State v. Sebasky

• Decision Date: 23 April 1996
• Docket Number: No. C4-95-1267,C4-95-1267
• Citation: 547 N.W.2d 93
• Parties: STATE of Minnesota, Respondent, v. Kevin Felipe SEBASKY, Appellant.
• Court: Minnesota Court of Appeals

Page 93

547 N.W.2d 93

STATE of Minnesota, Respondent, v. Kevin Felipe SEBASKY, Appellant.

No. C4-95-1267.

Court of Appeals of Minnesota.

April 23, 1996.

Review Denied June 19, 1996.

Syllabus by the Court

An offender may be convicted of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(g) if he or she intermittently lives with the complainant at the offender's residence, although the offender is neither related to the complainant nor romantically involved with the complainant or the complainant's parent. Because a "significant relationship" is an element of this offense, a trial court may not consider the offender's violation of a position of trust or authority when imposing a sentencing departure.

Appeal from District Court, Ramsey County; Hon. Donald E. Gross, Judge.

John M. Stuart, State Public Defender, Marie L. Wolf, Asst. Public Defender, Scott Korzenowski, Certified Student Atty., Minneapolis, for appellant.

Hubert H. Humphrey, III, Attorney General, St. Paul, Susan E. Gaertner, Ramsey County Attorney, Darrell C. Hill, Asst. County Attorney, St. Paul, for respondent.

Considered and decided by NORTON, Presiding Judge, KALITOWSKI, Judge, and SHORT, Judge.

OPINION

SHORT, Judge.

A jury convicted Kevin Felipe Sebasky of one count of criminal sexual conduct in the first degree in violation of Minn.Stat § 609.342, subd. 1(a) (complainant under 13 years of age and actor more than 36 months older than complainant), and two counts of criminal sexual conduct in the first degree in violation of Minn.Stat. § 609.342, subd. 1(g) (complainant under 16 years of age and actor has a significant relationship to complainant). On appeal from a judgment of conviction, Sebasky argues: (1) the trial court abused its discretion by admitting evidence of prior bad acts and sexual beliefs; (2) the evidence is insufficient as a matter of law to support conviction under Minn.Stat. § 609.342, subd. 1(g); and (3) the trial court abused its discretion by imposing prison terms greater than the presumptive sentences for two convictions.

FACTS

Sebasky was the general manager of a St. Paul restaurant, where he met J.W., the 10-year-old son of a waitress. J.W. (d.o.b. October 22, 1979) came around the restaurant with his mother, and Sebasky gave him odd jobs. When Sebasky left the restaurant to start his own painting business, he employed J.W., then a fifth grader, on weekends to mix paint and carry supplies in exchange for $50 a weekend. With his mother's consent, J.W. stayed overnight at Sebasky's apartment because Sebasky's business necessitated early morning starts.

During 1991-92, the overnight visits occurred almost every weekend. J.W. wore only boxer shorts at night and slept in the same bed with Sebasky. J.W. testified that Sebasky: (1) fondled J.W.'s penis when Sebasky thought J.W. was sleeping; (2) performed fellatio on J.W. until J.W. ejaculated; (3) digitally penetrated J.W.'s bottom; (4) fondled himself; (5) showed J.W. videos depicting gay men having sex and young boys running naked on a beach; (6) took nude pictures of J.W.; and (7) provided J.W. with unsolicited gifts of clothes, tapes, a remote control truck, two credit cards, and an all-expense-paid trip to Florida in 1992.

D.G. (d.o.b. May 13, 1979), started working for Sebasky in 1993. D.G. was also hired to mix paint and carry supplies in exchange for $50 a weekend. With his mother's permission, D.G. stayed over at Sebasky's house 70-80% of the time when he was working for Sebasky and as many as 6 nights per week during the summer. D.G. kept clothes at Sebasky's house.

D.G. testified that Sebasky: (1) stroked D.G.'s penis while the boy pretended to be asleep; (2) performed fellatio on D.G. until the boy ejaculated on 3 or 4 occasions; (3) took nude pictures of D.G.; (4) showed D.G. pornographic movies of gay men; and (5) provided D.G. with several gifts, including a used television set. D.G. also testified he saw several North American Man/Boy Love Association (NAMBLA) bulletins and magazines depicting nude men or boys around Sebasky's apartment.

After the police interviewed J.W. in 1994, the officers executed a search warrant at Sebasky's apartment. The officers seized numerous photos of J.W., several photographs of D.G., videotapes, lubricants, a dildo, several NAMBLA bulletins and magazines containing photographs of nude males.

At trial, Sebasky denied engaging in any form of sexual activity with either boy. He admitted: (1) he is gay; (2) both boys worked for him as a painter's assistant; (3) both boys stayed overnight at his apartment and slept in his bed; (4) he showed pornographic videos to both boys; (5) he provided J.W. many gifts, including credit cards, a Florida trip, and airplane tickets; and (6) he subscribed to the NAMBLA bulletin for reasons of "curiosity."

At trial, the court admitted 25 NAMBLA bulletins over the defense's objection. The prosecutor read to the jury the following statement from one of these magazines:

The North American Man/Boy Love Association is both political and educational. We work to organize support for boys and men who have or desire consensual sexual and emotional relationships and to educate society on their positive nature.

The trial court also permitted the state to introduce evidence of Sebasky's prior misconduct through the testimony of M.B., who claimed to have had a sexual relationship with Sebasky in 1981, when M.B. was about 14 years old. The two met when M.B.'s mother worked for Sebasky at a restaurant. Sebasky gave M.B. odd jobs around the restaurant and eventually they engaged in social activities together. M.B. stayed at Sebasky's home anywhere from two days to a whole week at a time. On these overnight visits, M.B. slept in the same bed with Sebasky. At night, Sebasky performed fellatio on M.B. and attempted anal sex. M.B. testified the sexual misconduct occurred several hundred times. During the first six or seven months of abuse, M.B. continued working for Sebasky at the restaurant. Sebasky also gave M.B. many gifts, including clothes and a year's tuition at a parochial school.

Sebasky was convicted of three counts of first-degree criminal sexual conduct. The trial court sentenced Sebasky to 258 months for violating Minn.Stat. § 609.342, subd. 1(a) (representing a triple upward departure from the presumptive sentence), to 172 months for his first violation of Minn.Stat. § 609.32, subd. 1(g) (representing a 62-month upward departure from the presumptive sentence), and to a consecutive sentence of 86 months for his second violation of Minn.Stat. § 609.342, subd. 1(g).

ISSUES

I. Did the trial court abuse its discretion by admitting into evidence the testimony of M.B. and the NAMBLA bulletins?

II. Is the evidence insufficient as a matter of law to support Sebasky's convictions for criminal sexual conduct in the first degree in violation of Minn.Stat. § 609.342, subd. 1(g), which requires a "substantial relationship" between the offender and the complainant?

III. Did the trial court abuse its discretion by sentencing Sebasky to a triple upward departure for his conviction under Minn.Stat. § 609.342, subd. 1(a), and a 62-month upward departure for his first conviction under Minn.Stat. § 609.342, subd. 1(g)?

ANALYSIS

I.

Decisions regarding the admission of evidence rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn.1991). A defendant claiming error in the trial court's evidentiary rulings must show a reasonable possibility the error substantially influenced the jury to convict. State v. Loebach, 310 N.W.2d 58, 64 (Minn.1981).

a. Testimony Concerning Prior Bad Acts

Spreigl evidence, or evidence of prior bad acts, is admissible to show intent, preparation, or plan when the state's case is inadequate without the evidence. Minn.R.Evid. 404(b) (admissible purposes); see State v. Stagg, 342 N.W.2d 124, 127 (Minn.1984) (direct and circumstantial evidence on the issue must be weak or inadequate). The evidence must be: (1) relevant and material to the state's case; (2) clear and convincing; and (3) more probative than its potential for unfair prejudice. State v. Filippi, 335 N.W.2d 739, 743 (Minn.1983).

Sebasky argues M.B.'s testimony that Sebasky sexually abused M.B. numerous times after 1981 is not relevant because the events described are insufficiently similar to the current allegations. See id. (determining relevancy based on the prior bad act's similarity to the charged offense); State v. Buhl, 520 N.W.2d 177, 181 (Minn.App.1994) (same), review denied (Minn. Oct. 27, 1994). In determining relevance and materiality, the trial court should consider the relation in time, place, or modus operandi between the charged offense and the other crime. Filippi, 335 N.W.2d at 743. The crimes do not have to be identical. State v. DeWald, 464 N.W.2d 500, 503 (Minn.1991); see also State v. Crocker, 409 N.W.2d 840, 843 (Minn.1987) (holding a conviction for lewd conduct with a seven-year-old was sufficient, when presented with evidence of other sexual misconduct, to establish a pattern of sexual misconduct with vulnerable young women); Buhl, 520 N.W.2d at 181 (stating the similarities "need not be great").

The charged crimes and M.B.'s testimony exhibit many similarities. First, all victims were boys who worked for Sebasky and eventually began living with him for a few days at a time. Second, Sebasky waited until the victims were spending the night in his bed before committing the sexual misconduct. Third, Sebasky's misconduct was never confined to a single incident; he repeatedly abused each boy over a lengthy period. And fourth, Sebasky gave his victims many gifts during the time he abused them. Under these circumstances, the trial court did not abuse its discretion in determining M.B.'s testimony was relevant to the state's case. While 10 or 12 years elapsed between the...