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State v. Wilkie

Court of Appeals of Minnesota

January 28, 2019

State of Minnesota, Respondent,
v.
Brian James Wilkie, Appellant.

          Steele County District Court File No. 74-CR-16-2371

          Keith M. Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Bjorkman, Presiding Judge; Cleary, Chief Judge; and Worke, Judge.

         SYLLABUS

         A person takes a substantial step toward committing third-degree criminal sexual conduct by arranging via social media to meet a juvenile to engage in sexual penetration, verifying that the juvenile has sexual experience and wants to engage in the act, sending explicit photographs to the juvenile suggestive of the act, negotiating to meet in the juvenile's unoccupied family home to engage in the act, obtaining directions to the home, following the juvenile's directions to approach the home, and knocking on the front door.

          OPINION

          BJORKMAN, Judge.

         Following a bench trial, appellant Brian James Wilkie was convicted of attempted third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.17, subd. 1, .344, subd. 1(b) (2016). He contends that the evidence is not sufficient because it does not establish that he took a substantial step toward committing the crime. We affirm.

         FACTS

         In a collaborative law-enforcement sting operation involving the Owatonna Police Department and the Minnesota Bureau of Criminal Apprehension (BCA), a special agent from the BCA's predatory crimes unit posted a "decoy" profile of a young male on "Grindr," a social media platform for gay and bisexual men. Wilkie contacted the decoy on November 14, 2016, and the two communicated intermittently online over the course of seven hours.

         Wilkie initiated the online conversation by asking, "What are you doing tonight? Want to meet," and "Any pics." The decoy sent a "selfie" photograph depicting the head and torso of a youthful-looking male in a tank-style t-shirt. Wilkie responded, "Any nudes" and "Better pic sweetie," and sent the decoy two close-up photographs, one of an erect penis and the other of an anus with cloudy liquid on it. The decoy responded, "I'm 14… Is that ok?" Wilkie again sent two close-up photographs, one of an anus and the other of a man holding his erect penis. Wilkie asked the decoy if he was "really 14" and if he had "had sex before," and urged him repeatedly to send "nudes." Wilkie also asked the decoy if he was "horny." When the decoy asked Wilkie what he wanted to do the next day, Wilkie answered "F--k" and "Sex." The decoy answered, "Really!," and Wilkie responded, "Yes Do u." The decoy wrote "cool." Wilkie wrote again, "Do u." The decoy answered, "Sure!," and Wilkie wrote, "Ok Sweet." The two arranged to meet the next day, and the decoy gave Wilkie his cell phone number.

         During their exchanges, Wilkie repeatedly expressed concern about getting caught.[1]He emphasized several times that he did not want to get into trouble, asking, "Can I believe you that you are not going to get me in trouble" and "If we meet its not going to be a trap Right bro." Wilkie also stated that he did not want the decoy to get into trouble and that he hated cops.

         The next day, Wilkie and the decoy resumed their conversation on Grindr. They arranged a time to meet at the decoy's purported family home, and Wilkie reiterated that he wanted to "have fun." They also used their cell phones to have a live conversation. The decoy eventually sent Wilkie his home address, telling Wilkie that he could meet there because his mother would not be home from work until later. Wilkie again expressed concern about getting in trouble, and the decoy responded that he would make sure his mom would not come home early. When Wilkie texted to indicate he had arrived at the address, the decoy responded, "K. Open doir Door." Wilkie walked up to the home and knocked on the door; police opened the door and arrested him.

         Wilkie was charged with (1) attempted third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.17, subd. 1, .344, subd. 1(b); (2) solicitation of a child through electronic communication to engage in sexual conduct in violation of Minn. Stat. § 609.352, subd. 2a(1) (2016); and (3) distribution of material that describes sexual conduct to a child via electronic communication in violation of Minn. Stat. § 609.352, subd. 2a(3) (2016). Wilkie waived his right to a jury trial, and the district court found him guilty of all three ...


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