This opinion will be unpublished and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

C7-00-1229

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Don Boswell,

Appellant.

 

Filed May 1, 2001

Affirmed in part, reversed in part, and remanded.

Hanson, Judge

 

Hennepin County District Court

File Nos. 99107503 & 99107504

 

 

Michael A. Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Therese Galatowitsch, Assistant County Attorney,  C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Rochelle R. Winn, Assistant State Public Defender, Office of the State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

           

            Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

 

On appeal from conviction of kidnapping with release in an unsafe place and first-degree criminal sexual conduct with use of a dangerous weapon, appellant argues that the evidence was insufficient to prove that the victim was released in an unsafe place or that appellant used a dangerous weapon in committing the sexual assault.  We affirm in part, reverse in part, and remand.

FACTS

            Appellant Christopher Don Boswell was convicted of kidnapping with release in an unsafe place, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1998), criminal sexual conduct in the first degree with use of a dangerous weapon, in violation of Minn. Stat. § 609.342, subd. 1(d) (1998), and criminal sexual conduct in the first degree with use of force or coercion, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (1998).

On June 11, 1999, at about 5:00 a.m., Officer David Stichter and his partner were patrolling Broadway Avenue in North Minneapolis.  They discovered a woman, R.R.W., unclothed from the waist down, without shoes, walking down the street.  The woman identified herself, told the officers that someone had stolen her car, and asked for a ride home.  R.R.W. appeared “distraught, screaming at the top of her lungs * * * almost like she was in shock.”  Stichter noticed that R.R.W.’s cheek was swollen and that she had a split lip.  Stichter asked R.R.W. if anything else happened, and she told Stichter that she had been raped.  The officers took R.R.W. to Hennepin County Medical Center for a sexual-assault examination.

            R.R.W. testified at trial that the night before the assault, she had friends over for a party, and called her friend Nino to arrange a sale of marijuana.  Nino arrived at R.R.W.’s house shortly after midnight, accompanied by Boswell and one other man. Boswell stayed at R.R.W.’s home for about fifteen minutes, during which time R.R.W. saw that Boswell had on his lap a gun that he later put in his jacket.

            R.R.W. decided to leave her home to go to a convenience store.  Boswell volunteered to drive R.R.W.  As they were returning, Boswell stopped the car a few blocks from R.R.W.’s home, and offered her money to have sex with him.  When R.R.W. declined, Boswell hit her several times in the head and then proceeded to sexually assault her several times.  Eventually, Boswell threatened R.R.W. that he would kill her if she went to the police and then pushed her out of the car in an alley in North Minneapolis, several blocks from R.R.W.’s home.  When R.R.W. attempted to run, Boswell drove the car at her, grazing her leg.  She then ran in the opposite direction and jumped over a fence.  R.R.W. was unclothed from the waist down and was not wearing shoes.  She made her way some 12 blocks to Broadway Avenue, where she encountered the police.

            Boswell testified that he did not assault R.R.W., but had consensual sex with her for money.  He claimed that he dropped R.R.W. off at a friend’s house and went on his way.

            A jury convicted Boswell on all three counts of the charge.  The trial court sentenced Boswell for a term of 58 months on count one, kidnapping.  Counts two and three, criminal sexual conduct with use of force and criminal sexual conduct with use of a deadly weapon, were merged.  The court imposed a sentence of 122 months on count three, which constituted a 25% upward departure from the presumptive sentence.  These sentences were consecutive.

            Boswell challenges the sufficiency of the evidence to sustain his convictions on counts 1 and 3.

D E C I S I O N

An appellate court’s review of a challenge to the sufficiency of evidence is limited to determining whether the evidence, viewed in the light most favorable to the conviction, supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume that the jury believed the state's witnesses and disbelieved evidence that contradicted their testimony.  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  An appellate court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was proved guilty of the offense charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

I.

Boswell first argues that there was insufficient evidence to support the jury’s finding that he released R.R.W. in an unsafe place.  Minn. Stat. § 609.25, subd.2(2) (1998), provides:

If the victim is not released in a safe place or if the victim suffers great bodily harm during the course of the kidnapping, [the defendant shall be sentenced] to imprisonment for not more than 40 years or to payment of a fine of not more than $50,000, or both.

 

If a trier of fact finds that the victim was released in a safe place, the maximum sentence would be 20 years’ imprisonment and the payment of a fine of $35,000.  Id., subd. 2(1) (1998). 

No Minnesota case directly defines what constitutes a “safe place” under the statute.  Rather, much of the case law relates to whether a victim was “released.”  See, e.g., State v. Ferguson, 561 N.W.2d 901, 902 (Minn. 1997) (victim of kidnapping not released if escapes without consent from kidnapper); Geer v. State, 406 N.W.2d 34, 37 (Minn. App. 1987), review denied (Minn. July 15, 1987) (finding that there was sufficient evidence to sustain jury determination that victim not released in a safe place where suspect could not open trunk to release victim, because victim held trunk shut out of fear).  Other states have similar “safe place” provisions in their kidnapping statutes.  See, e.g., Ala. Code § 13A-6-43(b) (1994); Alaska Stat. § 11.41.300(d) (2000); Ark. Code Ann. § 5-11-102(b) (1997); Mont. Code Ann. § 45-5-303(2) (1999); N.D. Cent. Code § 12.1-18-01(2) (1997); Tex. Penal Code Ann. § 20.04(c) (1994).  In interpreting its “safe place” provision, the Texas court has stated: 

That release must occur in a place and manner which realistically conveys to the victim that he/she is now freed from captivity and is now in circumstances and surroundings wherein aid is readily available.

 

Wiley v. State, 820 S.W.2d 401, 411 (Tex. Ct. App. 1991).  We find the Texas court’s definition helpful in determining whether R.R.W. was released in a safe place.

We conclude that there was ample evidence to sustain the jury’s determination that R.R.W. was not released in a safe place.  Though R.R.W. testified that she was familiar with the neighborhood, it cannot be said that R.R.W. was released in an area where aid was readily available.  It was dark and very early in the morning.  She was released in an alley that was several blocks from her home.  There was very little traffic on the street. R.R.W. was disoriented and appeared to be in shock.  She was unclothed from the waist down and without shoes.  After releasing R.R.W. in the alley, Boswell drove the car at her, grazing her leg.  The conviction for kidnapping with release in an unsafe place is affirmed.

II.

Boswell also challenges the sufficiency of the evidence supporting the finding that he used a dangerous weapon in connection with criminal sexual conduct.  Under Minn. Stat. § 609.342, subd. 1(d) (1998), a person is guilty of criminal sexual conduct in the first degree if

the actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit.

 

(Emphasis added).

A gun, whether loaded or unloaded, is clearly a dangerous weapon.  However, there is no evidence that Boswell either brandished the gun or mentioned it during the commission of the sexual assaults.  He did not explicitly threaten to use it.  Instead, he used physical force.  Thus, the issue is whether R.R.W.’s knowledge that Boswell earlier had a gun is sufficient to constitute the use or a threat to use the gun to compel R.R.W. to submit to the sexual assaults.  R.R.W. testified that she saw the gun at her house and that she saw Boswell place the gun in his jacket before leaving R.R.W.’s home.  At the conclusion of the series of assaults, Boswell threatened to kill R.R.W. if she told anyone, but he did not show or mention the gun in connection with that threat and did not use that threat to compel further sexual assault. 

            Statutes “should be construed according to their plain and ordinary meaning.”  Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984) (citation omitted).  “Use” is defined as “[t]o put into service or apply for a purpose; employ” or “[t]o seek or achieve an end by means of; exploit.”  American Heritage College Dictionary 1486 (3d. ed. 1997).  Here, Boswell did not employ his gun.  He did not say that he had a gun, refer to the gun, or brandish the gun.  We conclude that the evidence is insufficient to support the jury’s finding beyond a reasonable doubt that Boswell used a deadly weapon, within the meaning of Minn. Stat. § 609.342, subd. 1(d). 

Boswell admits that the evidence is sufficient to support the jury’s finding that he accomplished the sexual assaults by use of coercion and physical force.  He does not challenge his conviction on this charge in count two, which was merged with count three at sentencing.  Because we conclude that the evidence was insufficient to show the use of or a threat to use the gun in connection with the criminal sexual conduct, we reverse Boswell’s conviction under count three and remand the matter to the trial court to re-sentence Boswell under count two.

Affirmed in part, reversed in part, and remanded.