This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,




Domingo Penaloza Cabrera,



Filed November 19, 2002


Randall, Judge


Hennepin County District Court

File No. 01032563


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


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


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant).


            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant was initially charged in Hennepin County District Court with second-degree attempted murder, first-degree criminal sexual conduct, and first-degree aggravated robbery.   Following later additions, subtractions, and amended criminal complaints (none of which are at issue), appellant, pursuant to a Lothenbach stipulation, had a trial to the court on one count of attempted first-degree criminal sexual conduct and one count of kidnapping.  Following the hearing, appellant was found guilty of attempted first-degree criminal sexual conduct and kidnapping.  Appellant was sentenced to imprisonment for 43 months for criminal sexual conduct charge and another 43 months for kidnapping, that sentence to run consecutively to the 43 months imposed for criminal sexual conduct.

            Appellant challenges his conviction for attempted criminal sexual conduct (the kidnapping conviction is not in issue), arguing that the district court's findings that he forcibly penetrated the victim and later beat her were insufficient to support the conviction for attempted first-degree criminal sexual conduct, which required that appellant take a substantial step toward causing personal injury in the process of accomplishing sexual penetration.  We affirm.


            On April 15, 2001, M.I.L. went to a southeast Minneapolis nightclub with several people and stayed until approximately 1:00 a.m.   Appellant Cabrera, with whom M.I.L. worked, offered to drive her and two other people home. 

After leaving the nightclub, appellant told M.I.L. that he was going to bring her to a party at a residence.  Appellant drove to the party even though M.I.L. told him that it was late, she did not want to go with him, and she wanted to go home.  Shortly after arriving at the party, M.I.L. again told appellant that she wanted to go home. 

Appellant, M.I.L., and another male, left the party and drove the other individual home to an unknown address on Central Avenue in northeast Minneapolis.  After M.I.L. again told appellant that she wanted to go home he responded, "no, let's drive around."  M.I.L. repeated that she wanted to go home. 

Appellant drove for approximately an hour and then stopped in a secluded area.  After appellant told M.I.L. that he wanted to touch her and make love to her, she responded no.  Appellant became insistent and furious and stated that he was "horny."  He then unzipped his pants and began to masturbate.  Appellant then grabbed M.I.L.'s breasts, attempted to take her pants off, and placed two fingers into her vagina.  M.I.L. fought with appellant, told him no, and stated that if he let her go she would not tell anyone.

Appellant exited the vehicle and dragged the victim out of the vehicle by her hair and told her to be quiet.  Appellant then picked up a long narrow type of club, similar to the type used to lock a steering wheel to prevent auto theft, and hit M.I.L. in the head four times, causing her to become dizzy and disoriented to the point of possibly passing out.  Appellant, while hitting M.I.L., said over and over, "I want to kill you.  You are going to die."  Sometime during the struggle, appellant took M.I.L.'s bracelet and a crucifix with Christ's face on it.

Appellant then dragged M.I.L. to a nearby river, took her by the hair, and submerged her head under water four times.  On the fourth time that her head was submerged, M.I.L. made her body go limp, in an attempt to convince appellant that she was dead.  After appellant raised M.I.L.'s head one last time, he ran to his vehicle and left the area.  M.I.L. floated into deeper water, grabbed a log, and pulled herself out of the water.  M.I.L. found some railroad tracks and walked along them for approximately three hours before someone saw her, stopped, and drove her to the hospital.   At the hospital M.I.L. was given an SARS examination (sexual assault and rape screening), treated for head injuries, and admitted to the ICU. 

After receiving a description of the suspect from M.I.L., police investigated and identified appellant's name, his height and weight, his address, his vehicle, and license plate numbers.   A search warrant was issued.  During the search, Sergeant Moore saw a blue Toyota truck registered to appellant behind a residence.  Moore observed a long red pipe matching the description given by M.I.L. of the weapon used to assault her.  The vehicle was subsequently impounded and towed to the police lot.  A search of the truck was conducted and a gold bracelet and gold crucifix with the face of Christ were recovered.  Numerous areas inside and outside the vehicle tested positive for blood.


            Appellant, with the agreement of the state, entered into a Lothenbach stipulation,[1] waived a jury trial, and tried the charges to the court.  Appellant argues that the district court's findings are insufficient to support a finding that he is guilty of first-degree criminal sexual conduct.  Appellant argues that the district court failed to make a specific finding that he committed a substantial step toward causing physical injury to the victim.  Appellant contends that as a result of insufficient findings, a reversal of his conviction is the appropriate remedy. 

            We reject appellant's argument that the trial court committed reversible error by failing to make written findings as required by Minn. R. Crim. P. 26.01, subd. 2.  In a case tried without a jury, the court must make a general finding of guilt or innocence within seven days after the completion of the trial.  Minn. R. Crim. P. 26.01, subd. 2.  In felony and gross misdemeanor cases, the district court must also make specific written findings regarding the facts essential to the general finding within seven days after the general finding.  Id.  However, if the court omits a fact essential to the merits of guilt or innocence then it is deemed to have made a finding consistent with the general findings.  Id.

Appellant contends that his conviction should be reversed because the district court failed to make a specific finding that appellant's acts

caused pain, injury or physical impairment to M.I.L., or that appellant intended to cause pain, injury or physical impairment to M.I.L., or that appellant took a substantial step toward causing pain, injury or physical impairment to M.I.L.


See Minn. Stat. §§ 609.17, subd. 2 (2000) (defining attempt), 609.341, subd. 8 (2000) (defining personal injury, 609.342, subd. 1(e)(i) (2000) (defining first-degree criminal sexual conduct). 

The district court, although it did not specifically find that appellant took a substantial step toward causing pain, injury, or physical impairment, did make general findings of fact that satisfy the requirements of rule 26.01, subd. 2.  See State v. Oanes, 543 N.W.2d 658, 663-64 (Minn. App. 1996) (stating that an omitted fact is deemed to have been made).  The district court found that appellant grabbed M.I.L.'s breasts and attempted to take her pants off, that he inserted his fingers into her vagina, that he forcibly removed M.I.L.'s bracelet, that he struck her repeatedly with a metal pipe, and that he held M.I.L.'s head underwater.  When the court found that appellant "struck [M.I.L.] repeatedly in the head with a metal pipe" it can reasonably be implied that the court found that appellant took a substantial step toward causing pain or physical injury to M.I.L.  We conclude that the district court's findings were sufficient under the rules of criminal procedure.

Appellant's prayer for relief that his conviction be reversed for failing to make specific findings is an incorrect remedy.  In Oanes, the court sated that the omission of a specific fact is not fatal.  Oanes, 543 N.W.2d at 663.  We infer a specific finding that appellant took a substantial step toward causing M.I.L. physical pain and injury, that he intended to cause pain and injury, and that he did cause M.I.L. pain and injury. 

            The thrust of appellant's argument is that there is insufficient evidence for a trier of fact to conclude beyond a reasonable doubt that appellant is guilty of attempted first-degree criminal sexual conduct.  Appellant's assertion that the district court omitted the specific findings as required by Minn. R. Crim. P. 26.01, subd. 2, is essentially a sufficiency-of-the-evidence argument.  See Oanes, 543 N.W.2d at 664.

When 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 factfinder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  An appellate court will not disturb the verdict if the factfinder, 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).  The same standard of review applies to criminal bench trials and jury trials.  State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).

            Appellant was convicted of attempted first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2000), which states in relevant part:

A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if * * * the actor causes personal injury to the complainant, and * * * uses force or coercion to accomplish sexual penetration; * * * .


Under Minnesota law, a person is guilty of attempt if he, 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 (2000).

First, the record supports the conclusion that appellant used "force or coercion."  M.I.L. fought with appellant and told him that she did not want to engage in sexual intercourse.  Appellant kept M.I.L. from escaping, attempted to drown her, and beat her with a club.

Second, there was sufficient evidence for the court to reasonably conclude that appellant took a substantial step toward causing personal injury.  "Personal injury" is defined, in part, as bodily harm or severe mental anguish.  Minn. Stat. § 609.341 (2000).  The record indicates that appellant penetrated M.I.L. with his fingers, dragged her out of the car by her hair, submerged her head under the water, and hit her head repeatedly with a metal pipe.  It is an understatement that these acts could reasonably be construed to have caused M.I.L. severe mental anguish and bodily harm.  M.I.L.'s statements and the police reports are part of the district court record to which appellant stipulated.

We affirm the district court's conclusion that appellant took a substantial step toward causing the victim physical injury when he beat M.I.L. with a metal club, causing injuries to her head.  See Dale v. State,535 N.W.2d 619 (Minn. 1995) (finding appellant took a substantial step toward causing personal injury where the victim suffered abrasions and a contusion while resisting attempted rape). 

Appellant incorrectly argues that the personal injury to M.I.L. after the sexual penetration cannot be used to support his conviction.  Appellant contends that the personal injury must be caused in the process of accomplishing sexual penetration.  We disagree.  A victim's injuries do not have to be simultaneous with the actual sexual penetration, as long as they are sufficiently related to the act to constitute "personal injury" within the meaning of the statute.  State v. Sollman, 402 N.W.2d 634, 636 (Minn. App. 1987).


[1]  The Lothenbach stipulation can be used for submitting a case to a district court for a decision while preserving issues for appeal.  State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002).