This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Willie James Richardson,



Filed July 25, 2006

Affirmed in part, reversed in part, and remanded

Randall, Judge


Hennepin County District Court

File No. 04003207



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


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


John Stuart, State Public Defender, Lydia Villalvo Lijo, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N



            This appeal is from a conviction of and sentence for second-degree assault and first-degree criminal sexual conduct.  See Minn. Stat. §§ 609.222, subd. 1, .342, subd. 1(d) (2004).  We conclude the trial court did not abuse its discretion in denying appellant Willie Richardson’s motion for a new trial or in submitting a sentencing question to the jury in a bifurcated proceeding.  The court erred, however, in adjudicating appellant’s conviction for the lesser-included offense of second-degree assault.  Therefore, we affirm in part, reverse in part, and remand.


The complaint charged that appellant Willie Richardson sexually assaulted his 18-year-old stepdaughter L.L. in January 2004 after appellant and two friends had celebrated appellant’s birthday.  L.L. encountered appellant and his friends drinking alcohol and playing cards in the basement of the house, where she slept.  At some point, appellant told L.L. that he wanted to talk with her upstairs.  After appellant and L.L. entered appellant’s bedroom, appellant closed and locked the door.  Appellant asked L.L. to remove her clothing.  When she refused, appellant punched her in the face.  After she refused a second time, appellant grabbed a baseball bat from the side of the bedroom dresser.  L.L. complied but, when she began to cry, appellant hit her with the bat, striking and poking her in the legs, back, and chest with the bat.  Appellant then removed his clothes and raped L.L.

Appellant was charged with two counts of criminal sexual conduct in the first-degree and one count of assault in the second-degree.  A jury found appellant guilty of all charges.  At a separate hearing following the verdict, the trial court submitted a special-verdict form to the jury regarding departure factors as to the sexual-assault convictions.  For each sexual-assault conviction, the jury found that appellant treated L.L. with particular cruelty by the gratuitous infliction of pain upon her while he sexually assaulted her and that he used his position of trust to facilitate the commission of the crime.

Appellant brought a motion for a new trial arguing that new evidence had been discovered in the form of the identity and whereabouts of one of the men present at the birthday party.  Appellant also submitted affidavits from other individuals in support of his motion for a new trial.  The trial court denied appellant’s motion for a new trial and sentenced appellant to 31 months in prison for his second-degree-assault conviction, to be served consecutively to a 288- month sentence for first-degree criminal sexual conduct.  Appellant’s sentence for first-degree criminal sexual conduct was a double departure from the presumptive sentence of 144 months, based upon the aggravating factors found by the jury.  This appeal followed.



Appellant argues that (1) the trial court erred by not granting his motion for a new trial; (2) his conviction for second-degree assault with a dangerous weapon must be vacated because it is a lesser-included offense of first-degree criminal sexual conduct with a dangerous weapon; and (3) the trial court erred in submitting the sentencing-departure factors to the jury in the bifurcated trial proceeding.

1.  Motion for a new trial

            Appellant argues that he is entitled to a new trial based on “newly discovered evidence, which with reasonable diligence could not have been found and produced at trial.”  Minn. R. Crim. P. 26.04, subd. 1.

            The trial court’s denial of a motion for a new trial is reviewed under an abuse-of-discretion standard.  State v. Varner, 643 N.W.2d 298, 303 (Minn. 2002).  The same standard of review applies to denial of a new trial based on newly discovered evidence.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). 

            On the night of the offense, appellant was celebrating with two friends, one of whom was identified during trial only as “Buck.”  L.L. testified that “Buck” approached the bedroom door twice during the sexual assault and that after the assault, she lay in bed with “Buck.”  Although “Buck” was appellant’s friend, he never appeared at trial and was not further identified. 

            After trial, appellant found himself in jail with “Buck’s” brother, who agreed to help find him.  Through a private investigator, “Buck,” who is actually Rodney White (or Clark), was located and signed an affidavit stating: (1) L.L. was intoxicated and sexually aggressive at the party, (2) L.L. never told him, nor had he seen, that she had been sexually assaulted, (3) he did not see any injuries on L.L., and (4) he did not knock on the bedroom door.  Appellant argues that this newly discovered evidence entitles him to a new trial. 

            A new trial based upon newly discovered evidence may be granted when a defendant proves:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result. 


Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (citations omitted).

            The state argues that the Rainer factors do not apply because appellant is essentially arguing that L.L. gave false testimony.  We disagree.  When a witness who did not testify at trial submits an affidavit stating facts contrary to the trial testimony of others, the supreme court has applied the Rainer factors.  See Sutherlin v. State, 574 N.W.2d 428, 433-34. 

            We conclude that, although “Buck’s” testimony was not known to appellant at the time of trial, appellant knew about “Buck” himself prior to trial and could have, with due diligence, discovered his whereabouts and obtained his statement before trial.  Further, “Buck’s” testimony was largely impeaching, consisting of an account of the evening’s events contradicting L.L.’s testimony.  Finally, we conclude that appellant has not shown that “Buck’s” testimony would likely have produced an acquittal or a more favorable result.  The state presented pictures of L.L.’s injuries, the baseball bat, and blood and semen evidence.  Based on the evidence before the jury, it is inconclusive that “Buck”’s testimony impeaching L.L.’s account as to “Buck”’s peripheral role in the events of the evening would have altered the jury’s decision.

Appellant argues in the alternative that he was denied his Sixth Amendment constitutional right to counsel because his trial attorney failed to use due diligence to find “Buck.” This argument is contradicted by appellant’s claim that “the prosecutor, police, and defense [were] unable to locate Buck.”

2.      Conviction of lesser-included offense

            Appellant argues that his conviction for second-degree assault with a dangerous weapon must be vacated because it is a lesser-included offense of first-degree criminal sexual conduct with a dangerous weapon.    

            A defendant may not be convicted of both a greater offense and a crime necessarily proved by proof of the greater offense.  Minn. Stat. § 609.04, subd. 1(4) (2004). We conclude that appellant’s conviction of second-degree assault must be vacated because, on these facts, it is a lesser-included offense of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(d). 

            In State v. Hayes, the Minnesota Supreme Court held that an assault with a dangerous weapon is a lesser-included offense of criminal sexual conduct as committed by a person armed with a dangerous weapon.  304 N.W.2d 882, 883 (Minn. 1981).   

            Appellant was charged and convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(d), which requires that the actor be armed with a dangerous weapon.  In determining whether an offense is a necessarily included offense, a reviewing court looks at the elements of the offense.  State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986).  If it is impossible to commit the greater offense without also committing the lesser offense, the lesser offense is necessarily included in the greater offense. Id.  Use of a dangerous weapon is an element of the second-degree assault offense of which appellant was convicted.  See Minn. Stat. § 609.222, subd. 1 (2004).  We conclude the trial court improperly adjudicated appellant guilty and sentenced him for second-degree assault.  We vacate that conviction, and remand to the district court to conform to appellant’s criminal history record.

3.      Sentencing-jury procedure

Appellant argues that the trial court exceeded its authority in implementing a separate, bifurcated-trial procedure for the jury to determine whether there were aggravating factors to support a departure from the presumptive sentence.  This court reviews a constitutional issue presented by the application of Blakely de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

In Blakely v. Washington, the United States Supreme Court held that a defendant’s Sixth Amendment rights were violated where the court imposed an enhanced sentence under Washington’s sentencing guidelines based solely on facts found by the court, rather than on facts found by a jury beyond a reasonable doubt.  542 U.S. 296, 304-05, 124 S. Ct. 2531, 2537-38 (2004).  The Court held that any fact used to enhance a defendant’s sentence beyond the statutory maximum, must be admitted by the defendant or proved to a jury beyond a reasonable doubt.  Id.

After the jury returned its verdict finding appellant guilty of the charges, the trial court convened a separate hearing at which evidence regarding the aggravating factors of particular cruelty and abuse of a position of trust were presented to the jury.  The court then submitted a special-verdict form to the jury, in which it found that both aggravating factors were present.

Appellant argues that after Blakely and State v. Shattuck, 704 N.W.2d 131 (Minn. 2005), the procedures for imposing upward departures under the Minnesota Sentencing Guidelines were rendered unconstitutional, and, therefore, the trial court was required to sentence him to the presumptive sentence.  He argues that by “taking upon itself to create a new procedure [to depart upward from the presumptive sentence] before the legislature or the state supreme court had acted” the trial court erred.

          In Shattuck, the supreme court stated:

While this court has the [inherent] authority to establish procedures to apply the requirements of Apprendiand Blakely to sentencing in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.  It is the legislature that created the Sentencing Guidelines system and retains authority over its development.  For us to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines and sentencing statutes would require rewriting them, something our severance jurisprudence does not permit. 

704 N.W.2d at 148 (citation omitted).

The supreme court revisited the issue of inherent authority to implement procedures to vindicate the Blakely jury-trial right in State v. Barker, 705 N.W.2d 768, 776 (Minn. 2005).  In Barker, which involved a sentence enhancement under Minn. Stat. § 609.11, rather than a guidelines departure,the supreme court stated, “we find no legislative authorization to impanel a resentencing jury for the purpose of imposing an upward departure from the presumptive sentence . . . .”  Id. at 776.  The court also stated, “In Shattuck, we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury.”  Id. at 775 (emphasis added).

Here, the issue is not whether a district court should impanel a sentencing jury, or whether an appellate court should direct it to do so.  The trial court here merely submitted the sentencing questions to an already-impaneled jury in a bifurcated second-stage of the trial.  This court has affirmed the district court’s inherent authority to do so in an unpublished opinion.  State v. Chauvin, No. A05-726 (Minn. App. Nov. 8, 2005), review granted (Minn. Jan. 17, 2006).

There are divergent views regarding the district court’s inherent authority to implement Blakely remedies, whether by impaneling sentencing juries or bifurcating trials to allow jury sentencing determinations.  See State v. Hobbs, 713 N.W.2d 884, 890 (Minn. App. May 16, 2006) (holding the district court lacked inherent authority to submit dangerous-offender enhancement factor to a jury); cf. State v. Lushenko, ___ N.W.2d ___, No. A05-819 (Minn. App. May 30, 2006) (holding district court had inherent authority to submit career-offender enhancement factor to jury in a bifurcated trial).  We believe that the view presented in Chauvin, and approved in Lushenko, properly recognizes the “district court’s ability to respond to a constitutional holding mandating a particular and familiar procedure – a jury trial” without waiting for legislative enactment.

We believe that the trial court, in imposing an upward departure within the statutory sentencing range, was sentencing within the limits set by the legislature, and was therefore exercising a purely judicial function.  See generally State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982) (holding that imposition of sentence within limits prescribed by the legislature is purely a judicial function).  In exercising that judicial function, the court had inherent authority to submit a sentencing question to the jury in a bifurcated proceeding.  See Shattuck, 704 N.W.2d at 147 (“the court’s inherent authority extends only to its unique judicial functions”).  We note that the Minnesota Supreme Court has recently implied that the district court has authority to bifurcate a trial in order to try separately an element whose proof involves evidence, such as a prior conviction, that is highly prejudicial to a defendant.  See State v. Laine, ___ N.W.2d ___, No. A03-1551 (Minn. June 8, 2006).  We conclude that the trial court had inherent authority to submit the sentencing question to the jury.  Accordingly, we affirm appellant’s sentence for first-degree-criminal-sexual conduct.

            Affirmed in part, reversed in part, and remanded.