This opinion will be unpublished and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

A03-667

 

 

State of Minnesota,

Respondent,

 

vs.

 

Steven R. Lund,

Appellant.

 

 

Filed May 25, 2004

Affirmed

Robert H. Schumacher, Judge

 

Goodhue County District Court

File No. K202838

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

Bradford W. Colbert, L.A.M.P., 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Steven R. Lund challenges his conviction of third-degree criminal sexual conduct, arguing the evidence is insufficient to support his conviction and the district court abused its discretion by failing to grant a downward departure from the presumptive sentence. We affirm.

FACTS

In December 2001, A.S. and Lund were living in a trailer home owned by A.S. They had been dating for approximately four years, were engaged to be married, and had lived together for intermittent periods.

In late December, A.S. arrived home after a day of shopping. Lund was upset when A.S. came home and, to avoid arguing, she told him she was tired and was going to bed. She went into her bedroom, put on a night shirt, and went to bed. Lund entered the room and asked A.S. if she would like a back rub. She said, "No, thank you." Lund asked, "Are you sure?" A.S. repeated, "No, thank you." A.S. and Lund both testified that it was common for back rubs to lead to sexual intercourse.

Lund took off his clothes, approached A.S. who was lying on her stomach, sat on her back or buttocks, and began giving her a massage. Lund is approximately 70 pounds heavier than A.S. According to A.S.'s testimony, while Lund was on top of her, he grabbed her hair and arched her head backwards. A.S. felt pain in her back, told Lund he was hurting her, and told him to stop. While pulling on A.S.'s hair, and with his knees on the back of her thighs, Lund pulled off her underwear and began having sexual intercourse with her. While this was happening, A.S. told Lund that he was hurting her, told him to stop, and was crying.

Lund turned A.S. over so that she was lying on her back and again had sexual intercourse with her. Lund testified to hearing A.S. say "no" at least "a couple of times." A.S. testified that at this point she was crying too hard to say anything. The next morning, Lund entered A.S.'s bedroom and said he was "sorry [he was] such a pig." On this record, the court found Lund guilty of third-degree criminal sexual conduct and sentenced him to a presumptive sentence of 74-month prison term.

D E C I S I O N

1. Lund argues the evidence was insufficient to sustain the conviction of third-degree criminal sexual conduct in violation of Minn. Stat.  609.344, subd 1(c) (2000). We review the evidence and any inferences from it in a light most favorable to the verdict. State v. DeWald, 463 N.W.2d 741, 748 (Minn. 1990). We assume that the factfinder believed the state's witnesses and disbelieved testimony to the contrary. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).

A person commits criminal sexual conduct in the third degree if that person accomplishes sexual contact through the use of "force or coercion." Minn. Stat.  609.344, subd. 1(c). Lund does not contest that he had sexual contact with A.S. He argues the evidence does not support the conclusions that he used coercion or that A.S. did not consent. Coercion is defined as "words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant . . .  or force the complainant to submit to sexual penetration or contact." Minn. Stat.  609.341, subd. 14 (2000). Consent is defined as "words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor." Minn. Stat.  609.341, subd. 4(a) (2000).

Here, A.S. testified that while she was face down on her bed, Lund applied pressure with his knees to the back of her legs and pulled her hair such that her head was forced backwards. While in this position, Lund removed A.S.'s underwear and penetrated her. During this time, A.S. told Lund that he was hurting her, told him to stop, and was crying. Proof of coercion does not require proof of a specific act or threat. Minn. Stat.  609.341, subd. 14. On this record, a finder of fact could reasonably conclude that Lund's physical conduct toward A.S. forced her to submit to sexual penetration. See, e.g., In re C.S.K., 438 N.W.2d 375, 377 (Minn. App. 1988) (noting that appellant's holding complainant's hands behind her back while she lay face down on bed constituted coercion and supported conviction of third-degree criminal sexual conduct).

A.S. told Lund twice that she did not want a backrub, knowing that backrubs in the past had led to sexual contact. After Lund began penetrating her, A.S. testified to repeatedly telling him that he was hurting her and to stop. Lund stated that he did not stop penetrating A.S., even though he heard her say "no" at least "a couple of times." There is sufficient evidence to support the trial court's finding that A.S. did not freely give, by words or overt actions, consent. See State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (holding rape includes forcible continuance of initially consensual sexual relations), review denied (Minn. Jan. 25, 1996).

2. Lund argues the district court abused its discretion by failing to grant a downward departure from the presumptive sentence. The district court's sentencing decision will not be overturned absent a clear abuse of discretion. State v. Schmidt, 601 N.W.2d 896, 898 (Minn. 1999).

Generally, probation may be imposed instead of an executed sentence if the defendant is particularly amenable to probation. State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). Amenability depends upon numerous factors including defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Lund contends he is particularly amenable to probation because he has a stable support network, has successfully completed treatment programs in the past, and is unlikely to re-offend.

We have reviewed the record before the district court at sentencing, including confidential portions of the presentence investigation report. This record does not support Lund's contention that he is particularly amenable to probation. The district court did not abuse its discretion in declining to grant a downward dispositional departure.

A district court may order a downward departure from the presumptive sentence if "substantial grounds exist which tend to excuse or mitigate the offender's culpability," even if those grounds do not amount to a defense. Minn. Sent. Guidelines II.D.2.a(5). When considering whether sufficient mitigating circumstances are present, a court should consider whether the conduct was significantly more or less serious than that typically involved in the commission of the crime in question. State v. Spain, 590 N.W.2d 85, 88-89 (Minn. 1999). Lund argues a downward durational departure is warranted because his conduct was less severe than the typical third-degree criminal sexual conduct case.

The record before the district court does not support Lund's contention. Evidence at trial shows Lund used physical force to coerce complainant's submission to nonconsensual sexual penetration. His crime was not committed in a less serious manner than the typical third-degree criminal sexual conduct crime. See, e.g., C.S.K., 438 N.W.2d at 377. This is not the "rare case" where the district court abused its discretion by imposing the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Affirmed.