This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Hakim Jamal Williams, a/k/a Merrall Lee Norton,


Filed January 12, 1999


Schumacher, Judge

Hennepin County District Court

File No. 97014463

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, John G. Westrick, Special Assistant Public Defender, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101; and

John M. Stuart, State Public Defender, Robert D. Miller, Special Assistant Public Defender, Robert D. Miller & Associates, 210 North Second Street, Suite 101, Minneapolis, MN 55401 (for appellant)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



Appellant Hakim Jamal Williams, a/k/a Merrall Lee Norton, challenges his convictions for criminal sexual conduct, attempted murder, and burglary. We conclude the district court did not commit plain error during jury selection, that sentencing for multiple offenses was not clearly erroneous, and the upward departures were not an abuse of discretion. We affirm.


A male intruder awakened C.R. in the early morning hours, threatened her with a serrated knife, and raped her anally. He then dragged C.R. into the hallway and forced her to defecate on the floor. When C.R. later ran for the door, the intruder caught and choked her. Police officers arrived at the scene and heard scratching and gurgling behind the door. When the officers entered the apartment, they found C.R. lying naked on the floor with a scarf tied "extremely tight" around her neck. Her face was purple and the rest of her body pale. C.R.'s injuries included knife wounds and burn marks on her breast, stomach, hips, knees, and hands.

The state charged Williams with first-degree attempted murder, two counts of first-degree criminal sexual conduct, two counts of first-degree burglary, and first-degree aggravated robbery. During jury selection, Williams's trial counsel raised a Batson challenge after the prosecutor exercised a peremptory challenge to strike the only minority on the panel, a young female of Native American descent. The prosecutor explained that he struck the juror because he felt she had less "life experiences" compared to the two other remaining women, and that in his experience young women are "much more biased" against sexual assault victims than older women, or men of any age. The district court found that the prosecutor had satisfactorily articulated a race-neutral reason.

The jury returned a verdict of guilty on all counts. The court imposed separate consecutive sentences for the criminal sexual conduct and attempted murder, finding that they constituted separate behavioral incidents, and a separate burglary sentence pursuant to Minn. Stat. § 609.585 (1996). The trial court sentenced Williams to 480 months for criminal sexual conduct pursuant to a patterned sex offender provision; 240 months for attempted murder, a 60-month upward departure; and 96 months for burglary, a double upward departure. Listing 15 aggravating circumstances considered in structuring the sentences, the trial court recognized that not all circumstances applied to each count and that there may be some overlap. Nevertheless, the court found there were multiple aggravating factors to justify each departure.


1. Williams contends the prosecutor's articulated reason for the challenged strike was a pretext for purposeful racial discrimination. A reviewing court ordinarily should give the trial court's findings great deference, as they largely will turn on evaluation of credibility. Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S.Ct. 1712, 1724 n.21 (1986). Hence a trial court's findings on the issue of discriminatory intent should be overturned only if clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871 (1991).

Once the opponent of the peremptory challenge makes a prima facie showing of racial discrimination, the burden of production shifts to the proponent of the strike to articulate a race-neutral explanation. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770 (1995). It is for the trial court to determine if the proponent's response is genuine and not a pretext for discrimination. State v. Everett, 472 N.W.2d 864, 868 (Minn. 1991). Here, the trial court found that the prosecutor's articulated reason was sufficiently race-neutral. We conclude the trial court did not clearly err in finding the prosecutor's concern about relative inexperience and possible bias against the victim was a genuine race-neutral reason for the peremptory strike.

2. Williams contends the prosecutor's articulated reason for the challenged strike was impermissibly gender-based. The Supreme Court has extended the holding of Batson to preclude the use of peremptory strikes on the basis of gender. See J.E.B. v. Alabama, 511 U.S. 127, 137-40, 114 S. Ct. 1419, 1425-27 (1994) (exercise of peremptory challenges in reliance on gender stereotypes ratifies and reinforces prejudicial views of relative abilities of men and women).

Because there was no objection at the time, this court will review the trial court only for plain error. See Minn. R. Crim. P. 31.02 (appellate court may consider plain errors affecting substantial rights not brought to attention of trial court). "[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights." State v. Griller, 583 N.W.2d. 736, 740 (Minn. 1998). If the three-prong test is met, we then must assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings. Id.

An error is a deviation from a legal rule. United States v. Olano, 507 U.S. 725, 732-33, 113 S. Ct. 1770, 1777 (1993). "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866. The Eighth Circuit follows "dual motivation" analysis, finding no violation of equal protection where both prohibited and non-prohibited reasons are articulated for a decision to strike. United States v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995). The trial court must decide whether "the strike would have nevertheless been exercised even if an improper factor had not motivated in part the decision to strike." Id. (citation omitted). The prosecutor here expressed a concern about the juror's lack of life experience, a gender-neutral reason, as well as his perception that female jurors were "more biased" against sexual assault victims. Although the prosecutor explained that he was "looking at the women" who remained on the panel when he concluded that the challenged juror was the least experienced, that does not make lack of life experience a gender-related distinction. We conclude the trial court's acceptance of this explanation was not plain error.

At a minimum an appellate court cannot correct an error pursuant to the plain-error rule unless the error is clear under current law. Olano, 507 U.S. at 734, 113 S. Ct. at 1777. It is not clear or obvious that the trial court was under a duty to sua sponte question whether the attempted race-neutral explanation was in fact impermissibly based on gender. "As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike." J.E.B., 511 U.S. at 144-45, 114 S. Ct. at 1429. The prosecutor exercised two other peremptory strikes on men, leaving two women on the jury. Other than his articulation of a race-neutral explanation, there is no evidence of purposeful gender discrimination.

3. Williams contends the district court erred in sentencing him for both first-degree criminal sexual conduct and first-degree attempted murder. "[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * *." Minn. Stat. § 609.035, subd. 1 (Supp. 1997). Because the question of whether two offenses were part of a single behavioral incident involves a fact determination, this court will reverse a district court's findings only where clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986); State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case, including "the singleness of purpose of the defendant and the unity of time and of place of the behavior." State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (citation omitted). The trial court determined the rape was an end in itself, for which no additional action was needed. The record supports the trial court's determination that the attempted murder took place in a separate room, at a different time, and arose out of a separate and distinct criminal objective.

4. Williams contends that the trial court abused its discretion when it departed from the presumptive sentencing guidelines. The trial court has discretion to depart from the presumptive sentence if aggravating factors are present. State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996). The appellate court will not reverse a trial court's decision to depart from the sentencing guidelines absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The departure may stand if there is adequate support for the trial court's reasons or if there is sufficient evidence in the record. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Multiple established factors support the trial court's upward departures in sentencing. Factors supporting the double upward departure of the burglary sentence include the infliction of terror and fear in C.R. by Williams and her particular vulnerability due to the fact that she was sleeping. See State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (victim vulnerable when sleeping). Factors supporting the 60-month upward departure of the attempted murder sentence are the trial court's findings of injuries suffered by the victim, gratuitous violence used, psychological injuries inflicted, physical injuries inflicted before the murder attempt began, and Williams's actions in fleeing the scene and failing to summon aid for the victim.

The trial court departed upwards on the criminal sexual conduct conviction to more than five times the presumptive sentence by imposing a 480-month sentence, the statutory maximum, pursuant to a special sentencing provision for patterned sex offenders, Minn. Stat. § 609.1352 (1996). Factors supporting this departure are the trial court's findings of vulnerability, particular cruelty, and prior felony convictions for similar offenses. Minn. Sent. Guidelines II.D.2.b.(1), (2), (3). Williams subjected C.R. to degradation and humiliation beyond what is usually associated with criminal sexual conduct. It was not disputed that the scarring injuries to her breast, abdomen, and hand are permanent, as is the psychological trauma. See State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) (degradation and psychological injury support upward departure), review denied (Minn. Apr. 13, 1992).