County District Court File No. 74-CR-16-2371
M. Ellison, Attorney General, Michael Everson, Assistant
Attorney General, St. Paul, Minnesota; and Daniel A.
McIntosh, Steele County Attorney, Owatonna, Minnesota (for
Cathryn Middlebrook, Chief Appellate Public Defender, Julie
Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota
Considered and decided by Bjorkman, Presiding Judge; Cleary,
Chief Judge; and Worke, Judge.
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.
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.
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.
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.
their exchanges, Wilkie repeatedly expressed concern about
getting caught.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.
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.
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 ...