may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
Kristopher Jon Zuhlsdorf,
Redwood County District Court
File No. K101214
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michelle A. Dietrich, Redwood County Attorney, Redwood County Courthouse, Third and South Jefferson, Redwood Falls, MN 56283 (for respondent)
John E. Mack, Mack & Daby, 26 Main Street, P.O Box 302, New London, MN 56273 (for appellant)
Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
In this appeal from a conviction of third-degree criminal sexual conduct, appellant Kristopher Jon Zuhlsdorf challenges the sufficiency of the evidence to support his conviction and his sentence as a patterned sex offender. We affirm.
Zuhlsdorf dated Cory Widmer from November 2000 through mid-January 2001. On April 24, 2001, Widmer worked from 4:00 p.m. until midnight. After finishing work, Widmer met with some friends for about an hour before going to a party in Olivia. Widmer left the party at about 2:45 a.m. on April 25th. On her way home to Redwood Falls, Widmer inadvertently dialed Zuhlsdorf’s telephone number, which was programmed into her cellular telephone. Zuhlsdorf and Widmer had a short conversation. She told him that she had accidentally dialed his number. Zuhlsdorf asked her where she was and who she was with. She told him that she was on her way home.
Zuhlsdorf called Widmer at her home shortly after 3:00 a.m. and told her that he was in Redwood Falls on his way to her house. Widmer told him that she was tired and going to sleep, but Zuhlsdorf showed up at her house ten minutes later. Widmer asked him to leave, but he insisted on staying because it was so late. Zuhlsdorf asked Widmer to set her alarm for him because he had to work in the morning and then went to sleep on her bed. Widmer did not think anything about the sleeping arrangement because she was not afraid of Zuhlsdorf, and they were both clothed and used separate blankets.
After the alarm went off at 6:00 a.m., Widmer tried unsuccessfully to wake Zuhlsdorf. She let him sleep another half hour before again trying to wake him. This time, Zuhlsdorf became angry, picked Widmer up and rolled her onto the bed. He took off her boxer shorts and underwear, held her arms above her head, and sexually penetrated her. Zuhlsdorf yelled at Widmer and told her that he should have done this last night.
Widmer told Zuhlsdorf to stop holding her down and that she did not want to have sex with him, but he continued. She struggled, and eventually got away by kicking Zuhlsdorf in the groin. Widmer went to the living room to telephone for help, but Zuhlsdorf threw one telephone and unplugged another to stop her from calling anyone. He also told Widmer that he would kill her if she called anyone. Then he went out to his truck and left.
After Zuhlsdorf left, Widmer called her mother and asked her to come over. Her mother called Widmer’s sister, who also lived in Redwood Falls, and told her to go to Widmer’s house as soon as possible. The sister arrived at Widmer’s house shortly after 7:00 a.m., and Widmer’s mother arrived soon after. Widmer’s sister called the police. When the police arrived, they found Widmer very upset, and one officer noticed that the two telephone jacks in the living room had been disconnected.
During a police interview on April 26, 2001, Zuhlsdorf said that he had called Widmer on the telephone on April 25th, but that he was not at her house and did not have sex with her on that date. At trial, Zuhlsdorf stipulated that he had sexual intercourse with Widmer on April 25th.
Following a jury trial, Zuhlsdorf was convicted of third-degree criminal sexual conduct. The district court sentenced Zuhlsdorf as a patterned sex offender to a term of 136 months, which is twice the 68-month presumptive guidelines sentence.
1. Zuhlsdorf argues that his 136-month sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct 2348 (2000), because the court, rather than the jury, determined the facts relating to the finding that he is a patterned sex offender.
In Apprendi, the United States Supreme Court held that
any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Id. at 490, 120 S. Ct. at 2362-63 (emphasis added).
This court recently held in State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001), that Apprendi did not apply to a 144-month sentence imposed under the patterned-sex-offender statute pursuant to findings made by the court rather than the jury because the sentence did not exceed the 25-year statutory maximum sentence for the offense.
Zuhlsdorf was convicted of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1 (2000). A person convicted of this offense may be sentenced to imprisonment for up to 15 years, which is 180 months. Minn. Stat. § 609.344, subd. 2 (2000). Because Zuhlsdorf’s 136-month sentence does not exceed the 180-month statutory maximum sentence, Apprendi does not apply to his sentence.
2. Zuhlsdorf next argues that the district court did not comply with Minn. Stat. § 244.10, subd. 1 (2000), and Minn. R. Crim. P. 27.03, subd. 1(C). Minn. Stat. § 244.10, subd. 1, provides:
Whenever a person is convicted of a felony, the court, upon motion of either the defendant or the state, shall hold a sentencing hearing. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issue of sentencing. The parties may submit written arguments to the court prior to the date of the hearing and may make oral arguments before the court at the sentencing hearing. Prior to the hearing, the court shall transmit to the defendant or the defendant’s attorney and the prosecuting attorney copies of the presentence investigation report.
Minn. R. Crim. P. 27.03, subd. 1(C), provides, in part:
If departure from the sentencing guidelines appears appropriate, and the court has not previously notified the parties or counsel for the parties that the court is considering departure, the court shall forward notification of such consideration at the time the sentencing worksheet and any presentence investigation report is forwarded.
Although Zuhlsdorf’s argument is not clear, he appears to argue that because he did not receive the presentence-investigation report and the adult-sex-offender assessment until one week before the sentencing hearing, the hearing was not scheduled to give him adequate time to prepare and present arguments regarding sentencing, as required by Minn. Stat. § 244.10, subd. 1. Zuhlsdorf also argues that the requirements of Minn. R. Crim. P. 27.03, subd. 1(C), were not met because the court never gave him notice that it was considering a sentencing departure, much less a departure pursuant to Minn. Stat. § 609.108. Zuhlsdorf contends that because he did not receive the required notice, he had no reason to believe that he faced an upward departure.
But the record demonstrates that Zuhlsdorf’s attorney was aware that an upward departure pursuant to Minn. Stat. § 609.108 would be considered at the sentencing hearing. On July 24, 2001, seven weeks before the sentencing hearing, the prosecutor filed and served a motion asking the court to order an upward durational departure pursuant to Minn. Stat. § 609.108. Also, in the adult-sex-offender assessment that Zuhlsdorf’s attorney received one week before the sentencing hearing, the examiner specifically concludes that Zuhlsdorf meets the definition of a patterned sex offender. Finally, at the sentencing hearing, Zuhlsdorf’s attorney aggressively challenged the state’s claim that Zuhlsdorf is a patterned sex offender and vigorously cross-examined the examiner about his report. The very first comment that Zuhlsdorf’s attorney made at the hearing was that he did not believe that the examiner addressed the provisions of Minn. Stat. § 609.108 with regard to any upward departure or mandatory minimum sentence. In light of Zuhlsdorf’s attorney’s efforts at the sentencing hearing and the fact that the attorney did not object to the trial court’s lack of notice of a possible departure or seek a continuance to prepare to address the possibility of a departure, his argument that although he knew the state was going to argue for a departure, he did not know that the court was going to consider a departure, is simply implausible. See State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992) (concluding failure to give notice under rule 27.03, subd. 1(C), was not prejudicial where state had filed motion for upward departure two months before sentencing hearing and there was no objection to lack of notice or request for continuance), review denied (Minn. Aug. 27, 1992).
3. Zuhlsdorf argues that the findings of the examining psychologist provided an insufficient basis for an upward departure under Minn. Stat. § 609.108, subd. 1, which states:
A court shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum, if:
* * *
(3) the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. 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. A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeu-tic intervention or other long-term controls.
Zuhlsdorf first argues that the examiner did not explicitly conclude that he is a patterned sex offender. While it is true that the examiner did not explicitly state in his report that Zuhlsdorf is a patterned sex offender, the examiner did state,
Zuhlsdorf’s aggressive behavior toward women appears to be so ingrained that his risk of re-offending is great without intensive psychotherapeutic intervention and long term supervision.
This statement indicates that the examiner concluded that Zuhlsdorf met the statutory definition of patterned sex offender.
Zuhlsdorf next argues that because the examiner’s conclusion that he needed long-term incarceration and supervision is without foundation, one of the bases that must be found under Minn. Stat. § 609.108, subd. 1(3), is lacking, and he should not have been subject to an upward departure as a patterned sex offender. Under section 609.108, subd. 1(3), the court must find “that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.” The court’s finding must be based on the examiner’s conclusion that the offender is a patterned sex offender. As we have already stated, the examiner concluded that Zuhlsdorf met the definition of patterned sex offender, in part because he needs long-term supervision. But the examiner did not state how long supervision would be needed. When Zuhlsdorf’s attorney asked the examiner whether he thought that Zuhlsdorf needed longer than three years of incarceration, the examiner replied,
Well, I do not look at it as my job to determine how many years of incarceration that he needs. I felt that given the criteria that he met the criteria for being a pattern offender.
The examiner did what was required under the statute. He determined that there is a great risk that Zuhlsdorf will reoffend if he does not receive intensive psychotherapeutic intervention or is not controlled in some way for a long time. Then, based on this determination, the court found that Zuhlsdorf needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.
Zuhlsdorf also argues that because the examiner testified that he probably would not have determined that Zuhlsdorf met the criteria for being a patterned sex offender if Zuhlsdorf had not denied his guilt, his sentence was increased by 68 months because he asserted his right to plead not guilty. Zuhlsdorf asserts that, “the denial of the offense was precisely the same conduct as the defendant’s plea of not guilty and his exercise of his right to testify in his own behalf.”
McMorrow v. Little, 109 F.3d 432 (8th Cir. 1997), explains why Zuhlsdorf’s right against self-incrimination was not violated when the examiner relied on Zuhlsdorf’s denial of guilt in determining that Zuhlsdorf is a patterned sex offender. In McMorrow, Patrick McMorrow, an inmate in a North Dakota prison, claimed that prison officials violated his right against self-incrimination when they withheld parole, work release, and less-restrictive confinement from him because he refused to admit his crime. Id. The McMorrow court explained:
McMorrow cites Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, * * * (1984), to support his argument that the officials violated the Constitution by withholding parole, work release, and less restrictive confinement from him because he refused to admit his guilt by invoking his privilege against self-incrimination. In Murphy, the United States Supreme Court stated that it is “clear that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Id. at 434, 104 S. Ct. at 1146 (internal quotations omitted). McMorrow argues that the Court’s statement and other language in Murphy clearly established that the officials’ conduct was unconstitutional.
Id. at 435-36.
The court then explained that McMorrow misread Murphy and the Supreme Court precedent relied on in Murphy. Id. at 436. The McMorrow court stated:
The Supreme Court reaffirmed in Murphy what it held in previous decisions, that the government cannot penalize someone for invoking his privilege against self-incrimination. Murphy does not, however, overrule the Court’s earlier cases that state that the government can penalize someone for refusing to cooperate on government matters, even when the person does so by invoking his privilege against self-incrimination. McMorrow’s complaint states that the officials denied him certain benefits because he refused to admit his guilt, not because he invoked his privilege against self-incrimination. Under Murphy, prison officials may constitutionally deny benefits to a prisoner who, by invoking his privilege against self-incrimination, refuses to make statements necessary for his rehabilitation, as long as their denial is based on the prisoner’s refusal to participate in his rehabilitation and not his invocation of his privilege.
Like McMorrow’s complaint, Zuhlsdorf’s claim is that he was penalized because he refused to admit his guilt, not because he invoked his privilege against self-incrimination. Zuhlsdorf tries to avoid the fact that he does not claim that he was penalized for invoking his privilege against self-incrimination by asserting that “the denial of the offense was precisely the same conduct as the defendant’s plea of not guilty and his exercise of his right to testify in his own behalf.” But even if refusing to admit his guilt while speaking with the examiner invoked Zuhlsdorf’s privilege against self-incrimination, it does not necessarily follow that he was penalized for invoking this right.
The examiner did not conclude that Zuhlsdorf is a patterned sex offender because he asserted his right against self-incrimination. There is no claim that the examiner even knew that Zuhlsdorf asserted this right. When Zuhlsdorf’s attorney asked the examiner what was the difference between saying that Zuhlsdorf needed more time for treatment because he denied the offense and saying that he needs extra time because he pleaded not guilty, the following exchange occurred:
A.Well, the difference is I guess that I am not so certain about the court aspects of it I am a treatment provider and I know as a treatment provider that an individual that refuses to acknowledge having committed an offense, has had a previous treatment experience which ended up taking longer than the average person in the treatment program in that circumstance I am dealing with someone who is going to need more than the typical offender.
Q.And why is he going to need more? Is he going to more because it will take you longer to break down any denial on his part?
A.That, -- also he would have spent some time working on the development of empathy, understanding the impact that our behavior has on other people. Somebody who has difficulty for his behavior is going to struggle with that.
It is apparent from this exchange that Zuhlsdorf’s denial of guilt influenced the examiner’s determination that Zuhlsdorf is a patterned sex offender because of the effect the denial had on the examiner’s assessment of Zuhlsdorf’s chances of succeeding in treatment, not because the denial was an assertion of Zuhlsdorf’s right against self-incrimination.
Furthermore, the examiner testified that Zuhlsdorf’s denial was only one of the factors that he considered in his assessment. The examiner also considered Zuhlsdorf’s history; that Zuhlsdorf exhibited no remorse toward his victims (including his previous assault victim); that Zuhlsdorf had taken an anger-management class after a previous assault and took longer than average to complete the class; that Zuhlsdorf was on probation when this sexual assault occurred; and that this occurrence was not an incident of date rape that had gone too far, “the victim * * * was physically trying to push him away and he continued with the assault.”
Zuhlsdorf argues that the evidence of his guilt was legally insufficient because (1) Widmer’s testimony was inconsistent and incredible, and (2) he offered a reasonable explanation for the events of the evening and the next morning. On appeal, a reviewing court performs a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient for the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
If the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty of the offense charged, a reviewing court will not disturb its verdict.
State v. Norgaard, 272 Minn. 48, 51, 136 N.W.2d 628, 632 (1965). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).
Widmer testified that Zuhlsdorf raped her. In a criminal-sexual-conduct case, the testimony of the victim need not be corroborated. Minn. Stat. § 609.347, subd. 1 (2000). Therefore, Widmer’s testimony was sufficient for the jurors to reach their verdict. Zuhlsdorf’s arguments that Widmer’s testimony was not credible and that he offered an explanation of the events that was consistent with the evidence address the credibility and weight of the evidence. “[T]he jury determines the credibility and weight given to the testimony of individual witnesses.” State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). “Furthermore, the jury is free to question a defendant’s credibility, and has no obligation to believe a defendant’s story.” State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).