This opinion will be unpublished and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
State of Minnesota,
Raymond Ellwood Paulson,
Crow Wing County District Court
File No. KX001967
Mike Hatch, Attorney General, John B. Galus, Natalie E. Hudson, Assistant Attorneys General, Caia Johnson (certified student attorney), 525 Park Street, Suite 500, St. Paul, MN 55103; and
Donald F. Ryan, Crow Wing County Attorney, John J. Sausen, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
Robert D. Sicoli, Sarah M. Aho, Thompson, Sicoli & Aho, Ltd., 2520 Park Avenue South, Minneapolis, MN 55404 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Raymond Paulson challenges both his conviction of third-degree criminal sexual conduct and his sentence arguing that (1) the evidence of coercion was not sufficient to support the conviction; and (2) the district court abused its discretion by refusing to grant a downward dispositional or durational departure. We affirm.
D E C I S I O N
In considering a claim of insufficient evidence, an appellate court’s review is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict which they did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). When the sufficiency of the evidence is challenged, an appellate court assumes that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (citations omitted). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Third-degree criminal sexual conduct is defined as sexual penetration accomplished with “force or coercion.” Minn. Stat. § 609.344, subd. 1(c) (1998). Coercion is defined as:
[W]ords or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.
Minn. Stat. § 609.341, subd. 14 (1998).
Here, the evidence indicates that after spending the day with family and friends at a cabin on a lake, appellant went to three bars. Appellant’s two sons, friends and neighbors, and A.C., who was appellant’s son’s girlfriend at the time, accompanied appellant that evening. After the bar closed, A.C. left with appellant in his pick-up truck to return to the cabin. A.C. felt intoxicated and ill, and on the way back to the cabin, A.C. vomited inside appellant’s truck and on the side of the road. Appellant drove to a nearby camping resort to get towels to clean up A.C. and his truck, but the resort’s bar was closed. Appellant told A.C. to wash herself in the lake. A.C. testified that she did not have any clothes on when she went into the lake. After A.C. returned to the truck, appellant entered the driver’s side of the truck without any clothes on. Appellant moved closer to A.C., knelt in front of A.C., took A.C.’s hand and put it on his penis, and started kissing her. A.C. asked him to stop, and A.C. was “crying hysterically.” Then appellant put his fingers into her vagina. A.C. again asked him to please stop. At that point, A.C. “just clammed” up, and appellant stopped and got out of the truck. Later that morning, A.C. reported the incident to the police.
Appellant asserts that even taking A.C.’s testimony as true, the behavior does not meet the definition of coercion. We disagree.
The state need not show that the victim resisted appellant in order to prove that he used force or coercion to accomplish penetration. See Minn. Stat. § 609.347, subd. 2 (1998). Additionally, “coercion” does not require proof of a specific act or threat; it only requires that the state prove “circumstances that cause the complainant reasonably to fear that the actor will * * * force the complainant to submit to sexual penetration or contact.” Minn. Stat. § 609.341, subd. 14. The evidence shows that appellant, knowing A.C. was ill and intoxicated, took A.C.’s hand and put it on his penis, and penetrated A.C. with his fingers. In addition, there was evidence that A.C. “cried hysterically” during the incident, and A.C. asked appellant to stop. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient for the jury to find that appellant used coercion.
The decision to depart from the sentencing guidelines rests within the district court’s discretion, and an appellate court will not reverse the decision without a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The sentences provided in the sentencing guidelines are presumed appropriate for every case. Minn. Sent. Guidelines II.D. Only in the “rare case” will a reviewing court reverse an imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Here, the district court refused to depart downwards and imposed the 48-months presumptive sentence.
First, appellant argues that a downward durational departure was warranted because his conduct was less serious than typical third-degree criminal sexual conduct cases in that the penetration was accomplished with minimal coercion, the conduct lasted only a few seconds, and appellant stopped his behavior once A.C. “clammed up.” See State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984) (recognizing in determining whether to depart, court must decide if defendant’s conduct was significantly more or less serious than that typically involved in commission of that crime). But even assuming the truth of appellant’s assertions, we conclude after reviewing the entire record that this is not the rare case where the district court abused its discretion by imposing the presumptive sentence. See Kindem, 313 N.W.2d at 7 (recognizing only in a “rare case” will reviewing court reverse imposition of presumptive sentence).
Appellant also contends that a dispositional departure was warranted because both the state’s psychologist and an independent psychologist hired by appellant concluded that appellant was amenable to probation and presented little threat to the community. But we will not substitute our judgment for that of the district court regarding sentencing matters, and will not reverse unless there has been an abuse of discretion. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994). Based on the facts of this case we conclude that the district court did not abuse its discretion in refusing to depart from the guidelines.