This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed May 10, 2005
Hennepin County District Court
File No. 03071227
Mike Hatch, Attorney General, 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, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.
Appellant challenges the jury’s verdict finding him guilty of third-degree criminal sexual conduct and first-degree burglary. Because we conclude that there was sufficient evidence for the jury to reasonably find appellant guilty of the charges, and because the district court did not commit error when it denied appellant’s motion to suppress evidence, we affirm.
On October 3, 2003, R.A.G., the victim, attended a
party at a friend’s house and consumed an inordinate amount of alcohol. Around midnight, R.A.G. got in a car and
accompanied two friends to
approximately 20 minutes, the friends decided that R.A.G. should go to bed, and
Once inside the apartment, one friend opened the bedroom door, turned on the light, and saw appellant on top of R.A.G. One friend observed that R.A.G. was motionless and that her eyes were shut. After appellant left the room, R.A.G.’s friend shook her to wake her up and noted that R.A.G. “definitely looked passed out.”
an interview with a
trial, appellant made an omnibus motion, denied by the district court, to
suppress statements made to
argues that he was deprived of his Fourth Amendment right not to be subjected
to an unreasonable search and his Fifth Amendment right against
dictates of the Fourth and Fifth Amendments only apply to state actors.
next argues that the evidence was insufficient as a matter of law to convict
him of third-degree criminal sexual conduct and first-degree burglary. In considering a claim of insufficient
evidence, our review is limited to a painstaking 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
was convicted of third-degree criminal sexual conduct under Minn. Stat. §
609.344 (2002), which at the time of the alleged offense prohibited sexual
penetration if appellant knew or had reason to know that R.A.G. was “mentally
impaired, mentally incapacitated, or physically helpless[.]” Minn. Stat. § 609.344, subd. 1(d). In its closing argument, the state contended
that R.A.G. was “physically helpless” at the time of the penetration. State law categorized a person as physically
helpless if the person was “(a) asleep or not conscious, (b) unable to
withhold consent or to withdraw consent because of a physical condition, or (c)
unable to communicate nonconsent and the condition [was] known or reasonably
should have been known to the actor.” Minn.
Stat. § 609.341, subd. 9 (2002). A
person determined to be physically helpless cannot consent to sexual
state first argues that the evidence was sufficient for the jury to find that
R.A.G. was physically helpless, either because she was asleep or because she
was unable to communicate nonconsent.
Appellant argues that there is insufficient evidence to show that R.A.G.
was asleep at the time of the penetration, because she smiled and originally
resisted his overtures, which proved that she was awake. 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.”
R.A.G.’s friends testified that they stayed in the same room until R.A.G. fell asleep and found her asleep on the three occasions when they had checked on her. Additionally, upon finding appellant on top of R.A.G., one friend testified that R.A.G. was just lying on the bed and “[h]er eyes were pretty much just shut.” The same friend testified that she had to shake R.A.G. to wake her up. Another friend added that R.A.G. made no movement to cover her naked body after appellant was discovered. R.A.G. testified that she could vaguely recall hearing a man’s voice using sexual language during the encounter as she was sleeping. Appellant also stated that R.A.G. was “kind of” asleep during the incident.
There was also sufficient evidence for the jury to reasonably conclude that R.A.G. was incapable of giving consent: she was described as being very drunk, “not really aware of what was going on,” and she testified that she was unable to respond to appellant’s voice as he lay over her in the bed. Given the state of the record, the jury could have reasonably concluded that R.A.G. was asleep, or otherwise unable to communicate nonconsent, and thus was physically helpless when appellant penetrated her, which is a necessary factor in a third-degree criminal sexual conduct prosecution.
other statutory factor mandates that appellant knew or had reason to know that
R.A.G. was physically helpless at the time of the penetration. Minn. Stat. § 609.344, subd. 1(d). There was sufficient evidence presented at
trial for the jury to find that appellant had such awareness. Before R.A.G. was put to bed, appellant had
an opportunity to observe R.A.G. and her state of intoxication. Appellant told
was also convicted of first-degree burglary, which at the time of the offense
prohibited anyone from entering “a building without consent and [committing] a
crime while in the building[.]” Minn.
Stat. § 609.582, subd. 1 (2002). The
burglary statute required the building to be a dwelling and a person to be
present in the dwelling when the burglar entered.