This opinion will be unpublished and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,
George Edward Hopkins,
Filed May 14, 2002
Pennington County District Court
File No. KX00440
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN 55103; and
David M. Olin, Pennington County Attorney, 101 North Main Avenue, P.O. Box 396, Thief River Falls, MN 56701 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of second-degree criminal sexual conduct, George Hopkins challenges the admissibility of prior incidents of sexual abuse of children, the imposition of the statutory maximum sentence, and the addition of a mandatory period of conditional release. The district court acted within its discretion in admitting the evidence of prior sexual abuse and in imposing the statutory maximum sentence. The conditional-release period does not violate Hopkins’s due process rights, and we affirm.
F A C T S
A jury convicted George Hopkins of second-degree criminal sexual conduct for touching six-year-old M.P. in her pubic area while Hopkins was operating a children’s ride at a county fair. M.P.’s mother testified that shortly after leaving the fair, M.P. told her that the man operating the alligator ride had touched her in her pubic area. Her mother notified the police and took M.P. to the police station where an officer conducted a videotaped interview. M.P. told the officer that riding the alligator ride was “gross” because Hopkins had rubbed her with his bare hand, and, that as she got off the ride, Hopkins asked her if she was ready to go on the alligator ride again.
At trial, M.P. was sworn as a witness but was unable to recount the events for the jury. The district court allowed the state to introduce the videotape of M.P. telling the officer about Hopkins touching her while she was on the alligator ride. Five-year-old K.S. and seven-year-old A.B., who were also at the fair, testified that Hopkins touched them in the pubic area when they rode the alligator ride. Prior to the testimony of both K.S. and A.B., the district court gave a limiting instruction on the use of the evidence.
The district court also permitted the state in its case-in-chief to introduce evidence that Hopkins had pleaded guilty in King County, Washington, in 1985 to indecent liberties with a two-year child; had been convicted of first-degree statutory rape in Yakima County, Washington, for conduct involving two boys under the age of 10; and had pleaded guilty in 1999 to two Benton County, Minnesota, charges of fifth-degree criminal sexual conduct for actions involving boys aged six and eight. The district court gave a limiting instruction before the admission of this evidence and, again, at the close of trial.
After an hour of deliberation, the jury found Hopkins guilty of second-degree criminal sexual conduct. At the sentencing hearing, a licensed consulting psychologist testified that Hopkins had a poor ability to control his sexual impulses, a high risk of reoffending, a low probability of success with therapy, and a need for long-term treatment. The psychologist provided opinion evidence that Hopkins was a danger to public safety. The district court sentenced Hopkins to the statutory maximum of 300 months and imposed the mandatory 120 months of conditional release. Hopkins argues that (1) the evidence of prior sexual abuse was improperly admitted, (2) the 300-month sentence was excessive, and (3) the imposition of conditional release violates his due process rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
D E C I S I O N
Hopkins contends, first, that the district court erred in admitting evidence of prior incidents in which he abused young children. These incidents include a 1985 guilty plea, a 1989 conviction, a 1999 guilty plea, and the testimony of A.B. and K.S. We review the district court’s evidentiary rulings under an abuse-of-discretion standard. State v. Nelson, 632 N.W.2d 193, 204 (Minn. 2001). Minn. R. Evid. 404(b) governs the admissibility of other crimes, acts, and wrongs; prohibits its use to prove character or actions in conformity with the evidence; but allows clear and convincing evidence of the acts to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b).
Evidence of other crimes, wrongs, and acts, generally referred to as Spreigl evidence, is inadmissible unless the evidence is relevant, material, and has a probative value that outweighs the potential for unfair prejudice. Nelson, 632 N.W.2d at 204; State v. Spreigl, 272 Minn. 488, 490-96, 139 N.W.2d 167, 169-72 (1965). On appeal, a defendant who challenges the admissibility of the evidence bears the burden of showing the error and the resulting unfair prejudice. Nelson, 632 N.W.2d at 204.
The Minnesota Supreme Court directly addressed the issue of the admissibility of Spreigl evidence in sexual-conduct cases involving children in State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993). The court outlined a preferred approach for determining the admissibility by examining the similarity in time, place, and modus operandi between the charged crime and the Spreigl evidence. Wermerskirchen, 497 N.W.2d at 240, 242 n.3. The court specifically rejected the notion that Spreigl evidence was inadmissible to show that the charged act occurred, especially when the defendant denies that the act occurred. Id. at 240-41.
It is undisputed that the previous convictions were shown by clear and convincing evidence because Hopkins either admitted to the criminal conduct or a fact-finder found beyond a reasonable doubt that Hopkins engaged in the criminal conduct.
Hopkins’s 1999 Benton County guilty plea to a fifth-degree criminal-sexual-conduct charge involved touching the penis of an eight-year-old boy. The conduct occurred 18 months before Hopkins’s touching of M.P. and, thus, is close in time. The conduct was similar in modus operandi because both acts involved young children with whose care Hopkins was temporarily entrusted. The probative value of the 1999 guilty plea, demonstrating a common scheme and pattern of sexual misconduct with children, outweighs the potential for unfair prejudice. The district court did not abuse its discretion in admitting this evidence.
Hopkins’s 1989 Yakima County, Washington, conviction of first-degree statutory rape involved oral sex with two boys under the age of 10. In evaluating the relevance and materiality of this conviction, the district court noted that although the conviction was ten years old, Hopkins had been incarcerated for at least four of those years. See Wermerskirchen, 497 N.W.2d at 242, n.3 (noting that passage of time may be without significance if defendant spent a good portion of the time in prison where he was unable to reoffend). This conviction is relevant and material to Hopkins’s common scheme and pattern of abusing young, particularly vulnerable children and also demonstrates the absence of a mistake—i.e., that M.P. did not mistake Hopkins’s touching her for something sexual when in fact it was not sexual. See State v. Anderson, 275 N.W.2d 554, 556 (Minn. 1978) (passage of time does not invalidate admissibility of prior offense if older offense is part of a continuing pattern). The district court did not err in admitting the 1989 conviction.
Hopkins’s 1985 guilty plea to a King County, Washington, charge of indecent liberties involved removing the clothing of a two-year-old girl and touching her vagina and chest. Similar to the other convictions, this guilty plea shows a common plan and the absence of mistake. The conviction occurred 15 years before the touching of M.P., but Hopkins had spent a substantial portion of those 15 years in prison where he was unable to reoffend. See Wermerskirchen, 497 N.W.2d at 243, n.3. The district court did not abuse its discretion in admitting this evidence.
Finally, the testimony of A.B. and K.S. was admitted as Spreigl evidence after the district court found that clear and convincing evidence showed that Hopkins had touched the children in the pubic area while buckling them into the alligator ride at the fair in July 2000. The allegations of A.B. and K.S. were unsolicited and involved acts almost identical in time, place, and modus operandi to the touching of M.P. The evidence was highly relevant and material to the state’s case because the evidence showed identity, common plan, and absence of mistake. See Wermerskirchen, 497 N.W.2d at 240-41. This testimony had particular relevance because of M.P.’s inability to testify at the jury trial about Hopkins’s acts. See id. (noting difficulty of proof in child-molestation cases because of unwillingness or inability of some victims to testify). The high degree of similarity between the sexual contact alleged to have occurred between Hopkins and M.P. and the sexual contact alleged to have occurred between Hopkins and both A.B. and K.S. had a probative value that outweighed any unfair prejudice. Id. at 240 (noting that the closer the connection in time, manner, and modus operandi between the two acts, the greater the relevance and the less likelihood that jury will use evidence improperly). We conclude that the district court properly admitted the Spreigl evidence.
Hopkins contends that his 300-month sentence is an excessive and impermissible upward departure from the sentencing guidelines. In reviewing whether a sentence is excessive, we rely on our “collective collegial experience” developed from reviewing a large number of criminal appeals. State v. Stirens, 506 N.W.2d 302, 305-06 (Minn. 1993). Generally, we do not interfere with a district court’s broad sentencing discretion unless the sentence is exceedingly disproportionate to the offense. State v. Smallwood, 594 N.W.2d 144, 157 (Minn. 1999) (affirming district court’s more-than-quadruple upward durational departure).
A district court, exercising its broad discretion, may depart upward from the presumptive sentence “only if aggravating * * * circumstances are present.” State v. McCoy, 631 N.W.2d 446, 453 (Minn. App. 2001) (quotation omitted). The departure may extend to the statutory maximum when severe aggravating factors exist. McCoy, 631 N.W.2d at 454 (affirming district court’s upward durational departure of four times presumptive sentence for second-degree criminal sexual conduct). The Minnesota Sentencing Guidelines specifically provide that the court may use factors such as patterned-sex-offender status, prior felony convictions for criminal sexual conduct, and a high degree of victim vulnerability in deciding whether to depart from the presumptive sentence and impose a longer term of incarceration. Minn. Sent. Guidelines II.D.2.b.(1, 3, 7); see also Minn. Stat. § 609.108, subd. 1(a)(1-3) (2000) (mandating that district courts sentence violators to not less than double the presumptive guidelines if offender is categorized as “patterned sex offender”).
Hopkins does not appeal his classification as a patterned sex offender. The classification was based on prior Minnesota felony convictions for criminal sexual conduct stemming from his two 1999 Benton County incidents for which he served more than one year in prison. See Minn. Stat. § 609.3451, subd. 3 (1998) (noting that fifth-degree criminal sexual conduct is a felony if offender had previously been convicted in Minnesota or another state of conduct involving the lewd exposure of his genitals to a child under the age of 16). The classification also took into account his prior felony conviction of first-degree statutory rape from Washington state and several other convictions involving inappropriate sexual contact with young children. The court found that M.P., the victim in this incident, is extremely vulnerable because of her youth.
In addition to the aggravating factors specifically set forth in the sentencing guidelines, the district court also observed that Hopkins had failed to complete sex-offender treatment after any of his prior convictions, admitted to psychologists that he has often been sexually aroused by children and has wandered around school grounds and parks where children are present, failed to show any remorse, failed to register as a sex offender, abused his position of authority in order to prey on young children, and admitted that the only way he would not sexually touch young children was if he was not around children. See Smallwood, 594 N.W.2d at 157 (noting that likelihood of reoffending and lacking remorse are all factors supporting an upward durational departure).
The district court also found that Hopkins would likely not be successful in treatment. Id. (noting that low probability of success with treatment is a factor supporting upward durational departure). The district court noted that Hopkins had engaged in progressively more dangerous behavior in order to satisfy his sexual arousal; with M.P., he engaged in sexual contact in public, near M.P.’s parent. See Smallwood, 594 N.W.2d at 157 (noting that engaging in a “pattern of increasing dangerousness” is a factor supporting upward durational departure).
Because all the district court’s findings are supported in the record and a number of severe aggravating factors are present, the district court did not abuse its discretion by sentencing Hopkins to the statutory maximum.
In Apprendi v. New Jersey, the United States Supreme Courtprohibited the practice of increasing a criminal defendant’s punishment beyond the statutory maximum if the underlying facts for increasing the punishment have not been found by a jury. Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, (2000); see also State v. Grossman, 636 N.W.2d 545, 550-51 (Minn. 2001) (applying Apprendi to the Minnesota patterned-sex-offender statute). The United States Supreme Court specifically noted however, that a criminal defendant’s previous conviction of a crime could be found by the court rather than the jury without violating due process. Apprendi, 530 U.S. at 488-90, 120 S. Ct. at 2362-63 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); see also Grossman, 636 N.W.2d at 550-51.
Hopkins argues that the imposition of a 10-year period of conditional release in addition to the statutory maximum prison sentence violates his due process rights as set forth in Apprendi because the application of the conditional release period is based on judicial fact-finding and may have the effect of lengthening his period of incarceration beyond the statutory maximum.
The district court imposed conditional release under Minn. Stat. § 609.109, subd. 7(a) (2000), which is mandatory for certain repeat offenses including Hopkins’s conviction of second-degree sexual conduct.
Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of section 609.342, 609.343, 609.344 or 609.345, the person shall be placed on conditional release for five years, minus the time the person served on supervised release. If the person was convicted for a violation of one of those sections a second or subsequent time, or sentenced under subdivision 6 to a mandatory departure, the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.
Minn. Stat. § 609.109, subd. 7(a).
In its order, the district court found that Hopkins previously had been convicted of indecent liberties and statutory rape as defined by Washington state law. The district court further found that the indecent-liberties conviction equated to a conviction for violation of Minn. Stat. § 609.345, subd. 1, and the statutory-rape conviction equated to a conviction for violation of Minn. Stat. § 609.342. See Minn. Stat. § 609.109, subd. 5 (defining a previous sex offense as one that occurred “before the commission of the present offense of conviction” and is “a violation of sections 609.342 to 609.345 or any similar statute of the United States, this state, or any other state”).
The imposition of the conditional release was not based on judicial fact-finding other than a finding on Hopkins’s criminal history. As set forth in Apprendi, the fact of a prior conviction, as found by the court, may serve to increase a criminal defendant’s sentence without violating his or her due process rights.
We note that, although Hopkins is subject to a ten-year conditional-release period, the statute provides for conditional release for ten years, minus the time the person served on supervised release. Thus, assuming Hopkins accrues the maximum amount of supervised release under Minn. Stat. § 244.05 (2000), the duration of his conditional-release period will be reduced to less than two years following the expiration of his supervised release.