This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Robert John Healy,


Filed September 19, 2006

Reversed and remanded

Minge, Judge


Douglas County District Court

File No. KX04409



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


Christopher Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)


Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)


            Considered and decided by Minge, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court’s denial of his request for a lesser-included-offense instruction and the sufficiency of the evidence supporting his conviction of third-degree criminal sexual conduct.  Because the evidence is sufficient to support a conviction of third-degree criminal sexual conduct, we affirm that determination.  However, because as charged in this case, fifth-degree criminal sexual conduct is a lesser included offense of third-degree criminal sexual conduct, and because appellant was entitled to have the jury consider the lesser charge, we reverse and remand.


            M.R., the complainant, alleges that she was pressured by Mitchell Nelson to smoke marijuana in his apartment; that she became dizzy and nauseous and drifted in and out of consciousness; that she was vaguely aware of being sexually assaulted by Nelson and two other men who were present: appellant Robert John Healy and Shaun Hawkenson; that she protested the assaults when she was conscious but could not physically resist; that when she regained consciousness, she gathered her belongings and left the apartment; and that although she doubted she should be driving because she was not yet stable, she drove to her girlfriend’s house. 

            Appellant and Nelson invoked their right to remain silent and did not testify at trial.  Hawkenson, however, testified that after smoking marijuana, M.R. was coherent and conscious; that she and appellant were flirting with each other; and that their activity escalated to an extended, voluntary sexual encounter involving all three men.

            M.R. testified that after she arrived at her girlfriend’s house she told her what had happened.  Later that day, M.R. told her boyfriend and agreed to get a medical exam and discuss the incident with police.  Alexandria police officer Scott Kent testified that M.R. was distraught and crying during his interview of her that day.  M.R.’s girlfriend and boyfriend each testified that M.R. was very upset and crying when she confided what had happened, and that since the incident her demeanor has dramatically changed.         

            Appellant was charged with and convicted of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(d) (2002).  Codefendant Nelson was also convicted of third-degree criminal sexual conduct, and codefendant Hawkenson was convicted of fourth-degree criminal sexual conduct.  Appellant was sentenced to 48 months, the presumptive guidelines sentence.  At trial, appellant’s counsel requested a jury instruction on fifth-degree criminal sexual conduct, arguing that it is a lesser-included offense of third-degree criminal sexual conduct.  The district court denied the request.  This appeal followed.



            The first issue is whether the district court abused its discretion in failing to instruct the jury on fifth-degree criminal sexual conduct, as a lesser-included offense of third-degree criminal sexual conduct.  See State v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005).[1]  Denial of a requested instruction on a lesser-included offense is an abuse of discretion when: “1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.”  Id. at 595.  Requiring the district court to give a requested lesser-included instruction in these circumstances “safeguards against juries who may be improperly predisposed to find defendants guilty” of the greater offense if the jury has no alternative to consider.  Stiles v. State, 664 N.W.2d 315, 319 (Minn. 2003).  Thus, “where the evidence warrants a lesser-included-offense instruction, the trial court must give it.”  Dahlin, 695 N.W.2d at 597.

A.        Definitional Analysis

            First, we must determine whether fifth-degree criminal sexual conduct is a lesser-included offense of third-degree criminal sexual conduct.  Dahlin, 695 N.W.2d at 595.  To make such a determination, this court looks to the statutory elements of the relevant offense rather than scrutinizing the facts of the case.  State v. Coleman, 373 N.W.2d 777, 780-81 (Minn. 1985).  “[P]roof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury may make [a] distinction.”  State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).  A lesser-included offense may be a lesser degree of the same crime or a crime necessarily proven if the crime charged were proved.  Minn. Stat. § 609.04, subd. 1(1), (4) (2002).

            Criminal sexual conduct in the third-degree includes sexual penetration of an individual who “the actor knows or has reason to know . . . is mentally impaired, mentally incapacitated, or physically helpless.”  Minn. Stat. § 609.344, subd. 1(d) (2002).   “Sexual penetration” means penetration of the complainant without the complainant’s consent.  Minn. Stat. § 609.341, subd. 12 (2002).  The statute defines “physically helpless” to mean “that a person is (a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.”  Id., subd. 9 (2002).

            Conversely, fifth-degree criminal sexual conduct merely requires evidence that the defendant engaged in “nonconsensual sexual contact.”  Minn. Stat. § 609.3451, subd. 1 (2002). 

            Subd. 4.  (a)  “Consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.  Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.


            (b)  A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.


Minn. Stat. § 609.341, subd. 4(a), (b) (2002).  “Sexual contact” includes acts committed with sexual or aggressive intent and without the complainant’s consent, including “the intentional touching by the actor of the complainant’s intimate parts” or “the touching of the clothing covering the immediate area of the intimate parts.”  Minn. Stat. §§ 609.341, subd. 11(a) (2002); .3451, subd. (1).  By definition “sexual penetration” constitutes one type of “nonconsensual sexual contact.”  See Minn. Stat. § 609.341, subds. 11(a), 12. 

            The district court determined that fifth-degree criminal sexual conduct is not a lesser-included offense of the type of third-degree sexual misconduct with which appellant was charged.  The district court reasoned that consent is a defense to fifth-degree sexual conduct while consent would not be a defense to a third-degree charge involving physical helplessness.  However, “a person who is . . . physically helpless . . . cannot consent to a sexual act.”  Id., subd. 4(b) (defining consent).  Furthermore, as already stated, the statutory definition of sexual penetration provides that it is a nonconsensual act.  Id., subd. 12.  Although possibly distinct in some setting, when physical helplessness is at issue, criminal sexual conduct in the third-degree presumably includes fifth-degree criminal sexual conduct.  Thus, we conclude fifth-degree criminal sexual conduct is a lesser-included offense of third-degree criminal sexual conduct.

B.        Acquittal of third-degree criminal sexual conduct and conviction of fifth-degree.

            Because of the nature of the evidence and testimony on the record in this case, for ease of discussion we will analyze the second and third Dahlin factors together.  Because we find that fifth-degree criminal sexual conduct is a lesser-included offense of third-degree criminal sexual conduct, we must consider whether the jury could rationally have convicted appellant of fifth-degree criminal sexual conduct while acquitting him of third-degree criminal sexual conduct.  See Dahlin, 695 N.W.2d at 595.  In undertaking this analysis of the second and third factors, the district court does not weigh the sufficiency of the evidence.  Rather it considers whether a jury could acquit on the greater or could convict of the lesser offense.  See id. at 599.  In our review, the disputed evidence adduced at trial is viewed in the light most favorable to the party seeking the instruction.  Id. at 598.

            To acquit appellant of third-degree criminal sexual conduct, the jury could focus on M.R.’s testimony that she could initially say “stop,” Hawkenson’s testimony that M.R. was a willing participant, and M.R.’s ability to drive herself to her friend’s house after the incident.  If viewed most favorably to appellant, such evidence could allow a jury to determine that M.R. was not physically helpless and that the sexual penetration was not a result of force or coercion.  In that analysis, the jury could acquit appellant of third-degree criminal sexual conduct. 

            Recall that consent requires “a freely given present agreement to perform a particular sexual act . . . .”  Minn. Stat. § 609.341, subd. 4(a).  The lack of force or coercion does not automatically require a finding of “consent.”  A person can be guilty of fifth-degree, nonconsensual sexual contact even though there is not force or coercion and the other person is not physically helpless.  That is a key distinction between the fifth-degree crime and the more serious sexual crimes.  Thus, here the jury could decide that M.R. was not physically helpless, that intercourse was not a result of force or coercion, that under the circumstances, M.R. did not “consent” to the intercourse or other sexual contact, but that she unwillingly acceded to the contact.  In this analysis a jury could convict appellant of fifth-degree criminal sexual contact.  The prosecution in this case focuses on M.R.’s claim of physical helplessness.  Although this focus may have obscured the possibility of a conviction of a lesser charge, we note that the state conceded that it could have charged fifth-degree criminal sexual conduct based on these facts.       

            Failure to give a requested lesser-included-offense instruction that is warranted by the evidence is grounds for reversal only if it subjects the defendant to prejudice.  Dahlin, 695 N.W.2d at 597.  Generally, a defendant is prejudiced if the jury is instructed on a single offense, when a lesser-included offense is available.  If the jury is “given what amounts to a Hobson’s choice between the higher offense or nothing, . . .  a court cannot say that the availability of a third option–convicting the defendant of [a merited, but uninstructed lesser-included offense]–could not have resulted in a different verdict.”  State v. Harris, 713 N.W.2d 844, 850-51 (Minn. 2006) (quotations omitted). 

            Here, the jury was only allowed to consider the single instruction of third-degree criminal sexual conduct with respect to the charges against appellant.  Therefore, the jury was faced with the choice of either convicting appellant of that crime, or acquitting him.  This is similar to the “Hobson’s choice” maligned in HarrisSee also Dahlin, 695 N.W.2d at 597 (“[T]he denial of lesser-included offense instructions may lead a jury to resolve any doubts in favor of conviction.”).  Because we have determined that the jury could rationally have convicted appellant of fifth-degree criminal sexual conduct and acquitted appellant of third-degree criminal sexual conduct, we find that appellant was prejudiced by the district court’s failure to give such an instruction.  Thus, we conclude that the district court abused its discretion, and reverse and remand.


            Although we reverse appellant’s conviction, because we remand for retrial with the lesser-included-offense instruction, we consider appellant’s contention that there is insufficient evidence to support his conviction of third-degree criminal sexual conduct.  When an appellate court considers a claim challenging the sufficiency of the evidence, the court’s “review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This includes an analysis of both the evidence presented and the inferences the jury could reasonably draw from that evidence.  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  The reviewing court shall assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

            The evidence adduced at trial regarding the events of March 24, 2004, largely consisted of the conflicting testimony offered by M.R. and Hawkenson.  “The fundamental rule is that ‘assessment of witness credibility is a jury function.’”  State v. Wembley, 712 N.W.2d 783, 791 (Minn. App. 2006) (quoting State v. Reese, 692 N.W.2d 736, 741 (Minn. 2005)).  The credibility of witnesses is “peculiarly within the competence of the jury,” especially in criminal cases, because the jury’s “common experience affords sufficient basis for assessment of credibility.”  Id. (quotation omitted).  Similarly, the jury has the exclusive role of resolving conflicting testimony.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984) (stating that “[t]he resolution of conflicting testimony is the exclusive function of the jury because it has the opportunity to observe the demeanor of witnesses and weigh their credibility”); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

            Appellant argues that the evidence of M.R.’s physical helplessness was insufficient to support his conviction of third-degree criminal sexual conduct.  Appellant premises this argument on Hawkenson’s account that M.R. was an active participant in the incident, M.R.’s own testimony that she was awake for portions of the incident, and M.R.’s ability to drive herself to her best friend’s house after the incident.

            When looking at the sufficiency of the evidence, for a conviction of third-degree criminal sexual conduct involving physical helplessness, the key determination is whether the complainant “felt helpless to stop the attack.”  State v. Griffith, 480 N.W.2d 347, 350 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  In Griffith, the complainant testified that although she was awake during the attack and could feel appellant penetrate her, she was unable to voice her nonconsent or withdraw from the attack because she was heavily intoxicated.  Id. at 349-50.  This court reasoned that there was sufficient evidence because “[t]he jury could have inferred that this ‘helplessness’ was due to her ‘physical condition’ – drunkenness, fatigue, sickness – of which the appellant was aware.”  Id. at 350.  Therefore, even if M.R. was conscious for part of the incident, this does not necessarily contradict her claim that she was physically helpless, as defined by the statute.

            There are circumstantial factors that the jury could have relied upon in giving M.R.’s testimony more weight than Hawkenson’s.  First, M.R. repeated her account of the incident immediately after it occurred, both to her best friend and her boyfriend.  See State v. Gamez, 494 N.W.2d 84, 87 (Minn. App. 1992) (stating that consistently repeating the same account corroborates the victim’s testimony), review denied (Minn. Feb. 23, 1993); State v. Lau, 409 N.W.2d 275, 277 (Minn. App. 1987) (same).  Both testified at trial regarding what M.R. told them, which mirrored M.R.’s own testimony.  Moreover, she promptly reported the incident to the police at the insistence of her boyfriend, despite initial concerns that she might be charged for using marijuana.  See State v. Gardner, 328 N.W.2d 159, 160 (Minn. 1983) (noting that prompt reporting constitutes corroborative evidence).

            In addition, M.R.’s best friend and boyfriend noted her fragile emotional state, as did the police officer who interviewed her later in the day.  See State v. Kruse, 302 N.W.2d 29, 30 (Minn.1981) (stating that testimony about victim’s emotional state corroborated victim’s testimony that assault had taken place); State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (same), review denied (Minn. Mar. 16, 1990).  Both testified that M.R. was crying and upset when she met them to discuss what had happened.  Both also testified that M.R.’s demeanor has changed significantly since the incident.  Finally, Officer Kent testified that M.R. was distraught when he conducted his initial interview.

            The jury evaluated all the evidence and apparently concluded that based on M.R.’s testimony, she was physically helpless and not an active participant.  The jury apparently did not believe Hawkenson’s testimony that she was an active, voluntary participant.  Based on the record, we conclude that the jury, after making credibility determinations, could have reasonably found that appellant is guilty of third-degree criminal sexual conduct.  We also conclude that that third-degree criminal sexual conduct charge can be presented to the jury on a retrial.

            Reversed and remanded.

[1] Dahlin was decided a few months after the jury rendered its verdict in this case.  The supreme court has applied the analytical framework in Dahlin to cases in which the conviction was entered before the supreme court issued its decision.  See State v. Penkaty, 708 N.W.2d 185, 195 (Minn. 2006).  We therefore apply it to this case.