This opinion will be unpublished and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,
Gregory Alexander Welch,
Filed May 21, 2002
in part, reversed in part and remanded
Ramsey County District Court
File No. K4002883
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue SE., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Foley, Judge.
Appellant Gregory Welch challenges his conviction of and sentence for kidnapping and attempted second-degree criminal sexual conduct arguing the evidence was not sufficient to support the convictions and the district court erred in (1) allowing the state to amend the complaint; (2) finding appellant is a patterned sex offender; (3) imposing consecutive sentencing in addition to a durational departure, which was a departure not supported by severe aggravating circumstances; (4) imposing consecutive sentencing for a kidnapping involving only confinement incidental to sexual conduct; and (5) imposing a sentence that unduly exaggerates the criminality of appellant’s conduct. We affirm in part, reverse in part, and remand.
During the afternoon of August 31, 2000, S.V. was walking her baby in Battle Creek Park. She noticed a man walking behind her when she entered a wooded area of the park and tried to further the distance between them after he mimicked her attempts to speed up or veer off the walkway. When she stopped and pulled the stroller off the pathway, the man also stopped. He approached S.V., asked her about the baby, their ages, and the location of her boyfriend. With each question, the man moved closer to S.V. S.V. told the man that her husband was across the street, and he responded “he lets you walk outside like this by yourself?” S.V. told the man she had to go, but he grabbed her by the shoulders and threw her down to the ground. S.V. tried to fend him off with her keys and mace, but was ordered several times to “drop it bitch.” Her attacker had one hand on her shoulder, the other holding down her wrist, and his body directly on top of hers. He slammed S.V.’s head into the concrete path approximately seven times and then tried to strangle her. S.V. kicked him and the attacker then released her.
S.V. ran for help and reported the attack to the police. She gave a detailed description of her attacker, which matched descriptions given by other women involved in similar incidents in the park. In a photo line-up, S.V. positively identified appellant as her attacker.
On September 8, 2000, appellant was charged with kidnapping in violation of Minn. Stat. § 609.25, subds. 1(3) and 2(1) (2000). The complaint was amended on November 20, charging him with kidnapping in violation of Minn. Stat. § 609.25, subds. 1(2) and 2(1), and attempted criminal sexual conduct in the first degree in violation of Minn. Stat. §§ 609.17, .342, subds. 1(e)(i) and 2 (2000). On January 22, 2001, the first day of trial, the complaint was again amended from attempted criminal sexual conduct in the first degree to second degree. Minn. Stat. §§ 609.17, .343 (2000).
Following a bench trial, appellant was found guilty as charged and sentenced to 45 months for the kidnapping charge, and 150 months for the attempted criminal sexual conduct in the second degree. The district court found appellant to be a patterned sex offender, pursuant to Minn. Stat. § 609.108, subds. 1 and 6 (2000), and a dangerous offender, pursuant to Minn. Stat. § 609.1095 (2000). Because the court found the existence of aggravating circumstances in the attempted criminal sexual conduct charge due to the presence of S.V.’s child, it ordered appellant’s sentences to run consecutively. Appellant now seeks review of his conviction and sentence.
This court’s review of a challenge to the sufficiency of the evidence 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 fact finder to reasonably conclude the defendant was guilty of the charged offense. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The reviewing court must assume the fact finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Attempted Criminal Sexual Conduct
Appellant was convicted of attempted criminal sexual conduct in the second degree. Minn. Stat. §§ 609.17, .343, subd. 1(e)(i) (2000). Under Minnesota law, attempt is defined as “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd. 1. Attempt crimes require a showing of specific intent. State v. Schmitz, 559 N.W.2d 701, 704 (Minn. App. 1997), review denied (Apr. 15, 1997). Appellant was charged with attempting to “[engage] in sexual contact with another person” and causing personal injury by using force or coercion to accomplish the sexual contact. Minn. Stat. § 609.343, subd. 1(e)(i). “Sexual contact” includes nonconsensual, intentional touching of the victim’s intimate parts or touching the clothing covering the immediate area of the intimate parts. Minn. Stat. § 609.341, subd. 11(a)(i), (iv). “Intimate parts” include a person’s “primary genital area, groin, inner thigh, buttocks, or breast.” Minn. Stat. § 609.341, subd. 5.
The district court found appellant guilty of attempted criminal sexual conduct in the second degree because (1) the violence inflicted on S.V. was consistent with the Spreigl testimony regarding his modus operandi; (2) the conversation between appellant and S.V. had sexual overtones, as evidenced by his blocking her efforts to escape and positioning his body on top of her; (3) appellant’s act in forcing S.V. to the ground; and (4) Spreigl evidence supported appellant’s motive and intent in the attack as seeking to obtain sexual gratification by touching his victims.
Intent can be inferred from inferences drawn from the actor’s actions or words in light of all the surrounding circumstances. State v. Mitchell, 577 N.W.2d 481, 485 (Minn. 1998). Appellant argues he lacked the specific intent to engage in sexual contact, stating intent cannot be inferred from his violent attack because his real intent was only to masturbate.
First, it is clear appellant’s contact with the victim occurred without consent. Second, the record reflects, and appellant subsequently admitted, that he caused bodily injury to S.V. by grabbing her, throwing her to the ground, pinning her down by forcing his body on top of hers, choking her, and smashing her head against a concrete pathway. Third, he admitted that the attack was sexually motivated. Lastly, his body was on top of S.V., causing touching and contact with her intimate parts. The record amply supports that appellant took more than a substantial step in attempting to engage in sexual contact by actually throwing the victim to the ground, trapping her underneath him, and demanding she drop the mace.
Because the district court is in the best position to evaluate the credibility of a witness, the finding that the conversation between S.V. and appellant contained sexual overtones is not clearly erroneous in light of S.V.’s testimony. The record further supports that appellant acted with intent to cause sexual contact as inferred by his statements and touching of the victim, and that in doing so he caused bodily injury. The evidence is sufficient to support appellant’s conviction of attempted criminal sexual conduct in the second degree.
Appellant was also convicted of kidnapping, “confin[ing] or remov[ing] from one place to another, any person without the person’s consent” to facilitate the commission of a felony. Minn. Stat. § 609.25, subd. 1(2). He argues that because the state failed to prove attempt to commit criminal sexual contact in the second degree, the kidnapping charge also fails. The record supports appellant’s conviction for attempted criminal sexual conduct in the second degree and the record establishes that appellant forcibly removed the victim from the pathway into a more secluded area without her consent, and then engaged in contact with and violently attacked her. Therefore, the evidence is sufficient to support a conviction of kidnapping pursuant to Minn. Stat. § 609.25, subd. 1(2).
The district court has discretion to permit amendment of the complaint any time before verdict or finding as long as the amendment does not charge additional or different offenses, and the substantial rights of the defendant are not prejudiced. Minn. R. Crim. P. 17.05; see also Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982). Once a trial has started and double jeopardy attaches, amendment is appropriate “only if it does not charge an additional or different offense and only if it does not prejudice substantial rights of the defendant.” State v. Guerra, 562 N.W.2d 10, 12-13 (Minn. App. 1997).
The original complaint charged kidnapping “[t]o facilitate commission of any felony or flight thereafter.” Minn. Stat. § 609.25, subd. 1(2). At the conclusion of the trial, the state notified opposing counsel and the court that it was also going to argue kidnapping “[t]o commit great bodily harm or terrorize the victim.” Minn. Stat. § 609.25, subd. 1(3). Appellant’s counsel stated on the record that this argument was “consistent with what the court ordered” and offered no objection.
Appellant now contends this case is analogous to Guerra, and that the amendment prejudiced his substantial rights. Guerra, however, is readily distinguishable. In Guerra, the prosecutor was allowed to present evidence of, and have the jury instructed on, an offense occurring on a different date, for a different purpose, with altogether different facts. 562 N.W.2d at 13. The basis for both charges against appellant, however, was the same course of conduct, involving the same facts and the same date, and the same showing that appellant confined or removed the victim from one place to another without her consent. Because the amendment occurred before entry of the court’s findings and did not charge a different offense, appellant had notice of the charges against him and was not unfairly surprised by the constitutional amendment. Therefore, the district court did not abuse its discretion in permitting amendment of the complaint.
Appellant argues that the district court’s finding that he was a patterned and predatory sex offender, and sentencing him as such, was clearly erroneous because the evaluator conducting the sex offender assessment was a probation officer and not a “professional.” This court applies a clearly erroneous standard in reviewing a district court’s factual findings. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
Before concluding that a defendant is a patterned and predatory sex offender, the district court must make several findings on the record, including: (1) the act reasonably appears to have been motivated by the offender’s sexual impulses, or part of a predatory pattern of behavior with sexual conduct as the goal; (2) the offender is dangerous to public safety; and (3) the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Minn. Stat. § 609.108, subd. 1(a)(1)-(3).
The finding must be based on a professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender. The assessment must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender’s mental status unless the offender refuses to be examined. The conclusion may not be based on testing alone.
Id., subd. 1(a)(3).
The statute does not define the necessary qualifications of the “examiner” who conducts the sex offender evaluation, except to require that the person be “experienced in evaluating sex offenders.” The statute does not expressly require all examiners to hold medical or advanced degrees, nor does it prohibit probation officers or non-medical personnel from evaluating offenders. Although the district court did not state on the record that appellant’s probation officer was “qualified,” neither the court nor counsel indicated that the probation officer was unqualified to conduct the evaluation.
The written evaluation prepared by appellant’s probation officer contained all statutorily required information available to the probation officer. See Minn. Stat. § 609.108, subd. 1(a)(3) (2000). The district court is not required to defer to the evaluator’s conclusion, but can make its own findings as long as they are based upon the evaluation and the record before it. Id., subd. 1(3). Here, the court’s findings are clearly supported by the record, and therefore not erroneous.
Appellant raises several issues regarding sentencing. Overall, appellant’s 195-month sentence is fair, but we reverse and remand for the limited purpose of having the sentence reconsidered in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)and State v. Grossman, 622 N.W.2d 394 (Minn. App. 2001), aff’d, 636 N.W.2d 545 (Minn. 2001).
Appellant raises two pro se issues, including a claim of insufficiency of the evidence and that confinement for a period of five minutes cannot constitute kidnapping. We have carefully reviewed these arguments and determine that the issues are adequately addressed in the opinion and without merit.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The Minnesota rules for the operation of sex offender treatment facilities similarly do not define “qualified staff” nor require treatment staff to hold advanced degrees. See Minn. R. Chap. 2965.0100 subpt. 2. (1999) (defining who may conduct intake assessment of offender upon acceptance into sex offender treatment facility).