Louis County District Court File No. 69DU-CR-14-1021
Swanson, Attorney General, Edwin W. Stockmeyer, Assistant
Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St.
Louis County Attorney, Duluth, Minnesota (for respondent)
D. Nyvold, Special Assistant State Public Defender, Fridley,
Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Halbrooks,
Judge; and Connolly, Judge.
Minn. Stat. § 609.352, subd. 2a(1) (2012), statements
made to an intermediary constitute electronic solicitation of
a child when the person makes the statements with the
objective of engaging a child in sexual conduct.
challenges his convictions of and sentences for electronic
solicitation of a child and fifth-degree possession of a
controlled substance, arguing that (1) the state failed to
produce sufficient evidence that he electronically solicited
a child, (2) the district court erred by finding that the
search-warrant application established probable cause to
believe that his house would contain evidence of crimes of
electronic solicitation of a child and possession of a
controlled substance, and (3) his career-offender sentence
must be reversed and remanded because the district court
failed to properly instruct the jury and the state did not
prove that he has at least five prior felony convictions. We
March 2014, appellant Gary Stephen Gundy left a note on a car
that belonged to M.K., a 17-year-old girl who worked at a gas
station. M.K. found the note when she walked to her car after
completing her shift at work. The note stated, "if youre
female like to have fun, maybe get Buzzed . . . Im a middle
aged man looking for someone to hang out with. I'm not
ugly LOL. Tx me 2182606164." M.K. originally thought
that someone left the note as a joke. She did not contact the
number, but she showed the note to her manager. Her manager
later informed M.K.'s father that someone left the note
on M.K.'s car.
father is a deputy sheriff for the St. Louis County
Sheriff's Office. M.K.'s father called the number
listed on the note, which belonged to Gundy, but no one
answered. When Gundy returned M.K.'s father's call,
her father did not answer. Gundy then texted M.K.'s
father's phone and asked who called him. Her father
decided to pose in his text message as a 16-year-old girl
because his daughter and her co-worker were around that age.
He began a texting conversation with Gundy, informing him
that he received Gundy's note and was
"interested." Gundy replied, and, after exchanging
a few text messages, Gundy asked when the fictitious
16-year-old girl wanted to meet. They agreed to meet on the
following Tuesday. Gundy also agreed to purchase whatever the
16-year-old girl wanted to "get buzzed." The
following day, Gundy sent the 16-year-old girl sexually
explicit text messages describing what he wanted to do to her
when they met.
their texting exchange, the 16-year-old girl eventually asked
if she could bring her 15-year-old friend to the meeting.
Gundy agreed to it, saying it would "B to fun." He
also agreed to help the 16-year-old girl pay for gas to drive
the girls to their meeting. After knowing that both
fictitious girls would attend their meeting, Gundy used
sexually explicit language to describe what he intended to do
with both girls at his home. Gundy also agreed that he would
provide them with marijuana, wine coolers, pornography, and
"go fast, " which referred to methamphetamine.
this conversation, M.K.'s father informed the Duluth
Police Department about the note and his text-message
exchanges with Gundy. The department began investigating, and
a female employee from the Lakeview Drug and Task Force
called Gundy on March 25 to set up a meeting for the next
day. On March 26, the female employee called Gundy to confirm
the meeting. That same day, two female Duluth police
officers, acting as a fictitious 15-year-old girl and
16-year-old girl, waited at the school parking lot inside of
a car at the scheduled meeting time. Gundy drove to their
location, saw the plainclothes officers sitting in the car,
and continued driving. After Gundy drove by the female
officers, other officers stopped Gundy, arrested him, and
seized a cell phone. Pursuant to a search warrant, officers
searched Gundy's home and found the following: a light
bulb that Gundy used as a smoking device, a tin container
that contained methamphetamine, a sex toy, condoms, a
pornographic DVD, and wine coolers. The officers also
retrieved the text messages between M.K.'s father and
Gundy from both of their phones.
the police arrested Gundy and searched his house, Stephen
Borchers, a St. Louis County sheriff's department
investigator, interviewed Gundy. Investigator Borchers read
Gundy his Miranda rights. Gundy stated that he
understood his rights and agreed to speak with Investigator
Borchers. Gundy admitted that he wrote the note placed on
M.K.'s car, knew that one of the girls was 15, and bought
wine coolers for the girls. Gundy told Investigator Borchers
that he continued texting the girl because he wanted to see
if he was being set up. Investigator Borchers asked Gundy if
he thought that the encounter with the teenage girls would be
"interesting, " and Gundy replied, "I was
going to see how it prevailed. You know? I was thinking, are
you f-cking out of your mind or what? I mean, who
state charged Gundy with one count of electronic solicitation
of a child in violation of Minn. Stat. § 609.352, subd.
2a(1), and one count of possession of a controlled substance
in the fifth degree in violation of Minn. Stat. §
152.025, subd. 2(a)(1) (2012). Gundy moved the district court
to dismiss both charges, arguing there was insufficient
probable cause to support the district court's issuance
of the search warrant and that the district court should
therefore suppress the evidence obtained through its
execution. Gundy contended specifically that there was no
probable cause because he communicated with a 16-year-old,
not a ficticious 15-year-old. The district court denied
Gundy's motion, reasoning that the statute did not
require that he directly communicate with a 15-year-old.
trial, the state moved the district court to sentence Gundy
as a career offender under Minn. Stat. § 609.1095, subd.
4 (2012), on the possession-of-a-controlled-substance charge.
The district court held a bifurcated jury trial. In the first
phase, the jury returned a guilty verdict on both charges.
Following that verdict, the district court allowed the state
to present evidence to the jury regarding whether Gundy is a
career offender. The state introduced evidence of Gundy's
prior felony convictions through conviction records and the
testimony of a probation officer. The jury found that Gundy
is a career offender. The district court sentenced Gundy to
36 months for his conviction of electronic solicitation of a
child and 60 months as a career offender for his conviction
of fifth-degree possession of a controlled substance, to be
served concurrently. This appeal follows.
the evidence sufficient to support Gundy's conviction of
electronic solicitation of a child?
the district court have a substantial basis to conclude that
probable cause existed to search Gundy's house for
evidence of crimes of electronic solicitation of a child and
possession of a controlled substance?
Gundy entitled to a resentencing hearing because there was
insufficient evidence to support the jury's verdict that
Gundy is a career offender and because the district court
failed to properly instruct the jury?
challenges his electronic-solicitation-of-a-child conviction,
arguing that the evidence was insufficient to prove his guilt
under Minn. Stat. § 609.352, subd. 2a(1), because he did
not directly contact the fictitious 15-year-old girl.
Gundy's argument presents this court with a case of first
impression-whether a person may solicit a child under Minn.
Stat. § 609.352, subd. 2a(1), through ...