This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





David Wayne Hearn,



Filed October 12, 2004

Affirmed in part and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 00087369




Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


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


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Suite 425, 2221 University Avenue S.E., Minneapolis, MN  55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge, presiding; Willis, Judge; and Shumaker, Judge.



U N P U B L I S H E D   O P I N I O N



            The supreme court has remanded this appeal for further consideration in light of State v. Welch, 675 N.W.2d 615 (Minn. 2004), on the issue of the validity of the conviction for kidnapping.  This court later granted appellant David Wayne Hearn’s motion for supplemental briefing on the impact of Blakely v. Washington, 124 S. Ct. 2531 (2004) on this appeal.  We affirm in part and remand.


The facts of this case are set forth in the panel’s published decision from 2002.  State v. Hearn, 647 N.W.2d 27 (Minn. App. 2002).  The complaint alleged that Hearn kidnapped and sexually assaulted B.A.M., a woman he met in a bar in May 2000, and who had accepted Hearn’s offer of a ride home.  Id. at 29.  On the way, B.A.M. agreed to Hearn’s request to stop at an office building where he worked.  Id.

When they arrived at the building, Hearn said he needed to go inside and that B.A.M. could also come in and use the restroom.  B.A.M. agreed.  While B.A.M. was inside a restroom stall, Hearn entered the stall, forcefully unfastened B.A.M.’s pants, lifted her shirt and bra, and put his hands and mouth on her breasts.  B.A.M. resisted and struggled with Hearn.  He then choked her, held her down, and demanded that she give him her purse.  When B.A.M. attempted to escape by crawling under the partition, Hearn grabbed her feet and pulled her back. 


Id.  B.A.M. managed to escape and hid in an office, but emerged after she thought she heard Hearn drive away.  Id. at 29-30.  The facts as to the second part of the kidnapping conduct are as follows:

Outside the building, Hearn drove his car up to her and demanded that she get in.  She refused, and Hearn grabbed her and forced her into the car.  They struggled, and B.A.M. was able to get out of the car.  Hearn followed, struck B.A.M. in the face, choked her, and pushed her to the ground.  Hearn then grabbed her purse and returned to the car.


Id. at 30.

            The jury found Hearn guilty of attempted first-degree criminal sexual conduct, second-degree criminal sexual conduct, and kidnapping (in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1998) (confinement or removal to facilitate commission of any felony)).  The district court sentenced Hearn to life imprisonment for the attempted first-degree criminal sexual conduct, a concurrent sentence of 25 years for second-degree criminal sexual conduct, and a consecutive 40 years, the statutory maximum, for kidnapping.  On appeal, this court reversed the life sentence for attempted first-degree criminal sexual conduct, held no separate sentence for the second-degree criminal sexual conduct was permissible, and affirmed the sentence duration for the kidnapping, but reversed the consecutive nature of the kidnapping sentence.  Hearn, 64 N.W.2d at 32-34.

            Hearn filed a petition for further review, which the supreme court granted, staying the appeal pending its decision in State v. Welch, 675 N.W.2d 615 (Minn. 2004).  On February 5, 2004, the supreme court issued its decision in Welch, reversing the kidnapping conviction on the grounds that it was merely incidental to the sexual assault.  Id. at 620-21.


            Hearn contends that the kidnapping was merely incidental to the sexual assault and attempted sexual assault against B.A.M.  We disagree.

In State v. Welch, the defendant followed a woman who was walking in a park pushing a baby stroller.  675 N.W.2d 615, 616 (Minn. 2004).  The defendant engaged the woman in conversation, then threw her to the ground and, although the victim sprayed him with Mace, straddled her and slammed her head against the ground, grabbed her hair, and started to choke her.  Id. at 616-17.  The victim escaped and ran toward a nearby bystander.  Id. at 617.  The supreme court reversed the kidnapping conviction, stating:

In this case, the facts clearly do not support a conviction for kidnapping.  No removal—let alone nonincidental removal—is even alleged.  Further, the confinement that forms the basis of the kidnapping is the very force and coercion that supports the attempted second-degree criminal sexual conduct conviction.  If such incidental conduct can support a kidnapping conviction, it is difficult to hypothesize about any sexual assault or attempted sexual assault that would not also constitute a kidnapping.


Id. at 620.

            Hearn “confined or removed” B.A.M. twice, once inside the restroom stall and again when he forced her into his car.  See Minn. Stat. § 609.25, subd. 1 (1998) (person who “confines or removes” another without consent commits a kidnapping).  Hearn argues that only the first of these confinements can be considered because the later confinement was not committed to facilitate the sexual offense.  The statute requires only that the kidnapping be committed to facilitate a felony offense.  Id., subd. 1(2).  But the prosecutor tried the case on the theory that criminal sexual conduct was the felony facilitated by the kidnapping.  In his closing argument, the prosecutor argued that Hearn tried to confine B.A.M. not only in the restroom stall, but also in the parking lot and when he dragged her into his car.  The prosecutor argued that the felony thereby facilitated was criminal sexual conduct.  The district court’s jury instructions specified that criminal sexual conduct was the crime allegedly facilitated by the kidnapping.  The later confinement in Hearn’s car facilitated the grabbing of B.A.M.’s purse, a robbery, rather than criminal sexual conduct, although Hearn may still have had a sexual assault in mind.

            But even limiting consideration to the confinement in the restroom stall, Hearn’s confinement of B.A.M. goes beyond that necessary to commit the sexual offense.  Although Hearn used the confining walls of the restroom stall to trap his victim and facilitate the sexual assault, his conduct went beyond that which is “merely incidental” to a sexual offense.  Aside from the fact that a sexual assault can be committed in a space less confining than a restroom stall, Hearn’s conduct in pulling B.A.M. back into the stall when she tried to escape goes beyond the “force or coercion” required for criminal sexual conduct.

            In Welch, the defendant threw the victim to the ground in a public park, straddled her on the ground and slammed her head against the sidewalk.  675 N.W.2d at 617.  Although slamming the victim’s head was a gratuitous form of cruelty, it was not a “confinement or removal.”  The kidnapping conduct committed–throwing the victim to the ground and confining her there by straddling her—was merely “incidental” to the sexual assault because nonconsensual sexual contact cannot be accomplished without forcing the victim, against her will, to remain in a stationary position.  Id. at 620.

            In State v. Smith, the “momentary blocking of the doorway” of a small bedroom was held to be “completely incidental” to the murder.  669 N.W.2d 19, 33 (Minn. 2003).  Hearn, however, confined B.A.M. in the much smaller space of a restroom stall for a longer period, and he pulled her back into the stall when she tried to escape.

            We conclude that Hearn’s kidnapping conduct in this case, even if limited to what occurred in the restroom stall, was more extensive than the conduct in either Welch or Smith.  The confinement in the stall was not “merely incidental” to commission of criminal sexual conduct.

            Hearn also argues that his upward sentencing departure for the kidnapping violates his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  The Supreme Court in Blakely held that sentencing the defendant under Washington’s determinate sentencing scheme to an upward departure based on findings made by a judge violated the Sixth Amendment right to a jury trial.  Id. at 2537-38.  The Court, further extending its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), limited sentencing based on judicial findings not just to the “prescribed statutory maximum,” as that term is commonly understood, but to the maximum sentence that could be imposed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Id. at 2536-37.

            The state argues that Blakely does not apply to Hearn’s sentencing departure on the kidnapping offense under the dangerous-offender statute.  The state argues that because this statute, as applied here, relies only on Hearn’s past criminal behavior, judicial fact-finding is permissible under the exception recognized in ApprendiSee Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362 (holding any fact “[o]ther than the fact of a prior conviction” that increases the sentence beyond the prescribed statutory maximum must be found by a jury).

            The general rule is that courts will exercise great restraint before striking down a statute as unconstitutional.  State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983).  The application of Blakely has not been litigated in the district court, although it has been the subject of supplemental briefing in this court.  Even if this court were to conclude that Blakely applies to the Minnesota sentencing guidelines, it would be necessary to determine what is the appropriate remedy.[1]  The district court is in the best position to resolve those issues.  And the sentence imposed in this case is already being remanded for reconsideration of the sentence on the attempted first-degree criminal sexual conduct conviction, based on this court’s earlier opinion.  Accordingly, although we affirm the kidnapping conviction, we remand the kidnapping sentence for consideration of the possible application of Blakely to Hearn’s sentence, and for determination of the appropriate remedy if Blakely applies.

            Affirmed in part and remanded.

[1]  Blakely did not remand for imposition of the upper end of the presumptive sentence, but for “further proceedings not inconsistent with this opinion.”  124 S. Ct. at 2543.