State v. WhitleyState v. Whitley
- Reporters:
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- Before:
- Klaphake
OPINION
KLAPHAKE, Judge.Appellant Dennis L. Whitley seeks review of his conviction and sentence for fourth-degree criminal sexual conduct, arguing that the evidence was not sufficient to prove force or coercion, as required by MinmStat. § 609.345, subd. 1(c) (2002). Appellant further argues that although he waived his right to a jury trial on the criminal conviction, his due process rights were violated when the district court enhanced his sentence without informing him of his right to have a jury determine whether he committed a predatory offense or without obtaining a knowing and intelligent waiver of that right. Lastly, appellant asserts that imposition of a 40-year sentence was disproportionate to the seriousness of his conduct.
Viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient to prove appellant guilty beyond a reasonable doubt of fourth-degree criminal sexual conduct; we therefore affirm appellant’s conviction. But because the district court failed to inform appellant of his right to have a jury determine whether he committed a predatory offense and because appellant’s jury trial waiver did not explicitly include a waiver for purposes of sentencing enhancement, we reverse the imposition of a 40-year sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and remand for sentencing not inconsistent with the United States Supreme Court’s recent decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, — L.Ed.2d - (2004).
FACTS
On February 18, 2002, L.S., a young woman, was jogging along the Mississippi River. Appellant, who was riding a bike, attempted to engage her in conversation, making several suggéstive remarks about her appearance. When L.S. refused to talk to him, appellant rode off in another direction, accosting a second woman, M.G. A short time later, in a deserted area, L.S. had the feeling that someone was following her. Appellant caught up to her and grabbed her buttocks and genital area. L.S. was afraid she was going to be raped. She pushed appellant away and ran toward some other people, who lent her a cell phone to call police. When police arrived, L.S. was shaken and crying.
Based on the description of the attacker given by L.S. and M.G., police conducted a database search for anyone whose history included this type of incident and who matched the physical description. Appellant was the only person who matched these criteria. L.S. identified appellant
By amended complaint, appellant was charged with fourth-degree criminal sexual conduct and failure to register as a sex offender. Appellant pleaded guilty to the failure to register charge and waived his right to a jury trial on the fourth-degree criminal sexual conduct charge. After this waiver was entered into the record, the state asked for hearing on its motion to seek sentencing enhancement under
At the subsequent court trial, L.S. testified that she was frightened during the attack and that appellant had used force. She testified that the contact “hurt” and that appellant grabbed “a sensitive area.” The investigating officer testified that he inferred the sexual contact was painful because of the sensitivity of the genital area. The district court found that L.S. experienced fear and some pain during the contact and found appellant guilty of fourth-degree criminal sexual conduct.
A hearing was set -to determine whether appellant was a patterned sex offender under
The district court found that appellant is a patterned sex offender and that he committed a predatory crime motivated by his sexual impulses. The court sentenced him to 40 years, the statutory maximum under
ISSUES
1. Is the evidence sufficient to sustain appellant’s .conviction for fourth-degree criminal sexual conduct?
. ■ 2. Were appellant’s due process rights violated by failure to obtain a knowing and intelligent waiver of his right to a jury trial on the sentencing enhancement?
ANALYSIS
1. Sufficiency of the Evidence
This court limits its review of a claim of insufficiency of the evidence to ascertaining whether, from the facts in the record and any legitimate inferences drawn from them, a jury could reasonably conclude that the defendant was guilty of the charged offense beyond a reasonable doubt.
State v. Atkins,
543 N.W.2d 642, 646 (Minn.1996). The evidence must be viewed in the light most favorable to the verdict, and it must be assumed that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.
Id.
This standard of review also is used where
Appellant was convicted’ of fourth-degree criminal sexual conduct, which occurs when “[a] person ... engages in sexual contact with another person [and] the actor uses force or coercion to accomplish the sexual contact.”
the infliction, attempted infliction, or threatened infliction ... of bodily harm or commission or threat of any other crime by the actor against the complainant ... which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
Id., subd. 3. The coercion or use of force need not precede the sexual contact, but can occur “when an actor coerces a complainant so as to cause her fear while accomplishing sexual contact.” State v. Middleton, 386 N.W.2d 226, 230 (Minn.1986).
L.S. testified that during the attack, “I thought I was dead. I thought I was going to be raped. There’s a little waterfall area right in that area. I thought he was going to push me over there and have his way.” On cross-examination, she described the sexual contact as a “grabbing” and stated that “it hurt.”
The district court made detailed findings following the close, of testimony. -In particular, the court found, coercion in the following facts: (1) appellant’s remarks to L.S. were inappropriate and the kind of remarks that ■ “particularly raise in the minds of a lone female foreboding”;. (2) the fact that L.S. started to sprint to get away from appellant indicates the level of fear she had; and (3) appellant’s approach to L.S. was “coercive jn .that it, to any normal person, would send at least a subliminal message that ‘y°ur failure to comply with my wishes would not be in your best interests.’ ” The district court made a specific finding that L.S. was a credible and accurate witness. The court further found that L.S. was credible when she described the sexual contact as painful, relying on .her testimony that appellant “grabb[ed] and forcefully manipulated]” her genitals “for several seconds.” The district court concluded that the sexual contact was “forceful and coercive” and “by force this woman was deprived of the possession of a part of her body.”
Viewing the testimony in the light most favorable to the verdict and considering that the district court found the complainant to be a credible witness, we conclude that sufficient evidence was presented to sustain a finding of fourth-degree criminal sexual conduct. We therefore affirm appellant’s conviction.
2. Enhanced Sentencing
Under
MinmStat. § 609.108, subd. 2 (2002), states that “[if] the factfinder determines, at the time of the trial or the guilty plea, that a predatory offense was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration ... and the court is imposing a sentence under subdivision 1,” the statutory maximum is 40 years, despite the maximum penalty otherwise provided for the offense.
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-68. The Minnesota Supreme Court adopted the Apprendi holding in State v. Grossman, 636 N.W.2d 545, 550-51 (Minn.2001).
In
Grossman,
the supreme court stated that although the factors of MinmStat.
Although appellant waived his right to a jury trial on the criminal charge, he did not make an explicit waiver of his right to have a jury consider the issue of sentencing enhancement nor was he informed that the factfinder, whether court or jury, had to make a finding that he committed a predatory offense motivated by sexual contact or penetration before an enhanced sentence could be imposed. Our supreme court recently affirmed that “[d]ue process :.. requires that each of these findings be made by a jury based on proof beyond a reasonable doubt.” O’Meara v. State, 679 N.W.2d 334, 340 (Minn.2004).
A defendant may waive the right to a jury trial, but the waiver must be knowing, intelligent, and voluntary.
State v. Ross,
472 N.W.2d 651, 653 (Minn.1991). From the record before us, it is not clear that appellant understood that he faced a sentence of 40 years, rather than the presumptive 57 months, or that he had the right to have a jury determine whether the factors permitting enhancement were proved beyond a reasonable doubt. We conclude that appellant did not effectively waive his right to have a jury determine whether he committed a predatory offense. We therefore reverse appellant’s sentence under
DECISION
Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to sustain appellant’s conviction for fourth-degree criminal sexual conduct. But because appellant did not make a knowing and intelligent waiver of his right to have a jury determine whether his sentence could be enhanced under
Affirmed in part, reversed in part, and remanded.