This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jerome Jones, Jr.,



Filed October 18, 2005

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 03026555



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Jerome Jones, Jr. challenges his conviction of first-degree criminal sexual conduct, arguing that the district court erred in finding him guilty of the lesser-included offense of first-degree criminal sexual conduct involving only sexual contact when there was no rational basis to find that he committed sexual contact but not sexual penetration.  Jones also argues that the evidence was insufficient to support the conviction.  Finally, Jones argues that, although he waived his right to a jury trial, the imposition of an upward durational departure violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because the district court did not err in considering the lesser-included offense of first-degree criminal sexual conduct involving sexual contact and because sufficient evidence exists to support the conviction, we affirm.  But because Jones’s sentence violates the rule announced in Blakely, we reverse and remand with respect to sentencing.


Jones appeals from his conviction of first-degree criminal sexual conduct for sexually assaulting his then six-year-old daughter, B.S.  Jones was charged with first-degree criminal sexual conduct with respect to both of his daughters, B.S. and T.S.  Jones waived his right to a jury trial, and a bench trial was held in December 2003.  The district court acquitted Jones of the charge relating to T.S. but convicted Jones of the lesser-included offense of sexual contact with respect to B.S.  The district court stated that reasonable doubt existed as to whether there was sexual penetration of B.S. but determined that sufficient evidence existed to convict on the lesser-included offense involving sexual contact.  The district court independently raised the lesser-included offense over the objection of defense counsel.  Jones was sentenced to the commissioner of corrections for 225 months, an upward durational departure from the presumptive guidelines sentence of 161 months.  This sentence was based on the district court’s finding that Jones is a dangerous offender.  This appeal followed.

Jones is the biological father of T.S. and B.S.  B.S. lived with her father, Jones; her mother, Dawn Somlai; her brother, Michael; her half-sisters, T.S. and B.J.; B.J.’s mother, Dawn Sund; and other adults and children.  In the spring of 2003, both T.S. and B.S. accused Jones and Michael of sexual abuse.  These allegations led to an investigation resulting in a videotaped interview of B.S. by CornerHouse Child Abuse Evaluation Center in Minneapolis.  During the interview, B.S. described sexual abuse by both Jones and her brother, Michael.  B.S. reported seeing her brother touch Jones’s penis and stated that Jones touched her vagina and anus with a spatula.  B.S. also reported that Jones penetrated her both anally and vaginally on more than one occasion.  The medical report neither confirmed nor precluded the occurrence of sexual abuse. 

Jones waived a jury trial and requested a trial by the court.  B.S. was called to testify for the prosecution.  The court asked B.S. three questions and received no response.  After Jones consulted with counsel, defense counsel stated that they were “allowing the court, without any further examination, to declare [B.S.] unavailable.” 

The district court allowed the testimony of two Spriegl witnesses on behalf of the prosecution.  K.K. is Jones’s 19-year-old step-daughter.  K.K. testified that Jones had sexual intercourse with her every day from the age of 12 until she was 15.  She also testified to having had both oral and anal sexual intercourse with Jones but that she did not tell anyone until the age of 15 because she was scared.  C.J. also testified for the prosecution.  C.J. is the 14-year-old niece of Dawn Sund (the mother of T.S.).   C.J. testified that Jones forced her to have sexual intercourse but that she also told no one because she was scared Jones would hurt her family. 


1.         Lesser-included offense

            The district court, sua sponte, considered the lesser-included offense of criminal sexual conduct in the first degree - sexual contact, over the objections of defense counsel.  Jones argues that there was no rational basis on which to acquit him of the offense of sexual penetration but convict on sexual contact. 

            Minn. Stat. § 609.04, subd. 1 (2002), defines a lesser-included offense as any of the following:  (1) a lesser degree of the same crime; or (2) an attempt to commit the crime charged or; (3) an attempt to commit a lesser degree of the same crime; or (4) a crime necessarily proved if the crime charged were proved; or (5) a petty misdemeanor necessarily proved if the misdemeanor charge were proved.  Although there was no jury here, the caselaw that defines a trial court’s authority and obligations respecting the treatment of lesser-included offenses in jury trials applies as well to bench trials.  Whether to submit a lesser-included offense to the jury lies within the sound discretion of the district court.  State v. Davis, 656 N.W.2d 900, 903 (Minn. App. 2003).  Where the evidence presented warrants an instruction on a lesser-included offense, the district court must give it.  Id.   Because the district court has the ultimate responsibility to ensure that all essential instructions are given, an instruction on a lesser-included offense is required when:  (1) the offense in question is an included offense, Minn. Stat. § 609.04 (2002), and (2) a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime.  State v. Richardson, 670 N.W.2d 267, 283 (Minn. 2003).

            Jones concedes that criminal sexual conduct in the first degree - sexual contact is an included offense but argues that there was no rational basis for the district court to convict him on it and acquit on the charged offense involving sexual penetration.  But the district court specifically found B.S.’s statements to be credible and corroborated.  The district court stated that it had read the transcript of B.S.’s CornerHouse interview repeatedly and found that her testimony was “detailed, was consistent, and that notwithstanding extremely able cross-examination as to the methodology of the CornerHouse interviewing process, . . . found the video compelling.”  B.S. referred to “touching,” or contact, as well as to penetration.  Because of the lack of physical evidence, the district court had reasonable doubt regarding actual penetration but stated that “the [c]ourt has absolutely no doubt whatsoever that sexual abuse occurred in Hennepin County at the . . . address where the [appellant] and the other participants lived since June 15.”  The district court also stressed the “compelling” testimony of K.K. and C.J., both of whom testified about sexual abuse by Jones.  Therefore, the district court had a rational basis on which to convict Jones of the lesser-included offense of criminal sexual conduct in the first-degree - sexual contact, while acquitting him of committing sexual penetration.

2.         Sufficient evidence

            Jones next argues that the district court lacked sufficient evidence to convictIn 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 a light most favorable to the conviction," is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            First, Jones contends that there was insufficient evidence to convict on the charge of criminal sexual conduct sexual - penetration.  The district court agreed and convicted Jones only of the lesser-included offense of sexual contact.  Second, the district court specifically found the interview with B.S. at CornerHouse to be credible and compelling.  B.S. confided that she had witnessed her brother touch Jones’s penis and that Jones had touched her vagina with a spatula.  Although the court acknowledged inconsistencies in B.S.’s statements as to where the abuse occurred, it was “not sufficient to create a reasonable doubt as to the testimony . . . .”  The district court stated that it had no doubt sexual abuse had occurred within the home.  Finally, the court emphasized the corroborating testimony of K.K. and C.J., both of whom convincingly testified regarding sexual abuse by Jones.  We conclude there was sufficient evidence to support the conviction for first-degree criminal sexual conduct - sexual contact.

3.         Sentencing

            Finally, Jones argues that the imposition of an upward-durational departure based on facts not determined by a jury was unconstitutional.  Specifically, Jones argues that because his case was pending upon release of the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), his case should be remanded for sentencing consistent with that opinion.  In Blakely, the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, which is the presumptive sentence under a sentencing guidelines scheme, must be submitted to a jury and proved beyond a reasonable doubt, or admitted by the defendant.

            Here, the district court determined that because Jones was a “dangerous offender” under Minn. Stat. § 609.1095, subds. 2(1), 2(2) (2002), an upward durational departure was warranted and sentenced Jones to a period of 255 months.  The presumptive sentence was 161 months. 

            After Jones’s appeal, the Minnesota Supreme Court decided State v. Shattuck, ___ N.W.2d ___, WL 1981659 (Minn. Aug. 18, 2005), and held that Minn. Stat. § 609.109, subd. 4 (2004), the repeat sex offender statute, was facially unconstitutional because it authorized the judge without the aid of a jury to make the finding of an aggravating factor to support an upward durational sentencing departure.  Shattuck, ___ N.W.2d at ___, 2005 WL 1981659, at *9.

            Similarly, Minn. Stat. § 609.1095, subd. 2, under which Jones’s sentence was enhanced, permits the judge without the aid of a jury to determine that a convicted criminal is a dangerous offender and to impose an aggravated durational sentencing departure.  Thus, section 609.1095, subd. 2, suffers from the same facial constitutional infirmity as the statute in Shattuck.

            In Shattuck, the basis for the durational departure was an unconstitutional statute and the remedy was a reversal and remand for imposition of the presumptive sentence.  But, in its order of October 6, 2005, the supreme court amended Shattuck and held that the repeat sex offender statute is facially unconstitutional but that Minn. Sent. Guidelines II.D, authorizing departures, is unconstitutional only as applied.  State v. Shattuck, No. C6-03-362 (October 6, 2005).  The court also amended its remand directive to provide for “resentencing consistent with this opinion.”  Id.

            Shattuck as amended controls here, but the parties should be afforded an opportunity in the district court to make the requisite analysis, and the district court ought to have an opportunity to determine whether Jones is entitled to the presumptive sentence or whether another sentencing disposition is available.  Accordingly, this case must be remanded for appropriate resentencing.

            Thus, we affirm the conviction, reverse the sentence, and remand for resentencing.

Affirmed in part, reversed in part, and remanded.