This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Harry Lennell Charles,
Reversed in part and remanded
Hennepin County District Court
File No. 03032550
Michael A. Hatch, Minnesota Attorney General, Suite 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*
Appellant Harry Lennell Charles challenges his conviction of fourth- and fifth-degree criminal sexual conduct arguing that he was denied effective assistance of counsel, the jury instructions improperly shifted the burden of proof to him, he did not waive his right to testify on the record, and there was insufficient evidence that he used force or coercion to commit fourth-degree criminal sexual conduct. Appellant also challenges his sentence, arguing that it is disproportionate to the severity of the offenses and is unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004). We remand appellant’s claim of ineffective assistance of counsel to allow appellant to pursue the claim by petition for post-conviction relief, and reverse the sentence imposed under the dangerous offender statute and remand for resentencing consistent with the mandates of Blakely.
Appellant was charged with two counts of third-degree criminal sexual conduct for digitally penetrating 18-year-old T.M. The district court dismissed one of the counts and granted appellant’s request to instruct the jury on the lesser-included offenses of fourth- and fifth-degree criminal sexual conduct and on voluntary intoxication. In giving jury instructions, the district court twice misstated the burden of proof, but immediately corrected each misstatement. Appellant asserts that, in closing argument, his attorney conceded appellant’s guilt to fifth-degree criminal sexual conduct, and the record does not reflect that appellant consented to such a concession. The jury found appellant guilty of fourth- and fifth-degree criminal sexual conduct. The presumptive guideline sentence for fourth-degree criminal sexual conduct, given appellant’s criminal history score of five, is 51 months but the district court sentenced appellant to 102 months after concluding that appellant is a dangerous offender under Minn. Stat. § 609.1095, subd. 1(d) (2002). This appeal followed.
I. Ineffective assistance of counsel
Appellant argues that counsel was ineffective because counsel conceded appellant’s guilt to fifth-degree criminal sexual conduct during closing argument without appellant’s consent. Ineffective assistance of counsel claims require the defendant to prove that
his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984) (defendant must show deficient performance and resulting prejudice)). The rules of professional conduct mandate an attorney to defer to the client’s decision as to any plea to be entered. Minn. R. Prof. Conduct 1.2 (a). If defense counsel “impliedly admits a defendant’s guilt without defendant’s permission or acquiescence, the defendant should be given a new trial.” State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984). But an admission of guilt, with the defendant’s consent, can be an acceptable trial strategy. State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991). Scrutiny of defense counsel’s performance should be highly deferential. State v. Dukes, 660 N.W.2d 804, 811 (Minn. 2003).
The state argues that appellant’s counsel did not actually concede appellant’s guilt to fifth-degree criminal sexual conduct in closing argument given the context in which the statements were made. Our review of the record demonstrates that there is some merit in this argument. But the state, in rebuttal closing argument, asserted that it had proved appellant’s guilt on all of the offenses submitted, and told the jury: “This man is guilty of criminal sexual conduct in the third degree. He’s guilty of criminal sexual conduct in the fourth degree. And as conceded, he’s guilty of criminal sexual conduct in the fifth degree.” Defense counsel declined surrebuttal and thereby clearly communicated to the jury that appellant conceded his guilt to fifth-degree criminal sexual conduct.
The state also argues that appellant’s counsel’s statements constituted trial strategy to which appellant acquiesced. The supreme court has held that a defendant acquiesces to a concession of defendant’s guilt “when admitting guilt was an ‘understandable’ strategy, and the defendant was present at the time the concessions were made and admits that he understood that his guilt was being conceded, but did not object.” State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). Although the facts in this case make a concession of guilty to fifth-degree criminal sexual conduct an understandable trial strategy, appellant had very little opportunity to appreciate that a concession was made, and the record does not demonstrate that appellant understood that his guilt was conceded when counsel declined surrebuttal. The record does not reveal whether counsel obtained appellant’s consent to such a trial strategy.
Claims that require a court to explore conversations between attorney and client are best handled on petition for postconviction relief. Robinson v. State, 567 N.W.2d 491, 495, 495 n. 3 (Minn. 1997). Because the record is insufficient to permit adequate review of appellant’s claim of ineffective assistance of counsel, we remand this claim to allow appellant to pursue the claim by petition for postconviction relief. See Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (stating that a postconviction hearing is necessary when the record is not sufficient to allow proper review of an ineffective assistance of counsel claim).
“[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “A jury instruction is in error if it materially misstates the law.” State v. Lindsey, 654 N.W.2d 718, 722 (Minn. App. 2002). A reviewing court will reverse if the jury instructions are confusing or misleading on the fundamental points of law such as the burden of proof. State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).
In this case, the district court, through what both parties concede was a slip-of-the tongue, misstated the burden of proof twice during final instructions. After stating that the defendant was presumed innocent, and always innocent until proved guilty beyond a reasonable doubt, the district court said: “[t]he burden of proving guilt is on the defendant—is on the State. The defendant does not have to prove innocence.” There was no objection when this slip occurred. Later, after the district court correctly instructed on the definition and elements of each offense submitted and explained that lesser offenses have the same presumption of innocence and the same burden of proof beyond a reasonable doubt, the district court, when instructing about how the burden of proof of intoxication was on the defendant, the district court stated, “[H]owever, the defendant must prove beyond a reasonable doubt that the defendant had the required intent.” Appellant’s counsel immediately stated, “I’m sorry, Your Honor. The State.” And the district court responded, “I’m sorry. I misread that. As I said it, I wondered whether or not I misstated it. Let me state that sentence again. However, the State must prove beyond a reasonable doubt that the defendant had the required intent.”
From our review of the jury instructions in their entirety, we conclude that the two immediately corrected misstatements by the district court did not result in confusion and did not mislead the jury on the burden of proof, which was correctly stated in the preliminary instructions, correctly stated numerous times during final instructions, and emphasized by the state in its closing argument. The district court did not commit reversible error with regard to the jury instructions.
“When the defendant proves that his attorney denied him his right to testify [the appellate court] will grant a new trial regardless of the probable result in a subsequent proceeding.” State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997). In Minnesota, the right to testify is personal, cannot be waived by defense counsel, and any waiver should be voluntary and knowing. Id. at 751. See also Minn. R. Prof. Conduct 1.2(a) (in a criminal case, lawyers must abide by the client’s decision as to whether the defendant will testify). When the appeal is only from the judgment of the conviction, without the benefit of a postconviction hearing, and without anything in the record to suggest otherwise, this court must “presume that the decision not to testify on the record was made by defendant voluntarily and intelligently.” State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). The supreme court, although noting that placing a defendant’s waiver of his right to testify will often save time at any postconviction proceeding, has specifically declined to use its supervisory powers to impose a requirement that trial courts perform an “on-the-record colloquy with every criminal defendant who does not testify.” Walen, 563 N.W.2d at 751-52.
In this case, the district court, out of the presence of the jury but in appellant’s presence, brought up the issue of whether appellant would choose to testify, noting that “he has a criminal sexual conduct conviction from 1993 that he has not been discharged from parole on . . . .” At that point, appellant’s counsel noted that appellant “doesn’t have a perfect memory and his testimony would be of limited value” and said appellant had not decided whether to testify but the decision would be easier if appellant knew whether the state would use his prior convictions for impeachment, which defense counsel argued would be highly prejudicial. The state indicated that it would seek to introduce appellant’s prior criminal sex conviction for impeachment purposes. The district court, on the record, reviewed the factors set out in State v. Jones, 271 N.W.2d 534 (Minn. 1978), and concluded that it would allow the state to impeach appellant with the prior conviction.
The next day, before the jury entered the courtroom, in appellant’s presence, appellant’s counsel told the court: “I have consulted with [appellant], and he does want [the jury instruction on his right not to testify] left in the [jury instructions].” On this record, we conclude that appellant waived his right to testify and that appellant’s waiver of the right to testify was counseled, knowing and voluntary, and failure to place the waiver on the record is not reversible error.
IV. Sufficiency of evidence to support conviction of fourth-degree criminal sexual conduct
This court performs a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must 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 a defendant was proven guilty of the offense charged.” State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant argues that the state failed to prove beyond a reasonable doubt that he used force or coercion required for a conviction of fourth-degree criminal sexual conduct.
“Force” means 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.
Minn. Stat. § 609.341, subd. 3 (2002). And:
“Coercion” means 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 another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.
Minn. Stat. § 609.341, subd. 14 (2002). Coercion can be found if a defendant intentionally creates an atmosphere of fear. State v. Gamez,494 N.W.2d 84, 87 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993). Appellant argues that there is no evidence that he caused or threatened to cause bodily harm or pain and that because T.M. did not testify that she feared infliction of bodily harm, or was held in confinement, or was forced to submit, the record does not support a finding of force or coercion.
But the statute does not require a specific act or threat. Additionally, there need not be a showing of actual physical harm. See State v. Daby, 359 N.W.2d 730, 733 (Minn. App. 1984) (noting that creating an atmosphere of fear which caused submission to sexual advances constitutes sufficient evidence of force, and holding that victim’s action of initially rebuffing advances, resisting being pulled into a truck, along with victim’s prompt complaints and disheveled appearance sufficiently supported finding of force or coercion). T.M.’s testimony supports appellant’s contention that appellant did not make any oral threats of harm at the time of the incident. But T.M. told her sisters and her mother that she thought appellant was going to rape her, and five witnesses testified to T.M.’s disheveled appearance and her shaking and crying. And four witnesses responded to T.M.’s immediate requests for help. We conclude that the record contains sufficient evidence to support a finding of force or coercion.
The district court concluded that appellant is a dangerous offender under Minn. Stat. 609.1095, subd. 2 (2002), and imposed a 102-month sentence, which is a double-upward departure from the 51-month presumptive guideline sentence for fourth-degree criminal sexual conduct based on appellant’s criminal history score of 5. Appellant first argued that the sentence was disproportionate to the severity of the offense. After appellant’s brief was submitted to this court, the United States Supreme Court held that Washington state’s sentencing procedure did not comply with the Sixth Amendment to the United States Constitution because an upward departure imposed was not based solely on facts reflected in a jury verdict or admitted by the defendant. Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004).
In this case, the state argues that appellant has waived the right to assert Blakely, Blakely does not apply to Minnesota’s sentencing guidelines, and if it does apply to the guidelines, it does not apply to this case in which sentencing was pursuant to the dangerous offender statute and based on prior criminal history. We disagree.
“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987). And the supreme court has held that “if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). This case was in direct appeal when Blakely was released, the state fully briefed Blakely following appellant’s supplemental letter raising Blakely, and appellant appropriately responded to the state’s argument in his reply brief. We conclude that the Blakely issue was not waived and is properly before us in this appeal.
We recently held that Blakley applies to the Minnesota sentencing guidelines. See State v. Conger, 687 N.W.2d 639 (Minn. App. 2004) (involving guilty plea), review granted (Minn. Dec. 22, 2004); State v. Saue, 688 N.W.2d 337 (Minn. App. 2004) (involving jury verdict), pet. for review filed (Minn. Dec. 2, 2004). In State v. Mitchell, 687 N.W.2d 393 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004), we applied Blakely to a sentence imposed under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002), because the determination that a defendant has engaged in a “pattern of criminal conduct” goes beyond a mere determination as to the fact and number of an offender’s prior convictions, which judges are permitted to use for an upward departure without violating the Sixth Amendment under Blakely. Id. at 399-400. Following the reasoning in Mitchell, this court held in State v. Fairbanks, 688 N.W.2d 333 (Minn. App. 2004), pet. for review filed (Minn. Dec. 2, 2004), that the district court’s determination under the dangerous offender statute, § 609.1095, subd. 2(2)(ii), violated Blakely because the district court relied on statutory factors that were not part of the stipulated-trial facts in that case. Id. at 337. In this case, appellant’s sentence was based on factors that go beyond mere criminal history and that were not admitted or found by a jury. Because a judicial determination of such factors runs afoul of Blakely,we reverse the sentence imposed and remand for sentencing consistent with the mandates of Blakely.
Reversed in part and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The judge essentially followed the statutory definitions of both force and coercion, and appellant does not claim the instructions to have been made in error regarding these definitions.
 The supreme court granted review in Conger, but stayed additional processing of the matter pending a final decision in State v. Shattuck,No. C6-03-362 (Minn. argued Nov. 30, 2004). By order filed in Shattuck on December 16, the supreme court held that the imposition of an upward durational departure under the sentencing guidelines and 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). State v. 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.
 See supra note 2. The supreme court also granted review in Mitchell, but stayed additional processing of the matter pending a final decision in Shattuck.