This opinion will be unpublished and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
State of Minnesota,
James Howard Derosier,
Affirmed in part, reversed in part, and remanded
Aitkin County District Court
File No. K7-01-76
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stephen V. Grigsby, Robert D. Miller, 2915 Wayzata Boulevard South, Suite 101 Minneapolis, MN 55405 (for appellant)
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Crippen, Judge.*
challenges his conviction and sentence
for first-degree criminal sexual conduct.
He argues that he was denied the right to a unanimous verdict. Appellant also asserts that the
jury-determination requirement of Blakely v. Washington, 124
Appellant James Derosier was charged with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(b), 2(a) (2000), for having a sexual relationship with a 15-year-old female when he was 49 years old. The victim had been an employee of appellant during the summer of 2000, when the offense took place.
At trial, the victim testified that she and appellant had engaged in sexual intercourse more than 11 times during June, July, and August of 2000. She could not provide exact dates, times, or places where the acts occurred. The state also introduced DNA evidence that the victim conceived a child with appellant. A medical doctor testified that conception occurred during the month of June.
court instructed the jurors that to convict appellant of first-degree criminal
sexual conduct, one element they must find was “that [appellant’s] act took
place on or about June, July, or August 2000 in
At the sentencing hearing, the state moved the district court to impose an upward durational departure and sentence appellant to 288 months in prison. Appellant moved the district court to impose a downward durational departure. The district court determined that no substantial or compelling reason existed to depart from the mandatory minimum sentence and sentenced appellant to 144 months in prison under Minn. Stat. § 609.342, subd. 2(b) (2000), which applies to all offenses occurring on or after August 1, 2000.
Appellant filed an appeal with the court of appeals in November 2003. In March 2004, appellant filed a motion to stay the direct appeal so that he could file a petition for postconviction relief with the district court. The court of appeals granted appellant’s motion to stay the appeal and ordered appellant to file letters with the court each month explaining the status of the case.
then filed a petition for postconviction relief with the district court. Appellant sought to reduce his sentence from
144 months to 86 months. The presumptive
sentence for first-degree criminal sexual conduct under the Minnesota
Sentencing Guidelines was 86 months for crimes committed before August 1,
The district court denied appellant’s petition for postconviction relief. The district court noted that before the trial, appellant was aware of the change in the statute but failed to object to the jury instructions. The district court determined that appellant’s sentence would be appropriate only if “there is no reasonable likelihood that all of [appellant’s] acts” occurred before August 1, 2000. Because the victim testified that she engaged in sexual intercourse with appellant in August 2000, the district court concluded that appellant’s sentence was proper. This appeal follows.
The first issue is whether appellant was denied his right to a unanimous verdict because the district court instructed the jury that it only had to find that appellant committed the crime in June, July, or August 2000. Appellant argues that this instruction permitted the jury to convict him without unanimous agreement on when appellant committed the crime.
afford the district court wide discretion regarding jury instructions and will
reverse only if the district court clearly abuses its discretion. State v. Stempf, 627 N.W.2d 352, 354 (
failed to object to the jury instructions at trial, we must determine whether
the district court committed plain error.
It is fundamental that a jury must be unanimous on the question of
whether a defendant committed the act that constitutes an element of the crime
charged. Stempf, 627 N.W.2d at
355. But “[u]nanimity is required only
with respect to the ultimate issue of the defendant’s guilt or innocence of the
crime charged, and unanimity is not required with respect to the alternative
means or ways in which the crime can be committed.” State
v. Begbie, 415 N.W.2d 103, 106 (
the state charged the defendant with one count of possession of
methamphetamine. 627 N.W.2d at 357. At trial, the state introduced evidence that
appellant had possessed methamphetamine on two specific, separate
Here, the appellant was charged with a single count of sexual misconduct based on a series of sexual encounters with the victim over a period of several months. The victim testified that there were at least 11 times when sexual penetration occurred during the period of June through August 2000. Specific dates were not identified, rather the charge and the testimony concerned ongoing sexual contact. Indeed, given the victim’s resulting pregnancy and proof of the appellant’s paternity, the larger issue at trial was whether appellant held a position of authority that affected his culpability. In Stempf, although only one offense was charged, the defendant’s conduct occurred on two different, known dates and in two different, known locations. The Stempf offenses were not alleged to be a single course of conduct. Additionally, while the defendant in Stempf provided different defenses to each offense, here appellant used the same defense for each act. We determine that here there is a commonality that was lacking in Stempf, and the jurors unanimously agreed that the offense occurred during the defined time period. Therefore, we determine the district court did not err in its instructions.
Even if the district court’s instructions were error, we conclude that the instructions did not violate appellant’s substantial rights. The requirement that plain error affect substantial rights is fulfilled if “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. At trial, the state provided DNA evidence that appellant fathered the victim’s child. Appellant did not dispute the evidence. We conclude the jury’s verdict was not affected by the jury instruction which appellant now challenges.
The second issue is whether the
district court erred in applying the mandatory minimum sentence that took
effect on August 1, 2000, to sentence appellant. This issue raises the question of whether
there was any act of sexual penetration after August 1, 2000, and whether the
state or the appellant had the obligation to request a jury determination of
the date of the offense.
The supreme court has previously
held that a defendant’s right to a jury determination of the date or dates of
the offense must be exercised by requesting an appropriate jury charge. State v.
But appellant contends that he has a constitutional right to a jury determination on this issue and that, under the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), that right cannot be easily waived. We review constitutional challenges under Blakely using the de novo standard. See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998) (stating that constitutional challenges are reviewed de novo), review denied (Minn. Feb. 24, 1999).
In Blakely, the
United States Supreme Court considered whether a district court could impose an
upward durational departure on a defendant’s sentence based on additional
aggravating factors found by the judge, not the jury. 124
The Minnesota Supreme
Court has held that Blakely applies to cases in which a defendant’s
sentence is an upward durational departure from the presumptive sentence. State v. Shattuck, 689 N.W.2d 785 (
sentence was based on the district court judge’s implicit finding that an act
of penetration occurred in August 2000 so that appellant could be sentenced under
Minn. Stat. § 609.342 (2000). There
was evidence in the record that supports the finding. Without such a finding, the maximum sentence
the district court could have imposed was 86 months. See
In these circumstances, placing the burden on the defendant to request a special interrogatory asking the jury to determine the date of the offense conflicts with the holding of Blakely. Under Blakely, a defendant has the right to a jury determination of any facts that extend the duration of the sentence, and the burden is on the state, not the defendant, to prove these facts.
In sum, because appellant’s jury verdict was unanimous, we affirm appellant’s conviction. But because appellant did not make a knowing, intelligent, and voluntary waiver of his right to have a jury determine whether the offense occurred after August 1, 2000, we conclude that appellant’s sentence violates Blakely. We reverse and remand for resentencing consistent with Blakely.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 At trial it was decided that appellant was in a continuous position of authority over the victim. That determination has not been appealed.
 Having concluded that the instructions were not plain error, we do not suggest that appellant would not be entitled to have the jury determine the specific date of the offense if he had requested such an instruction. This question is addressed in the next section of this opinion.
 We note that the right to a unanimous verdict and the right to a jury determination of the date of the offense are different. However, in this appeal the two issues come up in tandem.