to the floor.”
Appellant “star[ed] down at [victim]” while she laid on the floor. Victim eventually
called her neighbor, who came to victim’s home and called 911 when victim became
unresponsive. Dr. W. examined victim the next day. Dr. W. testified that victim had a
“full thickness [cuff] dehiscence, meaning that the entire incision [inside the vagina] ha[d]
opened up.” Dr. W. surgically repaired the dehiscence that same day.
A jury found appellant guilty of both count I and count II, and the district court
entered a judgment of conviction on each count. The district court sentenced appellant to
144 months on count I, with 135 days credited for time served, and did not sentence
appellant on count II.
This appeal follows.
DECISION
Appellant argues that (1) the evidence presented at trial is insufficient to sustain his
conviction of first-degree criminal sexual conduct and (2) the district court erred by
entering judgments of conviction on both counts of criminal sexual conduct. We address
each argument in turn.

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I. The evidence presented at trial is sufficient to sustain appellant’s first-degree
criminal-sexual-conduct conviction.

Appellant argues that the evidence presented at trial is not sufficient to prove the
coercion element of his first-degree criminal- sexual-conduct conviction under Minnesota
Statutes section 609.342, subdivision 1(c)(i). His argument is unavailing.
Section 609.342, subdivision 1(c)(i), criminalizes sexual penetration that causes
personal injury to the victim and that is accomplished with the use of coercion. “Coercion”
is defined as “the use by the actor of words or circumstances that cause the complainant
reasonably to fear the infliction of bodily harm upon the complainant or another, or the use
by the actor of confinement, or superior size or strength, against the complainant to
accomplish the act.” Minn. Stat. § 609.341, subd. 14 (2022). The coercion element of
section 609.342, subdivision 1(c)(i), may be proven by the uncorroborated testimony of the
victim of the offense. See Minn. Stat. § 609.347, subd. 1 (2022) (providing that victim
testimony “need not be corroborated” in prosecutions under section 609.342); State v.
Foreman, 680 N.W.2d 536, 539 (Minn. 2004) (“[A] conviction can rest on the
uncorroborated testimony of a single credible witness.” (quotation omitted)).
Appellate review of the sufficiency of the evidence supporting a conviction depends
on whether the state relied on circumstantial or direct evidence at trial. See Jones, 4
N.W.3d at 500. Circumstantial evidence is “evidence from which the factfinder can infer
whether the facts in dispute existed.” Id. at 501 (quotation omitted). Direct evidence, on
the other hand, “is evidence that is based on personal knowledge or observation and that,
if true, proves a fact without inference or presumption.” Id. (quotation omitted). Witness

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testimony “is direct evidence when it reflects a witness’s personal observations and allows
the jury to find the defendant guilty without having to draw any inferences.” State v. Horst,
880 N.W.2d 24, 40 (Minn. 2016). Because victim’s testimony addressing the coercion
element satisfies these criteria, we apply the traditional standard of review. See Jones, 4
N.W.3d at 500 (“[W]hen a disputed element is sufficiently prove[d] by direct evidence
alone it is the traditional standard, rather than the circumstantial-evidence standard, that
governs.” (quotation omitted)).
“In reviewing a claim of sufficiency of the evidence, this court views the evidence
in the light most favorable to the verdict and assumes that the jury disbelieved any
testimony conflicting with the result reached.” State v. Waino, 611 N.W.2d 575, 579
(Minn. App. 2000). “The verdict will not be overturned if, giving due regard to the
presumption of innocence and to the prosecution’s burden of proving guilt beyond a
reasonable doubt, the jury could reasonably have found the defendant guilty of the charged
offense.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted).
Here, victim testified that she “felt intimidated” by appellant before the penetration,
leading her to allow him to perform oral sex on her. After, appellant grabbed victim and
put her on his lap, penetrating her vagina with his penis. Victim’s attempts to end the
penetration were unsuccessful:
STATE: Did you try to get off his lap?

VICTIM: Yeah, but he was a bit stronger than me. And by
that time, the pain was -- kind of made me a little weak, and so
I think at some point I just stopped fighting, and I just fell to
the floor.

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STATE: And when you say that you tried to . . . get up, can
you tell me what you did to try and get up or away?

VICTIM: Well, I just tried to like, you know, up myself and
move, (indicating,) but his arms -- both arms were around me,
and he wasn’t quite done, I guess, so he just kept going.

The district court then stated, “Record reflecting that, when the witness was answering that
last question, she did engage in some nonverbals and was lifting herself up off of her chair
with her arms.” Later victim testified that, at the time of the assault, she weighed between
115 and 135 pounds. Appellant testified that he weighed approximately 255 pounds and
is six and a half feet tall.
Victim’s testimony is direct evidence that appellant used his arms to confine victim
and leverage his superior strength against her to accomplish sexual penetration. See Minn.
Stat. § 609.341, subd. 14 (including use of confinement and superior strength in definition
of coercion). That testimony sufficiently proved the coercion element of appellant’s first-
degree criminal-sexual -conduct conviction. See Minn. Stat. § 609.342, subd. 1(c)(i)
(providing as element of offense “the actor uses coercion to accomplish the act”).
Appellant interprets section 609.342, subdivision 1(c)(i), as requiring the state to
prove that appellant used coercion “to cause [victim] to submit to sexual penetration against
her will.” We disagree. In State v. Middleton, the supreme court declined to interpret the
phrase “uses . . . coercion to accomplish the sexual contact” in a similar statute as requiring
the state to prove “that the sexual contact was ‘accomplished by,’ that is, made possible
by, the [defendant’s] alleged coercion.” 386 N.W.2d 226, 227 n.1, 229-30 (Minn. 1986)
(referencing fourth-degree criminal-sexual-conduct statute, Minn. Stat. § 609.345, subd.

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1(c) (1984)). The supreme court rejected that interpretation , holding that “it was not
improper for the [district] court to instruct the jury that the meaning of sexual contact
‘accomplished by’ the use of coercion may be interpreted as including a sexual contact
‘accompanied by’ the use of coercion.” Id. at 230. We decline to diverge from Middleton’s
interpretation of language nearly identical to the language at issue here. Compare Minn.
Stat. 609.345, subd. 1(c) (using language of “uses . . . coercion to accomplish the sexual
contact”), with Minn. Stat. § 609.342, subd. 1(c)(i) (using language of “uses coercion to
accomplish the act”).
II. The district court erred by entering judgments of conviction on both counts of
criminal sexual conduct.

Appellant argues, and the state agrees, that the district court violated Minnesota
Statutes section 609.04, subdivision 1 (2024), by entering judgments of conviction on both
count I and count II. We also agree.
Section 609.04, subdivision 1, “proscribes multiple convictions when those
convictions are for the crime charged and an ‘included offense.’” State v. Bradley, 4
N.W.3d 105, 111 (Minn. 2024) (quoting Minn. Stat. § 609.04, subd. 1 (2022)).1 “[A] lesser
degree of the same crime” as the crime charged is an “included offense.” Minn. Stat.
§ 609.04, subd. 1(1) (2024). “Degree” refers “to offenses within an ordinal statutory
scheme.” Bradley, 4 N.W.3d at 113. However, “the protections of section 609.04 will not
apply if the offenses constitute separate criminal acts.” State v. Bertsch, 707 N.W.2d 660,

1 The legislature has not amended the language of section 609.04 following Bradley or any
of the other cases cited in this section.

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664 (Minn. 2006). “Whether a conviction violates section 609.04 is a legal question that
this court reviews de novo.” State v. Bonkowske, 957 N.W.2d 437, 443 (Minn. App. 2021).
The district court entered judgments of conviction on count I, for first-degree
criminal sexual conduct under section 609.342, subdivision 1(c)(i), as well as count II, for
fifth-degree criminal sexual conduct under section 609.3451, subdivision 1. One ordinal
statutory scheme holds both offenses. The exception to section 609.04 (2024) is not
applicable because appellant’s offenses occurred as part of the same criminal act. See
Bertsch, 707 N.W.2d at 664. The state proved both offenses with evidence of one criminal
act. We conclude that the district court erred by entering judgments of conviction on both
counts. We therefore reverse and remand for the district court to vacate the judgment of
conviction entered on count II but leave the finding of guilt intact. See Bonkowske, 957
N.W.2d at 446 (instructing district court to vacate “one of the convictions”); see also State
v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (explaining “proper procedure to be
followed by the [district] court when” defendant is found guilty of multiple offenses based
on single criminal act).
Affirmed in part, reversed in part, and remanded.