State v. Janish

State of Minnesota, Respondent, v. Nathan Anthony Janish, Appellant.

A18-0307

STATE OF MINNESOTA IN COURT OF APPEALS

August 26, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Smith, Tracy M., Judge

Anoka County District Court

File No. 02-CR-17-753

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)

Mark G. Giancola, Rory P. Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Schellhas, Judge; and Jesson, Judge.

UNPUBLISHED OPINION

SMITH, TRACY M., Judge

After his seven-year-old niece reported that he had sexually assaulted her on two occasions, appellant Nathan Anthony Janish was charged with six counts of criminal sexual conduct: two counts each for both occasions and two counts for "multiple acts over an extended period of time." A jury found him guilty on all six counts, and the district court entered a conviction on one of the counts charging multiple acts. Janish filed a postconviction petition claiming ineffective assistance of counsel, which the district court denied without an evidentiary hearing. Janish appeals from both the conviction and postconviction ruling, arguing that (1) the postconviction court should have granted an evidentiary hearing, (2) the district court improperly admitted Spreigl evidence, (3) the jury's verdict may not have been unanimous, (4) the district court erred by not severing two of the counts before trial, and (5) the evidence was insufficient to support the verdict. We affirm.

FACTS

The convictions in this case arose out of several sexual assaults committed by Janish against A.W., his niece. Two sexual assaults occurred on one night in the summer of 2016, when A.W. was sleeping over at Janish's house, located in Anoka County. On that night, Janish twice approached A.W., while she was asleep or in bed, and made sexual contact with and penetrated her. A third sexual assault occurred one night in October 2016 when A.W., her sister, and her cousins were staying over at their grandparents' house in Cass County, which the family referred to as the "wood house." This sexual assault, too, involved sexual contact and penetration.

In November, A.W. reported the sexual assault at the wood house to her parents, who then contacted Midwest Children's Resource Center (MCRC). A nurse from MCRC interviewed A.W., who described both the sexual assault at the wood house and a sexualassault at Janish's house to the nurse. The nurse then reported the sexual assaults to a police department in Cass County, the Anoka County Sheriff's Department, and Anoka County Child Protection. The Anoka County Sheriff's Department investigated. On February 1, 2017, the state charged Janish with first- and second-degree criminal sexual conduct (counts one and two) based on a sexual assault occurring at Janish's house in Anoka County, in violation of Minn. Stat. § 609.342, subd. 1(a) (2016), and Minn. Stat. § 609.343, subd. 1(a) (2016).

In early July, the state amended the complaint, adding four new counts. Counts three and four were based on the sexual assault in Cass County and charged first- and second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a), and Minn. Stat. § 609.343, subd. 1(a). Counts five and six likewise charged first- and second-degree criminal sexual conduct, but they alleged multiple acts committed over an extended period of time against a victim with whom the actor had a significant relationship, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2016), and Minn. Stat. § 609.343, subd. 1(h)(iii) (2016). Because the initial complaint had described the Cass County sexual assault, even though it had charged only a sexual assault occurring in Anoka County, the statement of probable cause was not amended except to add a statement that "criminal sexual conduct may be prosecuted in any jurisdiction in which the violation originates or terminates."

A jury trial was held in Anoka County from July 10 to July 17, 2017. Before jury selection began, Janish's attorney moved to dismiss the new counts. He argued that the district court in Anoka County lacked jurisdiction over counts three and four because they alleged acts occurring in Cass County. He also argued that there was no probable cause forcounts five and six because acts in Anoka County followed six months later by acts in Cass County were not, according to him, "multiple acts over a protracted period of time." The district court denied the motion to dismiss counts three and four based on Minn. Stat. § 627.15 (2016), which allows a prosecution for child abuse to be venued in "the county where the alleged abuse occurred or the county where the child is found." And the district court denied the motion to dismiss counts five and six, ruling that whether the allegations constituted "multiple acts committed over an extended period of time" was a question of fact for a jury.

At trial, A.W. described three sexual assaults by Janish: two on the same summer night at Janish's house in Anoka County and one in October at the wood house in Cass County. A.W. testified that, during each sexual assault, Janish "stuck his private part in [her] mouth," "rubbed something up against her bottom," and "put . . . [her] hand around his private part." Other witnesses testified about A.W.'s prior reports of the sexual assaults, the circumstances on the nights when the sexual assaults occurred, and Janish's statements about his conduct on the nights when the sexual assaults occurred. The state then rested.

Janish's attorney moved for a judgment of acquittal, arguing that no reasonable jury could find Janish guilty because A.W. never specifically said the word "penis" when reporting the abuse or when testifying and because A.W.'s parents testified to having doubts about whether the sexual assaults had happened. The district court denied the motion.

Several witnesses testified in Janish's defense, stating that Janish had not been alone with A.W. and that they had not seen any abuse. Janish also testified; he denied having anysexual contact with A.W. and said that other people were in the room on each of the nights he was alleged to have sexually assaulted A.W.

Before the last day of trial, Janish moved to dismiss counts three through six, arguing that the crimes had not occurred in Anoka County and that A.W. could not be found in Anoka County for purposes of Minn. Stat. § 627.15. The district court heard the motion orally and took it under advisement. After the defense rested, the district court denied Janish's motion to dismiss. It ruled that venue was appropriate for counts five and six because Anoka County was where the offenses began. And the district court ruled that venue was appropriate for counts three and four because A.W. could be found in Anoka County since investigation of the Cass County allegations of child abuse occurred in Anoka County.¹

The jury returned guilty verdicts on all six counts. After the verdicts, Janish moved for a judgment of acquittal or a new trial, arguing that the evidence was insufficient to support a conviction on any count and arguing, in the alternative, that the district court lacked jurisdiction over counts three through six. As a subargument of his jurisdictional argument, Janish also contended that he was entitled to a new trial because the state, by introducing evidence on the counts over which the district court lacked jurisdiction, had introduced prior-bad-acts evidence without providing Spreigl notice.² The district courtdenied a judgment of acquittal or a new trial, ruling that the evidence was sufficient to support the jury's verdict. The district court reversed its determination that A.W. could be "found" in Anoka County for purposes of Minn. Stat. § 627.15 and therefore dismissed counts three and four. But the district court refused to dismiss counts five and six because, it ruled, Minn. Stat. § 609.53 (2016) permits criminal-sexual-conduct cases to be prosecuted "in any jurisdiction in which the violation originates or terminates" and counts five and six depended on multiple acts, the first of which took place in Anoka County. Finally, the district court denied Janish's motion for a new trial based on the dismissal of counts three and four, reasoning that the evidence of the Cass County acts was not improper Spreigl evidence because those acts were part of what the state had to prove to establish counts five and six.

The district court entered a conviction on count five—one of the two remaining first-degree offenses—and did not enter convictions on the other first-degree offense or thetwo lesser-included offenses. At sentencing, the district court granted a downward dispositional departure, sentencing Janish to the presumptive duration of 144 months but granting a stay of execution with 20 years' probation.

Janish appealed and was granted a stay to allow him to file a postconviction petition with the district court. Janish's postconviction petition claimed ineffective assistance of counsel—identifying seven ways in which his trial counsel was allegedly ineffective—and sought an evidentiary hearing. Following argument on the postconviction petition, the district court denied the petition without an evidentiary hearing.

Janish brings this combined direct and postconviction appeal.

DECISION

I. The district court did not err by denying a postconviction evidentiary hearing.

Appellate courts review the denial of a request for an evidentiary hearing on a postconviction petition for an abuse of discretion. Taylor v. State, 874 N.W.2d 429, 430 (Minn. 2016). Legal issues are reviewed de novo, but factual matters are reviewed only to determine "whether there is sufficient evidence in the record to support the postconviction court's...