State v. Johnston, A19-1011
| Decision Date | 13 July 2020 |
| Docket Number | A19-1011 |
| Parties | State of Minnesota, Respondent, v. Abel Michael Johnston, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Slieter, Judge.
UNPUBLISHED OPINION
A jury found appellant Abel Johnston guilty of first- and second-degree criminal sexual conduct after watching a video-recorded statement that his daughter made to an investigator and hearing her testify that Johnston grabbed her breasts and buttocks and penetrated her vaginally with his finger. The district court imposed prison sentences followed by two concurrent terms of lifetime conditional release. On appeal, Johnston challenges the sufficiency of the evidence supporting the guilty verdicts, the district court's admission of the recorded statement, and the district court's imposition of lifetime conditional-release terms. We affirm in part because sufficient evidence supports the guilty verdicts and the district court properly admitted the recording. But we reverse in part and remand for the district court to replace the two lifetime conditional-release terms with one ten-year conditional-release term and one lifetime term.
The state charged appellant Abel Johnston with first- and second-degree criminal sexual conduct, see Minn. Stat. §§ 609.342, subd. 1(g), .343, subd. 1(h)(iii) (2014), alleging generally that Johnston sexually abused his daughter by groping her and digitally penetrating her when she was 13 and 14 years old. The jury heard the following evidence at trial.
Johnston's daughter, A.J., whom we will refer to as "Victim," was 19 years old at the time of trial. Victim recounted how her parents divorced early in her life and how she began spending more time with Johnston when she was about 11 years old. She and her younger sister stayed at Johnston's home every other weekend, where they sometimes drank alcoholic beverages with Johnston and K.J., Johnston's wife, whom we will call "Stepmother." Victim said that she was rarely "blackout" drunk or "super[ ]drunk," but she acknowledged previously telling an investigator that she got "super[ ]drunk" with Johnston "all the time." She expressed regret about her drinking, saying,
Victim told the jury how Johnston began by touching her breasts and buttocks over her clothing, but that he eventually started putting his hands beneath her clothing. Victim estimated that Johnston grabbed her breasts and buttocks "20, 25 times probably." One night, when Victim was perhaps 12 years old and after she had been drinking, Johnston slid his hand down her pants and penetrated her vagina with his finger. She recalled one other instance when Johnston penetrated her vagina with a finger, but she said it might have been accidental.
For years, Victim told nobody about what had happened because she "thought people would be mad at [her]." She had an older and younger sister. She eventually told her best friends in high school, then her older sister and mother in 2017. After confessing to her therapist that she intended to kill herself, Victim was hospitalized. She told doctors about Johnston's conduct.
Older Sister recalled that Johnston and Stepmother allowed Older Sister to try alcohol in their home. But she never saw Victim or Younger Sister drink in Johnston's home. In 2017, Victim told Older Sister about what Johnston had done. Younger Sister recalled that Johnston drank while she and Victim were visiting and that Stepmother sometimes drank also. Younger Sister drank occasionally, but she never saw Victim drunk in Johnston's home.
Victim's mother testified, telling the jury that Victim changed drastically in 2017, cutting her hair, neglecting her grades, changing her wardrobe, gaining weight, and becoming distant and rude. Mother learned from Older Sister what Victim had said. She spoke with Victim, who began crying and told Mother about Johnston's touching her. Mother learned during summer 2017 of Victim's plans to commit suicide, prompting Mother to hospitalize her.
The state sought to admit a video recording of statements Victim made in a CornerHouse interview during the criminal investigation. Johnston objected, arguing that the evidence was inadmissible as a prior consistent statement, see Minn. R. Evid. 801(d)(1)(B), largely because Victim's trial testimony was inconsistent with her CornerHouse statements on several points. The district court overruled Johnston's objection and allowed the jury to view the recorded interview.
In her interview, Victim recalled "getting like super drunk" with Johnston "all the time" and said that "every time we got drunk, [Johnston] would get really touchy." She said that Johnston would touch her chest or buttocks in "inappropriate ways," eventually "going underneath [her] clothes" to touch her breasts and buttocks. She recounted how "there was one time that he, like, actually put his fingers inside [her] and asked [her], like, how did that feel?" But she told her interviewer that this was the second time her father had digitally penetrated her, and that "the first time it happened, it seemed mostly like an accident."
Stepmother testified in Johnston's defense. She told the jury that she saw Johnston give his daughters a "sip of champagne once" on New Year's Eve. She denied having seen him give the girls alcohol on any other occasion or ever seeing either of them intoxicated.
Johnston testified in his own defense. He told the jury that he was frequently absent while Victim and Younger Sister visited. He admitted giving his daughters champagne once but otherwise denied giving them alcohol or drinking with them. He denied engaging in any of the alleged criminal sexual conduct.
The jury found Johnston guilty of first- and second-degree criminal sexual conduct. The district court entered convictions on both charges and sentenced Johnston to concurrent prison terms of 144 months and 90 months followed by 99-year terms of conditional release on each conviction.
Johnston appeals.
Johnston challenges his convictions, arguing that the evidence was not sufficient to support the guilty verdicts, that the district court abused its discretion by admitting the CornerHouse interview, and that the district court erroneously imposed lifetime conditional-release terms. We affirm the convictions and one of the lifetime conditional-release terms, but we reverse and remand for the district court to replace the other one with a ten-year term.
We are not persuaded by Johnston's contention that the evidence does not support the jury's guilty verdicts for first- and second-degree criminal sexual conduct. To find Johnston guilty of first-degree criminal sexual conduct, the jury had to find that he had a significant relationship with Victim and sexually penetrated her when she was younger than 16 years old. Minn. Stat. § 609.342, subd. 1(g). To find Johnston guilty of second-degree criminal sexual conduct, the jury had to find that he had a significant relationship with Victim and engaged in multiple acts of sexual contact with her over an extended period of time when she was younger than 16 years old. Minn. Stat. § 609.343, subd. 1(h)(iii). Johnston's arguments focus on the penetration and contact elements.
Johnston argues specifically that Victim's testimony was inherently incredible. Because the state's case rested on that testimony as direct evidence that Johnston committed the crimes, we review the sufficiency of the evidence following the customary approach. See State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). We examine the record to decide whether the evidence—viewed in a light favorable to the jury's verdict, giving due regard for the state's duty to prove each element beyond a reasonable doubt, and assuming the jury believed all inculpatory evidence and disbelieved all exculpatory evidence—is sufficient to support the verdict. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). Johnston's challenge fails on this standard.
Johnston's assertion that Victim's testimony was not credible invites us to impermissibly invade the jury's province. Deciding witness credibility is a function for jurors, who receive all the evidence and who, unlike a panel of appellate judges, have theopportunity to intently watch each witness testify, perceiving delivery, tone, expression, body language, and the myriad, nuanced, indescribable truth-assessing observations absent from the cold record on review. See State v. Reese, 692 N.W.2d 736, 741 (Minn. 2005). But Johnston insists that, when a witness's testimony is inherently incredible, we face an exceptional circumstance requiring us to deem the testimony unworthy of belief. The supreme court long ago announced that an appellate court would declare testimony unworthy of belief "[o]nly in exceptional cases . . . and then only when the question is free from doubt." First Tr. Co. of St. Paul v. McLean, 93 N.W.2d 517, 520 (Minn. 1958) (quotation omitted). This is not an exceptional case free from doubt.
Johnston points out inconsistencies or inaccuracies in Victim's testimony based on selected testimony from other witnesses, and he calls...
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