This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-145

State of Minnesota,

Respondent,

vs.

Robb Allen Taylor,

Appellant.

Filed October 8, 1996

Affirmed

Peterson, Judge

Anoka County District Court

File No. K39412231

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant Robb Allen Taylor challenges the sufficiency of the evidence to support his conviction for fourth-degree criminal sexual conduct. He also argues that the district court erred in instructing the jury and in departing dispositionally from the presumptive guidelines sentence. We affirm.

FACTS

In July 1994, Taylor and the victim attended a party at the home of T.G. and D.G. The victim testified that Taylor, whom she had never met before the party, was making unwanted advances toward her and a friend of hers, S.A. The victim admitted getting very drunk at the party.

The victim testified that at about 3:00 a.m., she passed out on a couch in the living room. T.L. testified that as the victim dozed off, Taylor sat down by her and pulled her toward him. When T.L. told Taylor to leave the victim alone, Taylor told T.L. to mind his own business. D.G. and T.L. then carried the victim into an upstairs bedroom to get her away from Taylor.

T.L. testified that the victim was drunk but coherent when he and D.G. moved her upstairs. The victim recalled D.G. and T.L. carrying her upstairs to the bedroom. She testified that she passed out again as soon as she lay down in bed.

S.A. testified that at about 6:15 a.m., she went upstairs to wake the victim. S.A. shook the victim very hard, but the victim did not wake up. S.A. testified that the victim was alone in bed.

About a half hour later, T.L. went into the bedroom where the victim was sleeping and saw Taylor in bed with the victim. T.L. testified that when he pulled down the covers on the bed, Taylor was wearing no clothes and the victim was wearing only a bikini top, which was up around her head. T.G. testified that Taylor's pants were around his ankles. D.G. testified that the victim had been wearing a bathing suit with a shirt over it and a towel around her waist when he and T.L. carried her upstairs. T.L. testified that Taylor's genitals were touching the victim's genitals and that Taylor's chest was touching the victim's breasts.

T.L. testified that Taylor woke up and initially apologized, but later said the victim "wanted it" and "deserved it." T.L. testified that he and D.G. screamed and yelled at Taylor in the bedroom after he woke up. D.G. testified that the victim remained asleep during the confrontation with Taylor and did not wake up until after D.G. shook her for a couple of minutes.

When the victim woke up, she asked what was going on. D.G. testified that when he told her that she was naked, she did not believe him until she looked under the covers. D.G. testified that T.G. told the victim that Taylor had been in the room with her, and the victim started to cry. The victim testified that she did not recall anything that had happened in the bedroom before D.G. woke her up.

A jury found Taylor guilty of fourth-degree criminal sexual conduct. The district court sentenced Taylor to an executed term of 30 months, a dispositional departure from the presumptive term. Taylor appeals from his conviction and sentence.

D E C I S I O N

1. When the sufficiency of the evidence is challenged, this court must review

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 court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will affirm a conviction based on circumstantial evidence

when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Minn. Stat. § 609.345, subd. 1 (Supp. 1993) provides:

A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if any of the following circumstances exists:

* * * *

(d) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

A person who is "asleep or not conscious" is "physically helpless." Minn. Stat. § 609.341, subd. 9(a) (1992). "Sexual contact" is defined as intentionally touching the complainant's intimate parts "without the complainant's consent" and "with sexual or aggressive intent." Minn. Stat. § 609.341, subd. 11(a)(i) (1992).

Taylor argues that the state failed to prove the victim was asleep or not conscious when the sexual encounter occurred. We disagree. The evidence showed the victim passed out on the couch at about 3:00 a.m., woke up briefly when T.L. and D.G. carried her upstairs, and then passed out again immediately when she lay down in bed. At about 6:15 a.m., the victim remained asleep when S.A. tried to wake her by shaking her very hard. The victim was alone in bed at that time. About a half hour later, T.L found Taylor in bed with her. She was asleep and did not wake up during a loud confrontation among Taylor, T.L., and D.G. The victim did not wake up until D.G. had shaken her for a couple of minutes. The only reasonable inference from this evidence is that the victim was asleep when Taylor got into bed with her and the sexual encounter occurred. We also note that after the victim woke up, she did not believe that her clothes were off until she looked under the covers. This evidence that her clothes were removed without her knowledge also indicates the victim was asleep when the sexual encounter occurred.

Taylor also argues that the state failed to prove lack of consent. See Minn. Stat. § 609.341, subd. 11(a) (defining "sexual contact" as specified sexual acts "committed without the complainant's consent"). Evidence that the victim was asleep when the sexual encounter occurred was sufficient to prove lack of consent. See State v. Perkins, 395 N.W.2d 729, 730-31 (Minn. App. 1986) (victim's testimony that she woke up and found defendant sexually assaulting her was sufficient to prove sexual contact). The evidence was sufficient to support Taylor's conviction for fourth-degree criminal sexual conduct.

2. The district court instructed the jury that they should not draw any inferences from defendant's failure to testify. See 10 Minnesota Practice CRIMJIG 3.17 (1990) (jury instruction regarding defendant's right to not testify). Taylor argues the trial court committed reversible error by failing to obtain his consent to give the instruction.

The district court generally should allow the defendant and his attorney to decide whether CRIMJIG 3.17 will be given. State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984). The district court should obtain a defendant's consent, not just his attorney's, before giving CRIMJIG 3.17. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).

The district court did not specifically obtain Taylor's consent before giving CRIMJIG 3.17. After instructing the jury, for purposes of clarifying the record, the court asked defense counsel whether Taylor wanted the instruction, and defense counsel responded affirmatively. Although the district court did not ask Taylor personally whether he wanted the instruction, the record indicates that Taylor himself, not just his attorney, wanted the instruction. We therefore conclude that the district court did not err in giving CRIMJIG 3.17.

Even if the district court erred by giving CRIMJIG 3.17 without obtaining permission from Taylor himself, the error does not constitute reversible error. See Thompson, 430 N.W.2d at 153 (affirming conviction when record was silent on whether defendant and his attorney wanted CRIMJIG 3.17). When the district court errs in instructing the jury, the reviewing court must

examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.

State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989).

If the reviewing court concludes the error

might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached, defendant must be awarded a new trial.

Id. at 481.

There was considerable evidence of Taylor's guilt. The witnesses gave consistent accounts of what occurred during the party and after the victim went to bed. There was evidence that the victim had rejected Taylor's advances during the party. The evidence that the victim was asleep when the sexual contact occurred was extremely strong. We conclude beyond a reasonable doubt that the alleged error in instructing the jury did not have a significant impact on the verdict and, therefore, Taylor is not entitled to a new trial on this ground.

3. The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). When deciding whether to depart dispositionally, the district court may consider a defendant's unamenability to probation. State v. Ott, 341 N.W.2d 883, 884 (Minn. 1984). "The court may consider a defendant's prior failures at treatment or unwillingness to admit the existence of a problem." State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984).

Two professionals who evaluated Taylor concluded he did not take responsibility for the current offense, was not a good candidate for treatment, and was unamenable to probation. Taylor's prior history of treatment failures and probation violations supports their conclusions. The district court's decision to depart dispositionally from the guidelines in sentencing Taylor was not an abuse of discretion.

Affirmed.