This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Odis Trehorn Jones,
Filed January 30, 2001
St. Louis County District Court
File No. K699600513
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
Appellant Odis Jones claims that the evidence is insufficient to support his conviction for attempted second-degree criminal sexual conduct because he clearly abandoned his intention to commit the offense. Because this defense was not raised or argued at trial, we decline to address it and affirm.
In examining a sufficiency of the evidence claim, appellate review
consists of a very thorough analysis of the record to determine whether the evidence, viewed in a light most favorable to the jury’s verdict, was sufficient to permit the jury to reach its verdict.
State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998) (citation omitted). “The findings of a trial court, after waiver of a jury trial, are entitled the same weight as a jury verdict.” State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996) (citation omitted).
Appellant was charged with attempted second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(e)(i) (1998)(“sexual contact” where “actor causes personal injury to the complainant” and “uses force or coercion to accomplish the sexual contact”). To attempt this offense, the actor must take a “substantial step toward, and more than preparation for, the commission of the crime[.]” Minn. Stat. § 609.17, subd. 1 (1998). The actor has a valid defense if he “desist[s] voluntarily and in good faith abandon[s] the intention to commit the crime.” Minn. Stat. § 609.17, subd. 3 (1998).
Appellant does not challenge the trial court’s finding that he intended to have sexual contact with a 13-year-old girl, E.B. He also does not challenge the court’s finding that he made a substantial step toward commission of the offense by taking her to a hotel, ordering her to take off her clothes, and assaulting her when she refused. His contention is that other evidence found by the trial court shows that he clearly abandoned his criminal objective. Specifically, the trial court found that after appellant assaulted E.B., she said she wanted to leave, and appellant responded, “‘If we’re not going to do anything’ (i.e., have sex) ‘you owe me $80’ [the price of the hotel room].” The court also found that appellant and E.B. left the hotel together and drove to a friend’s apartment, where appellant parked while E.B. went into the apartment building to ask the friend for cab fare or to use the telephone.
While these facts may suggest a defense of abandonment, appellant did not raise or argue this defense during trial. In his closing argument, defense counsel addressed inconsistencies in the evidence and the insufficiency of the evidence to prove the legal elements of the charged offenses. Appellant did not testify at trial.
Generally, we decline to hear issues not presented to or ruled on by the trial court. See State v. Mills, 562 N.W.2d 276, 284 (Minn. 1997); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989); State v. Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991). The plain error doctrine, an exception to this rule, allows us to consider “errors or defects affecting substantial rights” even though they were not raised at trial. Minn. R. Crim. P. 31.02.
We conclude that appellant waived the defense of abandonment by failing to raise it at trial and that any error or defect resulting from appellant’s failure to raise the defense did not constitute plain error. Plain error applies to technical defects that occur during trial, most typically as a result of action taken by the trial court. See, e.g., State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (applying plain error analysis to trial court’s evidentiary rulings). Here, appellant had the burden to raise the defense, and his failure to do so did not rise to the level of a trial error or defect that affected his substantial rights. Further, we note that viewing the evidence in the light most favorable to the verdict, appellant’s conduct could be interpreted as acquiescence to B.E.’s request that he desist rather than true “good faith” abandonment of intent to commit the crime that is required by Minn. Stat. § 609.17. For these reasons, we conclude that the evidence is sufficient to sustain appellant’s conviction for attempted second-degree criminal sexual conduct.