State v. D'Cruz

• Decision Date: 27 June 2022
• Docket Number: A21-0990
• Parties: State of Minnesota, Respondent, v. Norbert Pius D'Cruz, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent,
v.
Norbert Pius D'Cruz, Appellant.

No. A21-0990

Court of Appeals of Minnesota

June 27, 2022

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Washington County District Court File No. 82-CR-20-2841

Keith Ellison, Attorney General, St. Paul, Minnesota; and Kevin M. Magnuson, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent).

Stephen V. Grigsby, Northfield, Minnesota (for appellant).

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Frisch, Judge.

WORKE, Judge.

Appellant challenges his criminal-sexual-conduct convictions, arguing that his due-process rights were violated and the state failed to meet its burden to prove his guilt beyond a reasonable doubt. Appellant also claims judicial bias. We affirm.

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In July 2020, 13-year-old O.N.S. told her stepsister that when she was nine years old her stepfather, appellant Norbert Pius D'Cruz, digitally penetrated her vagina while she was showering at their house. O.N.S. then reported the assault to her father, and law enforcement was contacted.

Investigators interviewed D'Cruz and O.N.S.'s mother, T.D. D'Cruz told investigators that he did "exactly what [T.D.] told me or showed me how to [bathe O.N.S.]" D'Cruz then stated that because he was an adult man, his "fingers are stronger when [he] was cleaning [O.N.S.'s] private below." D'Cruz also told investigators that while he washed O.N.S.'s intimate parts, he digitally penetrated her vagina because he was following the instructions given by T.D. regarding O.N.S.'s intimate parts. D'Cruz then told investigators that when T.D. instructed him to bathe O.N.S., she told him "[t]o make sure you go inside," when washing O.N.S.'s intimate parts and that before he did, he "checked [h]is heart" and decided "okay, I will do that."

D'Cruz was charged with first-degree criminal sexual conduct-penetration or contact with a person under 13 years of age, in violation of Minn. Stat. § 609.342, subd. 1a (2014), and second-degree criminal sexual conduct-sexual contact with a person under 13 years of age, in violation of Minn. Stat. § 609.343, subd. 1a (2014).

At a court trial, O.N.S. testified that D'Cruz had participated in bathing her on several occasions. D'Cruz and T.D. would help wash O.N.S. and sometimes D'Cruz would bathe her on his own. O.N.S. testified that while D'Cruz bathed her, he would touch her chest, vaginal area, arms, and legs. She stated that D'Cruz washed her vagina once while

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he bathed her alone. O.N.S. testified that D'Cruz put "his middle finger as like a motion kind of in there." When asked to confirm where "in there" was, O.N.S. stated "[i]n my vagina." She stated that D'Cruz's finger was "really in there, kind of a lot."

The district court found D'Cruz guilty as charged. The district court convicted and sentenced D'Cruz for only first-degree criminal sexual conduct because it determined that second-degree criminal sexual conduct was an included offense and "part of a singular behavioral incident." ^[1]

D'Cruz moved for a downward sentencing departure. The district court determined that there were aggravating factors to support an upward sentencing departure, including: (1) D'Cruz, as O.N.S.'s stepfather, was in a position of trust over O.N.S., and (2) the offenses took place within O.N.S.'s "zone of privacy," while O.N.S. was bathing, "in her own bathroom, in her home."

The district court denied D'Cruz's motion. And although it had found aggravating factors, the district court determined that they did not establish substantial and compelling circumstances to warrant imposition of an upward departure. The district court imposed a presumptive guidelines sentence of 172 months in prison. This appeal followed.

DECISION

Section 609.342

D'Cruz argues that the language of section 609.342, subdivision 1a-defining the first-degree criminal-sexual-conduct offense of which he was convicted-is

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unconstitutionally overbroad and thereby violates his substantive due-process rights. The state argues that D'Cruz "forfeited the argument by failing to raise it below." See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts do not address issues raised for the first time on appeal).

An appellate court ordinarily does not consider issues raised for the first time on appeal, even when those issues involve constitutional questions of criminal procedure or challenges to a statute. State v. Williams, 794 N.W.2d 867, 874 (Minn. 2011). But it is within the discretion of an appellate court to address such unpreserved issues when the interests of justice require their consideration and doing so would not work an unfair surprise on a party. Id.; see also Minn. R. Crim. P. 28.02, subd. 11.

The interests of justice do not require us to address the issue D'Cruz failed to raise below. We, therefore, decline to consider D'Cruz's statutory challenge.

Bona fide medical purpose

D'Cruz argues that the state failed to prove that the sexual penetration was not for a bona fide medical purpose. The "bona fide medical purpose" defense applies to conduct undertaken for the treatment of a medical condition performed or directed by a medical professional. Minn. Stat. § 609.348 (2014) (providing that "[s]ections 609.342 to 609.351 . . . do not apply to sexual penetration or sexual contact when done for a bona fide medical purpose").

The phrase "medical purpose implies some objective basis for believing sexual contact or penetration is justified." See State v. Poole, 489 N.W.2d 537, 542 (Minn.App. 1992) (quotation marks omitted), aff'd, 499 N.W.2d 31 (Minn. 1993). When a "bona fide

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medical purpose" defense is asserted, the sexual penetration is not criminal unless the trier of fact finds, "beyond a reasonable doubt[,] that the act charged was not done for a medical purpose in good faith." See 10 Minnesota Practice, CRIMJIG 12.57 (2014).

Here, the "bona fide medical purpose" defense does not apply. O.N.S. testified that she had never been taken to the doctor regarding concerns about her vaginal hygiene. T.D. testified that when O.N.S. was nine years old, she did not take her to the doctor for vaginal issues. The district court concluded that "O.N.S.'s testimony was credible and persuasive." The district court determined that D'Cruz's claim that he was bathing O.N.S. as instructed by T.D. was "unconvincing." The district court noted that O.N.S., then nine years old, was capable of washing herself. Also, it noted that D'Cruz was not instructed to use his bare hands to wash O.N.S.'s intimate parts or to penetrate O.N.S.'s vagina. Because the sexual penetration here had no connection with a "bona fide medical purpose," the defense does not apply.

Sufficiency of the evidence

D'Cruz argues that the state presented insufficient evidence to convict him of the criminal-sexual-conduct offenses and to prove the aggravating factors of position of trust and zone of privacy. We consider each individually.

In evaluating sufficiency-of-the-evidence challenges, we "carefully examine the record to determine whether the facts and the legitimate inferences drawn from them would permit the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable doubt." State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted). When a conviction is based on circumstantial evidence, rather than direct

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evidence, we apply a higher level of scrutiny. State v. Salyers, 858 N.W.2d 156, 160 (Minn. 2015). Circumstantial evidence is "evidence from which the factfinder can infer whether the facts in dispute existed or did not exist." State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Direct evidence is "[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Id.

Direct evidence

When an element of an offense is supported by direct evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach its verdict. State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016). We assume that the fact-finder "believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

To convict D'Cruz of first-degree criminal sexual conduct, the state had to prove beyond a reasonable doubt that (1) D'Cruz engaged in sexual penetration or sexual contact with O.N.S., (2) O.N.S. was under 13 years old at the time of the...