State of Minnesota, Respondent/Cross-Appellant, vs. Darren Heath Degroot, Appellant/Cross-Respondent.
A18-0850
STATE OF MINNESOTA IN SUPREME COURT
Filed: July 15, 2020
McKeig, J. Concurring in part, dissenting in part, Gildea, C.J. Concurring in part, dissenting in part, Thissen, Anderson, JJ.
Court of Appeals
Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and
Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota, for respondent/cross-appellant.
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant State Public Defender, Saint Paul, Minnesota, for appellant/cross-respondent.
S Y L L A B U S
- The State presented sufficient evidence to prove appellant committed an act that was “a substantial step toward, and more than preparation for” the commission of third-degree criminal sexual conduct, thereby meeting the requirement of the attempt statute,
Minn. Stat. § 609.17 (2018). The offense of electronic solicitation of a child under Minn. Stat. § 609.352 , subd. 2a(1) (2018), necеssarily includes the offense of electronic distribution underMinn. Stat. § 609.352 , subd. 2a(3) (2018).- The State proved by a preponderance of the evidence that the electronic solicitation and the attempted third-degree sexual assault were not part of a single behavioral incident.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
MCKEIG, Justice.
Following a bench trial, appellant Darren Heath Degroot was convicted of attempted third-degree criminal sexual conduct,1 electronically soliciting a child to engage in sexual conduct,2 and electronically distributing any material, language, or communication that relates to or describes sexual conduct to a child.3 On appeal, Degroot argued that the State failed to prove that he committed an act that was “a substantial step toward, and more than preparation fоr” the commission of third-degree criminal sexual conduct. He also argued that the district court violated
Because the State presented sufficient evidence to support the attempt conviction and because the offense of electronic solicitation necessarily includes the offense of electronic distribution, we affirm the court of appeals’ decision in part. Because the State proved by a preponderance of the evidence that the electronic solicitation conviction and the attempted third-degree sexual assault conviction were not part of a single behavioral incident, we reverse the court of appeals’ decision in part and remand to the district court for further proceedings consistent with this opinion.
FACTS
In February 2017, the Internet Crimes Against Children Task Force conducted an undercover operation in Worthington to investigate internet crimes against children. Special Agent John Nordberg operated a dеcoy profile of a 14-year-old boy named “Johnny” on an online dating application.4
Degroot repeatedly expressed his arousal and sexual attraction to the child. Degroot and Johnny talked about when, and how often, they might meet for sex. Degroot suggested they could have multiple sexual encounters over the next 3 days. He also inquired about where Johnny normally lived and offered, more generally, that “any time u need to get away ur always welcome to come here n ill give u some fun.” Degroot said he was interested in meeting later that day and Johnny told Degroot that he was alone at his aunt‘s house in Worthington.
Degroot and Johnny agreed to meet that afternoon. Degroot asked Johnny about preparing for anal sex, specifically asking if Johnny knew how to use an enema and whether he had personal lubrication. Degroot said he could bring “supplies.” They made plans to shower together when Degroot arrived. Degroot then described his sexual fantasies for
Thirty minutes later, Johnny announced that he was back online and confirmed that he was 14 years old. Johnny asked again if that was okay. After 15 minutes, Degroot responded, “Yes that‘s ok bud.” Degroot and Johnny resumed their dialogue. Returning to the topic of that afternoon, Degroot asked whether Johnny had been a good boy and referenced using a belt if Johnny had been naughty.
Degroot left Edgerton around 2 p.m. to drive to Worthington, which is approximately 40 miles away. Johnny told Degroot to text him when Degroot was nearby because he was staying with his aunt and did not know the exact address. During the drive, Degroot continued sending fetishized messages to Jоhnny with updates about his location. When Degroot arrived in Worthington, Johnny used landmarks to direct Degroot to his aunt‘s home. Johnny instructed, “The parking lot is right at the end of [the street]. My aunt‘s place is right across the street from the parking lot.” Degroot texted Johnny “Ok I‘m here” at 2:49 p.m. Johnny confirmed the relative location of his house a second time and said that the door was open. Degroot asked, “Ford Taurus in garage?” Johnny said yes.
Meanwhile, the Worthington Police Department dispatched an undercover arrest team to the decoy location. Officers observed Degroot park, get out of his car, and walk toward the house, carrying a plastic shopping bag. They arrested Degroot while he was still in the parking lot. Degroot‘s bag contained personal lubricant, an enema bottle, a long-handled spoon, and a belt.
On appeal, Degroot argued that the State failed to prove that he committed an act that was “a substantial step toward, and more than preparation for” the commission of third-degree criminal sexual conduct. He also argued that the district court violated
Although the court of appeals rejected Degroot‘s sufficiency-of-the-evidence claim, it agreed that the district court violated sections 609.04 and 609.035. Degroot petitioned for review of the sufficiency issue and the State filed a cross-petition for review of the issues arising under sections 609.04 and 609.035. We granted both petitions.
ANALYSIS
I.
We begin with Degroot‘s argument that the court of appeals erred when it concluded that the State presented sufficient evidence to support his attempt conviction.
Degroot concedes that he “prepared to have a sexual encounter with a decoy fourteen-year-old boy by driving to a parking lot across the street from the house where the planned sexual encounter was to take place and by exiting his vehicle with items in his possession to bе used during the sexual encounter.” Nevertheless, he argues that his preparatory acts did not rise to an attempt because he “did not commit a substantial step toward committing the intended sexual conduct while on the property where the sexual conduct was to take place.”
In support of his argument, Degroot contends that the plain and unambiguous language of the attempt statute,
When the meaning of a criminal statute is intertwined with the issue of whether the State proved a defendant‘s guilt beyond a reasonable doubt, we are presented with a question of statutory interpretation, which we review de novo. State v. Townsend, 941 N.W.2d 108, 110 (Minn. 2020).
The first step in statutory interpretation is to determine whether the statute‘s language, on its face, is unambiguous. State v. Jama, 923 N.W.2d 632, 636 (Minn. 2019). When the language of a statute is susceptible to only one reasonable interpretation, it is unambiguous and we must apply its plain meaning. State v. Culver, 941 N.W.2d 134, 139 (Minn. 2020). By contrast, language is ambiguous when it is subject to more than one reasonable interpretation. Id. In determining whether the language of a statute is subject to mоre than one reasonable interpretation, “we consider the canons of interpretation listed in
The language of the attempt statute reads, “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the
According to Degroot, the phrase “more than preparation for” should be interpreted as excluding substantial steps that are preparatory for but remote from the time and place of the intended crime. In support of his argument, Degroot defines “prepare” as “to make ready beforehand for a specific purpose, as for an event or occasion.” The American Heritage Dictionary of the English Language 1391 (5th ed. 2018). He also relies on State v. Dumas, in which we stated, as a “general proposition,” that:
[T]o constitute an attempt to commit a crime[,] there must be an intent to commit it, followed by an overt act or acts tending, but failing, to accomplish it. The overt acts need not be such that, if not interrupted, they must result in the commission of the crime. They must, however, be something more than mere preparation, remote from the time and place of the intended crime; but if they are not thus remote, and are done with the specific intent to commit the crime, and directly tend in some substantial degree to accomplish it, they are sufficient to warrant a conviction.
136 N.W. 311, 314 (Minn. 1912) (emphasis added). Having argued that the phrase “more than preparation for” requires the State to prove something more than a substantial step that is remote from the time and place of the intended crime, Degroot asserts that it logically follows the State must prove that a substantial step occurred at the time and place of the intended crime.
We agree that the common and approved usage of the word “prepare” is “[t]o make ready beforehand for a specific purpose, as for an event or occasion.” The American Heritage Dictionary of the English Language 1391 (emphasis added). We do not consider Dumas at this stage of our analysis because we must limit our analysis to the language of the statute. Applying the common and approved usage to the word “preparation,” we conclude that the only reasonable interpretation of the phrase, “more than preparation for,” is that it excludes substantial steps that occur beforehand to make ready for the intended offense. But, for the reasons articulated by the State, we conclude that the phrase does not require the State to prove a substantial step occurred at the time and place of the intended crime.
Our plain-language analysis is consistent with the Advisory Committee Comment to the proposed 1963 Criminal Code. The advisory committee provided a number of
“A” buys a gun to hold up a bank. He has taken a step toward the commission of the crime. This, however, is not enough to constitute an attempt. If, however, he goes to the bank and on arriving is frightened away by the presence of police this probably would constitute an attеmpt in most jurisdictions, including Minnesota. At some point between these two acts, the preparation for the crime ends and the attempt begins.11
Advisory Comm. on Revision of the Criminal Law, Proposed Minnesota Criminal Code 63 (West 1962) (citation omitted). By comparison, the committee explained that the phrase “substantial step toward the commission of that offense” that was used in “the new Illinois
The committee‘s hypothetical illustrates that, in Minnesota, a person may be found guilty of attempted bank robbery if the State proves the following facts beyond a reasonable doubt. First, the defendant intended to rob the bank (intent). Second, he bought a gun (a substantial step that occurs beforehand to make ready for the intended offense). Third, he went to the bank where he is thwarted by the police (an act that constitutes “more than preparation for” the intended crime). The advisory committee‘s hypothetical is consistent with our analysis because, although it requires more than the purchase of a gun, it does not require the State to prove that the defendant committed a substantial step at the bank.
We also observe that Degroot‘s reliance on State v. Stevenson, 656 N.W.2d 235 (Minn. 2003), Dale v. State, 535 N.W.2d 619 (Minn. 1995), and State v. Peterson, 262 N.W.2d 706 (Minn. 1978), is misplaced. Dale and Peterson concern attempts to complete substantive offenses that include an element of force or assault; this case does not.12 Moreover, Degroot‘s argument conflates the concepts of sufficiency and
Finally, Degroot argues that—wherever the threshold for attempt might be—there must be more of an opportunity than what Degroot was afforded to abandon the attempted crime. The plain language of the attempt statute refutes Degroot‘s claim. Abandonment is an affirmative defense to a charge of attempt that does not depend on whether a substantial step occurred. See
We return to the evidence presented in this case. From his home in Edgerton, Degroot used an electronic communications system to solicit multiple sexual encounters over the next 3 days with a decoy profile of a 14-year-old boy, named “Johnny.” Johnny ended their conversation around noon by stating that he needed to go to a nearby gas station to get something to eat. When Johnny announced that he was back online, he confirmed that he was 14 years old. Approximately 45 minutes after Johnny announced that he was going to get lunch, their dialogue resumed. Returning to the topic of that afternoon, Degroоt asked whether Johnny had been a good boy and referenced using a belt if Johnny had been naughty. At approximately 2 p.m., Degroot entered his car with a bag containing an enema, personal lubrication, a long-handled spoon, and a belt. As he drove to Worthington, Degroot continued sending fetishized messages to Johnny with updates about his location. When Degroot arrived in Worthington, Johnny used landmarks to direct Degroot to his aunt‘s home. Johnny instructed, “The parking lot is right at the end of [the
We note that the majority of jurisdictions that have considered the issue in question have concluded that an agreement to meet a fictitious minor at a designated time and place, coupled with traveling to that location, may satisfy the substantial-step element of attempt even if the sexual conduct would have occurred elsewhere. See State v. Sorabella, 891 A.2d 897, 915 (Conn. 2006) (collecting cases); State v. Peterman, 118 P.3d 1267, 1273 (Kan. 2005) (“[The defendant‘s] act of driving to meet [a third party] to pick up a child for the purpose of sexual intercourse constituted an overt act beyond mere preparations. Peterman went as far as he could toward completing his criminal intentions prior to discovering that the child victim was fictional.“); State v. Webster, 955 A.2d 240, 244 (Me. 2008); State v. Reid, 713 S.E.2d 274, 277 & n.4 (S.C. 2011) (collecting cases and stating that “an agreement to meet a fictitious minor at a designatеd place and time, coupled with traveling to that location, may constitute evidence of an overt act, beyond mere preparation, in furtherance of the crime“). Although we decline to adopt a bright-line rule, we agree with our sister jurisdictions that under the facts of this case the substantial-step element is satisfied.
When viewed in a light most favorable to the verdict, the evidence proves beyond a reasonable doubt that Degroot intended to commit the crime of third-degree criminal sexual conduct and that he committed an act that was a substantial step toward, and more than
II.
The State argues that the court of appeals erred when it concluded that the district court violated
Under section 609.04, а defendant “may be convicted of either the crime charged or an included offense, but not both.”
Simply put, a person cannot ask another to do something without describing the thing to be done. Likewise, we conclude that a person cannot use electronic means to solicit a child to engage in sexual conduct without also electronically distributing material, language, or communication to the child that “relates to or describes” sexual conduct. Compare
Our last task is to decide if Degroot‘s electronic solicitation sentence violates
We determine whether separate intentional crimes formed part of a single behavioral incident by considering (1) whether the offenses occurred at substantially the same time and place and (2) whether the conduct was motivated by an effort to obtain a single criminal objective. Id. The State bears the burden of establishing by a preponderance of the evidence that the conduct was not a single behavioral incident. Id.
Hеre, the district court found that electronic solicitation and attempted criminal sexual conduct occurred at different times and places. Specifically, the court determined
Degroot relies on Jones to argue that the difference in time and place was not substantial. See State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). In Jones, we concluded that sending 33 text messages in a 2-½ hour timeframe formed a single behavioral incident. Id. But Jones is inapposite. In Jones, the Stаte did not admit into evidence the precise time that each message was sent, leaving us to assume an average rate of one message every 4 minutes, and conclude that the State had failed to meet its burden of establishing that the messages were sent at “clearly separate times.” Id. at 533-34.
Unlike Jones, this record contains the timestamps of each message, revealing a nearly 45-minute break in their dialogue around noon. Before the lunchtime break, Degroot and Johnny had been engaged in a nearly uninterrupted stream of messages, sending and receiving messages almost every minute. When their dialogue resumed, Degroot shared new, specific details of his sexual fantasy for their afternoon and obtained the directions he needed to navigate to the child‘s home. He then left Edgerton—аnd drove approximately 40 miles to Worthington—before he committed attempted third-degree criminal sexual conduct. The time-stamped and place-specific evidence clearly separates the morning solicitation offense from the sexual assault that Degroot attempted later that afternoon. These offenses did not occur at substantially the same time and place.
Our precedent is clear: “[b]rоad statements of criminal purpose do not unify separate acts into a single course of conduct.” Jones, 848 N.W.2d at 533. Here, a general desire to have penetrative sex with a minor is too broad a purpose to unify distinct criminal acts. See State v. Barthman, 938 N.W.2d 257, 267 (Minn. 2020) (rejecting the broad purpose of “sexual gratification“); Bakken, 883 N.W.2d at 271 (same).18 Characterizing the solicitation offense as a “means to [an] end“—and concluding that the attempted sexual assault was “that end“—oversimplifies Degroot‘s conduct and ignores the facts of this case. See Degroot, 2019 WL 1758464, at *6.
The district court found that Degroot had “different motivations” for soliciting a child and for attempting sexual assault. The record supports this finding. On the morning of February 7, Degroot solicited a child with the objective of establishing an ongoing sexual relationship. He did not merely solicit Johnny “to engage in anal intercourse,” as
Because the State proved by a preponderance of the evidence that the electronic solicitation conviction and the attempted third-degree sexual assault conviction were not part of a single behavioral incident, the court of appeals erred when it concluded that the district court viоlated
CONCLUSION
For the foregoing reasons, the decision of the court of appeals is affirmed in part, reversed in part, and this matter is remanded to the district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
GILDEA, Chief Justice (concurring in part and dissenting in part).
I agree with the majority‘s conclusions on issues I and II, but I respectfully dissent on issue III. I would hold that Degroot engaged in a single behavioral incident because his conduct was motivated by an effort to obtain a single criminal objective—to engage in penetrative sex with the child. See Langdon v. State, 375 N.W.2d 474, 475, 477 (Minn. 1985) (holding that, despite the four burglaries occurring in different buildings, the defendant had one “ultimate overall criminal objective, which was to steal as much money as he could that afternoon“); see also State v. Herberg, 324 N.W.2d 346, 349 (Minn. 1982) (holding that, although the defendant moved the victim from one location to another, his four violent offenses had one criminal objective, which was “to satisfy his perverse sexual needs by assaulting, penetrating, and degrading the victim in various ways“).1 Accordingly, I would affirm the court of appeals’ conclusion that the district court violated
THISSEN, Justice (concurring in part and dissenting in part).
I agree with the court that sufficient evidence exists to prove that appellant Darren Heath Degroot committed an act that was “a substantial step toward, and more than preparation for,” the commission of third-degree criminal sexual conduct. I also agree with the court‘s holding that the offense of electronic solicitation of a child under
Minnesota Statutes § 609.035 (2018) clearly provides that “if a person‘s conduct constitutes more than one offense . . . , the person may be punished for only one of the offenses.” In my view, the court of appeals’ analysis of whether the imposition of separate sentences for electronic solicitation and attempted third-degree sexual assault violated section 609.035 was correct and well reasoned. State v. Degroot, No. A18-0850, 2019 WL 1758464 at * 5-7 (Minn. App. Apr. 22, 2019). As the court of appeals aptly stated:
The electronic-solicitation [was] committed in order to accomplish the criminal sexual conduct. When [Degroot] solicited Johnny to engage in anal intercourse, his intent was not to stop at solicitation. [Degroot] desired to actually engage in that sexual activity—as evidenced by [Degroot‘s] concession on appeal that he intended to commit the sex offenses—and soliciting Johnny was a means to that end.
Id. at *6 (citation omitted).
The word the Legislature used in section 609.035 is “conduct.” Over the last several decades, we have created an intricate and complicated interpretive superstructure around that word that renders our application of the word “conduct” arbitrary. We now ask district courts, prosecutors, and defendants to understand what it means for a defendant‘s intent to be the “same” but not “singular.”1 You can only slice and dice the word “conduct” so much until it turns to mush.
The court‘s opinion needs to work too hard to justify the imposition of two separate sentences. In so doing, the court exceeds the limitations on judicial authority imposed by the Legislature in
I respectfully dissent from section III of the court‘s opinion.
ANDERSON, Justice (concurring in part and dissenting in part)
I join in the concurrence and dissent of Justice Thissen.