This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Shaun Paul Hawkenson,
Filed September 26, 2006
Toussaint, Chief Judge
Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Shaun Paul Hawkenson challenges his conviction of fourth-degree criminal sexual conduct on the ground that the district court erred by failing to instruct the jury on the lesser-included offense of fifth-degree criminal sexual conduct. Because we conclude that the failure to give that instruction was an error prejudicial to appellant, we reverse and remand.
D E C I S I O N
On March 24, 2004, M.R. was sexually assaulted by Mitchell Nelson, Robert Healy, and appellant. A sexual-assault examination excluded appellant as a source of the semen found in M.R.
The district court instructed the jury to consider third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(d) (2002) (penetration of physically helpless victim), with regard to all three men and fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(d) (2002) (sexual contact with physically helpless victim), only with regard to appellant. But the district court declined appellant’s request for a jury instruction on fifth-degree criminal sexual conduct under Minn. Stat. § 609.3451, subd. 1(1) (2002) (engaging in nonconsensual sexual contact).
Thus, the jury had three options with regard to appellant: finding him guilty of third-degree criminal sexual conduct; finding him guilty of fourth-degree criminal sexual conduct; or finding him not guilty. The jury found him guilty of fourth-degree criminal sexual conduct.
that the district court erred in not giving the jury another option by
instructing it on fifth-degree criminal sexual conduct as a lesser-included
offense. Trial courts must give a
lesser-included offense instruction if three criteria are met. Stiles
v. State, 664 N.W.2d 315, 319 (
Fourth-degree criminal sexual conduct includes engaging in sexual contact with one whom the perpetrator knows or has reason to know is physically helpless. Minn. Stat. § 609.345, subd. 1(d). One is “physically helpless” if asleep or unconscious; or unable to withhold or withdraw consent because of a physical condition; or unable to communicate nonconsent, and the condition is known or should be known to the perpetrator. Minn. Stat. § 609.341, subd. 9 (2002). One who is “physically helpless” cannot consent to a sexual act. Minn. Stat. § 609.341, subd. 4(b) (2002). Fifth-degree criminal sexual conduct includes “engag[ing] in nonconsensual sexual contact.” Minn. Stat. § 609.3451, subd. 1(1).
Both fourth- and fifth-degree criminal sexual conduct prohibit sexual contact, the former with a “physically helpless” person, Minn. Stat. § 609.345, subd. 1(d), and the latter without consent, Minn. Stat. 609.3451, subd. 1(1). Because the definition of “physically helpless” includes one who is unable to withhold, withdraw, or communicate consent, if it is proved that appellant engaged in sexual contact with a physically helpless person, it is also proved that he engaged in nonconsensual sexual contact. Thus, fifth-degree criminal sexual conduct, i.e., nonconsensual sexual contact, is a lesser-included offense of fourth-degree criminal sexual conduct, i.e., sexual contact with a person who the actor knows or should know is physically helpless.
now address whether the other two criteria for requiring a lesser-included
offense instruction are met. They are
whether the evidence provides a rational basis both for acquitting the defendant
of the offense charged and for convicting the defendant on the lesser-included
offense. Stiles, 664 N.W.2d at 319. In deciding whether to instruct on a
lesser-included offense, the district court does not determine the weight and
credibility of the evidence; that determination is the jury’s prerogative. State
v. Daniels, 361 N.W.2d 819, 826 (
Appellant testified that M.R. was not physically helpless, that she seemed to be enjoying his activity, that he maintained eye contact with her, and that she was alert throughout the time they were together. That testimony provides a rational basis for acquitting appellant of the fourth-degree offense of sexual contact with a physically helpless person. Appellant and M.R. both testified that he rubbed M.R.’s vaginal area. That testimony provides a rational basis for convicting appellant of the fifth-degree offense of nonconsensual sexual contact. Thus, the two remaining criteria for requiring a district court to instruct the jury on a lesser-included offense are met.
But failure to
give a lesser-included offense instruction is a ground for reversal only if the
defendant is prejudiced by the failure. State
v. Shepherd, 477 N.W.2d 512, 516 (
Had the district
court instructed the jury on fifth-degree criminal sexual conduct, the jury
would have been told that a conviction required findings that: (1) appellant
intentionally touched M.R.’s intimate parts or the clothing over the immediate
area of her intimate parts; (2) his act occurred without M.R.’s consent, i.e.,
her words or overt actions indicating a freely given present agreement to have
him engage in that touching, and (3) the touching was done with sexual or
aggressive intent. See 10
Because appellant was prejudiced, he is entitled to a reversal of his conviction and a remand for a new trial.
Reversed and remanded.
 Appellant also challenges the sufficiency of the evidence to support his conviction of fourth-degree criminal sexual conduct and the upward durational departure of his sentence. We do not address these issues because we reverse and remand.
 We note
that State v. Dahlin, 695 N.W.2d 588