This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of the Welfare of:  R.N.T.


Filed March 21, 2006

Reversed and remanded

Peterson, Judge


Hennepin County District Court



Jill E. Clark, 2005 Aquila Avenue North, Golden Valley, MN  55427 (for appellant R.N.T.)


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


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent State of Minnesota)


            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


R.N.T appeals from an order denying his motion to withdraw his guilty plea to a fifth-degree criminal-sexual-conduct charge, claiming that there is no factual basis for the plea.  We reverse and remand.


On July 13-14, 2004, 13 year-old appellant R.N.T. stayed overnight at the home of his grandmother P.T.  At about 3:00 a.m., P.T. awakened and noticed that her 10 year-old daughter D.D.T. was not in bed.  After calling for D.D.T., P.T. heard footsteps coming from the bathroom and a toilet flushing.  P.T. found D.D.T. on the floor pretending to be asleep and R.N.T. coming from the bathroom.  P.T. became concerned because she knew that R.N.T. had had anal sexual contact with other children.  Also, when R.N.T. had visited P.T. during the previous summer, P.T. found R.N.T. and D.D.T. with their clothing partially removed and R.N.T. “humping” D.D.T.

            Based on her observation of what appeared to be a small bloodstain on D.D.T.’s underpants near the rectum area and her knowledge of R.N.T.’s past history of sexual behavior, P.T. brought D.D.T. to a medical center.  An examination performed on D.D.T. showed debris in the pubic hair area, a swollen right labia majora, and an oozing, friable tear at the posterior vestibule.  The examination findings were consistent with trauma.

            Police arranged for D.D.T. to be interviewed at Corner House.  D.D.T. refused to talk to the Corner House interviewer about the sexual assault, stating that P.T. had instructed her not to talk about it.

After R.N.T. waived his Miranda rights, he denied having sex with D.D.T. on July 14, 2004, but admitted having sex with her the previous summer.  R.N.T. stated that P.T. had walked in on them and gave them both a “whipping.”  Upon further questioning, R.N.T. admitted having sex with D.D.T. three or four times.

                        The state filed a delinquency petition charging R.N.T. with first-degree criminal sexual conduct.  On October 4, 2004, the state filed an amended delinquency petition alleging that on July 14, 2004, R.N.T. committed one count of fifth-degree criminal sexual conduct against D.D.T. in violation of Minn. Stat. § 609.3451, subd. 1(1) (2002) (nonconsensual sexual contact).  Also on October 4, 2004, R.N.T. pleaded guilty to fifth-degree criminal sexual conduct, and the first-degree charges were dismissed.

            At the plea hearing, defense counsel explained to R.N.T. all of the rights that he would be giving up by pleading guilty.  Defense counsel specifically explained that R.N.T. could try to have certain evidence suppressed based on motions that counsel had filed.  R.N.T. testified that he understood those rights and that he was prepared to go forward with the plea agreement.

Regarding the facts of the offense, R.N.T. testified:

Q.  . . . [Y]ou first came to the Court’s attention on July 14, 2004 based on an allegation that you had sexual contact with [D.D.T.]; is that correct?


A.  Yes.


Q.  And you and I have had a chance to read through the petition that was filed by [the prosecutor] today regarding that investigation and you would agree that you had . . . made a statement to the police admitting to having sexual contact with [D.D.T.]; is that correct?


A.  Yes.

Q.  So you’re not arguing against this charge, is that correct?


A.  No, I mean, yes.


Q.  So, you’re admitting to having sexual contact with [D.D.T.]?


A.  Yes.


Q.  And, specifically, you at some point laid on top of [D.D.T.] with your pants down and her pants down; is that correct?


A.  Yes.


The prosecutor confirmed that the sexual assault to which R.N.T. was pleading guilty occurred in July 2004.

            The district court accepted R.N.T.’s plea and, pursuant to the parties’ agreement, reserved disposition and ordered a full field investigation.  At the November 8, 2004 disposition hearing, R.N.T. moved to withdraw his guilty plea.  At a hearing on December 3, 2004, the district court denied R.N.T.’s motion to withdraw his guilty plea.  By order filed December 13, 2004, the district court found that R.N.T. knowingly and voluntarily waived his trial rights and admitted to the factual basis for the fifth-degree criminal-sexual-conduct charge.  This appeal followed.


            “The district court is vested with broad discretion in determining whether a defendant should be allowed to withdraw a guilty plea.  An appellate court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.”  In re Welfare of S.L., 663 N.W2d 31, 34 (Minn. App. 2003) (citation omitted).

            A child may request to withdraw a guilty plea, and the court may allow withdrawal, (a) “before disposition, if it is fair and just to do so, giving due consideration” to the child’s reasons and “any prejudice that withdrawal of the plea would cause”; or (b) “at any time, upon showing that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Juv. Deliq. P. 8.04, subd. 2.

            When a juvenile offers to admit a crime, the district court “shall not accept” the plea unless “there is a factual basis for the guilty plea.”   Minn. R. Juv. Deliq. P. 8.04, subd. 1(A).

To be valid, the plea must have been entered intelligently, voluntarily, and accurately.  To be accurate, the plea must be supported by a proper factual basis. Although the district court need not personally conduct an interrogation to establish a factual basis for a plea, it is the court’s responsibility to ensure that an adequate factual basis is shown in the record.


In re Welfare of J.J.R., 648 N.W.2d 739, 742 (Minn. App. 2002) (citations omitted).  “The law requires that the person entering an admission verify sufficient facts on the record to support the conclusion that his conduct falls within the charge to which he is offering to plead guilty.”  Id.

            R.N.T. admitted committing fifth-degree criminal sexual conduct.  A person who “engages in nonconsensual sexual contact” commits fifth-degree criminal sexual conduct.  Minn. Stat. § 609.3451, subd. 1(1) (2002).  

There are four essential elements of criminal sexual conduct in the fifth degree:  1. intentional touching of an intimate area (as specified by Minn. Stat. § 609.341, subd. 11(a)); 2. lack of consent of the victim; 3. the touching was done with sexual or aggressive intent; and 4. date and place of the act.


J.J.R., 648 N.W.2d at 742 (citing 10 Minnesota Practice, CRIMJIG 12.52 (1999)).

            R.N.T. argues that he is entitled to withdraw his plea under J.J.R.  In J.J.R., this court reversed the denial of a motion to withdraw a guilty plea.  The J.J.R. court explained:

            To be an accurate plea, that is, one supported by facts that demonstrate the existence of the essential elements of the crime, J.J.R. would have had to admit one or more types of touching that fit the definition of sexual contact.  He admitted only “nonconsensual contact.”   That admission does not fit any category of the requisite statutory definitions.  He also would have to admit that the contact was to an intimate area and made with sexual or aggressive intent.  He said nothing about the intention behind his contact, nor did he even admit that it was intentional.


            There are various ways in which a juvenile might “admit” sufficient facts to support a legitimate plea.  Among those ways would be a nonleading, question-and-answer interrogation about particular essential facts;  the juvenile’s own narrative that includes essential facts;  a reference to factual allegations in a charging document or in police reports or other records, coupled with the juvenile’s express and specific acknowledgement of the truth and accuracy of facts constituting the essential elements of the crime;  or a written delineation of essential facts that the juvenile acknowledges or adopts as being correct.


            Here, particular facts are provided in the delinquency petition.  But those are allegations.  J.J.R. did not admit the facts alleged in the petition but rather he admitted only the inadequate conclusion of “nonconsensual contact.”


            The omission of a factual basis for a plea destroys the accuracy of the admission.  Moreover, in this case, before the disposition, J.J.R. in effect retracted his admission and reasserted his innocence, alleging that he pleaded guilty only because his attorney said he could not win his case.  We do not assume merit in this allegation, but a proper and specific factual basis disclosed on the record likely would have cured any doubt about the allegation.


Id. at 742-43 (footnote omitted).

            R.N.T. admitted the facts in the amended delinquency petition filed October 4, 2004, which is a permissible method of establishing a factual basis under J.J.R.  R.N.T.’s admission, however, does not establish that the sexual contact was “nonconsensual.”  The state argues that a ten-year-old cannot consent to sexual contact as a matter of law.  But our research has revealed no authority holding that a person under a certain age cannot consent to sexual contact as a matter of law.  There are several instances where Minnesota’s criminal-sexual-conduct statutes state that the complainant’s consent to an act is not a defense.  See, e.g., Minn. Stat. § 609.342, subd. 1(a) (2004) (stating “Neither mistake as to the complainant’s age nor consent to [sexual penetration] by the complainant is a defense.”).  But Minn. Stat. § 609.3451, subd. 1(1), simply provides that a person is guilty of fifth-degree criminal sexual conduct “if the person engages in nonconsensual sexual contact,” which means that one element of the offense is that the defendant’s act occurred without the consent of the victim.  J.J.R., 648 N.W.2d at 742.

            R.N.T.’s admission is insufficient to establish a factual basis for nonconsent; therefore, under J.J.R., the district court abused its discretion in not allowing R.N.T. to withdraw his guilty plea.  Accordingly, we reverse the denial of R.N.T.’s motion to withdraw his plea and remand to permit R.N.T. the opportunity to withdraw his plea.  Because we are reversing the denial of R.N.T.’s motion to withdraw his plea, we do not reach the issues raised by R.N.T. relating to his disposition.

R.N.T. objects to the imposition of sanctions, by order filed February 16, 2005, against his attorney, Jill Clark, for her failure to appear at a December 14, 2004 hearing.  But R.N.T. is not aggrieved by the sanctions award, which was imposed against Clark personally, and Clark failed to perfect an appeal from the award.  The notice of appeal lists only the December 13, 2004 order denying R.N.T.’s motion to withdraw his guilty plea and the January 14, 2005 disposition order, as amended January 18, 2005, as the orders from which the appeal is taken.  Because the appeal papers did not reasonably apprise the state that the order awarding sanctions would be challenged on appeal, the issue is beyond our scope of review.  See Minn. R. Civ. App. P. 103.01, subd. 1(a) (notice of appeal must specify order or judgment from which appeal is taken).

            Reversed and remanded.