This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0127
State of Minnesota,
Respondent,
vs.
James Roland Bain,
Appellant.
Filed January 17, 2017
Affirmed
Halbrooks, Judge
Otter Tail County District Court
File No. 56-CR-15-1168
Lori Swanson, Attorney General, St. Paul, Minnesota; and
David J. Hauser, Otter Tail County Attorney, Kurt A. Mortenson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Mark D. Nyvold,
Special Assistant Public Defender, Fridley, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges his fifth-degree criminal-sexual-conduct conviction under
Minn. Stat. § 609.3451, subd. 1(1) (2014), arguing that (1) the district court erred by
failing to define “intimate parts” in the jury instruction outlining the elements of the
crime and (2) there is insufficient evidence for the jury to convict him. We affirm.
FACTS
In April 2015, 26-year-old J.B. intended to spend Easter weekend with her father,
appellant James Roland Bain, and his girlfriend. J.B. and Bain were alone one afternoon,
watching TV in Bain’s house, when they started talking about the fact that J.B. was not
involved in a relationship. Bain told J.B. that fathers are supposed to teach their children
about sexual relationships. Bain approached J.B., who was sitting at the corner the
couch, and sat beside her with his weight on top of her feet so that she could not move.
Bain then rubbed J.B.’s thigh, used his thumb to stimulate J.B.’s vaginal area through her
jeans, and put his hand on J.B.’s breast. J.B. felt shocked and uncomfortable. After
Bain’s girlfriend returned, J.B. made up an excuse and left Bain’s house earlier than she
had originally planned. On her way home, J.B., crying, called her mother and told her
what happened. She also called her roommate. The following day, J.B. reported the
incident to Otter Tail County Human Services.
At trial, after the parties rested, the district court instructed the jury that the state
had to prove that Bain had intentional contact with J.B.’s intimate parts but did not define
the term “intimate parts.” Bain did not object to the instructions. The jury found Bain
guilty of fifth-degree criminal sexual conduct. This appeal follows.
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DECISION
I.
Although Bain did not object at trial to the jury instruction, he now contends that
the district court erred when it did not include a definition of “intimate parts” in the
instruction. A district court has “considerable latitude” in the selection of language for
jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011). Jury instructions
must be viewed “in their entirety to determine whether they fairly and adequately explain
the law.” Id. “If the jury instructions correctly state the law in language that can be
understood by the jury, there is no reversible error.” State v. Rucker, 752 N.W.2d 538,
546 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008).
A party generally forfeits his right to appeal a jury instruction if he fails to object
to the instruction before it is given to the jury. State v. Crowsbreast, 629 N.W.2d 433,
437 (Minn. 2001). But “a failure to object will not cause an appeal to fail if the [jury]
instructions contain plain error affecting substantial rights or an error of fundamental
law.” State v. White, 684 N.W.2d 500, 508 (Minn. 2004). The plain-error test requires
that we determine “whether the jury instructions contained an (1) error (2) that was plain
and (3) that affected the defendant’s substantial rights.” State v. Milton, 821 N.W.2d 789,
805 (Minn. 2012). “An error is plain if it is clear and obvious at the time of appeal.”
State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).
The instruction that the district court gave, in part, provided: “First element, the
defendant intentionally touched [J.B.]’s intimate parts or the clothing over the immediate
area of [J.B.]’s intimate parts.” We note that the instruction given by the district court
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followed the jury-instruction guide. 10 Minnesota Practice, CRIMJIG 12.52 (2015)
(recommending, for the first element of fifth-degree criminal sexual conduct, “First, the
defendant intentionally touched [the victim]’s intimate parts or the clothing over the
immediate area of [the victim]’s intimate parts . . . .”). Following the jury-instruction
guide does not necessarily insulate an instruction from being plain error. State v.
Gunderson, 812 N.W.2d 156, 162 (Minn. App. 2012). “When the plain language of the
statute conflicts with the CRIMJIG, the district court is expected to depart from the
CRIMJIG and properly instruct the jury regarding the elements of the crime.” Id. In this
case, there is no conflict between the statute and the CRIMJIG. Under the statute, fifth-
degree criminal sexual conduct occurs when a “person engages in nonconsensual sexual
contact.” Minn. Stat. § 609.3451, subd. 1(1). “Sexual contact” includes “the intentional
touching by the actor of the complainant’s intimate parts” and “the touching of the
clothing covering the immediate area of the intimate parts.” Minn. Stat. § 609.341, subd.
11(a)(i), (iv) (2014).
The question, then, is whether “intimate parts” is a term within the ordinary
understanding of a juror. District courts do not need to define terms that are common
words or within the ordinary understanding of a juror. State v. Heinzer, 347 N.W.2d 535,
537 (Minn. App. 1984) (holding the jury instructions did not need to define the term
“resist” because it was a common word), review denied (Minn. July 26, 1984).
“‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttocks, or breast
of a human being.” Minn. Stat. § 609.341, subd. 5 (2014). We conclude that “intimate
parts” is a term within the ordinary understanding of a juror. The average juror would
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naturally associate “intimate parts” with private areas of the body associated with sexual
activity.
Because we conclude that “intimate parts” is a common term that the jury could
understand, the district court did not err by not including a definition of the term in the
instruction involving the elements of the crime. We therefore do not address the other
prongs of the plain-error analysis.
II.
Bain argues that there is insufficient evidence to convict him of fifth-degree
criminal sexual conduct because J.B.’s testimony about the sexual contact was too vague.
In considering a claim of insufficient evidence, this court’s review is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it
did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will not disturb the
verdict if the jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-
77 (Minn. 2004). In reviewing the conviction, this court must assume that “the jury
believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989).
J.B. testified at trial as follows:
But we were sitting on the couch; and he started, like,
rubbing my thigh and using his thumb to, like, stimulate my
vagina through my jeans and grabbing my boobs and stuff
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and, like, just made me super awkward and
uncomfortable. . . .
....
And then he had started, like, rubbing my thigh. And
then I was sitting with my legs tight together and my feet up
on the couch; and he had, like, pushed his hand down in
between my thighs to, like, rub my crotch through my jeans
and was, like, grabbing my boob with his other hand and, like,
telling me that dads teach their daughters how to have sex and
how to have, like, romantic relationships . . . .
Bain argues that this evidence is insufficient to convict him because J.B.’s
testimony does not explicitly state that Bain rubbed J.B.’s vaginal area through her jeans
and because placing his hand on her thigh did not constitute contact with an intimate part.
Therefore, Bain argues, J.B.’s testimony did not sufficiently establish an intentional
touching of an intimate part. We disagree. J.B.’s testimony provided sufficient evidence
for the jury to conclude that Bain intentionally rubbed the clothing over J.B.’s inner
thighs and vaginal area and touched her breast. Because a reasonable jury could
conclude that Bain was guilty of fifth-degree criminal sexual conduct based on this
testimony, the evidence is sufficient to support the conviction.
Affirmed.
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