State v. Holl, A19-1464

949 N.W.2d 461

STATE of Minnesota, Respondent,

v.Bryan Morgan HOLL, Appellant.

A19-1464

Court of Appeals of Minnesota.

Filed August 24, 2020

Review Granted State November 17, 2020

Review Denied Holl November 17, 2020

WORKE, Judge

Appellant challenges his five criminal-sexual-conduct convictions, arguing that (1) the district court abused its discretion by denying his motion for a mistrial; (2) the evidence was insufficient to corroborate his confession to one of the offenses; (3) the district court erred by convicting him of included offenses; and (4) the district court erred by sentencing him on two counts which were encompassed by a more serious count. Appellant also raises claims in his pro se supplemental brief. Because the evidence was insufficient to corroborate appellant's confession to one of his second-degree criminal-sexual-conduct offenses and the district court erred by entering convictions on two of the counts, we affirm in part, reverse in part, and remand.

FACTS

In 2017, 13-year-old C.D. was hospitalized for mental-health treatment. During her hospitalization, C.D. reported that the man she considered to be her stepfather, appellant Bryan Morgan Holl, molested her. Following her hospitalization, C.D. met with a forensic interviewer in Illinois, where she lived with her father, and disclosed that Holl sexually abused her when she was nine or ten years old and living with her mother and Holl in Minnesota.

C.D. disclosed that Holl came into her bedroom one night and had sexual intercourse with her, which she described as Holl putting his fingers inside of her vagina. C.D. stated that Holl touched her breasts and vagina under her clothes and touched inside and outside of her vagina. C.D. stated that she thought that the incident had been the last time Holl abused her. C.D. informed the interviewer that while she could not remember the first time, Holl had informed her that he abused her multiple times. C.D. told the interviewer that Holl sent her a message on Facebook stating that he regretted abusing her and he had confessed to his mother and sister.

In February 2017, Investigator Bliss interviewed Holl about C.D.’s allegations. Holl admitted that he sent C.D. the message on Facebook and stated that he was willing to talk to Investigator Bliss "as long as it's going to help [C.D.], that's all [he] g[ave] a sh-t about."

Holl disclosed four incidents of sexual misconduct with C.D. According to Holl, the first incident occurred when C.D., ten years old at the time, showered with him, but he stated that he did not allow her to touch him. The second incident occurred when Holl and C.D. "were scouting for deer country" and "[he] had to take a pee, and she wanted to hold [his penis] while [he] peed." The next incident occurred while the two were sitting on a couch at the residence and C.D. masturbated Holl until he ejaculated onto a deer-print blanket. The last incident involved C.D., 11 years old at the time, touching Holl's penis and Holl touching the outside of C.D.’s vagina in his bedroom.

When asked whether he ever penetrated C.D.’s vagina with his fingers, Holl stated that "[i]t's possible, but I don't remember." Holl also denied having intercourse with C.D.

Investigator Bliss subsequently obtained the Facebook message that Holl sent to C.D. It read:

[C.D.] I am so sorry for the sexual abuse that I put you threw for all that time an I should of turned my self including your mom into the police sooner for that I will never forgive my self but I wanted you to hear it from me that that day has come its today I am truly sorry for the things I put you threw an the long road still ahead for you but I know you have a great support team to help you threw it your strong.

The state charged Holl with three counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2010). Count one corresponded to the deer-scouting incident Holl described in his interview. Count two corresponded to the couch incident, and count three corresponded to the bedroom incident. Holl was also charged with one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2010), which encompassed the conduct alleged for the other three second-degree counts. Additionally, the state charged Holl with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2010), which corresponded to the bedroom incident.

At Holl's jury trial, the state called C.D., the forensic interviewer, and Investigator Bliss as witnesses. Holl did not testify or present any evidence.

C.D. testified that she, her mother, and Holl, whom she considered her stepfather, moved into a house in Grand Rapids when she was around eight years old and moved to Nashwauk two years later. C.D. testified that Holl began abusing her when she was around eight years old and continued up until she was 13 years old. C.D. estimated that Holl touched her more than 20 times during this period, but she could not remember every time because she "would either have a lot of Adderall in [her] system, alcohol, or both."

C.D. testified about one incident at the Nashwauk residence. One evening, C.D. went into the bedroom shared by Holl and her mother. She stated that she got into bed with them to watch a movie and drank Kool-Aid that tasted "sour and bitter." C.D. began shaking badly and felt sick. C.D. testified that the next thing she remembered was Holl taking her clothes off and he touched her breasts and the outside and inside of her vagina, and penetrated her vagina with his penis. C.D. stated that her mother was naked on the bed next to them and told her to relax while holding her hand.

C.D. testified about an incident that occurred when she and Holl were in the woods during duck-hunting season. C.D. stated that Holl touched the inside and outside of her vagina with his fingers when they were alone in his truck.

C.D. recounted that the last instance of sexual abuse occurred one evening at the Nashwauk residence when she was 12 or 13 years old. She stated that Holl came into her bedroom and sat on her bed. Holl began moving closer to C.D. and touched her breasts under her clothing. C.D. testified that Holl then put his hands down her pants and touched the outside and inside of her vagina.

When asked why she had not disclosed multiple instances of abuse with the forensic interviewer, C.D. testified that she had not been in the right state of mind due to the issues resulting in her hospitalization. C.D. stated that everything she told the interviewer had been truthful, and that while she had used the term "sexual intercourse" to describe Holl's abuse during the last incident, she did not know its exact meaning at that time and had meant sexual touching. Following C.D.’s testimony, a photograph of the deer-print blanket and the Facebook message were received as evidence.

After direct examination of C.D., Holl moved for a mistrial, arguing that C.D.’s testimony went beyond what had been alleged in the complaint. Holl asserted that he was not put on notice or prepared to address C.D.’s testimony regarding sexual intercourse, numerous instances of ejaculation, or the "ingestion," "consumption," or "use" of Adderall or alcohol. The district court denied Holl's motion for a mistrial after concluding that the state had notified Holl that C.D.’s anticipated testimony would be about "repeated and regular acts over a course of a period of time," and that "[t]here was reference to the incident of sexual intercourse."

Investigator Bliss testified about his investigation, and the recording of his interview with Holl was received as an exhibit and played for the jury. In concluding his testimony, Investigator Bliss confirmed that Holl is 21 years older than C.D., C.D. was around eight or nine years old when the abuse began and, according to Holl, 11 years old when it stopped, and the abuse occurred at the residences located in Nashwauk and Grand Rapids, which are in Itasca County.

The jury found Holl guilty as charged. The district court convicted Holl on all five counts and imposed concurrent sentences of 60 months in prison on count one, 91 months in prison on count two, and 306 months in prison on count four. This appeal followed.

ISSUES

I. Did the district court abuse its discretion by denying Holl's motion for a mistrial?

II. Was Holl's confession sufficiently corroborated so that the evidence adequately supported one of his second-degree criminal-sexual-conduct convictions?

III. Did the district court err by convicting Holl of counts three and five in violation of Minn. Stat. § 609.04, subd. 1 (2010)?

IV. Did the district court err by sentencing Holl on two offenses that were encompassed by a more severe offense?

V. Is Holl entitled to relief on his pro se claims?

ANALYSIS

I. Motion for a mistrial

Holl argues that the district court abused its discretion by denying his motion for a mistrial. This court reviews the denial of a motion for a mistrial for an abuse of discretion. State v. Bahtuoh , 840 N.W.2d 804, 819 (Minn. 2013). "A mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different if the event that prompted the motion had not occurred." State v. Manthey , 711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted).

A. Notice

Holl first contends that he did not receive notice that C.D. would testify about "new" and "different" crimes involving C.D.’s mother, Holl penetrating C.D. with his penis, and that C.D. was given alcoholic beverages and Adderall. However, the record belies this assertion. An exhibit admitted during a pretrial hearing indicated that C.D.’s "mother was part of it." The prosecutor also sent Holl's counsel an email stating that C.D. had "said sexual abuse was regular and on-going" and disclosed an incident involving Holl and C.D.’s mother. The email also disclosed C.D.’s statement that Holl had penetrated C.D.’s vagina with...