This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-408

 

State of Minnesota,
Respondent,

vs.

Reginald Thomas Aspelund,
Appellant.

 

Filed February 24, 2004

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 02049026

 

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from his conviction of second-degree criminal sexual conduct, appellant argues that (1) the evidence was insufficient to support his conviction and (2) the 66-month sentence imposed by the district court, although a downward durational departure, is disproportionate to his conduct and unfairly exaggerates its criminality.  We affirm.

FACTS

On June 19, 2002, appellant Reginald Aspelund met M.L. at a bar in Minnetonka.  They exchanged business cards and later traveled together in Aspelund’s car to two clubs in Minneapolis.  After spending time at the clubs, M.L. asked Aspelund to drive her home. 

On the way to M.L.’s house, Aspelund pulled his car into a parking lot and parked.  M.L. testified that Aspelund then rolled on top of her.  When M.L. protested, Aspelund put his hand over M.L.’s mouth and his arm on her neck and said, “It’s okay; we’re going to do this.”  Aspelund fondled M.L.’s breasts and put his hand down the front of her pants.  During her struggle with Aspelund, M.L. opened the car door and escaped from the car.  Aspelund chased M.L., threw her on the ground, and tore open her blouse.  M.L. told Aspelund that she would walk back to the car with him.  But when she stood up, M.L. pulled away from Aspelund and ran.  M.L., who was very upset, began vomiting.  At that point, Aspelund left M.L. and walked toward his car. 

M.L. called 911 on her cell phone.  When the police officers arrived at the scene, they found M.L. walking across an empty parking lot.  M.L. looked disheveled.  Three buttons were missing from M.L.’s shirt, she had an abrasion on her chin, and she complained of head pain.  After the officers interviewed M.L., they collected her shirt and the business card Aspelund had given her.  After arriving at home, M.L. again called the police to report red marks on her chest and left breast.  A police officer came to M.L.’s residence and took photographs of the marks.

Aspelund was arrested early the next morning.  At the time of his arrest, Aspelund had an abrasion on his knee and a mark on his chest.  M.L. later identified Aspelund in a photo lineup.  Aspelund was charged with second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(e)(i) (2002), and fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(c) (2002). 

Following a jury trial, Aspelund was convicted of the charged offenses.  At the sentencing hearing, Aspelund moved for a judgment of acquittal and, in the alternative, a new trial based on evidentiary issues unrelated to this appeal.  The district court denied the motion and sentenced Aspelund to 66 months’ imprisonment, a downward durational departure from the presumptive guideline sentence of 90 months for second-degree criminal sexual conduct.  This appeal followed.

D E C I S I O N

I.

Our review of a claim of insufficient evidence to sustain a conviction is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the jury to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  In so doing, we assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Under Minnesota law, “[a] person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if . . . the actor causes personal injury to the complainant, and . . . the actor uses force or coercion to accomplish the sexual contact[.]”  Minn. Stat. § 609.343, subd. 1(e)(i) (2002).  Aspelund argues that the evidence of personal injury to M.L. is de minimis and, therefore, insufficient to support his conviction for second-degree criminal sexual conduct.[1]  “‘Personal injury’ means bodily harm as defined in section 609.02, subdivision 7 . . . .”  Minn. Stat.             § 609.341, subd. 8 (2002).  Section 609.02, subdivision 7, defines “bodily harm” as “physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat.     § 609.02, subd. 7 (2002).  In analyzing the quantum of injury necessary to meet the statutory requirement of “personal injury,” the Minnesota Supreme Court has held that the existence of pain or minimal injury is sufficient to establish “personal injury” within the meaning of Minn. Stat. § 609.343, subd. 1(e)(i).  State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981).  In State v. Mattson, for example, the evidence of personal injury consisted of a bruise on the victim’s breast and soreness for a few days after the assault.  376 N.W.2d 413, 414 (Minn. 1985).  After reciting the statutory definition of personal injury, the Minnesota Supreme Court concluded, “[u]nder our cases, the evidence of pain and bruising established in this case has been sufficient to establish personal injury.”  Id. at 415.

Here, the record includes photograph exhibits taken shortly after the assault depicting red marks on M.L.’s neck, breast, and chin that, according to M.L.’s testimony, were not present prior to the assault.  Aspelund’s testimony corroborated that M.L. did not have the abrasion on her chin earlier in the evening.  M.L. testified that the abrasions on her chin, neck, and chest were caused when Aspelund covered her mouth with his hand and held her down with his arm on her neck.  M.L.’s testimony also established that Aspelund’s groping caused the marks on M.L.’s left breast.  In addition, M.L. complained of head pain immediately following the sexual assault.  From our review of the evidence, we conclude that the state met its burden of proving beyond a reasonable doubt the personal-injury element of second-degree criminal sexual conduct.

Likewise, there is sufficient evidence of force to sustain Aspelund’s conviction.  In addition to the bodily harm described above, the shirt M.L. was wearing during the assault was also admitted into evidence.  M.L. explained that three buttons were missing because Aspelund ripped her shirt open after throwing her on the ground during her failed attempt to flee the assault.  The officers who responded to M.L.’s 911 call testified that M.L.’s physical appearance was consistent with that of a person who had been assaulted.  Our review of the record establishes that there is ample evidence to support the jury’s determination that Aspelund used force to engage in sexual contact with M.L., thereby causing personal injury to M.L., in violation of Minn. Stat. § 609.343, subd. 1(e)(i). 

In a related argument, Aspelund contends that the distinction between second-degree criminal sexual conduct, which requires force resulting in personal injury, and fourth-degree criminal sexual conduct, which merely requires force, has been eliminated by caselaw interpreting the statutory definitions of “personal injury” and “force” almost identically.  Aspelund urges us to disregard the statutory definitions and well-established precedent when applying the law to the facts established here.  We decline to do so.  The statutory definitions of “personal injury” and “force” are not synonymous.  When defined as “physical pain or injury, illness, or any impairment of physical condition,” the term “personal injury” is readily distinguishable from the term “force,” which is defined as

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

 

Compare Minn. Stat. § 609.341, subd. 3 (2002) (defining force) with Minn. Stat.            §§ 609.341, subd. 8, .02, subd. 7 (defining “personal injury”).  Although in certain circumstances the same evidence may be used to prove both elements, the elements themselves are distinct.  And each element must be proved beyond a reasonable doubt to sustain a conviction of second-degree criminal sexual conduct.

Under Minnesota law, “force” does not require “personal injury.”  Rather, “force” encompasses any attempt or threat of “bodily harm” or any other crime that might induce the complainant to believe the actor will carry out the threat.  Minn. Stat. § 609.341, subd. 3; In re Welfare of D.L.K., 381 N.W.2d 435, 438-39 (Minn. 1986).  This distinction refutes Aspelund’s argument that second-degree criminal sexual conduct and fourth-degree criminal sexual conduct are synonymous.  Engaging in sexual contact through the use of force, which does not result in personal injury, is insufficient to establish second-degree criminal sexual conduct.  Because, when applying the plain meanings according to their statutory definitions, the terms “personal injury” and “force” are unambiguous, we decline to disregard the plain meanings of these terms under the pretext of pursuing the spirit.  See Minn. Stat. § 645.16 (2002).

Moreover, our review of the caselaw interpreting the terms “personal injury” and “force” establishes that caselaw interpretations do not deviate from the legislative intent embodied in the plain meanings of the statutory definitions.  See Mattson, 376 N.W.2d at 414 (holding that “personal injury” occurred where victim’s breast was bruised and sore); State v. Reinke, 343 N.W.2d 660, 662 (Minn. 1984) (concluding that “personal injury” exists where victim suffered abrasions to the pubis, pain during the assault, and back pain after the assault); Bowser, 307 N.W.2d at 779 (holding that “personal injury” exists where victim experienced pain during the assault and suffered laceration of her hymen); see also State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (holding that “force” occurred where victim had redness and soreness after being assaulted in her sleep); D.L.K., 381 N.W.2d at 438 (holding that bodily harm as defined by Minnesota law establishes that “force” occurred).

Aspelund’s assertion that the recent increase in the statutory penalty to a 90-month presumptive sentence for second-degree criminal sexual conduct[2] requires us to revisit caselaw interpretations of “personal injury” and “force” is also unpersuasive.  The legislature’s change in the presumptive penalty has no bearing on the unaltered definitions applicable to the “personal injury” and “force” elements of the offense.  Moreover, when the facts establish that imposition of the presumptive sentence would be unduly harsh, the district court may depart from the presumptive sentence after making the appropriate written findings.  Minn. Sent. Guidelines II.D.

Aspelund also asserts that the definitions of “force” and “personal injury” are unconstitutionally vague, thereby eliminating the distinction between fourth-degree and second-degree criminal sexual conduct, in violation of state and federal constitutional due process guarantees.  Our careful review of the record establishes that Aspelund did not raise this argument before the district court.  We, therefore, decline to address this issue for the first time on appeal.  See State v. Frazier, 649 N.W.2d 828, 839 (Minn. 2002).

II.

We review a departure from the sentencing guidelines to determine whether the district court abused its discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The district court may depart from the presumptive guideline sentence when “substantial and compelling circumstances” warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The Minnesota sentencing guidelines delineate appropriate factors that may be relied on to depart from the presumptive sentence.  Minn. Sent. Guidelines II.D.2.  The district court may consider whether substantial grounds exist that tend to mitigate the offender’s culpability.  Minn. Sent. Guidelines II.D.2.a.(5).  Additionally, to determine whether a sentence unfairly exaggerates the criminality of a defendant’s conduct, we compare the defendant’s sentence with sentences imposed on other offenders in similar cases.  Neal v. State,658 N.W.2d 536, 548 (Minn. 2003).  In doing so, we do not compare absolute numbers; rather, we review the degrees of deviation from the presumptive sentences.  Id. at 547.

The statutory maximum term of imprisonment for second-degree criminal sexual conduct is 25 years.  Minn. Stat. § 609.343, subd. 2(a) (2002).  The presumptive sentence for this offense is an executed sentence of 90 months in prison.  Id., subd. 2(b) (2002).  A sentence of fewer than 90 months in prison is a downward departure from the sentencing guidelines.  Id.

Aspelund argues that his 66-month sentence unduly exaggerates the criminality of his conduct.  When imposing the sentence, the district court considered the degree of physical injury to the victim to be a mitigating factor.  But the district court considered Aspelund’s conduct to be very serious despite the degree of physical injury to M.L., stating,

I’m totally comfortable with the decision that the jury made,   . . . they have spoken and the legislature has spoken, and they . . . dictated that the punishment to fit this crime . . . is 90 [months] in the custody of the Commissioner of Corrections.  . . .

I did, in preparation for the sentencing, have the exhibits that were admitted for the trial made available.  I have reviewed them.  . . . [T]here was injury, there was pain, and there was physical harm.  Nevertheless, the Court feels obliged to distinguish levels of injury and pain, and . . . there’s a huge leap from a presumptive stay to 90 months in prison. 

After everything I’ve heard, everything I’ve seen, everything I’ve read, I am going to depart downward durationally, not dispositionally. . . .  I feel this case does call for a prison sentence, but I am going to reduce the sentence by 24 months, and . . . the reason for the departure is . . . that the injuries here justify some consideration under the sentencing guidelines, Section D (2) (5).  . . . [T]he mitigation here is that the injuries, fortunately, were relatively temporary and could have been much more serious[.]

 

The district court articulated compelling circumstances warranting a downward departure consistent with the mitigating factors set forth in the sentencing guidelines.  Accordingly, the resulting downward departure did not constitute an abuse of discretion.

In comparing Aspelund’s sentence to those of other defendants convicted of similar offenses, we conclude that Aspelund’s sentence is either comparable or less severe.  See State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (affirming double upward durational departure from the presumptive sentence for second-degree criminal sexual conduct where the defendant placed his arm on the victim’s neck and struggled to pin her down), review denied (Minn. Mar. 31, 1994); State v. Dooley, 380 N.W.2d 582, 586 (Minn. App. 1986) (affirming presumptive sentence for second-degree criminal sexual conduct where defendant threw victim against a wall, pinned her down, and hit her in the jaw), review denied (Minn. Mar. 27, 1986); see also State v. Morales, 324 N.W.2d 374, 376-77 (Minn. 1982) (affirming double upward durational departure from the presumptive sentence for first-degree criminal sexual conduct where the defendant grabbed the victim by the throat, slapped her face, and pinned her down).  Thus, we reject Aspelund’s claim that his 66-month sentence, which is a 24-month downward durational departure from the presumptive sentence, unduly exaggerates the criminality of his conduct.

Affirmed.

 



[1]  Aspelund does not challenge his conviction of fourth-degree criminal sexual conduct.

[2] In 2002, the Minnesota legislature enacted the 90-month presumptive sentence for violations of Minn. Stat. § 609.343, subd. 1, (c)-(f), (h).  2002 Minn. Laws ch. 381, § 2(b).