1. The evidence was sufficient to support appellant's conviction of attempted second-degree criminal sexual conduct, and that conviction supplied the underlying felony that was an element to his conviction of kidnapping.
2. There was insufficient evidence of confinement and removal to support the conviction for kidnapping in that no removal was alleged or proven and the confinement was completely incidental to attempted second-degree criminal sexual conduct.
The opinion of the court was delivered by: Page, Justice.
Concurring in part, dissenting in part, Hanson, J., Gilbert, J., and Meyer, J.
Affirmed in part and reversed in part.
Heard, considered, and decided by the court en banc.
After a bench trial, appellant Gregory Alexander Welch was convicted of kidnapping and attempted second-degree criminal sexual conduct in connection with events that occurred in Battle Creek Regional Park in St. Paul on August 31, 2000. He was sentenced to the statutory maximum of 150 months for attempted second-degree criminal sexual conduct and to a consecutive 45 months for kidnapping.*fn1 The court of appeals affirmed the convictions, but remanded for reconsideration of a sentencing issue that is not before us. State v. Welch, No. C9-01-1095, 2002 WL 1013152, at *2-*5 (Minn. App. May 21, 2002). Welch petitioned for further review of three issues: (1) whether the evidence was sufficient to support either conviction; (2) whether it was error to make the two sentences consecutive; and (3) whether the combined sentence unduly exaggerated the criminality of Welch's conduct. We affirm the convictions for attempted criminal sexual conduct, but reverse the conviction and sentence for kidnapping.
Shortly before 5 p.m. on August 31, 2000, a 29-year-old woman, identified in this appeal as "S.V.," was walking in Battle Creek Park, pushing her six-month-old daughter in a stroller. While she was walking in a secluded area of the park, she noticed that she was being followed by a man she did not know. She sped up to avoid the man, but he sped up as well. She "veered" toward an area of the park where she saw other people around. She then stopped, hoping the man would pass her, but instead he "tried to make conversation" with her. The man asked S.V. for her name, her baby's name, and her baby's sex. S.V. testified:
Then [the man] got closer to me, started looking at me and kind of looking at me up and down and asked me how old I was. I told him I was 30, I wanted to appear older. And he said, 'No way, you're not 30'. And he asked me where my boyfriend was, and I told him that my husband was right across the street. He got closer again and was looking at me and he said, 'And he lets you out walking like this by yourself?' I said, 'Oh, yeah, we're just going over to the water park'. He knew the name of the water park, he said, 'Oh, yeah, Water Works'. And that's when I said, you know, 'Yes, we're going to go over there and look at the water park, we have to go'. And that's when I was thrown on the ground.
The district court also found that the man had asked S.V. "how it was that her boy friend [sic] allowed her to walk in the park dressed as she was."
After their dialogue, the man threw S.V. to the ground, and she responded by spraying him in the face with a can of Mace she carried on her key chain. With S.V. lying face-up on the ground and the man straddling her, the man took her hand and "slamm[ed]" it against the ground in an attempt to force her to drop the Mace. He then grabbed her hair with his other hand and "slamm[ed]" her head against the concrete sidewalk several times. Next, he started to choke her. S.V. "g[ave] him a kick[,] and then he stood up all of a sudden." She got to her feet and, noticing bystander Benjamin Steinmeyer in a nearby picnic area, she ran toward him while calling for help. After S.V. reached Steinmeyer, the assailant ran off. Steinmeyer called 911 from a pay phone in the park. S.V. and Steinmeyer gave descriptions of the assailant to the police officers who responded to the call. The police searched the park for the assailant, but did not find him.
The next day, September 1, 2000, S.V. identified Welch as her assailant from a photo lineup. Welch was charged with kidnapping under Minn. Stat. § 609.25, subds. 1(2) and 2(1) (2002), and attempted second-degree criminal sexual conduct under Minn. Stat. §§ 609.17, subd. 1, and 609.343, subd. 1(e)(i) (2002). He waived his right to a jury trial. At trial, S.V. identified Welch as the assailant; Steinmeyer testified that Welch's physical size and characteristics were "consistent" with those of the assailant; and both witnesses identified clothing obtained from Welch as the clothing the assailant had been wearing.
The prosecution introduced evidence of three prior incidents in which Welch approached women in Battle Creek Park under circumstances similar to this case. Much of this evidence came from an audiotaped September 20, 1996, police interview with Welch that was admitted as an exhibit. Welch does not now question the introduction of this evidence under State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), though he and the state disagree about the extent to which it supports his convictions.
In the taped interview, Welch told police interrogators that he was jogging one day while wearing only shoes and a scarf. He admitted that he had talked to a woman and "touched her" and that she had "started walking away." Welch told police he masturbated as the woman was leaving and then put his clothes back on and continued jogging. There is no information on the record indicating whether Welch was ever charged, or the woman ever identified, in this incident.
In the audiotape, Welch admitted that he attacked an unidentified woman in Battle Creek Park on September 3, 1996. Welch agreed that he had dragged the woman into the bushes, choked her, and partially exposed her torso by pulling up her clothes. The woman lost consciousness briefly during this incident and, "[w]hen she regained consciousness, she found that her sports shirt had been pulled up to expose ...