of Appeals Office of Appellate Courts
Swanson, Attorney General, Saint Paul, Minnesota; Christopher
J. Strandlie, Cass County Attorney, Walker, Minnesota; and
Scott A. Hersey, Special Assistant County Attorney, Saint
Paul, Minnesota, for appellant.
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel
F. Bond, Assistant Public Defender, Saint Paul, Minnesota,
district court made sufficient findings of fact to support
the grounds for the dispositional sentencing departure.
record supports the district court's finding that the
respondent's offense was less serious than the typical
offense of third-degree criminal sexual conduct.
acquitted respondent Randall Samuel Stempfley of third- and
fourth-degree criminal sexual conduct as a principal, but
found him guilty of third- and fourth-degree criminal sexual
conduct on an accomplice-liability theory. At sentencing,
Stempfley moved for a downward dispositional departure,
arguing in part that he played a "minor or passive
role" in the crime. The district court granted
Stempfley's motion, stayed execution of a 140-month
sentence for 15 years, and required Stempfley to comply with
numerous probationary conditions. A divided panel of the
court of appeals affirmed.
State petitioned for review, arguing that the district court
did not make findings of fact on the departure grounds and,
alternatively, that the record does not support the district
court's finding that Stempfley played a minor or passive
role in the crime. The State does not argue that the
sentencing factor of a minor or passive role in the crime
cannot be used to support a dispositional departure. We
October 30, 2012, B.D., age 14, was visiting friends in Bena.
Tina Smith, then 24 years old, arrived and invited B.D. to
come drink alcohol with her across the street at Smith's
grandmother's house. B.D. and a friend accepted the
invitation and drank from a bottle of rum with Smith and her
boyfriend, Stempfley, who was 38 years old. Eventually B.D.
and her friend both left. Before they left, Smith told B.D.
to call her later, giving her Stempfley's phone number.
Smith answered when B.D. called about 30 minutes later, and
invited B.D. to a cabin rented by Stempfley.
that night, B.D. walked about a half mile to the cabin, a
single-room dwelling furnished with a bed and a futon. B.D.,
Smith, and Stempfley drank from a liter bottle of rum that
Stempfley had purchased. No one else was present. B.D. estimated
that she consumed 10 or 11 shots of rum. After about two
hours of drinking, Stempfley and Smith began kissing on the
bed. B.D. remained on the other side of the bed and texted on
her phone. B.D. eventually moved to the futon. Later, when
Stempfley and Smith had stopped kissing and B.D. felt tired,
B.D. returned to the bed to lie down.
conflict, even among the State's witnesses, about what
happened next. B.D. testified at trial to the following.
Smith got on top of her and began kissing her, pulled her
pants down, and engaged in oral sex. B.D. told Smith,
"[Y]ou need to stop. This is weird." She testified
that while this occurred, Stempfley was lying next to them on
the bed. At some point, B.D. testified, Stempfley held one or
both of her hands and penetrated her vagina with his fingers.
B.D. testified that Stempfley's arms were over her; he
was "holding one hand"; and that she was
"weirded out, " "was trying to get them off
[her], " and "was trying to grab [her]
clothes." According to B.D., while Stempfley continued
to hold her hand, Smith penetrated B.D.'s vagina with her
tongue. B.D. testified that she was scared.
cross-examination, B.D. admitted telling a friend that she
did not "remember much of what happened." She also
testified that she did not remember how her clothes were
removed and that it was "possible" that she had
removed them herself. The State also entered into evidence at
trial a recording of a statement that B.D. gave to the Cass
County Sheriff's Office shortly after the assault. In
that statement, B.D. said that she got on the bed to lie
down. She blacked out, and when she awoke, Stempfley was
holding her hands down while Smith was "going down"
on her. She stated that Smith then held her hands while
Stempfley digitally penetrated her.
testified for the State at Stempfley's
trial. Her account differed from B.D.'s.
According to Smith, when she and B.D. started kissing, B.D.
was not wearing a shirt; then B.D. took off her own pants and
eventually all of her clothes. B.D. kissed Smith as well and
did not resist or say no. Stempfley was on the bed next to
them, and while Smith engaged in oral sex with B.D., Smith
"asked him to grab [B.D's] arms and he did."
When asked why she wanted Stempfley to hold B.D.'s arms,
Smith replied, "I don't know." She testified
that, other than holding her arms, Stempfley did not touch
B.D., and that neither Smith nor Stempfley used force against
cross-examination, defense counsel used a statement that
Smith had given to the Sheriff's Office to impeach her
testimony. In that statement, Smith said that Stempfley did
not hold B.D.'s arms. When asked at trial to explain the
discrepancy between her prior statement and her trial
testimony, Smith testified that her earlier statement was
intended to protect Stempfley, who was her boyfriend at the
did not testify at the trial, but he did give a recorded
statement to the Sheriff's Office three days after the
events at the cabin, which the State entered into evidence
and played for the jury at trial. He told investigators that
when Smith and B.D. started kissing, he rolled over to the
other side of the bed and watched television. Stempfley also
stated that he was uncomfortable with having B.D. at the
cabin because she had told him and Smith that she was 15
and Smith both testified that the three eventually fell
asleep on the bed. The next day, B.D. was unable to find a
ride home until early afternoon, so she spent the morning
with Smith and Stempfley. B.D. testified that Stempfley said
to her, "Oh, wow! That was a crazy night. That was so
days later, B.D. went to school. She used a phone in the
school's office to call her mother, and a school employee
overheard her describing the assault. The employee reported
the incident, which led to criminal charges against Stempfley
was charged with five counts: (1) third-degree criminal
sexual conduct, Minn. Stat. § 609.344, subd. 1(b) (2016)
("sexual penetration with another person . . . [who] is
at least 13 but less than 16 years of age and the actor is
more than 24 months older than the complainant"); (2)
fourth-degree criminal sexual conduct, Minn. Stat. §
609.345, subd. 1(b) (2016) ("sexual contact with another
person . . . [who] is at least 13 but less than 16 years of
age and the actor is more than 48 months older than the
complainant"); (3) furnishing alcohol to a person under
21 years old, Minn. Stat. § 340A.503, subd. 2(1) (2016);
(4) aiding and abetting third-degree criminal sexual conduct,
Minn. Stat. § 609.344, subd. 1(b); see Minn.
Stat. § 609.05, subd. 1 (2016) ("intentionally
aids, advises, hires, counsels, or conspires with or
otherwise procures the other to commit the crime"); and
(5) aiding and abetting fourth-degree criminal sexual
conduct, Minn. Stat. §§ 609.05, subd. 1, 609.345,
subd. 1(b). Stempfley pleaded not guilty to all charges.
jury acquitted Stempfley of counts 1 and 2, committing
criminal sexual conduct as a principal, but found him guilty
of counts 4 and 5, third- and fourth-degree criminal sexual
conduct as an accomplice. The jury also found Stempfley
guilty of furnishing alcohol to a minor. 
finding Stempfley not guilty of criminal sexual conduct as a
principal, the jury necessarily found that Stempfley did not
engage in either sexual penetration or sexual contact with
B.D. See Minn. Stat. §§ 609.341, subds.
11, 12 (2016) (defining "sexual contact" and
"sexual penetration"); 609.344, subd. 1(b)
(defining third-degree criminal sexual conduct), 609.345,
subd. 1(b) (defining fourth-degree criminal sexual conduct).
By finding Stempfley guilty of aiding and abetting
Smith's acts of sexual penetration and sexual contact,
the jury found that he played an "intentional role in
aiding" the commission of these crimes and made "no
reasonable effort" to prevent them.
on Stempfley's criminal history score of six, the
Pre-Sentence Investigation Report recommended an executed
sentence of 140 months-the presumptive duration- for
third-degree criminal sexual conduct. Minn. Sent. Guidelines
4.B. Stempfley's counsel argued, and the State agreed,
that the third- and fourth-degree convictions arose out of a
single behavioral incident. The State accordingly requested
that the court sentence Stempfley for third-degree criminal
sexual conduct and sought an executed sentence of 168 months,
the upper limit of the presumptive sentencing range.
counsel moved for a downward dispositional departure,
arguing that Stempfley played a "minor or passive
role" in the crimes and that he "is particularly
amenable to probation as shown by his criminal record wherein
he has not accumulated significant new crimes for several
years." At the sentencing hearing, Stempfley's
counsel argued that Stempfley's role was minor or passive
because "Tina Smith was already doing her act, "
and, in only holding B.D.'s hand, Stempfley's conduct