State v. Wenthe, Minn.Ct.App., 4/7/2014. A jury convicted Mr. Wenthe of criminal sexual conduct in the third degree – clergy sex while providing religious advice – defined under Minn.Stat. 609.344, subd. 1(l)(i), as sexual conduct which takes place in a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private. The case has been bouncing around the appellate courts for some time now. Read here, and here. On remand from the supreme court, the court of appeals again reverses the conviction and remands for a new trial.
The state alleged that between November 1, 2003 and December 31, 2003 there had been three meetings between Mr. Wenthe and the complainant which satisfied this statute. Because it was not asked to do so, the trial court did not instruct the jury that it had to agree unanimously on which meeting it was. The court’s review here on appeal is thus a plain error analysis.
Jury unanimity is not required where there is evidence of alternative means of committing a single element of an offense. For instance, one can obstruct legal process in any number of ways: obstruct, hinder, prevent, etc. But, jury unanimity is required where there is evidence of alternative acts, each of which may or may not support an element. For instance, where the state charges in a single count of possession of narcotics that a defendant either possessed narcotics at work or elsewhere in a truck, the jury had to unanimously agree on which it was. Here, the nature of the meeting is essential for a conviction – sex between Mr. Wenthe and the complainant is not a crime at all unless religious advice accompanied it. By not instructing the jury that it had to be unanimous on which meeting (if any) satisfied the statute, the court may have mislead the jury to believe that they did not have to agree on which meeting it was where the sex and spiritual advice occurred. Sex unaccompanied by religious advice at one meeting, and then religious advice unaccompanied by sex at another meeting doesn’t cut it. The court’s instruction was thus plain error.
The court dodges the question whether this error, alone, entitled Mr. Wenthe to a new trial. They could do this because the court also found other errors which, in combination, did entitle him to a new trial.
The court said that the jury should also have been instructed that Mr. Wenthe intended to give religious or spiritual aid and comfort. The court reads this mens rea requirement into the statute; the statute says nothing of the sort. This conclusion seems to run afoul of last week’s supreme court ruling on the burglary of a locked safe with a gun inside it – State v. Garcia-Gutierrez, which refused to write into the burglary statute the requirement that the burglar know that a gun was inside that safe.
The state asked the complainant questions about her sexual history. Before trial the state had promised to limit that testimony to the complainant’s sexual abuse as a child but the trial questions went well beyond that. In essence, the complainant testified that she was sexually inexperienced as an adult. This lead the defense to seek to cross examine her about this. The trial court said, no, but the court of appeals said this ruling was incorrect and a prejudicial abuse of discretion.
The court takes up two other claimed errors but rejects them. The complainant waited some five years to report this alleged crime. The trial court would not permit the defense to present expert testimony to explain this delayed reporting, a request based in large part on State v. Obeta, 796 N.W.2d 282 (Minn. 2011). The court of appeals tosses off this ruling by saying that it was “not evident” that the proffered expert testimony would have been helpful to the jury, and by saying that it was not evident that such testimony had foundational reliability.
Lastly, the defense had wanted an instruction that the jury had to find that the “primary purpose” of the meetings was to provide religious or spiritual advice. The court of appeals said that any error was harmless because the defense theory was that any such advice had ceased before the sexual relationship began.
The court reverses Mr. Wenthe’s conviction for these cumulative errors and remands to the trial court.
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