This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
State of Minnesota,
Larry Craig Padgett,
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Anoka County District Court
File Nos. K9-02-7100, K5-02-7739, K6-02-7975, K8-02-7976
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
On appeal from conviction and sentence for first-degree criminal sexual conduct, appellant Larry Craig Padgett argues that (1) the district court plainly erred by failing to give the jury a specific unanimity instruction; (2) the district court’s error in admitting highly prejudicial hearsay evidence was an abuse of discretion; (3) there was insufficient evidence to support his kidnapping conviction; (4) the district court plainly erred by sentencing him under two exclusive statutory provisions; and (5) the district court violated his constitutional right to a jury trial by imposing an aggravated durational departure. We affirm as to issues (1) and (2), reverse as to issues (3) and (4), and reverse and remand as to issue (5).
After returning home from a trip, S.R. locked the doors to her townhouse and went to bed at about 1:30 a.m. on August 1, 2002. She woke up to find a man, whom she later identified as appellant Larry Padgett, standing over her with his hand across her mouth. Padgett told S.R. not to scream and said that he was going to rape her.
Padgett then had forcible vaginal intercourse with her. After that, S.R. asked to use the bathroom. Padgett consented and followed her. In the bathroom, Padgett required S.R. to perform oral sex on him and then he had anal intercourse with her. When S.R. returned to the bedroom, Padgett again had vaginal intercourse with her and slapped her in the face while he did so. Padgett told S.R. “that he usually slaps his victims.”
After these four sexual assaults, Padgett left S.R.’s house and took with him S.R.’s purse and a box of wine. S.R. called 911.
Officer Mark Bonesteel arrived and interviewed S.R. about what had happened and what her attacker had said to her. The police traced various items of evidence, including S.R.’s cell phone and the wine box taken from her house, to Padgett. The state charged him with two counts of criminal sexual conduct in the first degree, burglary in the first degree, and kidnapping.
At Padgett’s jury trial, the district court instructed the jury that, as to the essential elements of any charge, its verdict had to be unanimous. The jury found Padgett guilty of all charges.
The court sentenced Padgett on one count of criminal sexual conduct to a term of 360 months, which was a double durational departure from the presumptive sentence, and to a consecutive 48-month term for the burglary. The court did not impose sentences on the additional convictions. Padgett appealed.
Two of the four issues Padgett raises on appeal relate to jury instructions and the admissibility of evidence.
Padgett argues that, because the state charged him with four acts of sexual penetration in two counts, the court was required to instruct the jurors that they had to unanimously agree as to which acts of penetration formed the basis for each count.
Before charging the jury, the district court reviewed the proposed jury instructions with the attorneys. Defense counsel not only did not object to a general unanimity instruction but affirmatively agreed that such instruction would be appropriate. Thus, we review the instruction for plain error. See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (explaining that failure to object entitles appellant only to review for plain error). There are three criteria for plain error: (1) there must be error: (2) the error must be plain; and (3) the error must affect substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)
A criminal defendant has a right to a unanimous jury verdict. State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). Padgett contends that, to ensure a unanimous verdict, the district court was required to instruct the jury that it had to agree on which two of the four acts of penetration constituted the offenses for which the jury ultimately convicted him.
In both counts of criminal sexual conduct in the first degree, the state charged unlawful sexual penetration without specifying the means of that penetration. The counts differ in that the first charges that Padgett accomplished his penetration by causing S.R. fear of great bodily harm, and the second that Padgett’s forcible penetration caused injury to S.R.’s vagina.
The district court instructed as to the first count that sexual penetration could take the form of sexual intercourse, fellatio, or anal intercourse. On the second count, the court instructed that penetration meant sexual intercourse.
Padgett alleges that the court’s error as to the first count was that the jury was not required to be unanimous regarding which act of penetration constituted the crime charged. Respecting the second count, Padgett alleges that the jury was not required to be unanimous on which of two acts of vaginal intercourse constituted the crime charged in that count.
Jurors are required to agree unanimously on essential elements of a charge and a defendant is entitled to the district court’s instruction that such unanimity is required. State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002). Padgett has focused his argument on the essential element of penetration. The court did instruct the jury that, as to each count of criminal sexual conduct, it had to find unanimously that penetration occurred.
The district court is not required to instruct that the jury be unanimous as to which of various alternative means was used to accomplish the penetration. Id. The court in Ihle recognized this principle by relying on Schad v. Arizona:
[W]e have never suggested that in returning general verdicts in [cases where alternative theories are presented] jurors should be required to agree upon a single means of commission . . . . In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree on the bottom line.” Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues that underlie the verdict.
501 U.S. 624, 631-32, 111 S. Ct. 2491, 2497 (1991) (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227) (1990)).
Applying this principle here, the jurors were instructed that they had to agree unanimously in count one that Padgett sexually penetrated S.R. They did not have to be told that they had to be unanimous as to how that penetration occurred. The district court did not err as to its instructions on count one.
Regarding count two, the means of the penetration are not at issue. Rather, Padgett contends that the jurors should have been instructed that they had to agree unanimously to which of two acts of intercourse formed the basis for their verdict.
It is unarguable that Padgett engaged in a single course of conduct involving various means of sexual penetration in various locations in S.R.’s townhouse. The evidence is clear and compelling that Padgett engaged in vaginal intercourse at two different times in S.R.’s bedroom. Analogously to the holding in State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992), aff’d,499 N.W.2d 31 (Minn. 1993), that specific dates of multiple acts of criminal sexual conduct need not be proved where the conduct is ongoing, here the jury did not need to be unanimous as to when the forcible, injurious vaginal intercourse occurred as long as it was unanimous on the essential element that it did occur. The district court did not err in its instruction on the second count.
As an additional safeguard of Padgett’s right to a unanimous verdict, the district court polled each of the jurors after their verdict was returned. See State v. Plantin, 682 N.W.2d 653, 662 (Minn. App. 2004) (concluding that polling the jury sufficiently safeguards the constitutional right to a unanimous verdict).
Padgett relies substantially on State v. Stempf, 627 N.W.2d 352, 359 (Minn. App. 2001), for his proposition that the district court erred in its charge on the criminal sexual conduct counts. But this case is distinguishable from Stempf.
In that case, the state charged a single act of possession of methamphetamine but introduced evidence of two separate and distinct acts of possession that occurred at different times, in different places, and by different means. Id. at 357. Then the prosecutor argued that it would be sufficient to convict if some jurors found that Stempf possessed methamphetamine on one occasion and others found possession only on the other date. Id. at 358. Because the act of possession was an essential element of the crime charged, we held that the jury had to unanimously agree as to which of the distinctly separate events constituted that crime. Id. at 359.
Unlike here, in Stempf there was no single course of conduct and the alleged instructional error was directed to the ultimate essential element of the crime rather than to underlying facts, such as alternative means or times of commission.
Padgett complains that the district court committed prejudicial error by allowing two statements into evidence. Evidentiary rulings are within the district court’s discretion and will not be reversed absent a showing of clear abuse of that discretion. State v. Ture, 353 N.W.2d 502, 515 (Minn. 1984).
S.R. testified that Padgett had slapped her once or twice during his sexual assaults. She also said she did not recall whether Padgett had said anything about slapping or whether she told an investigator about being slapped. Defense counsel then asked questions to show that S.R. could not recall telling anyone about slapping. On redirect examination, the prosecutor refreshed S.R.’s recollection about what she told investigators regarding slapping. She then recalled that she told a detective that Padgett “slapped my face and he gave some indication that he’s done this before.” Defense counsel on recross-examination established that S.R. did not mention slapping to the detective. After inquiry on this issue concluded, defense counsel objected on grounds of relevancy and unfair prejudice under Minn. R. Evid. 403. The court ruled that the statement about Padgett having done this before was probative as to S.R.’s fear and that outweighed any risk of unfair prejudice.
One of the counts of criminal sexual conduct alleged that Padgett accomplished his penetration through placing S.R. in fear of great bodily harm. Relevant evidence is evidence that has “any tendency” to make a consequential fact more probable or less probable. Minn. R. Evid 401. It is more likely that a victim would fear an assailant if the victim believed the assailant had used, and would continue to use, various means of physical harm to obtain compliance. And the assailant’s own words would solidify that fear. The statement was relevant.
A reasonable inference from Padgett’s statement that he had done this before is that he intended it as an implied threat to induce or augment fear in S.R. Because one of the counts was based on showing such fear, the probative value of the statement was relatively high, and Padgett has failed to show how admission of his own threat unfairly prejudiced him. There was no rule 403 violation.
Officer Bonesteel testified about his interview with S.R. shortly after the assault. He stated that S.R. reported that Padgett informed her that he usually slaps his victims. Defense counsel had objected to Bonesteel’s entire recitation and the court ruled it admissible as a prior consistent statement under Minn. R. Evid. 801(d)(1)(B). Subject to certain conditions, a prior statement is admissible under that rule if it is consistent with a declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility. Padgett contends that such prior statement is not admissible unless the declarant’s credibility has been challenged. He claims there was no such challenge here. He also contends that the prior statement was not helpful to the trier of fact in evaluating S.R.’s credibility.
In State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997), the supreme court explained the bases for the admissibility of a prior consistent statement, holding that the declarant’s credibility must have been challenged and the statement must bolster the declarant’s credibility as to the point of challenge.
S.R. was the only firsthand witness in the case. As such, her credibility was central to the case. Defense counsel challenged S.R.’s credibility by disputing her recollection of statements about slapping and by impeaching her with prior inconsistencies. Clearly, defense counsel attacked S.R.’s credibility, at least as to the issue of the act of and statements about slapping victims. The first requirement of Nunn was met.
As to the second requirement of Nunn, we addressed the issue in State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000), where we acknowledged that mere repetition of a statement does not necessarily imply veracity, “[b]ut a prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.” A prior consistent statement can also serve to rehabilitate a witness who has been impeached on prior inconsistencies. Here, the jury could find it helpful in evaluating the credibility of S.R. on the issue of slapping to learn that, despite some admitted inconsistencies and memory lapses on the witness stand, she made a consistent statement on that issue shortly after the sexual assault. The district court did not err in overruling defense counsel’s objection. And, for the reasons discussed above, this admission by Padgett was not inadmissible under rule 403.
The jury found Padgett guilty of kidnapping. Minn. Stat. § 609.25, subd. 1(2) (2002), provides that “[w]hoever . . . confines or removes from one place to another any person without the person’s consent . . . to facilitate commission of any felony . . . is guilty of kidnapping.”
To qualify as a kidnapping, the “confinement or removal must be . . . more than merely incidental to the underlying crime . . . . [W]here the confinement or removal . . . is completely incidental to the perpetration of a separate felony, it does not constitute kidnapping. State v. Smith, 669 N.W.2d 19, 32 (Minn. 2003).
In State v. Welch, 675 N.W.2d 615, 620-21 (Minn. 2004), a criminal sexual conduct case, the supreme court explained that kidnapping does not occur when “the confinement that forms the basis of the kidnapping is the very force and coercion that supports the . . . criminal sexual conduct conviction.” The confinements here, namely requiring S.R. to remain on the toilet stool while she performed oral sex on Padgett and then requiring S.R. to lean against the vanity so that he could accomplish anal penetration, were the types of “confinement” incidental to the sexual assaults and were not separate acts of kidnapping. Therefore, the kidnapping conviction must be reversed.
Padgett contends that his sentence was unconstitutional. This court reviews a constitutional challenge de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). The district court sentenced appellant to an aggravated durational departure of 360 months in prison under Minn. Stat. § 609.1095, subd. 2 (2002), on the basis of its findings that he had two or more prior convictions and is a danger to public safety. The presumptive sentence for criminal sexual conduct in the first degree is 144 months. Minn. Stat. § 609.342, subd. 2(b) (2002). Appellant argues that the recent United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies, determining that the presumptive sentence of 144 months is the maximum sentence to which the district court may have lawfully sentenced him. Appellant argues that under Blakely any departure above and beyond the presumptive sentence must be submitted to a jury for proof beyond a reasonable doubt.
Recently, this court applied the Blakely decision to Minnesota’s sentencing guidelines scheme, holding
that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.
. . . . Consequently, when a judge imposes an upward durational departure from the presumptive, fixed sentence established by the Sentencing Guidelines Commission, the judge’s reasons for departing must be supported by facts that were found by a jury or admitted by the defendant.
State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).
Minn. Stat. § 609.1095, subd. 2, authorizes a judge to impose an “aggravated durational departure” upon additional findings that the offender (1) has two or more prior convictions for violent crimes and (2) is a danger to public safety. According to Blakely, a defendant has a right to a jury determination of any fact, except the fact of a prior conviction. Blakely, 124 S. Ct. at 2537.
At the sentencing hearing, the district court found that appellant had three previous felony convictions—kidnapping in January of 1986, robbery in July of 1994, and attempted robbery in 1995. But the court also found that appellant was a danger to public safety on the basis of the presentence investigation, the circumstances surrounding his prior convictions, his general criminal history, his continued pattern of preying on women, his psychological evaluation, and his chemical dependency. Appellant, by pleading not guilty, admitted to none of the state’s charges.
Padgett also contends that the district court abused its discretion by ordering that he would not be eligible for supervised release. The court sentenced Padgett under Minn. Stat. § 609.1095, subds. 2, 3 (2002). Because the court imposed an aggravated durational departure under subdivision 2, subdivision 3 (authorizing a denial of supervised release) does not apply. Thus, the denial of supervised release must be reversed.
Affirmed in part, reversed in part, and remanded.
 The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004). By order filed in Shattuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant’s rights as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004). Shattuck, ___ N.W.2d ___ (Minn. Dec. 16, 2004) (per curiam). The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy. Id.