This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Billy Demetrius King,




Filed September 6, 2005

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge



Dakota County District Court

File No. K9-03-3989



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


James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Following a jury trial, appellant was convicted of second-degree criminal sexual conduct, first-degree burglary, second-degree burglary, fourth-degree criminal sexual conduct, fifth-degree criminal sexual conduct, second-degree assault, fifth-degree assault, terroristic threats, and a pattern of harassing conduct.  Appellant argues that (1) the district court abused its discretion by permitting expert testimony on battered-woman syndrome, (2) because the conduct alleged did not involve force or coercion, it did not constitute second-degree criminal sexual conduct, and (3) the district court erred by imposing a sentence with an upward durational departure in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because we conclude that the district court did not abuse its discretion by allowing the expert testimony and that the jury could have reasonably concluded that the conduct alleged constituted second-degree criminal sexual conduct, we affirm the conviction.  But because appellant’s sentence violated his constitutional right to a jury trial, we reverse and remand for resentencing consistent with Blakely


            In February 2003, appellant Billy Demetrius King began a romantic relationship with S.S.  Less than a month later, appellant moved into S.S.’s apartment.  Almost immediately, the couple began to argue and disagree about her choice of friends and their influence over her decision-making.  S.S. testified that appellant exercised a large amount of control over her personal freedom:

I couldn’t go certain places.  I had to be in the house at a certain time.  When he called, I had to be there.  He told me I couldn’t cook, but then he would tell me he wanted me to cook him something to eat.  When I didn’t do it, I was called disobedient.


Over the next several months, the relationship became increasingly physically abusive.  S.S. testified about an incident in May 2003, when appellant pushed her onto the bathroom floor and held “his hand over [her] mouth [so she] couldn’t breathe.”  Despite the altercation, the couple’s relationship continued.  S.S. stated, “At that point in time, . . . I didn’t look at it as a bad situation, because we had, you know, we had good times.  He came and he said he was sorry and I accepted his apology.”  But S.S. also testified that the abuse continued, occurring “every other day.”

Over the summer, the relationship worsened, and the physical abuse continued.  S.S. testified about another incident occurring in September:

Q:        I’m going to focus your attention on September 30th, 2003, the incident regarding the ambulance.  Can you describe what you remember about that?


A:        We was out in Burnsville, at my house.  And I had had a drink.  We was arguing.  He pushed me, I fell, I hit my head.  When I woke up, I was in an ambulance. 


Q:        What did you tell the ambulance driver about how your injuries happened?


A:        . . .  I said me and my boyfriend got into a fight.  And I was having seizures at that time and so I kept going in and out. 


            . . . .


Q:        Did you stay in the hospital?


A:        No, I didn’t.


Q:        Why not?


A:        Because he had called—well, I called him from the room.  And he told me, he goes what [did I] tell them?  I told him nothing.  I told him I was okay.  I took my IV out and I told . . . the security guard that I was going to meet my uncle out front.  I walked out front and got in the truck with [appellant]. 


Once inside the truck, appellant again apologized to S.S.  At that time, appellant no longer continuously resided in S.S.’s apartment, but continued to visit “on and off.”  On Sunday, December 7, 2003, S.S. “heard somebody . . . fidgeting with [her door] lock.”  Before S.S. could brace the door, appellant entered the apartment, and S.S. ran to her bedroom.  Appellant got a knife from the kitchen and opened S.S.’s bedroom door.  He then grabbed S.S. by the hair, threw her on the bed, and screamed obscenities at her.  During the altercation and while brandishing a small pistol, appellant “rubb[ed] the knife all over” S.S and placed it in her mouth.  S.S. then testified:

                        Q:        Was [appellant] saying anything at that time?


A:        He was saying a lot of stuff.  I mean, just, “Which one would you prefer[, the knife or the gun]”?  Just a lot of stuff.


                        Q:        How did that make you feel?


A:        I was nervous, but I was—I was scared, but in my heart I knew he wouldn’t do nothing to me.  I didn’t believe he would.[[1]]


Q:        What happened next?


A:        I told him I had to go to the bathroom. . . .  And I tried . . . running [away] again.  He grabbed me again.


                        At this point in time, as I was going to the other bathroom, we was like right outside my bedroom door, but laying there, and he asked me who I had been f‑‑‑ing and I said, “Nobody.”  And he put his hands down [on my vagina], and [he] was like, “Oh, yeah, you’ve been f---ing somebody.”  He said, “Your sh-t is wet.”  That is his exact words. 


            . . . .


Q:        What happened next?


A:        He told me to get up off the floor.  He told me to get in the bedroom and we laid there.  And every time I tried to move, you know, he would do something, he would put his hand over my mouth or over my face.  And he was screaming, “Die, Bitch.  Die.  I don’t give a f--k about you.  Die.”  And then the next minute, “I love you.  We’ve been through too much.” 


Q:        Was this pattern familiar?


A:        Yes, it was.


Later, S.S. ran into the kitchen, and appellant pursued her.  S.S. got a knife, but appellant took it away from her.  After several hours, appellant eventually left, and S.S. called the police approximately 45 minutes later.

            Officer Christopher Wicklund responded to the dispatch and testified that S.S. reported that appellant had “grabbed her, threw her on the bed, and over the course of five hours [had] assaulted her, rubbed a knife on her face, threatened to kill her, [and] slapped her.”  Wicklund personally observed that S.S. had “some minor redness on her neck area” and that she appeared to be “very shaken” and “upset.”

After the December incident, S.S. did not have contact with appellant until the first week in January 2004.  Over the next two months, S.S. moved to Tennessee to be with her mother and exchanged “about twenty” phone calls and several letters with appellant.[2]  At one point, she told appellant, “If you need somewhere to stay, you can stay with me until you get on your feet.” 

By amended complaint, the state charged appellant with 14 criminal counts, including multiple counts of first-degree burglary and second-degree criminal sexual conduct, as well as counts of fourth-degree criminal sexual conduct, second-degree assault, terroristic threats, and a pattern of harassing conduct.  The state also moved to permit expert testimony regarding battered-woman syndrome, which the district court granted. 

            Just before trial, S.S. was interviewed by appellant’s attorneys and explained that, in her mind, appellant never sexually assaulted her.  The videotaped interview was played for the jury and offered into evidence.  Afterwards, S.S. confirmed the following:

                        Q:        And you never were frightened by [appellant]?


                        A:        Not in my heart.


Q:        Okay.  And you said that you argued like a normal couple, and you still believe that to this day?


                        A:        Yes.  Occasionally. 


Q:        And when you told [appellant] to stop, he stopped all the time?


                        A:        Yes.


Q:        And it was never a point where it was uninvited.  If you told the man to stop touching you, he would stop touching you?


A:        Yes.


Q:        And you were not fearful then and you’re not fearful today?


                        A:        No.  Not in my heart I wasn’t, no. 


During the state’s case-in-chief, Denise Wilder, a licensed clinical psychologist specializing in domestic violence, testified about battered-woman syndrome.  She explained that the syndrome is “a constellation of behaviors, feelings, thoughts, traits really, that are commonly observed in people who have been victims of domestic violence.”  Wilder further articulated that there is a three-stage “cycle of violence” associated with battered-woman syndrome:

The first stage is a build-up of tension.  There may be some name-calling, some verbal abuse, maybe a little pushing and shoving.  And that tension increases and increases until it finally culminates in an acute outburst of violence, the violent incident and assault. 


That is followed by the third phase, called the remorse or the honeymoon phase.  And during that phase of the cycle, the batterer is usually genuinely remorseful for the abuse, says that he’s sorry, it will never happen again, he doesn’t know what happened, he lost control of himself, he loves her, may send gifts, cards, flowers, do everything to try to make it up to her.  And gradually that falls away and that tension starts to build up again and the cycle goes around over and over. 


Wilder also explained that in addition to living “in terror,” battered women often accept blame for the abuse and “sometimes see[m] to deny that the abuse . . . was even intentional abuse or to minimize the extent of it.”

            Appellant testified on his own behalf and explained that his relationship with S.S. was “good.”  Regarding the incident of December 7, appellant testified that S.S. had invited him into her home and accused him of sleeping with other women.  When appellant attempted to leave, he explained that S.S. “pulled [his] arm” and that they “g[o]t to tussling . . . grabbing on each other, pushing each other.”  According to appellant, S.S. then ran into her bedroom and slammed the door.  In response, appellant “grabbed [a] knife and [] opened the door.”  Appellant then testified:

I open the door and I go in.  I throw her on the bed.  I’m like, “Man, what is your problem?  You need to calm down.”  She’s like, she breathing all like that.  I’m like, “What is wrong with you?”  She like, “You got me going crazy.”  I am like, “I’m going to go, man.  I ain’t messing with you, man.  You on some BS.”  And she closed the door back again. 


            She’s standing in front of the door, like, “You ain’t going nowhere.”  So I pull her to the side and I popped the door back open, poof, and I close the door, and run out the house.  I run down to the garage and jump in my truck and drive away. 


Appellant denied that he ever put a knife to S.S.’s neck or that he sexually assaulted her.  Appellant also denied or minimized the previous altercations with S.S.

A jury found appellant guilty of 11 of the 14 charged counts.  The district court imposed a concurrent guidelines sentence of 23 months for a pattern of harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5 (2002), and 68 months for first-degree burglary with assault, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002).  Departing upwardly, the district court sentenced appellant to 240 months in prison for second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subds. 1(e)(i), 2(a), 2(b) (2002), resulting in a total sentence of 308 months.  The district court based its decision to depart on its finding that appellant was a patterned sex offender.  This appeal follows. 



            Appellant first argues that the district court abused its discretion by permitting the state to present testimony on battered-woman syndrome.[3]  The admission of expert testimony is within the district court’s broad discretion, and this court will not reverse absent a clear abuse of discretion.  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).  When considering whether to admit expert testimony, the district court must determine whether the testimony will assist the jury in resolving factual questions presented at trial.  Minn. R. Evid. 702.  The district court must also balance the relevance of the testimony against the danger of creating unfair prejudice, the potential for confusing or misleading the jury, and other concerns under Minn. R. Evid. 403. 

            The supreme court has held that expert testimony on battered-woman syndrome may be admitted if it can help juries better understand the behavior of a woman suffering from the syndrome, which might otherwise be interpreted as a lack of credibility.  See State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997) (addressing whether and to what extent the state could present expert testimony on the syndrome); State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) (addressing under what circumstances a criminal defendant could present expert testimony on the syndrome in support of a self-defense theory).  But the admission of such testimony is not without bounds and must be limited to

a description of the general syndrome and the characteristics which are present in an individual suffering from the syndrome.  The expert should not be allowed to testify as to the ultimate fact that the particular defendant actually suffers from battered[-]woman syndrome.  This determination must be left to the trier of fact. 


Hennum, 441 N.W.2d at 799. 

In State v. Vance, this court permitted testimony on battered-woman syndrome during the state’s case-in-chief even though neither party directly attacked the victim’s credibility.  685 N.W.2d 713, 720 (Minn. App. 2004), review denied (Minn. Nov. 23, 2004).  In Vance, a victim recanted her earlier accounts of a sexual assault at trial. 719.  And even though neither the state nor the defense attempted to impeach the victim with her earlier statements, this court concluded that her credibility was at issue by the time the prosecution presented battered-woman-syndrome testimony.  Id.  Accordingly, “the district court properly admitted this testimony during the prosecution’s case-in-chief.”  Id. 

Here, the state also presented battered-woman-syndrome testimony during its case-in-chief.  And while S.S.’s credibility had not been directly attacked, the record reveals that it had been placed in question.  A week before trial, S.S. gave a videotaped statement to appellant’s attorneys in which she explained that appellant had not committed a “sexual assault” and that she was not afraid of appellant “in her heart.”  The jury was also presented with evidence that S.S. had continued to communicate with appellant and even offered him a place to stay, despite their history of abuse.  This evidence tended to exculpate appellant.  It was therefore not an abuse of discretion for the district court to permit testimony on the syndrome during the state’s case-in-chief. 

Appellant further argues that admission of the expert’s testimony was more prejudicial than probative.  “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”  Minn. R. Evid. 403.  The supreme court has upheld the presentation of expert testimony by the state to explain a complainant’s behavior, especially when the scientific reliability of expert testimony is not at issue.  Grecinger, 569 N.W.2d at 196.  If adequate limitations are placed on the presentation of battered-woman-syndrome testimony, a defendant is not unfairly prejudiced by the prosecution’s use of expert testimony under rule 403.  Id.  Specifically, an expert “may not suggest that the complainant was battered, was truthful, or fit the battered woman syndrome.  Likewise, the expert may not express an opinion as to whether the defendant was in fact a batterer.” 197. 

While it is true that S.S. did not specifically recant her testimony or delay in reporting the incident to authorities, she gave explanations for appellant’s behavior, accepted his apologies, and even offered to provide him with housing while he “g[ot back] on [his] feet.”  Again, this testimony tended to exculpate appellant and offered explanations for his behavior, thereby placing S.S.’s own credibility at issue.  And while the testimony regarding battered-woman syndrome might have been suggestive, it cannot be said to have been unduly prejudicial on this record, especially when the expert did not offer an ultimate opinion as to whether S.S. actually suffered from the syndrome herself.  The district court did not, therefore, abuse its discretion by permitting testimony on battered-woman syndrome. 


            Appellant next agues that even accepting S.S.’s testimony as true, the conduct alleged by S.S. did not constitute second-degree criminal sexual conduct and that his conviction of that offense should therefore be reversed.  When considering a claim of insufficient evidence, this court’s 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 did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            More specifically, appellant argues that his actions did not constitute “force,” as defined by Minnesota law in the sexual-conduct context.  A person is guilty of second-degree criminal sexual conduct if he engages in sexual conduct and “causes personal injury to the complainant” and “uses force or coercion to accomplish the sexual contact.”  Minn. Stat. § 609.343, subd. 1(e)(i) (2002) (emphasis added).  “Force” is defined as

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).  “Significant relationship” includes a situation in which the actor is “an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.”  Minn. Stat. § 609.341, subd. 15(3) (2002).  “Coercion” is defined as

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). 

            Here, there was sufficient evidence for the jury to conclude that appellant had “use[d] force or coercion to accomplish the sexual contact” with S.S.  Minn. Stat. § 609.343, subd. 1(e)(1).  For example, S.S. repeatedly stated that she was not afraid of appellant “in [her] heart.”  The state’s attempt to clarify what S.S. meant by not having fear “in [her] heart” for appellant proved unsuccessful, but also revealed a woman who was keenly aware of appellant’s ability to inflict harm:

Q:        [S.S.], you stated that you had no real fear in your heart [for appellant].  What was in your head?


A:        Why was he doing it to me?  You know, I know he loved me and I know I loved him, but I didn’t understand it. 


            . . . .


Q:        Why did you [barricade yourself in the bedroom]?


A:        Because I didn’t want him to get to me.  You know, I just didn’t want to go through that again.


Q:        Why didn’t you want to go through that again?


A:        Because I was tired. 


Letters sent by S.S. to appellant while he was in jail more clearly illustrate that S.S. was actually fearful of appellant during the December 7 incident and that S.S. could have “reasonably believed that [appellant] ha[d] the present ability to execute the threat” against her.  Minn. Stat. § 609.341, subd. 3.  For example, S.S. wrote to appellant, “when you came out there that Sunday, you scared me.”  (Emphasis added.)  In another letter, S.S. attempted to explain why she called the police, writing, “I shouldn’t have called the police on you that day, but you really did scare me.  I didn’t know if you were really going to hurt me, I saw it in your eyes, but I wasn’t sure.”  (Emphasis added.)

Viewing the evidence in a light most favorable to the conviction and given the totality of the evidence before it, the jury could have reasonably concluded that (1) appellant used force or coercion to accomplish the sexual contact with S.S. and (2) S.S. reasonably believed that appellant had the present ability to execute the threat or reasonably feared that appellant would inflict bodily harm on her or force her to submit to sexual penetration or contact.  Minn. Stat. §§ 609.343, subd. 1(e)(1), .341, subds. 4, 14.  Accordingly, we defer to the fact-finder’s ability to assess the evidence before it and its conclusion that appellant was guilty of second-degree criminal sexual conduct. 


            Departing upwardly from the presumptive 90-month sentence, the district court sentenced appellant to 240 months for second-degree criminal sexual conduct based on its finding that appellant is a patterned sex offender.  Appellant argues that the district court erred by imposing the upward durational departure without findings by a jury, in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The application of Blakely presents a constitutional issue, which we review de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). 

            As a preliminary matter and based on State v. Leja, 684 N.W.2d 442, 447 n.2 (Minn. 2004), the state argues that appellant waived his Sixth Amendment right to a jury’s determination of any sentencing facts because he failed to challenge his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), at the time of sentencing.  But in Leja, the supreme court reduced an upward departure on other grounds.  684 N.W.2d at 450.  Moreover, Blakely was not released until after Leja had been argued.  Id. at 447 n.2.  In addition, this court has more recently held that a defendant is “entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial.”  State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  In Fairbanks, we concluded that a case is “pending” as long as appellant has not exhausted “all rights to appeal and certiorari” and that if Blakely issues are raised on direct appeal, they are properly before us.  Id.; see also O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004) (stating that “a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”).  Accordingly, and because a defendant’s failure to raise Apprendi in the district court does not waive his right to assert Blakely on direct appeal, appellant has not waived his constitutional claim, and the state’s argument is without merit.

            Turning to the heart of appellant’s argument, we recently addressed Blakely’seffect on a district court’s upward durational departure under the patterned-sex-offender statute in State v. Boehl, 697 N.W.2d 215 (Minn. App. 2005).  Under the statute, when a district court imposes a sentence for certain cases of criminal sexual conduct, it “‘shall’ impose a sentence that is not less than double the presumptive sentence but not more than the statutory maximum if the defendant meets the criteria of a patterned sex offender.”  Boehl, 697 N.W.2d at 221 (citing Minn. Stat. § 609.108, subd. 1(a) (2004)).  The criteria are:

(1)       it reasonably appears the crime was motivated by the offender’s sexual impulses or was a part of a predatory pattern of behavior that had criminal sexual conduct as its goal;


(2)       the offender is a danger to public safety; and


(3)       based on a professional assessment by an experienced examiner, the offender needs long-term treatment beyond the presumptive term of imprisonment and supervised release. 


Id.(citing Minn. Stat. § 609.108, subd. 1(a)(1)-(3)).  In Boehl, we concluded that a sentence under the patterned-sex-offender statute violated Blakely because a criminal defendant’s sentence under the statute “was based on factors that go beyond mere criminal history and that were not admitted or found by a jury.” 222.  Because the defendant did not waive his right to a jury trial on the district court’s findings, his sentence violated the Sixth Amendment, and this court reversed and remanded for sentencing in accordance with 222-23.

            The same holds true here, where the district court found:

[T]he evidence supports a finding that [appellant] is a patterned sex offender.  I think he’s unamenable to treatment.  I think the level of deceit and non[-]cooperation he showed during the evaluation process makes it very unlikely he can successfully complete treatment.  And I am going to adopt the recommendations made by Corrections.[4] 


(Emphasis added.)  Because it was error to sentence appellant to an upward departure from the presumptive sentence based on patterned-sex-offender findings made by the district court rather than a jury, we reverse and remand his sentence to the district court for resentencing in accordance with Blakely.

Affirmed in part, reversed in part, and remanded.

[1] On cross-examination, S.S. testified that she was “scared” and also admitted that she felt “threatened,” but explained, “but in my heart I didn’t feel I was [threatened]—I mean he was what actually bothered me.”  Again, when later asked if she felt frightened by appellant, S.S. testified, “Not in my heart.”

[2] A review of these letters reveals mixed emotions between S.S. and appellant.  In a letter postmarked February 23, 2004, just a month before trial, S.S. told appellant that she would “be there” for appellant as a friend, but also explained, “I can’t see myself being your woman again, look at where we ended up at, there is still a part of me that’s still scared of you.”  In the same letter, she said, “it is not me that is bringing these charges against you, it’s the state.  I’m just a witness.”  She continued, “when you came out [to my apartment] that Sunday, you scared me.”  (Emphasis added.)  Other letters reveal more of the same.  For example, “I shouldn’t have called the police on you that day, but you really did scare me.  I didn’t know if you were really going to hurt me, I saw it in your eyes, but I wasn’t sure.”  (Emphasis added). 

[3] Appellant also contends that the district court erred by failing to explain its rationale for admitting the battered-woman testimony on the record.  But a district court need not state the basis for its rulings, especially when, as here, the issue had been “thoroughly briefed and orally argued before the district court.”  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (affirming use of a prior conviction for impeachment purposes and endorsing a harmless-error analysis if the conviction could have been admitted after a proper application of factors for impeachment of a defendant with a prior conviction), review denied (Minn. Dec. 11, 2001).   

[4] A psychological and psychosexual report relied upon by the district court offered the following opinions: (1) appellant is dangerous and should not be released to the community, (2) appellant does not appear to be amenable to treatment, (3) appellant meets the criteria for sentencing under the patterned-sex-offender statute, and (4) appellant “appear[s] to” meet the criteria for commitment under the sexually-dangerous-person statute.  The report and a PSI revealed that appellant had been charged with a number of sexual offenses as a juvenile in Alabama, including sexual abuse in the first degree and rape.