Hennepin County District Court File No. 02014055.
Considered and decided by Klaphake , Presiding Judge, Halbrooks , Judge, and Forsberg , Judge.*fn1
1. The evidence is sufficient to show force or coercion and to sustain appellant's conviction for fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(c) (2002).
2. When the state seeks sentencing enhancement under Minn. Stat. § 609.108, subds. 1, 2 (2002), a jury must find that the offender committed a predatory offense involving sexual contact or penetration; to permit the court to determine this issue, a defendant must make a knowing and intelligent waiver of the right to a jury trial on the sentencing enhancement issue.
The opinion of the court was delivered by: Klaphake, Judge
Affirmed in part, reversed in part, and remanded
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 Minn. Stat. § 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 (2000), and remand for sentencing not inconsistent with the United States Supreme Court's recent decision in Blakely v. Washington, ___ S.Ct. ___, 2004 WL 1402697 (June 24, 2004).
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 suggestive 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 immediately in a photographic lineup. Learning that he was a suspect, appellant turned himself in.
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 Minn. Stat. § 609.108, subds. 1, 2 (2002). Although a discussion of sentencing enhancement ensued, appellant was not informed of his right to have a jury determine issues related to enhancement or asked to waive his right to a jury trial on that issue.
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 ...