This opinion will be unpublished and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
Dana A. Warmbold, petitioner,
Filed September 27, 2005
Itasca County District Court
File No. KX-02-2401
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, Minnesota 55744 (for State)
Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this consolidated appeal from a postconviction order affirming his conviction of first-degree criminal sexual conduct involving force or coercion, Dana Warmbold argues that (1) the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration, (2) he was denied the effective assistance of counsel because of a conflict of interest, and (3) the prosecutor committed prejudicial misconduct. The state challenges Warmbold’s sentence, arguing that the district court abused its discretion by, in effect, applying Blakely retroactively to reduce Warmbold’s sentence to the presumptive term. We affirm Warmbold’s conviction, but we reverse his sentence and remand.
A petition for postconviction relief
is a collateral attack on a judgment that carries a presumption of regularity
and cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (
Warmbold argues that the evidence is insufficient to support his conviction of first-degree criminal sexual conduct because it does not establish that he used force or coercion to accomplish sexual penetration. We disagree.
When reviewing a
sufficiency-of-the-evidence claim, the reviewing court must conduct a
painstaking review of the record and legitimate inferences that may be drawn
from the record, to determine whether a jury could reasonably conclude that the
defendant was guilty of the offense charged.
State v. Merrill, 274 N.W.2d
99, 111 (
To obtain a conviction of
first-degree criminal sexual conduct involving the use of force or coercion,
the state had the burden of proving beyond a reasonable doubt that Warmbold
engaged in non-consensual sexual contact with R.M., caused her personal injury,
and “use[d] force or coercion to accomplish sexual penetration.” Minn. Stat. § 609.342, subd. 1(e)(i)
The relevant statute defines “force”
as “[t]he infliction . . . or threatened infliction by the actor of bodily harm
or [the] commission or threat of any other crime . . . against the complainant
. . ., which (a) causes the complainant to reasonably believe that the actor
has the present ability to execute the threat and (b) . . . also causes the
complainant to submit.” Minn. Stat. §
609.341, subd. 3 (2004). The statute
defines “coercion” as “words or circumstances that cause the complainant
reasonably to fear that the actor will inflict bodily harm upon . . . the
complainant . . . or force the complainant to submit to sexual penetration or
The use of force or coercion need
not precede or be separate from the sexual contact but may occur concurrently
with it. See State v. Middleton, 386 N.W.2d 226, 230 (
The supreme court has held that the
force or coercion requirement was satisfied when the defendant came up behind a
female classmate, hit or tapped her on the shoulder, reached under her jacket
after she turned, and grabbed and pinched her breast for two seconds, causing
her pain. State v. Brouillette, 286 N.W.2d 702, 706 (
As Warmbold concedes, the evidence, viewed in the light most favorable to the verdict, is more than sufficient to establish that Warmbold inflicted pain and caused R.M. to suffer personal injury while accomplishing sexual penetration. The evidence shows that, over the course of two or three days, Warmbold continued to have sexual contact with R.M., even though she repeatedly asked Warmbold to stop and told him that it hurt. R.M. also testified that Warmbold’s attempt to have anal sex with her caused her to bleed. In addition, officer Karjala testified that R.M. was in a lot of pain when he arrived at her house and indicated that he saw bruises and cigarette burns on her. Although R.M. testified that she did not remember Warmbold hitting her or beating her, she initially told Karjala that Warmbold had inflicted the bruises and burns.
Faced with this evidence, Warmbold
argues that the pain to which R.M. testified satisfies the personal-injury
element of the crime but does not also satisfy the force-or-coercion
element. But this court has held that
the same series of acts may satisfy multiple elements of a single crime. State
v. Jarvis, 649 N.W.2d 186, 193 (Minn. App. 2002), aff’d on other grounds, 665 N.W.2d 518 (
Warmbold also argues that the evidence is insufficient because the record contains no evidence that he used threats to initiate sexual contact, that R.M. submitted because he threatened her, or that she was afraid that he had the immediate ability to execute a threat. But the use of force or coercion need not precede or be separate from the sexual contact; it may occur concurrently with it. Middleton, 386 N.W.2d at 230 (stating that it is enough that the coercive words or conduct and the fear they cause, happen concurrently with the sexual contact). Plainly, Warmbold forced or coerced R.M. to submit to the sexual penetration when she repeatedly asked him to stop and he did not do so.
Warmbold argues that R.M.’s testimony that she did not remember Warmbold
hitting or burning her and that her bruises might have come from falling down
the stairs belies the state’s claim that he used force to accomplish sexual
penetration. The use of actual force or verbalized
threats of force is not necessary to create an atmosphere of fear that causes a
complainant to submit, however. State v. Carter, 289 N.W.2d 454, 455 (
On the second day of trial, defense counsel informed the district court that he had represented R.M. in a termination-of-parental-rights case in 1999 and that Warmbold wanted an opportunity to address the court about a possible conflict of interest based on that representation. Counsel stated that he did not think there was a conflict of interest and that Warmbold was merely dissatisfied with his performance and wanted to turn his dissatisfaction into a conflict-of-interest issue. The district court asked Warmbold if he wanted to address the court on those issues and Warmbold said, “No.” The district court then ruled that, standing alone, the prior representation did not create a conflict of interest because it was unrelated to the present case. The district court added that counsel’s knowledge of R.M. might, in fact, be helpful to the defense. After Warmbold indicated that he did not want to represent himself, the district court asked Warmbold if he had anything to add on the issue of counsel’s representation. Warmbold replied, “No.”
Warmbold argues that the district court violated his Sixth Amendment right to counsel by allowing his attorney to represent him without conducting a thorough inquiry into the alleged conflict. We disagree.
Sixth Amendment right to counsel includes “a correlative right to representation
that is free from conflicts of interest.”
Warmbold did not satisfy his burden of proving that his counsel actively represented conflicting interests. Counsel’s prior representation of R.M. occurred four years before Warmbold’s trial, and R.M.’s termination-of-parental-rights case had been completed and bore no relation to the present case. In addition, Warmbold’s counsel indicated that he did not believe that there was an impermissible conflict of interest. The district court was entitled to rely on counsel’s representation. See Holloway v. Arkansas, 435 U.S. 475, 485–86, 98 S. Ct. 1173, 1179 (1978) (deferring to defense counsel’s judgment regarding existence of conflict of interest in joint-representation case, reasoning that defense counsel is in best position to determine whether conflict exists, that counsel has an ethical obligation to advise the court of a conflict of interest, and that lawyers are officers of the court and counsel’s declarations are therefore “virtually made under oath”) (quotation omitted); Cooper v. State, 565 N.W.2d 27, 32 (Minn. App. 1997) (citing Holloway for proposition that “court was entitled to place great weight on the attorney’s conclusion that he was not subject to an actual conflict of interest”), review denied (Minn. Aug. 5, 1997). The district court’s finding that Warmbold’s counsel was not subject to a conflict of interest by virtue of his representation of R.M. is thus not clearly erroneous.
nonetheless argues that his conviction must be automatically reversed without a
showing of prejudice because the district court was alerted to a possible conflict
of interest but failed to take adequate steps to ascertain whether the conflict
compromised his right to a fair trial.
But the district court’s failure to inquire into an alleged conflict
does not relieve the defendant of the burden of showing that a conflict of
interest affected counsel’s performance and thereby rendered the verdict
unreliable, even though Strickland prejudice
cannot be shown. Mickens v. Taylor, 535 U.S. 162, 172–73, 122 S. Ct. 1237, 1244
(2002) (stating that the proposed rule of automatic reversal when the district
court fails to make Sullivan-mandated
inquiry, but the conflict does not
affect counsel’s performance, “makes little policy sense”). Moreover, the automatic-reversal rule applies
only when counsel is required to represent conflicting interests jointly, despite
his or her timely objection. Holloway, 435
Warmbold argues that, even if the district court’s failure to inquire does not constitute reversible error, reversal is required because the district court erred by concluding that counsel’s conflict of interest did not adversely affect his representation. Warmbold argues that counsel’s continuing duty to R.M. and inability to use confidential information he gained while representing her prevented him from aggressively cross-examining R.M. But Warmbold has not established that any of the information counsel needed to cross-examine R.M. was confidential or that, absent a conflict, counsel would have been able to use additional information in cross-examining R.M. In fact, the record shows that counsel aggressively cross-examined R.M. and otherwise provided Warmbold a vigorous defense.
Warmbold claims that the actual quality of his defense “is beside the point” because counsel’s ability to “fully defend [him] was compromised by his duty of confidentiality and loyalty to [R.M.]” and counsel was “in effect, forced to defend [him] with one hand tied behind his back.” But Warmbold has not established that there was a plausible alternative defense strategy or line of attack that defense counsel might have pursued were it not for the actual conflict or a reasonable likelihood that counsel’s performance would have been different had there been no conflict of interest. See State v. Miller, 666 N.W.2d 703, 717–18 (Minn. 2003) (rejecting as unsupported conflict-of-interest claim that counsel’s previous representation of witness may have affected cross-examination of witness); Cooper, 565 N.W.2d at 32–33 (stating that defendant’s vague and unfounded allegation that because defense counsel’s firm had previously represented victim’s mother counsel was precluded from vigorously cross-examining the victim was insufficient to establish that conflict adversely affected representation). Nor has he established that his attorney, while representing R.M., acquired any confidential information relevant to Warmbold’s defense or that he was precluded from using that information because of the duty of confidentiality. Thus, even if Warmbold had demonstrated that his attorney actively represented conflicting interests, his ineffective-assistance claims fails because Warmbold did not meet his burden of proving that his attorney’s alleged conflict of interest adversely affected his performance at trial and thereby undermined the reliability of the conviction.
Next, Warmbold argues that the prosecutor committed misconduct during closing argument and deprived him of a fair trial by telling the jury that men have powerful sexual impulses, by describing “rules of behavior” necessary to prevent disease and implying that Warmbold did not abide by them, and by referring to anal sex as a “messy and disgusting intrusion” pleasurable only for men.
Whether prosecutorial misconduct
warrants a new trial is a matter within the district court’s discretion. State v.
Ashby, 567 N.W.2d 21, 27 (
But defendants waive their right to
raise the issue of prosecutorial misconduct on appeal when they fail to object
or to seek a curative instruction. State v. Torres, 632 N.W.2d 609, 617–18
The prosecutor began his closing argument by commenting on the differences between men and women when it comes to sex. Counsel first stated that “the impulse of a man to have sexual intercourse . . . can be really powerful.” But he noted that “for the most part[,] human beings act with restraint.” Counsel then explained in detail the physiological changes women experience before sexual intercourse, noting that although sexual intercourse is not painful for men it can be painful for women who are not aroused.
Counsel also commented on anal sex, stating that “[i]t’s not a good idea to have a penis pushed into your rectum, because the rectum is not built like the vagina.” Counsel added that “it’s virtually inconceivable that there could be any pleasure for anyone other than a man with that kind of messy and disgusting sort of intrusion.”
Finally, counsel referred to certain “rules of behavior” and to their importance in preventing disease. Counsel told the jury, “You may wonder why we have all these rules, you know, like you have sex with one woman, you have one person in your life. You don’t hop from one person to the next. Do you wonder why we’ve got rules like that? Well, there may be many, many reasons, but one of them is disease.”
The district court ruled that the prosecutor committed misconduct but it concluded that the misconduct was not prejudicial. The state does not dispute that the prosecutor committed misconduct, but it argues that the misconduct was not prejudicial and did not therefore entitle Warmbold to a new trial. We agree.
The prosecutor’s comments constituted misconduct because they were not based on the evidence, they disparaged Warmbold’s character and lifestyle, they invited the jury to consider sexual morality in determining Warmbold’s guilt, and they revealed the prosecutor’s personal disapproval of Warmbold’s sexual practices. See State v. Ray, 659 N.W.2d 736, 747 (Minn. 2003) (holding that the prosecutor’s attempt to supply race-based explanation for witnesses’ behavior improperly invited jury to apply racial and socio-economic consideration in determining guilt); State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) (holding that the prosecutor improperly attacked the defendant’s character when she referred to him as “coward” with a “twisted” thought process); State v. Ives, 568 N.W.2d 710, 713–14 (Minn. 1997) (holding that prosecutor’s comment that the defendant was a “would-be punk” with a “pathetic little li[fe]” constituted an improper attack on the defendant’s character).
the misconduct was not “unduly prejudicial.”
See Whittaker, 568 N.W.2d at
450 (stating that relief will be granted in the absence of a timely objection
only in extreme cases involving “unduly prejudicial” misconduct). First, Warmbold failed to object to the
prosecutor’s comments at trial. A defendant’s
failure to object implies that the misconduct is not prejudicial and “weighs
heavily against granting any remedy.” Ives, 568 N.W.2d at 713. Second, the district court diminished the
effect of the prosecutor’s comments by instructing the jury that counsel’s
arguments were not evidence, and that they were required to decide the case
without prejudice or emotion. See State v. Washington, 521 N.W.2d 35,
The district court sentenced Warmbold under the dangerous-offender statute to a 240-month prison term, an upward departure from the presumptive sentence of 161 months. See Minn. Stat. § 609.1095, subd. 2 (2004). The court based the departure on judicial findings that Warmbold was a danger to public safety and that he treated the victim with particular cruelty. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the postconviction court reduced Warmbold’s sentence to the presumptive term, reasoning that the Sixth Amendment requires that any fact that enhances the sentence a defendant actually receives—rather than the maximum sentence he could receive—must be found by a jury.
The state argues that the district
court erred by concluding that Warmbold’s sentence was unconstitutional under Ring.
In Ring, the Supreme Court
held that because defendant’s death sentence exceeded the statutory maximum of
life imprisonment, it could be constitutionally imposed under Apprendi only if the necessary factual
findings were made by a jury or the defendant waived the right to have a jury
make those findings. 536
Blakely was decided after Warmbold’s
sentence became final, however, and is not subject to retroactive application
on collateral review. State v. Houston, 689 N.W.2d 556, 559–60
(Minn. App. 2004), aff’d ___ N.W.2d
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.