1. Blakely requires that fact issues concerning whether a continuing offense occurred after the effective date of a change in the presumptive sentence be decided by a jury and not the court.
2. The failure of a defendant to request an interrogatory verdict to determine the dates when a continuing offense occurred does not forfeit the defendant's right to argue a Blakely violation on appeal.
3. A Blakely error in sentencing a defendant to an additional 58 months, based on the finding by the court without a jury that the offense occurred after the effective date of the new presumptive sentence, was not harmless.
The opinion of the court was delivered by: Hanson, Justice.
Concurring, Anderson, Paul H., Anderson, G. Barry, J.J.
Heard, considered, and decided by the court en banc.
Respondent James DeRosier was convicted of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(b), 2(a) (2000), for having sex with a victim who was 15 years old when DeRosier was 49 years old and in a position of authority over the victim. At trial, the victim testified to sexual encounters that occurred over the months of June, July, and August of 2000, but the jury simply found DeRosier guilty of first-degree criminal sexual conduct without determining the specific date or dates of the offense. On August 1, 2000, the presumptive sentence for criminal sexual conduct in the first degree changed from 86 months to 144 months in prison. The judge sentenced DeRosier to 144 months in prison using the presumptive sentence applicable after August 1, 2000. On appeal, DeRosier argued that the jury had not clearly found that DeRosier had sex with the victim after August 1, 2000, and therefore his sentence was in violation of Blakely v. Washington because the use of the increased presumptive sentence depended on the determination of disputed facts not found by a jury. The court of appeals reversed DeRosier's sentence as violative of Blakely and remanded to the district court for resentencing. We affirm.
N.P. moved to Aitkin County with her family in 1999, when she was approximately 14 years old. Her family became friendly with respondent DeRosier, a local man who was in the same line of business as N.P.'s mother. In 2000, N.P. babysat DeRosier's two young children and then began helping him run his livestock auctions, for which DeRosier paid her in cash. N.P. stated that she often accompanied DeRosier on driving trips to pick up items for the auction. N.P. testified that while in the beginning, DeRosier struck up innocent conversations with her, he soon began introducing increasingly sexual topics.
Finally, N.P. testified that one evening after an auction, DeRosier gave her beer and ultimately had sex with her in his car. N.P. testified that after this initial encounter, she and DeRosier had sex regularly after the auctions, about seven to ten times per month.
N.P. stated the sexual encounters began in June 2000 and that she knew "for sure" that one sexual encounter took place in August because she connected it to the time her grandmother was visiting from California. N.P. also testified that DeRosier told her that "nobody could ever find out" about their relationship because "[h]e would end up going to jail and he would never be able to see his kids again."
At some point before her 16th birthday (November 16, 2000), N.P. discovered that she was pregnant. N.P. testified that she knew DeRosier was the father because he was the only person with whom she had ever had sex. A DNA test indicated that the probability was 99.99% that DeRosier was the father of N.P.'s baby. Based on the newborn exam, the date of birth, the ultrasound, and the date of N.P.'s last menstrual period, N.P.'s doctor testified that N.P.'s baby was conceived in June 2000.
At the end of trial, the judge instructed the jury that in order to find DeRosier guilty of first-degree criminal sexual conduct, they were required to find "that [DeRosier's] act took place on or about June, July, or August 2000 in Aitkin County." Neither DeRosier nor the state requested that the jury determine the specific date or dates of the offense(s). The jury found DeRosier guilty of criminal sexual conduct in the first degree and the court entered judgment of conviction. At sentencing, the judge stated that the presumptive sentence was 144 months and imposed that sentence. ...