This opinion will be unpublished and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
Billy Joe Phillips,
Filed January 24, 2006
Goodhue County District Court
File No. K7-03-182
Mike Hatch, Attorney General, Thomas R. Ragatz, John S. Garry, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stephen N. Betcher, Goodhue County Attorney, 454 West Sixth Street, Red Wing, MN 55006-2475 (for respondent)
John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of criminal sexual conduct and an order denying a postconviction petition, appellant argues that he was denied effective assistance of counsel, that the statement he gave to police was coerced and involuntary, and that the record is insufficient to support the convictions. He also argues that the district court violated his Sixth Amendment rights under Blakely v. Washington by imposing a sentence with an upward durational departure based on judicially found aggravating factors. We affirm in part, reverse in part, and remand.
In 1996 and early 1997, appellant Billy Joe Phillips lived with his then-wife, Ruth Hunecke, and her three children in Goodhue. B.H., Hunecke’s daughter and youngest child, turned six in September 1996. Shortly before her birthday, B.H. complained about her “private” hurting, and Hunecke took her to the doctor. The doctor noted that her vagina was “raw” and that possible causes were bubble baths or B.H.’s “experimenting.”
On December 31, 1996, Hunecke saw Phillips masturbating under a blanket on the living-room couch while B.H. sat in a chair nearby. Hunecke later asked B.H. about the incident and if Phillips ever touched her. B.H. told her that Phillips had not touched her but that Phillips watched pornographic movies with her. Hunecke confronted Phillips, and Phillips moved out in February 1997. Phillips and Hunecke were divorced in June 1997.
Two weeks after Phillips moved out, the police informed Hunecke that Phillips had hired someone to kill her. Hunecke told the police about the December 31, 1996 incident. She also told social services about the incident, and B.H. was subsequently interviewed by a social worker. B.H. gave vague and conflicting statements regarding Phillips’s sexual conduct with her.
In December 2002, B.H. watched a movie in which a football team raped a young girl. The next day, B.H. told a peer group at school about the sexual abuse she suffered when she lived with Phillips. School officials contacted authorities, and B.H. was interviewed by another social worker. B.H. was referred to Midwest Children’s Resource Center (MCRC), where, later that month, she was interviewed and given a physical examination. The abuse that B.H. described in the MCRC interview was more extensive than that she described in the 1997 interview.
In January 2003, Phillips was charged with three counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a), (g), (h)(iii) (2002); three counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a), (g), (h)(iii) (2002); and two counts of fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1), (2) (2002). After Phillips was arrested, Officers Peter Badker and Pat Thompson interrogated him. Phillips eventually confessed that after having “a couple beers,” he touched and massaged B.H.’s buttocks with his hand. He also confessed to masturbating under a blanket while B.H. was in the room.
After a bench trial, the district court found Phillips guilty of all eight charges. The district court imposed a 172-month sentence on the first charge, a double upward durational departure from the 86-month presumptive sentence. The district court supported the upward departure by finding several aggravating factors.
Phillips petitioned for postconviction relief, arguing that he received ineffective representation because his counsel did not challenge the admission of his statement on Miranda grounds. The district court denied Phillips’s request. On appeal, Phillips challenges his convictions, his sentence, and the denial of postconviction relief.
D E C I S I O N
We first address Phillips’s
argument that the record is insufficient to support his convictions. When an appellant challenges the sufficiency
of the evidence, we review the record to determine “whether the facts in the
record and the legitimate inferences drawn from them would permit the jury to
reasonably conclude that the defendant was guilty beyond a reasonable
doubt.” Davis v. State, 595 N.W.2d
520, 525 (
The district court found Phillips guilty of all counts with which he was charged. To support Phillips’s first- and second-degree criminal-sexual-conduct convictions, the evidence must show that Phillips engaged in “sexual penetration” and “sexual contact” with B.H. and that Phillips was more than 36 months older than B.H., that he had a significant relationship with B.H., and that the “sexual abuse involved multiple acts committed over an extended period of time.” Minn. Stat. §§ 609.342, subd. 1(a), (g), (h)(iii), .343, subd. 1(a), (g), (h)(iii) (2002). The evidence must show that Phillips “engage[d] in nonconsensual sexual contact” and that he “engage[d] in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present” to support his convictions of fifth-degree criminal sexual conduct. Minn. Stat. § 609.3451, subd. 1(1), (2) (2002).
The state presented substantial evidence supporting Phillips’s convictions. B.H. testified that on numerous occasions when Hunecke was not home, Phillips (1) watched pornographic movies with her, (2) penetrated her vagina with his fingers and penis, (3) penetrated her anus with his penis, and (4) penetrated her mouth with his penis. She demonstrated the abuse that she described using dolls.
Hunecke testified that she frequently left B.H. and her brothers at home with Phillips while she was at work or running errands, that she and Phillips owned pornographic movies, and that B.H. had complained about “her private hurting.” She also testified that she saw Phillips masturbating on the couch in their living room while B.H.—then six-years old—sat in a chair watching television and that a week later, when Hunecke asked B.H. about the incident, B.H. told her that Phillips and B.H. watched “movies with guys and girls in it with no clothes on . . . playing with each other and themselves.” Hunecke testified that B.H. was unusually “clingy” and frequently wanted to accompany her when she ran errands.
B.H.’s brother, T.H., testified that on one occasion, he opened the door to Phillips’s bedroom and saw Phillips and B.H. sitting on the bed. T.H. testified that B.H. looked really sad and had a “get me out of here” look on her face and that Phillips sternly told T.H. to get out and followed T.H. to the front door and locked it behind him.
The state also called Kristin Johnson, the social worker who interviewed B.H. in March 1997 after Hunecke told the police about the December 31, 1996 incident, and Amy Johnson, the social worker who interviewed B.H. in December 2002 after B.H. disclosed the abuse to the peer group at school. Kristin Johnson testified that B.H. gave conflicting stories about the abuse but that B.H. indicated with anatomically correct dolls that Phillips had masturbated in front of her and touched her vagina with his hand. Amy Johnson testified that B.H. said that Phillips touched her on the inside of her vagina with his hand, mouth, and penis; that he made her perform oral sex on him; that the abuse happened more than 20 times; and that Phillips told her that “this would be fun” and that “it won’t do no harm.” The state introduced a videotape of the Amy Johnson interview.
The state also introduced a videotape of an interview of B.H. conducted by Beth Carter, a registered nurse and case manager, at MCRC on December 10, 2002. Carter testified that after the interview, she conducted a physical examination of B.H. during which B.H. said that Phillips touched her vagina with his hand and penis and touched her anus with his penis. Carter testified that at the physical examination “everything appeared to be normal.”
Phillips argues that the lack of physical evidence of sexual assault renders the record insufficient. But Carter testified that 99% of physical examinations of sexual abuse victims are normal and that an examining medical professional “may not see anything at all or there may be no signs” of abuse. Furthermore, corroborating evidence is not necessary in a prosecution for criminal sexual conduct. Minn. Stat. § 609.347, subd. 1 (2002); State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004) (noting that corroborating physical evidence is not necessary to support a conviction).
Phillips also argues that the record is insufficient
because B.H. might have been exposed to improper influence. Phillips relies on State v. Huss, in which the Minnesota Supreme Court reversed a
conviction of criminal sexual conduct for insufficient evidence. 506 N.W.2d 290, 293 (
Phillips also argues that B.H.’s
inconsistent statements to her mother and the various interviewing social workers
and case manager establish reasonable doubt.
But in cases involving criminal sexual conduct, weighing the
credibility of a complaining witness who gives conflicting stories is a
function of the fact-finder. State v. Reichenberger, 289
The record includes direct testimony from B.H., Hunecke, and T.H. Hunecke’s and T.H.’s testimony corroborates B.H.’s testimony, as does the testimony and other evidence provided by the interviewing social workers and case manager. Viewing the record in the light most favorable to the convictions, we conclude that the evidence in the record and all necessary inferences drawn from it support the district court’s judgments of conviction.
Phillips also argues that the district court erred by admitting the statement he gave to the police when he was arrested. He argues that his confession was the product of coercion and deception, and therefore was involuntary.
When a defendant seeks to suppress a confession on the
ground that the confession was involuntary, the state has the burden of proving
by a preponderance of the evidence that the confession was given voluntarily. State
v. Thaggard, 527 N.W.2d 804, 807 (
When determining whether a confession
or statement was involuntary or coerced, we consider all relevant factors,
including the defendant’s “age, maturity, intelligence, education, experience,
ability to comprehend, lack of or adequacy of warnings, length and legality of
detention, nature of interrogation, physical deprivations, limits on access to
counsel and friends, and others.” State v. Wilson, 535 N.W.2d 597, 603 (
The district court did not make findings regarding the relevant factors, but the record shows that Phillips (1) was 38 years old, (2) has been married three times, (3) has a high-school education, (4) served in the military, and (5) has work experience as a machinist, a security guard, and a long-haul truck driver. Nothing in the record indicates that he has any intelligence deficiencies or difficulties with comprehension.
Officers Badker and Thompson interrogated Phillips for two hours. The record shows that at the outset of the interrogation, Officer Badker read Phillips a Miranda warning. Phillips signed the Miranda waiver and agreed that his rights had been fully explained to him and that he wanted to make a voluntary statement. At various points during the interrogation, Phillips asked for water, tissue, and cigarettes, all of which were provided. Although Phillips argues that he was not provided with counsel or medication for his heart condition, the record shows that he made no request for either.
Phillips’s primary argument that his confession was involuntary is based on the technique Officers Badker and Thompson used during the interview. Throughout the interrogation, the officers told Phillips that they knew that he had abused B.H. and that Phillips needed to stop denying it and tell the truth. The officers told Phillips that B.H.’s physical examination yielded evidence proving that Phillips sexually abused her. They also told Phillips that the judge and county attorney think that he is a “bastard.”
The officers contrasted Phillips’s situation with that of other sex offenders. They implied that Phillips was not like the other offenders and that if he told them the truth, the officers would be able to help him out by telling the judge that Phillips was forthcoming. At no point in the interrogation did the officers promise Phillips that he would not be prosecuted if he told the truth.
Although the officers
deceived Phillips about the existence of physical evidence, lying to a suspect
about the strength of the state’s case is not by itself enough to make a
confession involuntary. See Thaggard, 527 N.W.2d at 810 (citing Colorado
v. Spring, 479
Phillips also challenges the
district court’s denial of his petition for postconviction relief on the ground
that his trial counsel was ineffective.
A postconviction decision regarding a claim of ineffective assistance of
counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl
v. State, 677 N.W.2d 414, 420 (
To prove that he received ineffective assistance of
counsel, Phillips must affirmatively show that his “counsel’s representation
‘fell below an objective standard of reasonableness’ and ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558,
Phillips argues that his trial representation was ineffective because counsel chose not to challenge the admission of Phillips’s confession on Miranda grounds. At a pretrial hearing, Phillips’s counsel did not dispute that Phillips signed a Miranda waiver and instead argued that the confession was inadmissible because Phillips was coerced. But even if Phillips’s counsel had successfully challenged the admission of the confession on Miranda grounds and Phillips’s confession was suppressed, there is ample record evidence supporting Phillips’s convictions without the confession. We therefore conclude that Phillips has failed to establish that counsel’s decision to forgo challenging the admission of the confession on Miranda grounds affected the result of the proceeding. Because Phillips did not make an affirmative showing of prejudice, we conclude that the district court did not err by denying Phillips’s claim that he is entitled to postconviction relief on the ground that he received ineffective assistance of counsel.
Phillips additionally argues that his sentence must be reversed
because the district court based the upward durational departure on judicially
found facts in violation of Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004). The application
of Blakely presents a constitutional issue, which this court reviews de
novo. State v.
In Blakely, the
Supreme Court held that the sentencing judge may not impose a sentence greater
than “the maximum sentence [that may be imposed] solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” 542
Phillips was found guilty
and sentenced before Blakely was decided. But because Blakely announced a new rule of constitutional criminal procedure
while his direct appeal was pending, he is entitled to review of his sentence
in light of Blakely. See
O’Meara v. State, 679 N.W.2d 334, 339 (