This opinion will be unpublished and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

A04-841

 

State of Minnesota,

Respondent,

 

vs.

 

Baron Montero Jones,

Appellant.

 

Filed May 10, 2005

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. 03071227

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges the jury’s verdict finding him guilty of third-degree criminal sexual conduct and first-degree burglary.  Because we conclude that there was sufficient evidence for the jury to reasonably find appellant guilty of the charges, and because the district court did not commit error when it denied appellant’s motion to suppress evidence, we affirm.

FACTS

On October 3, 2003, R.A.G., the victim, attended a party at a friend’s house and consumed an inordinate amount of alcohol.  Around midnight, R.A.G. got in a car and accompanied two friends to Augsburg College in Minneapolis.  The trio entered another friend’s on-campus apartment, where they were planning to spend the night.  After a few minutes, a male named George was permitted inside and sat on the couch next to R.A.G.  Periodically, R.A.G.’s friends would leave the room and visit friends in a nearby room, but R.A.G. was described as intoxicated and unaware of what was going on.  During the evening, R.A.G.’s friends saw appellant Baron Jones sitting on a futon across from George and R.A.G., and later observed George and R.A.G. kissing.

            After approximately 20 minutes, the friends decided that R.A.G. should go to bed, and they told George and appellant to leave.  The friends helped R.A.G., still fully clothed, walk into the bedroom and climb into a bed.  After several other visits to check on R.A.G.’s condition, a friend attempted to check on her again but found the door locked and observed two males standing in the hallway outside the room. A security guard was eventually summoned and opened the door. 

            Once inside the apartment, one friend opened the bedroom door, turned on the light, and saw appellant on top of R.A.G.  One friend observed that R.A.G. was motionless and that her eyes were shut.  After appellant left the room, R.A.G.’s friend shook her to wake her up and noted that R.A.G. “definitely looked passed out.”

            Josef Garcia, a security guard employed by Augsburg, detained appellant in the hallway and recorded their conversation on a digital voice recorder.  Appellant claimed that he entered the apartment with a white male he referred to as “Jordan,” but that neither man had a sexual encounter with R.A.G., and “Jordan” left before R.A.G.’s friends entered the apartment.  Finally, one of the males in the hallway stated that appellant was in the room with R.A.G. for approximately 15 minutes and that no one else came out of the apartment before R.A.G.’s friends started knocking on the door.

            During an interview with a Minneapolis police officer, hours after the alleged offense, appellant stated that after “Jordan” left the apartment, appellant locked the door, made sexual gestures to R.A.G., and started to kiss her after she said “no” and “not yet.”  Appellant eventually admitted that some penetration occurred but added that R.A.G. was awake the entire duration of the encounter.  R.A.G. testified that she remembered little about the entire evening but added that she heard a man’s voice while she was sleeping, the man’s voice was of a “sexual nature,” and she could not respond. 

            Before trial, appellant made an omnibus motion, denied by the district court, to suppress statements made to Garcia because Garcia acted in the capacity of a police officer and did not supply appellant with a Miranda warning.  Appellant also sought to suppress evidence found during a search by Garcia, but the district court denied this motion as well.  After a jury trial, appellant was found guilty of three counts of criminal sexual conduct and one count of first-degree burglary.  Minn. Stat. §§ 609.344, .582 (2002).  The district court sentenced appellant to 72 months in prison.  This appeal follows.

D E C I S I O N

 

            Appellant argues that he was deprived of his Fourth Amendment right not to be subjected to an unreasonable search and his Fifth Amendment right against self-incrimination when Garcia interrogated him without supplying a Miranda warning.  The state argues that the Fourth and Fifth Amendments are inapplicable because Garcia was a private party.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

              The dictates of the Fourth and Fifth Amendments only apply to state actors.  United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994).  Appellant’s statements and evidence were obtained pursuant to a citizen’s arrest by an employee of Augsburg College without the knowledge or acquiescence of the state.  Under these circumstances, the Fourth and Fifth Amendments do not apply.  See State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003) (“If the government does not know of and acquiesce in the search, the search cannot be attributed to the government and the inquiry ends.”); State v. LaRose, 286 Minn. 517, 518, 174 N.W.2d 247, 248 (1970) (“We hold that the exclusionary rule adopted in the Miranda case has no application with respect to a citizen’s arrest[.]”).  The district court did not commit error when it denied appellant’s motion to suppress evidence. 

            Appellant next argues that the evidence was insufficient as a matter of law to convict him of third-degree criminal sexual conduct and first-degree burglary.  In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Appellant was convicted of third-degree criminal sexual conduct under Minn. Stat. § 609.344 (2002), which at the time of the alleged offense prohibited sexual penetration if appellant knew or had reason to know that R.A.G. was “mentally impaired, mentally incapacitated, or physically helpless[.]”  Minn. Stat. § 609.344, subd. 1(d).[1]  In its closing argument, the state contended that R.A.G. was “physically helpless” at the time of the penetration.  State law categorized a person as physically helpless if the person was “(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 [was] known or reasonably should have been known to the actor.”  Minn. Stat. § 609.341, subd. 9 (2002).  A person determined to be physically helpless cannot consent to sexual activity.  Id., subd. 4(b) (2002).  

            The state first argues that the evidence was sufficient for the jury to find that R.A.G. was physically helpless, either because she was asleep or because she was unable to communicate nonconsent.  Appellant argues that there is insufficient evidence to show that R.A.G. was asleep at the time of the penetration, because she smiled and originally resisted his overtures, which proved that she was awake.  Consent is defined as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.”  Id., subd. 4(a).   

R.A.G.’s friends testified that they stayed in the same room until R.A.G. fell asleep and found her asleep on the three occasions when they had checked on her.  Additionally, upon finding appellant on top of R.A.G., one friend testified that R.A.G. was just lying on the bed and “[h]er eyes were pretty much just shut.”  The same friend testified that she had to shake R.A.G. to wake her up.  Another friend added that R.A.G. made no movement to cover her naked body after appellant was discovered.  R.A.G. testified that she could vaguely recall hearing a man’s voice using sexual language during the encounter as she was sleeping.  Appellant also stated that R.A.G. was “kind of” asleep during the incident. 

There was also sufficient evidence for the jury to reasonably conclude that R.A.G. was incapable of giving consent:  she was described as being very drunk, “not really aware of what was going on,” and she testified that she was unable to respond to appellant’s voice as he lay over her in the bed.  Given the state of the record, the jury could have reasonably concluded that R.A.G. was asleep, or otherwise unable to communicate nonconsent, and thus was physically helpless when appellant penetrated her, which is a necessary factor in a third-degree criminal sexual conduct prosecution.

            The other statutory factor mandates that appellant knew or had reason to know that R.A.G. was physically helpless at the time of the penetration.  Minn. Stat. § 609.344, subd. 1(d).  There was sufficient evidence presented at trial for the jury to find that appellant had such awareness.  Before R.A.G. was put to bed, appellant had an opportunity to observe R.A.G. and her state of intoxication.  Appellant told Garcia that he knew R.A.G. was “tipsy” when he originally saw her that evening, and he was aware that R.A.G. had been taken to the bathroom to see if she could vomit.  Appellant points out that R.A.G. kissed George on the couch, but that fact does not mean that the jury was foreclosed from finding that appellant should have known that R.A.G. was physically helpless at the time of the penetration.  Given that the jury makes credibility determinations in regard to the witnesses, we must assume the jury believed the state’s witnesses, as opposed to evidence presented from appellant.  See Moore, 438 N.W.2d at 108 (stating this court’s standard of review of jury verdicts).  We affirm appellant’s conviction of third-degree criminal sexual conduct.

            Appellant was also convicted of first-degree burglary, which at the time of the offense prohibited anyone from entering “a building without consent and [committing] a crime while in the building[.]”  Minn. Stat. § 609.582, subd. 1 (2002).  The burglary statute required the building to be a dwelling and a person to be present in the dwelling when the burglar entered.  Id., subd. 1(a).  Whatever consent appellant had to be in the apartment was revoked when R.A.G.’s friends told George and appellant to leave while they put R.A.G. to bed.  Additionally, one of the males in the hallway testified that appellant subsequently opened the door to the room without knocking and without asking for permission.  Further, the jury properly found appellant guilty of third-degree criminal sexual assault while in the building.  This verdict is sufficient to serve as the predicate crime required for first-degree burglary.  Finally, it was undisputed that the room where the offense occurred was a dwelling and R.A.G. was present in the bedroom when appellant entered the apartment.  We affirm the jury’s verdict finding Jones guilty of first-degree burglary. 

            Affirmed.