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State v. Gundy

Court of Appeals of Minnesota

May 29, 2018

State of Minnesota, Respondent,
v.
Gary Stephen Gundy, Appellant.

         St. Louis County District Court File No. 69DU-CR-14-1021

          Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

          Mark D. Nyvold, Special Assistant State Public Defender, Fridley, Minnesota (for appellant)

          Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Connolly, Judge.

         SYLLABUS

         Under 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.

          OPINION

          HALBROOKS, Judge

         Appellant 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 affirm.

         FACTS

         In 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.

         M.K.'s 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.

         During 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.

         Following 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.

         After 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 wouldn't?"

         The 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.

         Before 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.

         ISSUES

         I. Was the evidence sufficient to support Gundy's conviction of electronic solicitation of a child?

         II. Did 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?

         III. Is 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?

         ANALYSIS

         I.

         Gundy 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 ...


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